NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0283n.06
Filed: April 13, 2005
No. 03-4372
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TONIN FILIPI, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM THE
v. ) BOARD OF IMMIGRATION APPEALS
)
ALBERTO GONZALES, )
Attorney General, )
)
Respondent. )
Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge.*
SUTTON, Circuit Judge. Tonin Filipi is a twenty-seven-year-old Albanian citizen who seeks
asylum, withholding of removal and protection under the Convention Against Torture. The
Immigration Judge (IJ) found that Filipi’s testimony in support of his application was not credible
and alternatively concluded that, even if it were credible, the events he described do not rise to the
level of past persecution, create a well-founded fear of future persecution or provide a basis for relief
under the Convention Against Torture. The Board of Immigration Appeals (BIA) summarily
affirmed the IJ’s decision, and we now deny Filipi’s petition for review.
*
The Honorable Gregory W. Carman, Judge for the United States Court of International
Trade, sitting by designation.
No. 03-4372
Filipi v. Gonzales
I.
On January 21, 2001, Filipi entered the United States in Hidalgo, Texas, without inspection.
When the government started removal proceedings against him, he conceded his removability but
filed an application for asylum, for withholding of removal and for protection under the Convention
Against Torture.
His application and testimony described the following events and explanations for his claims.
In February 1994, his father was “assassinated as an act of vengeance because [his] father’s father
killed a man during the Second World War.” JA 168. His father, Filipi claimed, had been active in
the Democratic party, and the family’s Socialist neighbor was responsible for his father’s death.
The assassination sparked a “blood feud” between Filipi’s family and the neighbor’s family.
The authorities placed the neighbor in jail for two months after the murder, but released him after he
paid government officials. Once the neighbor was released from jail, he feared that a member of
Filipi’s family would retaliate against him (or his family) because he had killed Filipi’s father; as a
result, he announced to people in the community that he was prepared to kill another member of the
Filipi family before the Filipis killed a member of his family.
Despite these threats, Filipi and his family—his mother, six brothers and three sisters—
remained in the same village for two years after his father’s death. During those two years, the Filipi
family did not have any contact with the neighbor, and the neighbor did not in fact attempt to harm
any member of the family.
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In February 1996, Filipi and his family moved to another village about 40 minutes away.
Even in this new village, however, Filipi and his family continued to live in fear of the neighbor’s
family and of the threat of a preemptive murder.
After national elections, the Socialist party came into power in Albania in 1997. In June or
July of 1997, Filipi was arrested because he was a member of the Democratic party and because he
had protested the elections. He was detained for three to four days, then released. After the
Socialists took control of the government in 1997, they harassed his family “more and more.” JA 99.
In addition to his arrest and detention, during which he does not claim to have been beaten or
threatened, the Socialist party told him that his neighbor was going to kill him, as a result of which
he “was scared all the time.” JA 107.
At some point in 1997, Filipi, his mother, six brothers and two of his sisters fled to Greece;
one sister remains in Albania. In 2000, Filipi returned to Albania for four months, apparently in order
to obtain a passport to enter the United States. During his time in Albania, Filipi saw his father’s
killer from a distance but otherwise had no contact with him. In early 2001, Filipi entered the United
States.
In his application, Filipi stated that if he returns to Albania his Socialist neighbor will “make
sure [he is] killed to satisfy the vengeance of [his] family.” JA 170. And if the neighbor does not kill
him, he testified, “the socialist[s] that are in power” will do so. JA 101. He also acknowledged
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No. 03-4372
Filipi v. Gonzales
during his testimony that one reason he came to America was to have a better opportunity to provide
financial support for his family living in Greece.
The IJ was unwilling to credit Filipi’s testimony and, in the alternative, concluded that even
if Filipi were credible, he did not demonstrate past persecution based on any cognizable ground. In
addition, the IJ found that Filipi had not demonstrated that it is more likely than not that he would
be persecuted or tortured if he were to return to Albania. Invoking the streamlining procedures of
the BIA, one member of the BIA affirmed the IJ’s decision. See 8 C.F.R. § 1003.1(e)(5).
II.
Filipi raises two arguments on appeal. He first claims that the government’s failure to provide
accurate and competent interpretation services during the asylum hearing violated his due process
rights under the Fifth Amendment. He then claims that the IJ erred in denying his application.
Neither argument is persuasive.
We give de novo review to the constitutional claim. Castellano-Chacon v. INS, 341 F.3d 533,
552–53 (6th Cir. 2003). We review the BIA’s determination under the “substantial evidence”
standard. The BIA’s determination whether the petitioner was persecuted and whether he has a well-
founded fear of future persecution must be upheld “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Yu v. Ashcroft, 364 F.3d 700,
702 (6th Cir. 2004) (“[Section] 1252(b)(4)(B) basically codifies the Supreme Court’s substantial
evidence standard.”); see also INS v. Elias-Zacharias, 502 U.S. 478, 483–84 (1992) (a court must
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Filipi v. Gonzales
uphold the Board’s determination unless the evidence presented was “so compelling that no
reasonable factfinder could fail to find the requisite fear of persecution.”); Gjokic v. Ashcroft, Nos.
02-3915, 02-3917, 2004 WL 1491638 (6th Cir. June 29, 2004). We will reverse where the evidence
in the record “not only supports a contrary conclusion, but indeed compels it.” Mikhailevitch v. INS,
146 F.3d 384, 388 (6th Cir. 1998) (quotation marks omitted).
A.
In assessing the due process claim, we must consider whether the IJ and BIA afforded Filipi
“a full and fair hearing.” Castellano-Chacon, 341 F.3d at 553; see also Amadou v. INS, 226 F.3d
724, 727 (6th Cir. 2000); Gonzales v. Zurbrick, 45 F.2d 934, 936 (6th Cir. 1930). As Filipi sees the
matter, several portions of the transcript establish that the interpreter was incompetent, making the
hearing anything but fair. The poor translation skewed his testimony, he adds, and “deprived [him]
of coming across to the court in [a] genuine, sincere, and credible way.” Filipi Br. at 13.
