Jorgji v. Gonzales

United States Court of Appeals
For the First Circuit

No. 07-1571

DIMITRULLA JORGJI, PANDELI JORGJI,
and ANGJELLO JORGJI,

Petitioners,

v.

MICHAEL MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Campbell and Stahl, Senior Circuit Judges.

Gregory Marotta and Law Office of Gregory Marotta on brief for
petitioners.
Rebecca A. Niburg, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, and Jeffrey J. Bernstein, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.

January 24, 2008
 BOUDIN, Chief Judge. Pandeli and Dimitrulla Jorgji,

who are husband and wife, and their son Angjello Jorgji are

citizens of Albania. All entered the United States on tourist

visas (Pandeli in 2000 and Dimitrulla and Angjello in 2001) which

they then overstayed. Pandeli and Dimitrulla each applied for

asylum--Dimitrulla in March 2002 and Pandeli in November 2002--and

each claimed the other spouse and their son as derivatively

entitled to asylum. 8 U.S.C. § 1158(b)(3)(A) (2000); 8 C.F.R.

208.3(a) (2007).

In June 2002 the responsible agency--then the Immigration

and Naturalization Service ("INS")--began removal proceedings, 8

U.S.C. § 1227(a)(1)(B). Thereafter, successive hearings were held

at which the Jorgjis conceded removability, as they had overstayed

their visas, but requested asylum on the ground that they had

previously suffered persecution in Albania and reasonably feared

persecution should they return.

In hearings before an Immigration Judge, the Jorgjis, of

Greek ethnicity and Christian Orthodox religion, sought to show

that both Dimitrulla's and Pandeli's families were persecuted in

the past for their beliefs--Pandeli's family members largely for

their political beliefs and Dimitrulla's mainly for their faith.

Also Dimitrulla and Pandeli each said that they observed the

killing of villagers who attempted to cross the border from Albania

into Greece.

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 On August 22, 2005, the Immigration Judge denied the

Jorgjis' asylum applications, finding that the applications were

untimely under a statutory requirement that asylum applications be

filed within one year of the applicant's entry into the United

States. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(A).

Alternatively, the IJ found that Dimitrulla and Pandeli had not

shown a well-founded fear of persecution as required by the statute

and regulations. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b).

The IJ also denied the Jorgjis' requests for withholding of removal

and protection under the Convention Against Torture.

The Jorgjis sought review before the Board of Immigration

Appeals ("BIA" or "Board"), which, on March 23, 2007, issued a

brief affirmance. The BIA said that even if the Jorgjis were found

to have timely filed their applications for asylum, their childhood

experiences and the persecution of their parents and grandparents

"are too remote in time to constitute persecution." The BIA did

not further consider the Jorgjis' withholding of removal and CAT

claims, which were not properly raised before it.

On review in this court, the Jorgjis argue that at least

Dimitrulla's application was timely;1 they further claim that the

1
Pandeli's application was filed in November 2002, well over
a year after his arrival. He blames the delay on the dishonesty or
incompetence of his then-counsel but he did not follow the
procedure mandated by the regulations, 8 C.F.R. § 208.4(a)(5)(iii),
for making such claims and has relied in this court on his wife's
application.

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Immigration Judge and the Board erred in their assessment of the

merits of her persecution claim (and, in the case of the IJ, in the

conduct of the proceeding). They have not pursued their

withholding and torture convention claims. We begin with the

timeliness issue and then turn to the merits and due process

issues.

Under the Immigration and Nationality Act an alien must

show by clear and convincing evidence that the asylum application

was filed with the agency within one year of arriving in the United

States, or that the applicant qualifies for an exception to the

one-year deadline. 8 U.S.C. § 1158(a)(2)(B). The BIA has the

authority to make regulations governing asylum applications. 8

U.S.C. § 1158(a)(1)(B).

Under the pertinent regulations (set forth in an addendum

to this decision), the one-year period is calculated from the date

of the alien's arrival in the United States; but "[w]hen the last

day of the period so computed falls on a Saturday, Sunday, or legal

holiday, the period shall run until the end of the next day that is

not a Saturday, Sunday, or legal holiday." 8 C.F.R. §

208.4(a)(2)(ii). Dimitrulla entered the United States on March 4,

2001; she mailed her application on Monday, March 4, 2002, and the

government received it on March 6, 2002.

Because the agency must ordinarily receive the

application within the one-year period, Dimitrulla's application

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might appear to be out of time. But when the application has not

been received "within 1 year from the applicant's date of entry .

