NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0071n.06
Filed: January 31, 2005
No. 03-4026
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GJEK CELAJ, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
JOHN ASHCROFT, Attorney General )
)
Respondent. ) OPINION
)
BEFORE: NELSON, COLE, Circuit Judges; SARGUS, District Judge.*
R. GUY COLE, JR., Circuit Judge. This is an appeal from the Board of Immigration
Appeals’s (“BIA”) decision to affirm, without opinion, the decision of an Immigration Judge who
denied the Petitioner’s application for asylum, protection under the Convention Against Torture ,
and withholding of removal. For the reasons discussed below, we DENY the petition for review.
I. BACKGROUND
Petitioner is a 41-year-old native and citizen of Albania. He was the vice-chief of police in
Pulka, Albania from 1983 through 1990. He was then promoted to vice-chief of police of Shkoder,
Albania. In this capacity, Petitioner was in charge of public order and had full responsibility for
approximately 300 uniformed police officers. Several demonstrations took place during Petitioner’s
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
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Celaj v. Ashcroft
tenure between December 1990 and May 1991. The most significant demonstration took place on
April 2, 1991, when approximately 5,000 to 6,000 people gathered to protest the central government
of Albania. The central government considered the demonstration illegal by virtue of the fact that
the participants had not received permission to protest. The demonstration was also determined to
be against the national interests of Albania because it promoted the separation of the district of
Shkoder.
Petitioner testified that the demonstrators were violent and that he conferred with the police
chief regarding deployment of special police forces. Petitioner authorized the police forces to
disperse the crowd by force. By the end of the demonstration, four people had been killed and at
least 80 wounded. An investigation into the events involving the demonstration was initiated and
Petitioner was charged and tried along with four other individuals, including the police chief and
chairman of the regional police branch. Petitioner was convicted of ‘assassination by indirect
intention’ and sentenced to fifteen to twenty years of imprisonment.
Petitioner served only six years of his sentence when he and 1,500 other prisoners escaped
on March 13, 1997, following the breakdown of government authority after the collapse of multiple
pyramid schemes earlier that year. The Albanian government offered amnesty and reduced prison
sentences to all those who had escaped from the prison, but Petitioner did not turn himself into the
authorities. Petitioner was smuggled into Italy in October 1997. He then entered the United States
on October 23, 1999, with a false passport.
The Immigration Judge denied Petitioner’s application for asylum, protection under the
Convention Against Torture (“Torture Convention”), and withholding of removal. The Immigration
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Judge found that Petitioner was ineligible for these statutory protections because, among other
things, he had committed a particularly serious nonpolitical crime which amounted to an aggravated
felony. The BIA affirmed the Immigration Judge’s determination without opinion.
II. ANALYSIS
A. Ineligibility Determination
Under 8 U.S.C. §§ 1158(b)(2)(A), 1231(b)(3), and 8 C.F.R. § 208.16(d)(2), an alien is
ineligible for asylum, withholding under the Torture Convention, and withholding of removal, if he
has been convicted of a particularly serious crime, or a serious non-political crime outside the United
States. Here, the Immigration Judge determined that Petitioner had been convicted by the Albanian
courts of assassination by indirect intention, and that this crime constituted a particularly serious
crime, as well as a serious non-political crime outside the United States. Thus, the Immigration
Judge found that Petitioner was ineligible for statutory relief from removal, and the BIA affirmed
this decision. Petitioner asks that we review this ineligibility determination.
As an initial matter, although the parties did not raise the issue of jurisdiction in their initial
briefings, we have a duty to consider subject matter jurisdiction sua sponte in every case. Thornton
v. S.W. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which, among other
things, stripped the courts of jurisdiction to review certain decisions by the immigration agencies.
Of most relevance here, 8 U.S.C. § 1252(a)(2)(B)(ii) provides:
Notwithstanding any other provisions of law, no court shall have jurisdiction
to review . . . (ii) any other decisions or action of the Attorney General the
authority for which is specified under this subchapter to be in the discretion
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Celaj v. Ashcroft
of the Attorney General, other than the granting of relief under section §
1158(a) of this title.
We have previously determined that this jurisdiction-stripping provision applies to
“subchapter II of Chapter 12 of Title 8, which covers sections 1151 through 1378.” CDI Info. Serv.,
Inc. v. Reno, 278 F.3d 616, 619 (6th Cir. 2002). But see Hamama v. INS, 78 F.3d 233, 241 (6th Cir.
1996) (stating that we will defer to the Immigration Judge’s determination that a Petitioner was
convicted of a “particularly serious crime, where that decision is neither “arbitrary, capricious, or
manifestly contrary to statute.” However, this case was decided prior to, and therefore did not
consider the jurisdiction-stripping provisions of, IIRIRA.).
Thus, while this jurisdiction-stripping provision specifically exempts § 1158(a) (asylum
determinations), it does not exempt § 1158(b)(2)(A), or § 1231(b)(3), the provisions which make
an alien ineligible for asylum and withholding if it is determined that the alien committed a serious
crime. Thus, as to the initial question of whether the alien committed a serious crime, or serious
non-political crime outside the United States, we lack jurisdiction to review the BIA’s discretionary
determination. See also Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001) (finding that the court
lacked jurisdiction to determine whether an aggravated felony conviction resulting in a sentence of
less than five years was a particularly serious crime); Spencer Enter., Inc. v. United States, 345 F.3d
683, 690-91 (9th Cir. 2003). Because we lack jurisdiction to review the BIA’s determination that
Petitioner was convicted of a serious crime in Albania, we cannot review the determination that he
is ineligible for statutory relief in the form of asylum, withholding under the Torture Convention,
and withholding of removal.
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Celaj v. Ashcroft
B. Deferral of Removal Pursuant to the Torture Convention
Although we lack jurisdiction to review whether Petitioner should be ineligible for statutory
relief, Petitioner posits an alternate remedy. While Petitioner is ineligible for withholding of
removal under the Torture Convention because he was convicted of a serious crime, he may still be
granted temporary “deferral of removal” (to the proposed country of removal) under the Torture
Convention, see 8 C.F.R. § 1208.17(a), if he shows that he is more likely than not to be tortured if
removed to the proposed country. See 8 C.F.R. § 1208.16(c)(2).
Here, the Immigration Judge found that Petitioner failed to establish that he was more likely
than not to be tortured if he returned to Albania. We must uphold the factual findings of the BIA
and the Immigration Judge, if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992). This
standard of review for findings of fact does not allow reversal “simply because we would have
decided the matter differently.” Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998). Instead,
to overturn the agency’s findings, we “must find that the evidence not only supports a contrary
conclusion, but compels it.” Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992).
Regarding the Torture Convention claim, the Immigration Judge found that Petitioner had
not established that he would more likely than not be tortured if he returned to Albania. The fact
that Petitioner might have to serve the remaining balance of his fifteen-year prison sentence (which
was affirmed by the Supreme Court of Albania) was not found to be “torture” by the Immigration
Judge. See 8 C.F.R. § 208.18 (a)(2)(3) (“Torture does not include . . . [lawful] sanctions that defeat
the object and purpose of the Convention Against Torture to prohibit torture.”). The Immigration
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Judge further determined that there was no evidence that the current government of Albania had any
political vendetta against Petitioner. After conducting our own review of the record, we are not
compelled to conclude that the Petitioner would more likely than not be tortured if he were to return
to Albania. Consequently, we must affirm the Immigration Judge’s decision not to defer the
removal of Petitioner under the Torture Convention.
III. CONCLUSION
For the reasons stated above, we hereby DENY the petition for review.
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