Vardhami v. Gonzales

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0323n.06
Filed: April 28, 2005

No. 03-3672

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ARDIANA VARDHAMI, RENATO )
VARDHAMI, and KRISTIAN )
VARDHAMI, )
)
Petitioners-Appellants, ) ON APPEAL FROM THE BOARD OF
) IMMIGRATION APPEALS
v. )
) OPINION
ALBERTO GONZALES, Attorney General, )
)
Respondent-Appellee. )
)

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

RONALD LEE GILMAN, Circuit Judge. Ardiana Vardhami, a citizen of Albania, entered

the United States illegally in May of 1999, and filed for asylum and withholding of removal 11

months later. Her initial asylum application was based on the claim that her husband was detained

and tortured by the police after attending a political demonstration. In December of 2000, Vardhami

submitted an amended application focusing on a previously unmentioned claim that she had been

raped by Albanian police officers in violation of the Convention Against Torture.

Vardhami’s claims were found by the immigration judge (IJ) not to be credible, and her

requests for asylum, withholding of removal, and protection under the Convention Against Torture

were denied. The Board of Immigration Appeals (BIA) affirmed. For the reasons set forth below,

we AFFIRM the judgment of the BIA.
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I. BACKGROUND

A. Factual background

In May of 1999, Vardhami, her husband Renato, and her son Kristian entered the United

States carrying false passports. Vardhami and her husband both filed asylum and withholding of

removal applications in April of 2000.

Vardhami’s application focused on two incidents of political violence. The first occurred

in 1991, when her husband was allegedly imprisoned for a month after attending a demonstration

against the ruling Communist Party and tortured during his imprisonment. A second incident,

discussed in more detail, allegedly occurred when the Vardhamis attended the September 1998

funeral of Azem Hajdari, a murdered opponent of the Albanian regime. Vardhami claimed that

members of the Albanian special police force “hit [her and her husband] . . . with billy clubs and

fists,” and that “she saw the special police force . . . capture her husband and drive him away.” The

police allegedly detained Renato for three days, during which time they “physically and

psychologically tortured him.” As part of the filed documentation, Vardhami’s attorney declared

that the application had been read to the asylum-seeker in her native language before Vardhami

signed it.

The companion application filed by Renato Vardhami recounted the same incidents.

Although Renato expressed the fear that his wife “might be caught, [and] perhaps raped” in the

future, neither of the April 2000 applications stated that Ardiana Vardhami had actually been raped.

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Renato Vardhami withdrew his application in February of 2001 in order to proceed jointly with his

wife.

In December of 2000, Vardhami filed an amended application, alleging that she had been

detained and raped by Albanian police officers after the September 1998 funeral demonstration. She

claimed that she “caught some infection from [the] rape that made [her] ill both mentally and

physically,” and that she had been able “to seek medical attention” after coming to the United States.

Vardhami explained her failure to disclose the rape in the previous application as follows:

My husband is a typical Albanian man who rules his home as a patriarch and controls
his wife and children. My husband also has a terrible temper. If he had found out
what happened to me, I feared that he would go to the police station in order to kill
the perpetrator. Before he had the opportunity to seek revenge, he himself would
probably be imprisoned or killed. I also feared that he would divorce and abandon
me, so that I would be left without husband and son, disgraced in my world, for
something which was forced upon me.

She claimed that, since the rape, she “cannot be intimate with [her] husband.” The new application

also mentioned Renato’s arrests in 1991 and 1998, but it differed from the April 2000 application

in two significant details. First, it made no reference to Vardhami’s having been beaten by the

police at the 1998 demonstration. Second, Vardhami claimed in the second application to have

learned about her husband’s arrest through a neighbor, rather than seeing it in person, as she had

claimed in the first application.

Vardhami’s testimony before the IJ about the September 1998 violence was partially

consistent with the second application, but inconsistent with the first. She claimed to have escaped

the violence at the demonstration and to have left before her husband was arrested. When

questioned about her first application, Vardhami attributed the difference to a “misunderstanding

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in translating here with my attorney.” She also testified that she had resumed sexual relations with

her husband since the alleged rape, and that she had seen a general physician, but had not mentioned

the sexually transmitted disease during her visit.

B. Procedural background

The IJ found that Vardhami was removable and held that she “ha[d] not satisfied her burden

of proof or demonstrated by reliable and credible evidence the . . . underlying fact of her claim that

she was raped by the authorities in Albania.” Noting that Vardhami’s testimony and applications

for asylum contained significant inconsistencies, and observing that “it is uncontested that Albania

is [now] a multi-party country with free and fair elections,” the IJ denied asylum, withholding of

removal, and protection under the Convention Against Torture.

