Kasa v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0162n.06
Filed: March 2, 2005

No. 03-4318

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FATMIR KASA, )
)
Petitioner, )
)
v. ) On Petition for Review of an Order
) from the Board of Immigration
ALBERTO GONZALES, ) Appeals
)
Respondent. )

Before: BOGGS, Chief Judge; and KENNEDY and MARTIN, Circuit Judges.

PER CURIAM. Fatmir Kasa petitions this court to review the denial by the Board

of Immigration Appeals of his application for asylum and associated relief. Because the Immigration

Judge had substantial evidence to support his adverse credibility determination and did not violate

Kasa’s due process rights during the hearing, we deny the petition for review.

I

Fatmir Kasa was born on November 18, 1958, and lived in Tirana, Albania prior to coming

to this country. He entered the United States on December 16, 1999 with a visa authorizing him to

remain in the country until March 15, 2000. He filed an asylum application on April 25, 2000, to

which the INS responded with a Notice to Appear on May 23, 2000.
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Kasa requests asylum on account of political opinion. He claims to have been a bodyguard

in the Guard of the Republic, the government organization that protects national leaders and visiting

heads of state. Petitioner’s account of persecution begins with his assignment to protect Fatos Nano,

who had, at the time of Kasa’s assignment, just become Prime Minister of the country. Following

the assassination of a prominent Democratic party leader, Nano was forced to resign, at which point

Kasa was reassigned to guarding foreign dignitaries. A power struggle ensued between Nano and

his replacement as Prime Minister, culminating with both men competing in an election to become

the head of the Socialist Party.

On the eve of that election, Kasa claims to have been asked by the owner of the Lady Diana

restaurant in Tirana to visit the restaurant so that he could meet a mutual friend. According to

petitioner, that friend turned out to be Nano, his former boss, who soon invited Kasa to join him in

meeting some other acquaintances of his. After both men got into the former Prime Minister’s car,

petitioner testified, Nano asked Kasa to switch ballot boxes on the day of the election. Kasa testified

that he refused because he believed Albania needed free elections. Kasa then claims that he was

driven down an isolated street where he was subsequently abducted and driven to a police station

in a different city. There, Kasa maintains, he was interrogated and beaten by four men who he

thought were agents of the Albanian secret police. After the attack, Kasa stated, the men drove Kasa

to his home where they told him not to leave the house. Kasa claims to have been attacked again

when he left his house to see a doctor for help with his injuries.

Because of these incidents, Kasa testified, his family went into hiding and he was fired from

his job. Though Kasa eventually received a visa from the American Embassy in Greece, he was

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unable to get visas for the rest of his family. He then left for this country from Tirana’s airport with

help from a former co-worker who was now working there. Kasa claims that his family continues

to be persecuted in Albania because of his refusal to fix the election. Since Kasa left Albania, his

brother has apparently been interrogated and stabbed twice by the secret police. However, Kasa also

claims that his brother was able to return Kasa’s weapons to the proper authorities and provide Kasa

with a receipt confirming that he had done so.

With the assistance of counsel and an interpreter, Kasa had a hearing before an Immigration

Judge (“IJ”). As part of this hearing, Kasa submitted corroborating evidence in the form of his two

asylum applications, several photographs of Kasa and various leaders, the receipt from the return of

his weapons, and a newspaper article concerning his uncle’s death, which Kasa believes was

politically motivated. More important to this appeal, he also submitted his Guard of the Republic

identification card, his passport, and a certificate, which probably concerns his termination from

employment. The government responded by entering the Country Reports for Albania and a report

from the American Embassy in Albania claiming that Kasa’s identification card and certificate were

fraudulent. Kasa also brought a witness, Afrim Lavanaku, to testify that he had worked in the same

agency as Kasa and could recognize people in Kasa’s pictures. The IJ denied Kasa all relief in an

oral decision following the hearing. He concluded that Kasa was not credible because he concluded

that several of Kasa’s documents were fraudulent. Alternatively, he decided that Kasa had not met

his burden of proof because he lacked corroboration. He further found that, even if Kasa was

credible, he had not been persecuted for an enumerated ground. The Board of Immigration Appeals

affirmed without issuing an opinion. Kasa timely appeals to this court.