. . but the applicant provides clear and convincing documentary

evidence of mailing the application within the 1-year period, the

mailing date shall be considered the filing date." 8 C.F.R. §

208.4(a)(2)(ii). Dimitrulla's application would thus be timely if

the two regulations can both be applied to a mailed application.

Although the INS attorney did not dispute the timeliness

of Dimitrulla's application during the administrative hearing, the

IJ concluded that under the regulations, Dimitrulla had to file her

application "within one year"; that the filing period ran until

Sunday, March 3, 2002, which is one year after entry; and that

Dimitrulla had failed to mail her application within the one-year

period. The Jorgjis say that this reading is at odds with the

language of the regulations excluding Saturdays, Sundays and

holidays.2

Remarkably, the government argues that we have no

authority to review this timeliness determination "because,"

according to the government's brief, "it rests on factual

findings." Under current law, review of factual findings as to

2
The Jorgjis also argue that since the INS attorney did not
dispute timeliness, the IJ's finding to the contrary is a violation
of due process rights. But the IJ is not bound by the parties'
timeliness determination; the BIA's regulations authorize only
asylum officers, immigration judges, or the BIA itself to make
determinations regarding the timeliness of an application or
whether the pertinent exceptions apply. 8 C.F.R. § 208.4(a)(1).

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timeliness is barred but review of legal and constitutional

questions is not, as the government brief admits. 8 U.S.C. §

1158(a)(3) (bar on review of findings); id. § 1252(a)(2)(D)

(exception for constitutional and legal issues); see also Pan v.

Gonzales, 489 F.3d 80, 84 (1st Cir. 2007).

Thus, if there were a dispute about when in fact the

applications were mailed or received, the IJ decision would be

conclusive. But here the facts are undisputed; and whether the

application was timely filed depends solely on how the regulations

are read--obviously a question of law. The government, an

institutional litigant with a stake in consistent administration of

the statute, ought to have more sense than to make such an

argument.

The legal issue is perhaps a difficult one. It is quite

possible that the drafters of the two provisions did not think

about whether they apply cumulatively in a situation like this one.

And, if they did think about it, they might have preferred that

only one or the other apply, depending on whether the application

was filed in person or by mail. The exclusion of weekends and

holidays makes good sense as to applications that are filed by hand

because most government offices are closed on those days; but

nothing prevents anyone from putting a letter in a mail box on a

weekend or holiday.

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 Conversely, the mailing exception treats an application

as filed when mailed where the applicant provides "evidence of

mailing the application within the 1-year period" and--read

independently of the weekend and holiday provision--Dimitrulla

plainly did not mail the application within one year of her arrival

but instead mailed it on the following day. But the regulation

excluding weekends and holidays does not say that it operates only

as to applications filed by hand and on a literal reading appears

to apply to all applications.

These regulations are addressed to the public--indeed,

asylum seekers who may lack counsel when filing--and the literal

language supports Dimitrulla's reading, even if a sophisticated

reading based on policy might support another outcome. Further,

there is no agency precedent for the reading offered by the

government's brief and precious little argument in the brief beyond

assertion. Indeed, the possible policy argument in favor of the

government is not made in the government brief.

Ordinarily, the agency receives deference in construing

its own regulations. Sidell v. Comm'r, 225 F.3d 103, 109 (1st Cir.

2000). But whether we have an agency interpretation, as opposed to

a litigating position by counsel, is open to doubt: the IJ

addressed the issue in a few sentences with no citation to

precedent, and the Board bypassed the issue and went directly to

the merits. Under these circumstances, we will follow the literal

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language, adding that the government would be well advised formally

to clarify the regulation language if it prefers its counsel's

position to govern in the future.

We turn now to the merits. To be entitled to asylum, the

Jorgjis had to establish a well-founded fear of future persecution

on one or more of five enumerated grounds (race, religion,

nationality, membership in a particular social group, and political

opinion). 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b); see

also Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). A

showing of past persecution gives rise to a presumption of future

persecution unless rebutted. 8 C.F.R. § 208.13(b)(1); see also

Zarouite v. Gonzales, 424 F.3d 60, 63 (1st Cir. 2005).

Remarkably, the government's brief addresses with care

the claim that the hearing was procedurally unfair but scarcely

addresses at all the substance of the persecution claim beyond

reciting (in the statement of facts) the IJ's own analysis. This

may be partly explained, but not excused, by the Jorgjis' brief,

which only modestly discusses the merits of the persecution issue,

concentrating primarily on a claim of alleged unfairness in the

IJ's conduct of the hearings.