In a per curiam opinion, the BIA affirmed the decision below, “especially [the IJ’s] adverse

credibility determinations regarding [Vardhami’s] . . . statement in her initial asylum application that

she was beaten by the police and her omission from the same application of her alleged rape.” This

timely appeal followed.

II. ANALYSIS

A. Standard of review

The BIA’s factual determinations “are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This is “a deferential standard

which ‘plainly does not entitle a reviewing court to reverse . . . simply because it is convinced that

it would have decided the case differently.’” Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir. 1992)

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(citation omitted). For that reason, “in order to reverse the BIA’s factual determinations, the

reviewing court must find that the evidence not only supports a contrary conclusion, but indeed

compels it.” Id. at 152 (emphasis in original).

B. Denial of asylum and withholding of removal

1. Asylum

An applicant for asylum “bears the burden of establishing that [s]he qualifies as a refugee

‘either because [s]he has suffered actual past persecution or because [s]he has a well-founded fear

of future persecution.’” Koliada v. INS, 259 F.3d 482, 487 (6th Cir. 2001) (quoting 8 C.F.R.

§ 208.13(a)-(b) (2001)). The BIA’s conclusion that Vardhami failed to meet this burden was based

on an “adverse credibility determination[]” stemming largely from Vardhami’s “inconsistent

testimony regarding her statement in her initial asylum application that she was beaten by the police

and her omission from the same application of her alleged rape.”

Substantial evidence supports the adverse credibility determination made by the BIA.

Vardhami’s two applications for asylum and her testimony before the IJ contain a number of

inconsistencies “going to the heart of [Vardhami’s] asylum claim.” Yu v. Ashcroft, 364 F.3d 700,

703-04 (6th Cir. 2004) (citations and quotation marks omitted). The most glaring inconsistency is

the failure in her first application for asylum to mention her purported rape after the September 1998

funeral demonstration. In her second application, Vardhami focused on the alleged rape and its

consequences, saying that she had contracted an “infection” for which she was able to “seek medical

attention” after arriving in the United States, and that she was unable thereafter to be intimate with

her husband. Vardhami’s testimony, however, casts doubt on both of these latter assertions. She

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testified that she had seen a general physician in the United States, but had not mentioned the

sexually transmitted disease during her visit. Furthermore, she flatly contradicted her second

application by stating that she in fact had continued having sexual relations with her husband after

the alleged rape.

Her first and second applications contained other inconsistencies as well. In the first

application, Vardhami claimed to have been hit by the police during the September 1998 funeral

demonstration and to have seen her husband’s arrest. The second application makes no mention of

her being hit at the demonstration and says that she learned of her husband’s arrest after the fact, two

inconsistencies that the BIA found material to Vardhami’s credibility.

Vardhami’s explanation for the inconsistencies further supports an adverse credibility

determination. In her testimony, Vardhami claimed that there was a mistake in the translation, an

assertion that seems implausible given her attorney’s certification that “the completed application

was read to the applicant in . . . her native language for verification before . . . she signed the

application in my presence.” As noted by the BIA, Vardhami presented no evidence indicating that

her attorney’s signed declaration was false.

Under the highly deferential substantial-evidence standard, we cannot reverse the BIA’s

determination unless “the evidence not only supports a contrary conclusion, but indeed compels it.”

Klawitter, 970 F.2d at 152 (emphasis in original). The numerous inconsistencies in Vardhami’s

applications and testimony do not support a conclusion contrary to that of the BIA, and they

certainly do not compel it. We therefore affirm the BIA’s decision to deny asylum.

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2. Withholding of removal

In order to establish that she is eligible for withholding of removal, an applicant must show

not only that she has a “well-founded fear of future persecution,” Koliada v. INS, 259 F.3d 482, 487

(6th Cir. 2001), but that “there is a clear probability that [s]he will be subject to persecution if forced

to return to the country of removal.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). This

standard is significantly “more stringent” than the standard for asylum. Koliada, 259 F.3d at 488.

Substantial evidence supports the BIA’s conclusion that Vardhami failed to show that she

had a well-founded fear of future persecution. The same evidence is even less supportive of

Vardhami’s claim that there was an objective likelihood that she would be persecuted in the future.

We therefore affirm the BIA’s decision to deny withholding of removal.

C. Denial of protection under the Convention Against Torture

To obtain relief under the Convention Against Torture, the applicant bears the burden of

establishing that “it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The standard of review of Vardhami’s

Convention Against Torture claim consequently does not differ from the analysis of her request for

asylum and withholding of removal. See Castellano-Chacon v. INS, 341 F.3d 533, 552 (6th Cir.