In one respect, Filipi is right. Several passages in the transcript contain awkward sentences
and broken or incorrect English. The problem, however, is that the IJ did not hinge its opinion on
how the facts and allegations in his testimony were expressed but on the weaknesses and
inconsistencies of the factual allegations themselves, and Filipi has failed to show how the translation
caused the IJ to misapprehend material facts. The IJ, for example, noted that Filipi never made it
clear whether the “blood feud”—a critical premise of his claim—began with his father’s father killing
a man in World War II (as his application indicated) or whether it began with the killing of his father
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Filipi v. Gonzales
by their Socialist neighbor in February 1994 (as his testimony indicated). The IJ also legitimately
became skeptical about Filipi’s fear of being killed by his ex-neighbor once it was learned that the
Filipi family had lived unharmed in the same Albanian village with the same neighbor for two years
after his father had been killed. And the IJ fairly wondered how Filipi could reasonably fear
returning to any part of Albania in view of the fact that he voluntarily returned in 2000 (while the
Socialists were in power) and stayed for four months, unharmed by the neighbor or by any members
of the Socialist party.
While Filipi persists that the translation is the primary reason that the IJ made an adverse
credibility determination against him, he has not shown how the translator misinterpreted any facts
that were material to the IJ’s conclusions. At most, he directs us to passages of the transcript that
show awkward translations. But he does not explain how these passages should have been
interpreted and above all he does not explain how any of the passages, if interpreted correctly, would
have eliminated the inconsistencies identified by the IJ or would have rectified the implausible nature
of some of his allegations.
Nor does Amadou, 226 F.3d 724, in which the court ordered that the applicant be given a new
hearing due to interpretation problems, alter this conclusion. The interpreter in that case had
familiarity with the applicant’s language (Fulani) but did not have any familiarity with the dialect of
the language spoken by the applicant. Id. at 725. During the hearing, the interpreter informed the
IJ three times that she was having difficulty translating Amadou’s responses. Id. at 727.
Nonetheless, the IJ told the interpreter to “just translate what he said even if it doesn’t make sense.”
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Filipi v. Gonzales
Id. No such problem arose in this case, as the interpreter never claimed an inability to understand
Filipi or the language he was speaking. The record in Amadou also indicated that “the interpreter’s
faulty translation likely played a significant part in the judge’s credibility determination.” Id. Again,
no such problem occurred here. In the end, Filipi has failed to establish that the interpretation
services provided at his asylum hearing violated his rights under the Due Process Clause of the Fifth
Amendment.
B.
To be eligible for asylum, Filipi must show that he qualifies as a refugee—one who “is unable
or unwilling to return to” his or her 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). The burden falls on the applicant to show that he or
she meets this definition, see Mikhailevitch, 146 F.3d at 389, and the applicant has two options in
trying to make this showing. On the one hand, an applicant may prove that “he or she has suffered
persecution in the past,” at which point there is a presumption of a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b)(1). The government may rebut that presumption by showing that
conditions in the petitioner’s country have changed so “that the applicant no longer has a well-
founded fear of persecution.” 8 C.F.R. § 208.13(b)(1)(i)(A). On the other hand, the applicant may
show that he or she has a well-founded fear of future persecution, 8 C.F.R. § 208.13(b)(2), which
“must be both subjectively genuine and objectively reasonable,” Mikhailevitch, 146 F.3d at 389.
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Filipi’s main claim for asylum proceeds along these lines—his father was killed because he
was a Democrat and he fears that members of the Socialist Party, including most notably his former
neighbor, will kill him if he returns. His first problem in bringing this claim is that the IJ did not
credit his testimony in view of the inconsistencies of some aspects of his testimony and the
implausibility of other components of his testimony. Substantial evidence, as we have shown,
supports that finding.
Second, even if Filipi’s testimony were believed, his claim does not establish past persecution
or a well-founded fear of future persecution. As for past persecution, Filipi’s primary concern was
that he heard rumors that his neighbor wanted to continue the “blood feud” with his family. Yet the
neighbor never personally threatened his family or harmed them, and nothing untoward happened
during the two years that Filipi and his family remained in the same village as the neighbor. And
while Filipi was arrested for participating in Democratic demonstrations and detained for three days,
he does not claim that he was beaten or harmed. These circumstances do not demonstrate past
persecution.
Nor has he established a well-founded fear of future persecution. Filipi claims that because
the Socialists remain in power, there is a greater chance that he will be killed by the neighbor because
the neighbor will have a greater ability to carry out his threats. Yet Filipi has given us no reason to
believe that the neighbor will even learn that Filipi has returned to the country if he relocates to
another village. And if Filipi does return to his original village, he has not demonstrated that the
neighbor is still looking to kill or harm him—again, because his family lived unharmed in the same
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Filipi v. Gonzales
village as the neighbor for two years and the neighbor never personally contacted the family, much
less directly threatened them. In the final analysis, Filipi has not shown that if he returns to Albania,
he has a well-founded fear that he will be singled out and persecuted for his political beliefs.
Having failed to meet the standards for asylum, Filipi necessarily fails to meet the more
stringent standards for withholding of removal. See Mikhailevitch, 146 F.3d at 391. Nor, for many
of the reasons noted above, has petitioner credibly shown that it is more likely than not that he will
be tortured if he is removed to Albania. See 8 C.F.R. § 1208.16(c)(2). As such, he is not eligible for
protection under the Convention Against Torture.
III.
For these reasons, we deny the petition for review.
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