Shehu v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0840n.06
Filed: October 12, 2005

No. 04-3882

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DRITAN SHEHU, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM A FINAL ORDER OF
) THE BOARD OF
ALBERTO GONZALES, Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
__________________________________________

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

Dritan Shehu, a native and citizen of Albania, illegally entered the United States on

January 12, 1999. On September 28, 1999, he was apprehended in Texas by the Immigration and

Naturalization Service (“INS”)1 and charged with being present in the United States without being

admitted or paroled, in violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1182(a)(6)(A)(I). Shehu conceded removability, but applied for asylum, the withholding of

removal, and protection under the Convention Against Torture (“CAT”). His application was denied

by an immigration judge (“IJ”), who determined that Shehu was ineligible for asylum because he

failed to file his application within the statutory one-year deadline and otherwise failed to

1
Now the Department of Homeland Security.
No. 04-3882
Shehu v. Ashcroft

demonstrate extraordinary circumstances that excused the untimely filing. The IJ further found that

Shehu did not qualify for withholding of removal or protection under the CAT. The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision in all respects and dismissed Shehu’s

appeal. For the reasons set forth below, we deny Shehu’s petition for review of the decision by the

BIA.

I.

Shehu, who was born in 1974, is a member of a once prominent and wealthy landowning

family who resided in Buz, a village in southern Albania. Following the Communist takeover of

Albania in 1944, the family’s land was confiscated under Albania’s land redistribution policy, and

petitioner’s grandfather and other family members were imprisoned and mistreated by the

Communist regime for protesting the expropriation of their land. After the fall of the Communist

regime in 1990, Shehu’s family sought the return of their property and, in 1991, joined the

Republican Party, which was formed by other former landowners.2 The Socialist government that

assumed power, however, redistributed the land to political allies instead of the original owners, and

most of his family’s land went to members of the local commission. The Shehu family thus received

only a small portion of land that had previously belonged to another family.

Shehu claimed that, as a result of their continued protestations, his family was threatened.

Shehu testified that he and his younger brother became Republican Party “activists” (a status short

of membership). Shehu stated in his affidavit that, in retaliation for his family’s opposition to the

2
At the hearing, Shehu testified, at least initially, that some members of the family had joined
a different Albanian party, the Democratic Party.

-2-
No. 04-3882
Shehu v. Ashcroft

land redistribution, his house was ransacked and he and his brothers were “routinely and savagely

beaten.” At the hearing, however, he made no mention and gave no further explanation of these

incidents. Instead, Shehu’s testimony focused on four matters involving other family members that

allegedly occurred in the late 1990's: the alleged kidnaping and beating of his uncle in 1994 by a

high ranking government official; the 1995 kidnaping of his brother Irfan, a Republican Party

organizer in Buz, who was threatened and told to stop his opposition to the land distribution; the

subsequent kidnaping and disappearance of Irfan in 1997; and the robbery and beating of another

brother in 2003 while visiting the family in Tirana. Shehu claimed that all of these incidents were

retaliatory responses by local government officials to his family’s attempts to secure their former

properties.

Significantly however, Shehu had no first-hand knowledge of these alleged incidents, having

left Albania for Greece in September 1992, when he was seventeen years old. Shehu lived and

worked in Greece for the next six years. He occasionally visited his family in Albania, but returned

for the last time in November 1997.3 On his final visit to Albania, Shehu secured a passport and visa

and then traveled to Mexico via Greece and Cuba. After arriving in Mexico, Shehu illegally crossed

the Mexican border into Texas and stayed with a family until he was found and detained by INS

officials in September 1999.

II.

3
Petitioner’s parents and sister still live in Albania; the family moved from Buz to Tirana in
1997.

-3-
No. 04-3882
Shehu v. Ashcroft

We review issues of law de novo, subject to principles of deference with regard to an

agency’s construction of a statute that it administers.. Csekinek v. I.N.S., 391 F.3d 819, 822, 829

(6th Cir. 2004). The factual findings of the BIA, including credibility determinations, are reviewed

under the substantial evidence standard. Sylla v. I.N.S., 388 F.3d 924, 925 (6th Cir. 2004); Singh

v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005); Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.

2005). Under this highly deferential standard, “the administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); see also Sylla v. I.N.S., 388 F.3d at 925; Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.

2004). Reversal of a factual determination by the BIA is warranted only when we find that the

evidence not only supports a contrary conclusion, but compels it. Marku v. Ashcroft, 380 F.3d 982,

986 (6th Cir. 2004).

Shehu first challenges the BIA’s affirmation of the IJ’s determination that his failure to

timely file his asylum application was not excused by “extraordinary circumstances.” An asylum

application must be filed within one year after the applicant enters the United States, 8 U.S.C. §

1158(a)(2)(B), unless the applicant demonstrates either that a later application is justified by

changed circumstances that materially affected the applicant’s eligibility for asylum, or

extraordinary circumstances prevented the applicant from meeting the deadline. 8 U.S.C. §

1158(a)(2)(D). Although Shehu entered the United States on January 12, 1999, and did not file his

asylum application until March 3, 2000, more than one year after the date of entry, he maintains that

the immigration court’s delay in processing his motion for a change of venue prevented him from

complying with the filing deadline.