2003) (“This court applies the same standard of review when dealing with claims . . . pursuant to

the Convention Against Torture as it does when reviewing claims under 8 U.S.C. § 1231(b)(3)

[withholding of removal].”) Because Vardhami failed to establish a valid claim for withholding of

removal, or even a claim under the less-stringent standard for asylum, she cannot succeed with her

claim under the Convention Against Torture.

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D. Procedural issues

1. Review by a single BIA member

Whether this court has jurisdiction to review the BIA’s use of its case-management system

remains an open question in this circuit. See Denko v. INS, 351 F.3d 717, 732 (6th Cir. 2003)

(“Assuming, without deciding, that judicial review properly is employed to assess whether the BIA

correctly designated a case for summary affirmance . . . .”). Assuming for the sake of argument that

we do have jurisdiction, however, Vardhami was not prejudiced by having her case reviewed by one

judge instead of by three judges. The BIA’s use of its case-management system was therefore not

improper in the present case.

2. Failure to admit proffered documents

Vardhami also alleges that her right to due process was violated by the failure of the BIA

to reverse the IJ’s decision not to admit three documents authenticated in accordance with 8 C.F.R.

§ 287.6(b)(1), which requires “an official publication [of the document] . . . or . . . a copy attested

by an officer so authorized.” The three documents include a certificate from the District Council

of Shkoder stating that Pal Pellumb Stanaj was shot by Communists in 1944, a certificate from the

Albanian Ministry of Justice stating that Grigor Vardhami, who was born in 1948, was imprisoned

for high treason in 1966, and a certificate indicating Renato Vardhami’s membership in the Albanian

Democratic Party.

Whether or not the BIA erred in affirming the IJ’s decision not to admit these documents,

Vardhami does not allege any prejudice to her case. Furthermore, no prejudice is evident from an

examination of the documents themselves: the relevance of the first two documents is unclear and

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the third document, though marginally relevant, does little to bolster Vardhami’s credibility and

nothing to resolve the inconsistencies in her story.

The exclusion of relevant and properly authenticated documents is error, but it is not

reversible error unless prejudice resulted. See Simko v. INS, No. 03-3094, 2004 WL 1859588, at *3

(6th Cir. 2004) (unpublished) (holding that the failure of the alien’s lawyer to elicit relevant

testimony was not reversible error, and noting that “the outcome would not have changed as the

remaining evidence did not indicate that [the alien] would be subjected to religious persecution if

she was returned to the Ukraine”); Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003)

(holding that the IJ’s decision to deny counsel the opportunity to make opening and closing

statements was harmless error because the alien “failed to identify any specific prejudice resulting

from the IJ’s denial”). Because no prejudice was alleged, and none appears to have resulted, we

hold that any error in the exclusion of the documents was harmless.

3. Failure to exercise discretion in Vardhami’s favor

Vardhami also asserts that the BIA erred by upholding the IJ’s failure to grant her “a

favorable exercise of discretion.” Cf. Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994)

(“Disposition of an application for asylum requires a two-step inquiry: first, whether the petitioner

is a ‘refugee’ within the meaning of the statute, and second, whether the petitioner merits a favorable

exercise of discretion by the Attorney General.”) In this case, the BIA concluded that Vardhami

failed to demonstrate that she was a refugee. Because we are affirming the BIA’s decision that

Vardhami was not a refugee, we need not address the question of whether she was entitled to a

favorable exercise of discretion.

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E. Failure to discuss corroborative testimony and the Amnesty International report

Vardhami further alleges that the BIA erred by failing to discuss in its opinion certain

testimony indicating that her husband was arrested at the September 1998 funeral demonstration,

and an Amnesty International press release expressing concern about the mistreatment of members

of the Democratic Party following a protest in November of 2000. The BIA’s failure to discuss the

testimony about whether Renato Vardhami was detained and tortured, however, and its failure to

allude to the Amnesty International press release, do not constitute reversible error because neither

ultimately prejudiced Vardhami’s case.

The holding of the BIA was based primarily on Renato’s wife’s lack of credibility with

respect to events that allegedly happened to her. Discussion about whether Renato Vardhami was

detained and tortured would have no bearing on explaining the inconsistencies in Vardhami’s

account of her own experience at the demonstration.

Likewise, although the Amnesty International press release may create doubt about the IJ’s

statement that, “based on the Country Reports and Asylum Profile, it is uncontested that Albania

is a multi-party country with free and fair elections,” it is ultimately irrelevant to the result of the

case. The BIA rested its affirmance of the IJ’s decision upon Vardhami’s lack of credibility, and

an Amnesty International press release about a demonstration in which neither of the Vardhamis

claims to have participated has no bearing on this issue. Because neither the testimony in question

nor the press release are material to the outcome of the case, we hold that the BIA did not commit

reversible error by failing to mention them.

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III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the BIA.

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