Nevertheless, the IJ's analysis is quite detailed; the

Board's statement is succinct but coherent; and it is up to the

applicants to show error. Review of legal rulings is de novo but

is deferential as to findings of fact and the determination as to

-8-
whether the facts support a claim of persecution. Segran v.

Mukasey, F.3d , 2007 WL 4171217, at *2 (1st Cir. 2007);

Toloza-Jimenez v. Gonzales, 457 F.3d 155, 159 (1st Cir. 2006).

Given the standard of review, we think the IJ and Board must be

sustained as to the persecution rulings, reserving for later

discussion the question of procedural fairness.

"To qualify as persecution, a person's experience must

rise above unpleasantness, harassment, and even basic suffering."

Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). Further, the

state must be the source of or at least acquiesce in the

persecution; specifically, the persecution must either be the

direct result of government action or government-supported action,

or there must be some showing that the persecution is due to the

government's unwillingness or inability to control the conduct of

private actors. Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir.

2006). The persecution need not be personal to the asylum seeker

if it reasonably creates a well-founded fear of persecution in that

person.3

Albania, which shares a border in its southeast with

Greece, was from 1944 to around 1990 a repressive one-party state,

3
See Ravindran v. INS, 976 F.2d 754, 759 (1st Cir. 1992)
(citing Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.
1991) (violence against a petitioner's family may establish a well-
founded fear of future persecution if a close link to the
petitioner is shown)); see also Zhang v. Ashcroft, 388 F.3d 713,
718 (9th Cir. 2004).

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harshly Stalinist in ideology. However, following uprisings,

Albania has since the early '90s been governed through democratic

elections, despite periods of economic and political turmoil. The

country is quite poor with much emigration; it is predominantly

Muslim but a sizable portion of the population are Roman Catholic

or members of the Albanian Orthodox Church.4

Dimitrulla's fear of persecution was based primarily on

two different sets of incidents. One was the imprisonment of her

husband's father and grandfather for their religious and political

opinions, primarily their support for the Orthodox Church. The IJ

said that Dimitrulla's testimony was generally credible as to

specific facts but pointed out that such persecution had occurred

over thirty-five years ago and that Dimitrulla "has failed to show

a pattern of persecution closely tied to herself simply by

testifying that her future husband's father and grandfather were

imprisoned for political involvement before she was even born."

In addition to testifying to the difficult "situation and

the state of affairs" during her childhood in Albania, Dimitrulla

described instances of religious discrimination: the churches in

4
These facts are set forth in the 2004 country report prepared
by the State Department and contained in the record. Such reports
are the common source of background information in asylum
proceedings. See Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36
(1st Cir. 2005) ("The State Department has widely acknowledged
expertise in discerning the conditions that prevail in foreign
lands. Thus, State Department reports are generally probative of
country conditions." (internal citation omitted)).

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her town were destroyed by members of the Communist party, and her

family was forced to conduct baptisms and other religious practices

secretly in their homes. But the Stalinist regime, which was

professedly hostile to religion and a self-proclaimed "atheist

state" has not been in power for over fifteen years.

Dimitrulla also testified that on three separate

occasions in her childhood she had seen people who were killed for

attempting the cross the Albanian border and dragged around the

village as a warning to others who might flee. But, the IJ pointed

out, these incidents had occurred over twenty years ago (when the

Stalinist regime was still in power); and in 1991 freedom of travel

was restored and "[Dimitrulla] and her husband testified that they

have safely and legally crossed the Albanian-Greek border numerous

times."

Pandeli, confirming the persecution of his father and

grandfather, also said that he had in 1985 witnessed the killing of

a youth who tried to cross the border and that he was twice robbed

and attacked while crossing the border in 1994 and 1995 by Muslims

who harassed him because he was Orthodox Christian. The country

report agrees that crime remains a serious problem in Albania, but

it also says that religious toleration is widespread, that ethnic

Greeks serve in the government, and that the Christian minority

freely practice their faith.

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 In her application for asylum, Dimitrulla said that

Albania is dangerous for Greek women because their homes are raided

and they are raped; but at the hearing she did not testify at all

about any such raids nor describe any personal threats to herself.

Further, the IJ noted, she and her husband left and returned to

Albania on a number of occasions "and they did not offer any

evidence or testimony indicating that their family members [on both

sides who still reside in Albania] are currently experiencing harm

or persecution in Albania."