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II

The decision to grant asylum is a two-step inquiry. Ouda v. INS, 324 F.3d 445, 451 (6th Cir.

2003). The first step is whether the applicant qualifies as a refugee. Only if the petitioner qualifies

as a refugee may the Attorney General exercise his discretion and grant asylum. Ibid. In this case,

the IJ and the BIA ended the inquiry at the first step by determining that Kasa did not qualify as a

refugee. It is this determination that we now review on appeal.

A refugee is an alien who is “unable or unwilling to return to . . . [his] country because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Where,

as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision directly.

Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003). We review that decision under the substantial

evidence test. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). In the immigration context, that

test has been construed to allow reversal only if “the evidence presented by [the petitioner] was such

that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). This standard has since been codified by stating

that this court can reverse only if “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 702-03 & n.2 (6th Cir. 2004)

(“officially adopt[ing]” substantial evidence as articulated in § 1252(b)(4)(B)).1

1
Though the IJ denied Kasa’s request for protection under the Convention Against Torture,
Kasa does not raise any argument about this ground in his brief. Relief on that ground is therefore
waived. United States v. Mick, 263 F.3d 553, 567 (6th Cir. 2001); see also Abati v. Ashcroft, 101
Fed. Appx. 626, 627 (6th Cir. June 17, 2004) (unpublished opinion) (holding that Convention

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Kasa also appeals the IJ’s decision to deny his request for withholding of removal. The

grounds for withholding of removal are the same as those used for asylum, except that instead of

proving a “well-founded fear of persecution,” 8 C.F.R. § 208.13(b), the applicant “must demonstrate

a clear probability that he would be subject to persecution.” Mikhailevitch v. INS, 146 F.3d 384, 391

(6th Cir. 1998). Therefore, Kasa faces the same question, just with “a more stringent showing of

truth.” Ibid. A determination that Kasa is ineligible for asylum forecloses discussion of withholding

of removal. Ibid.

We review an adverse credibility determination for substantial evidence. Yu, 364 F.3d at

703. In this case, the IJ’s adverse credibility determination rests largely on his conclusion that Kasa

presented fraudulent documents to support his claim for asylum. Like our sister circuits, we have

found the use of false documents sufficient to support an adverse credibility determination. See

Gueladio v. INS, 102 Fed. Appx. 909, 911 (6th Cir. June 15, 2004) (unpublished order); Yongo v.

INS, 355 F.3d 27, 33 (1st Cir. 2004); Akinmade v. INS, 196 F.3d 951, 955-56 (9th Cir. 1999). As

the First Circuit has commented, the presentation of false documents “submitted to prove a central

element of the claim in an asylum adjudication indicates [petitioner’s] lack of credibility and in the

absence of an explanation regarding such presentation, creates serious doubts regarding the

respondent’s overall credibility.” Yongo, 355 F.3d at 33 (quoting In re O-D-, 21 I. & N. Dec. 1079,

1083 (BIA 1998)) (quotation marks omitted and emphasis added).

Against Torture claim is waived because it is absent from petitioner’s brief).

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The IJ found Kasa’s identification card to be fraudulent. We must therefore decide whether

the card was submitted to prove a central element of his asylum claim and, if so, whether the IJ had

substantial evidence for his factual determination that the card was not genuine. See 8 C.F.R. §

1252(b)(4)(B) (“administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary . . . .”). Kasa presented the identification card to

prove that he had indeed been a member of the Guard of the Republic. His employment by that

branch of the Albanian government is essential to his claim for asylum, as it is the basis of his

alleged relationship with Fatos Nano, from which his account of persecution stems. We therefore

conclude that Kasa’s identification card was submitted to prove a central element of his claim.2 See

Yongo, 355 F.3d at 33.

Thus, we must review, under the “substantial evidence” standard, the IJ’s factual

determination that the document was false. Because the IJ had more than enough evidence to reach

his conclusion, we affirm his determination that the document was false, and therefore, also, his

conclusion that Kasa lacked credibility. The IJ’s conclusion was based on his own careful

examination of the identification card as well as a report from the American Embassy in Albania.

2
Our sister circuits have excused the presentation of a false document when either that
document has been presented for reasons other than proof in a removal proceeding, see Akinmade,
196 F.3d at 955 (quoting In re O-D-, 21 I. & N. Dec. at 1081) (document submitted for purpose of
gaining entry into the United States), or the petitioner offers an excuse for the presentation of the
fraudulent document, such as that he received it from another person, see Yeimane-Berhe v. Ashcroft,
393 F.3d 907, 911-13 (9th Cir. 2004) (false medical certificate procured by petitioner’s sister
insufficient grounds for adverse credibility determination); Kourski v. Ashcroft, 355 F.3d 1038,
1039-40 (7th Cir. 2004) (same result when false document was given to petitioner by his mother).
As Kasa submitted the identification card to prove a central element of his asylum claim and offers
no excuse as to why the document is fraudulent, we do not consider these exceptions.

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The IJ also closely examined the card and determined it was a forgery. The identification

card appears to have been created in a way that suggests tampering. The IJ also noted two troubling

similarities between Kasa’s passport and the identification card. Kasa testified that his current

passport was issued in 1999 and that it did not have the same number as his previous passport, which

had been issued in 1994. He received his identification card, according to him, in 1996. Given the

three-year span between the times he received the two documents, the photographs in the two should

not be very similar. But they are nearly identical: Kasa wears the same jacket, suit, and tie in both

photos; and his hair looks identical in the two pictures. This suggests, at the least, that the

identification card is fraudulent. Even more damaging, Kasa’s identification card, issued in 1996,

has the same number on it as his 1999 passport. This would not be troubling except for Kasa’s own

testimony that his 1994 passport, the one he had when he allegedly received the identification card,

had a different number. Kasa’s corroborative witness confirmed that, in general, Albanian passport

numbers change with each successively issued passport. Further supporting the IJ’s conclusion, the

witness testified that identification cards usually had issuance dates, which Kasa’s did not have.

In addition, the Embassy report concluded the identification card was false based on an

investigation that included a review of internal records of the Albanian government and

conversations with supervisors in the branch where Kasa claims to have been employed. In addition,

pursuant to the investigation, the people who supposedly signed his identification card denied having

done so. That includes the former Commander of the Guard of the Republic.

Therefore, the IJ had more than substantial evidence that the document was false. Because

the identification card was submitted to prove a central element of Kasa’s claim, we are simply not

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compelled to conclude that he presented a credible claim for asylum. Having found the IJ to be well-

supported in one of his reasons for denying Kasa refugee status, we need not address his other two

grounds.

III

Fifth Amendment guarantees of due process require that aliens in deportation hearings

receive a full and fair hearing. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). We

review a due process challenge de novo. Ivejaz v. INS, 84 F.3d 215, 220 (6th Cir. 1996). However,

the petitioner has the burden of showing that the alleged error prejudiced his case. See Huicochea-

Gomez, 237 F.3d at 699 (“a defect in the removal proceedings must have been such as might have

led to a denial of justice.”) (quotation marks and citations removed).

Though the presence of a biased IJ may raise due process concerns, see, e.g., Iliev v. Ashcroft,

127 F.3d 638, 643 (7th Cir. 2003), we do not believe the IJ in this case displayed any such bias.

Petitioner only alleges that the IJ erred in analyzing the evidence. Such allegations cannot sustain

a charge of bias against an IJ. Cf. Ivejaz, 84 F.3d at 220 (“due process requires that [petitioner] be

given an opportunity to be heard . . . .”) Were they to, every reversal of an IJ’s decision would also

result in a due process challenge. More to the point, such allegations cannot sustain a charge of bias

in this case where the IJ’s conclusions were warranted by the evidence presented. See part II, supra.