We accept that the murders at border crossings that

Dimitrulla witnessed in her youth may well have caused her

permanent trauma and she may well have genuine fears about living

in Albania. But it would be difficult to sustain on this record a

finding that Dimitrulla has an objectively reasonable fear of

future persecution as specified by the statute, 8 U.S.C. §

1101(a)(42)(A), and in any event no basis exists for finding a lack

of substantial evidence to support the IJ's decision that no such

reasonable fear has been shown.

The petitioners' brief scarcely attempts to counter the

IJ's explanations for discounting their claims that the past

incidents show a well-grounded fear of future persecution.

Instead, their brief, after reciting some of the testimony, says

tersely that the IJ failed to consider cumulatively "all the

persecution suffered and further failed to consider that

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[Dimitrulla] was denied the right to practice her religion."

Neither of these charges appears to be well founded.

All of the main incidents specifically described by

petitioners lay well in the past and the regime that fostered them

has long since been supplanted. So, insofar as future persecution

had to be reasonably feared, the incidents provided no support,

whether taken singly or together. Nor did the IJ ignore the claims

that the regime had been hostile to religion; the problem was that

there was no persecution by the present regime, no claims that

Dimitrulla would now be prevented from worshiping freely, and a

country report describing a condition of general religious

toleration.

Finally, the Jorgjis complain that the IJ compromised the

fairness of the hearing and violated their due process rights by

operating as a "hostile adversary" by interrupting testimony and

directing lines of inquiry from the attorneys. This, the Jorgjis

say, reflected an impermissible bias on the part of the IJ and

prevented them from developing a complete and detailed evidentiary

record. We review de novo the question of whether an IJ's conduct

violated a party's due process rights. Ibe v. Gonzales, 415 F.3d

142, 144 (1st Cir. 2005).

After reading the hearing transcripts, we conclude that

no infirmity exists. An immigration judge, like all judicial

officers, possesses broad but not unfettered discretion over the

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conduct of evidentiary proceedings. See Aguilar-Solis v. INS, 168

F.3d 565, 568 (1st Cir. 1999); 8 U.S.C. § 1229(b)(1) (authorizing

the IJ to "receive evidence, interrogate, examine, and cross-

examine the alien or witnesses"). The IJ in this case appears to

have permissibly used that discretion and to have provided the

Jorgjis with a sufficient opportunity to present their case. In

fact, she credited Dimitrulla's specific testimony but disagreed

largely as to whether the incidents met the standards for a well-

grounded fear of future persecution.

To be sure, the IJ at times interrupted the petitioners'

testimony and their counsel's questioning, but seemingly did so to

move the case along by preventing repetitive testimony and

encouraging the Jorgjis' counsel to focus on especially important

issues. There is no indication of unreasonable restrictions or a

failure to allow witnesses to present their full story. Indeed, an

IJ who plays an active role in keeping the focus of the evidentiary

hearing sharp "is to be commended, not condemned." Aguilar-Solis,

168 F.3d at 569.

The Jorgjis' petition for review is denied.

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 ADDENDUM

The pertinent regulation, 8 C.F.R. § 208.4(a)(2), reads

as follows:

One-year filing deadline. (i) For purposes of section

208(a)(2)(B) of the Act, an applicant has the burden of proving:

(A) By clear and convincing evidence that the

application has been filed within 1 year of the date of the alien's

arrival in the United States, or

(B) To the satisfaction of the asylum officer, the

immigration judge, or the Board that he or she qualifies for an

exception to the 1-year deadline.

(ii) The 1-year period shall be calculated from the date

of the alien's last arrival in the United States or April 1, 1997,

whichever is later. When the last day of the period so computed

falls on a Saturday, Sunday, or legal holiday, the period shall run

until the end of the next day that is not a Saturday, Sunday, or

legal holiday. For the purpose of making determinations under

section 208(a)(2)(B) of the Act only, and application is considered

to have been filed on the date it is received by the Service,

pursuant to § 103.2(a)(7) of this chapter. In a case in which the

application has not been received by the Service within 1 year from

the applicant's date of entry into the United States, but the

applicant provides clear and convincing documentary evidence of

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mailing the application within the 1-year period, the mailing date

shall be considered the filing date. For cases before the

Immigration Court in accordance with § 3.13 of this chapter, the

application is considered to have been filed on the date it is

received by the Immigration Court. For cases before the Board of

Immigration Appeals, the application is considered to have been

filed on the date it is received by the Board. In the case of an

application that appears to have been filed more than a year after

the applicant arrived in the United States, the asylum officer, the

immigration judge, or the Board will determine whether the

applicant qualifies for an exception to the deadline.

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