In addition, we hold that petitioner’s due process rights were not violated by the admission

of the report summarizing the American Embassy’s investigation into Kasa’s documents. The

Federal Rules of Evidence do not apply to immigration proceedings. Dallo v. INS, 765 F.2d 581,

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586 (6th Cir. 1985). However, because aliens have due process rights in removal proceedings, the

Fifth Amendment provides some limits on what evidence can be admitted. We have recognized that

“‘the due process test for admissibility of evidence in a deportation hearing is whether the evidence

is probative and whether its use is fundamentally fair.’” Ayyoub v. INS, No. 02-3679, 93 Fed. Appx.

828, 834 (6th Cir. Mar. 25, 2004) (unpublished opinion) (quoting Felzcerek v. INS, 75 F.3d 112, 115

(2d Cir. 1996) (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990))). In determining

whether the admission of evidence is fundamentally fair, two sets of considerations emerge. First,

the petitioner must be given a meaningful ability to respond to the harmful evidence. See Gailius

v. INS, 147 F.3d 34, 46 n.7 (1st Cir. 1998); Sulo v. Ashcroft, No. 03-1083, 114 Fed. Appx. 253, 256

(7th Cir. Nov. 8, 2004) (unpublished opinion) (applying Gailius’s reasoning). Second, whether the

evidence is trustworthy and reliable affects the fundamental fairness of its admission. See Felzcerek,

75 F.3d at 115. Given these broad standards, “the test of fundamental fairness turns on the facts.”

Yongo, 355 F.3d at 32.

In this case, the American Embassy in Tirana produced a report concluding that two of

Kasa’s proffered documents, including his identification card, were false. The report, which is a

signed telegram from a Vice Consul at the Embassy, indicated the background and experience of the

investigator. It also summarized the investigation that led to the conclusion that Kasa had submitted

false documentation. Though the contents of the report were hearsay, neither the admission of this

report nor the method in which it was used by the IJ affected the fundamental fairness of Kasa’s

removal proceeding. Though any hearsay document creates doubts as to its trustworthiness, the

report confirms its reliability and trustworthiness by specifying the steps taken in the investigation

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and clarifying that the purpose of the investigation was never made clear to members of the Albanian

government. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir. 2003) (concluding that a letter

that stated only conclusions of a supposed investigation was inadmissible in a removal proceeding

in part because “the complete dearth of information about the investigator or the investigation

undermines the . . . letter as not only untrustworthy, but also unhelpful.”); see also Yongo, 355 F.3d

at 32 (emphasizing this factor in Ezeagwuna in reaching a different conclusion).

The report’s detailed summary of the investigation that took place not only buttressed the

report’s reliability, it also allowed petitioner a meaningful opportunity to rebut the Embassy report.

See Gailius v. INS, 147 F.3d at 46 n.7. Kasa, in fact, took this opportunity when he asked his witness

questions about the quality of records kept by the Albanian government. This suggests that the use

of this report as a means of proof was not fundamentally unfair. Further contributing to the

fundamental fairness of this report’s admission is the IJ’s failure to rely on the report as the sole, or

even primary, reason for concluding that the identification card was false. See Ezeagwuna, 325 F.3d

at 406 (noting that while hearsay evidence can be admitted in asylum cases, reliance on such

evidence may raise due process concerns). He closely examined the card and gave numerous

reasons, based in part on Kasa and his corroborative witness’s own testimony, for his conclusion that

the card was not genuine. In such a case, where a hearsay document is admitted but not primarily

relied upon and the petitioner receives the opportunity to rebut the document’s conclusions through

his witnesses, the fundamental fairness of the proceedings has not been impinged. Thus, Kasa

suffered no violation of his due process rights during his removal hearing before the IJ.

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In addition, Kasa cannot sustain a due process challenge because he cannot establish that he

was prejudiced by the admission of the letter. See Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir.

2004) (“proof of prejudice is necessary to establish a due process violation in an immigration

hearing.”). The IJ had multiple reasons for believing the identification card was fabricated, of which

the Embassy report was but one. Kasa therefore cannot show that he would have received refugee

status were the IJ to have excluded the report. Thus, even were we convinced that the fundamental

fairness of the proceeding had been compromised, which we are not, relief would still be

inappropriate. For the reasons set forth above, we DENY the petition for review.

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