-4-
No. 04-3882
Shehu v. Ashcroft

Notwithstanding Shehu’s contentions, we have no discretion to determine whether the

immigration court delayed his compliance with the filing deadline. The INA expressly provides that

“[n]o court shall have jurisdiction to review any determination” regarding the existence of

extraordinary circumstances that would excuse a failure to timely file an asylum application. 8

U.S.C. §1158(a)(3). Consequently, we are barred from reviewing the BIA’s determination that

Shehu failed to demonstrate extraordinary circumstances. See, e.g., Csekinek, 391 F.3d at 824; Gjyzi

v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004); Castellano-Chacon v. I.N.S., 341 F.3d 533, 544 (6th

Cir. 2003).

III.

Shehu next challenges the IJ’s exclusion of purportedly official documents from Albania

pertaining to his family history, land ownership, verification as to membership in political parties,

and a certificate from the Association of Formerly Politically Persecuted from the hearing because

they were not authenticated in conformance with 8 C.F.R. § 287.6(b) (requiring an official

publication or properly attested copy that is certified by a U.S. Foreign Services Officer stationed

in the country where the record is kept). Shehu claims that the INS agreed to authenticate the

documents pursuant to his request but failed to do so. Alternatively, Shehu argues that submitting

the documents to the INS was “the only way to obtain proper authentication” and that “the burden

was on the Service” to authenticate the documents.

A review of the record reveals that these documents did not conform to the requisite

certification requirements and were therefore properly excluded as evidence. Although Shehu

correctly argues that alternative means of authenticating records are allowed if it is not possible to

-5-
No. 04-3882
Shehu v. Ashcroft

secure authentication from the proper authorities, Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532 (3d

Cir. 2004), Shehu never raised the possibility of authentication by alternative means before either

the IJ or the BIA. Thus, this issue is not properly before this Court. 8 U.S.C. § 1252(d)(1)

(requiring the petitioner to first argue the claim before the IJ or the BIA before an appeal may be

taken); Csekinek, 391 F.3d at 822. Moreover, Shehu cites no legal authority in support of his

argument that the burden was on the INS to obtain proper authentication of the documents. In any

event, his claim is belied by the rule itself, which specifies that copies of official publications are

to be attested to by an officer of the foreign country authorized to do so, and his position is to be

certified, where necessary, by a United States Foreign Service officer. 8 C.F.R. § 287.6. No

intervention on the part of the INS was necessary or required under the circumstances, and, although

Shehu’s counsel sent the documents to government counsel prior to the hearing with a request for

authentication, the record reflects, as the BIA found, that government counsel had not agreed to do

so.

In a related argument, Shehu maintains that the IJ erred by refusing to consider documentary

evidence written in Albanian and submitted with purported translations on the ground that the

certificate of translation was inadequate. Pursuant to 8 C.F.R. § 1003.33, any foreign language

document offered at an immigration hearing “shall be accompanied by an English language

translation and a certification signed by the translator that must be printed legibly or typed.” The

“certification must include a statement that the translator is competent to translate the document, and

that the translation is true and accurate to the best of the translator’s abilities.” Id.

-6-
No. 04-3882
Shehu v. Ashcroft

At the hearing, the IJ correctly noted that only one of the documents submitted by Shehu

complied with the regulation. Most of the proffered documents were simply stamped with the

translator’s name and title “Translator,” and the translator’s initials or signature. A few included

a statement by a notary that the translator “masters both languages.” None of the documents, with

one exception, bore the requisite certification by the translator, either as to his own competence or

the accuracy of the translation. Given that state department profile reports were submitted during

the hearing concerning the proliferation of fraudulent Albanian documents, exclusion of the

proffered exhibits was proper not only for want of certification as to translation and authenticity, but

also on the additional ground cited by the IJ, who held that Shehu had not laid a proper foundation

for the admission of the exhibits.

IV.

Shehu also asserts that his constitutional right to a full and fair hearing was violated during

the proceedings before the IJ due to the translator’s inability to properly and adequately translate his

testimony. However, since Shehu failed to complain about the translator’s alleged deficiencies

during the hearing, the BIA properly held that he waived any objection to the quality of the

translation. See Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005). Moreover, “[t]o prevail on

a due process challenge to deportation proceedings, [an alien] must show error and substantial

prejudice. A showing of prejudice is essentially a demonstration that the alleged violation affected

the outcome of the proceedings; we will simply not presume prejudice.” Id. at 979 (internal citation

and quotation marks omitted). A review of the record belies Shehu’s assertion that problems with

-7-
No. 04-3882
Shehu v. Ashcroft

the translator existed or that the alleged faulty translation deprived Shehu of due process and

improperly impacted the credibility determinations of the IJ.

V.

Shehu’s remaining issues all pertain to the merits of the BIA’s decision denying Shehu’s

claims for withholding of removal and relief under the CAT. Shehu challenges the IJ’s findings,

adopted by the BIA, that he was not a credible witness. Shehu argues that the IJ excessively relied

on minor inconsistencies, which were attributable to a combination of poor translation and his

inability to fully understand the questions posed to him by the IJ during the hearing. Shehu

maintains that objective evidence existed to support his eligibility for relief.

Credibility determinations are considered findings of fact and are reviewed under the

substantial evidence standard. Sylla, 388 F.3d at 925. Pursuant to this standard, credibility

determinations are “conclusive unless 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. Although “an adverse

credibility finding is afforded substantial deference, the finding must be supported by specific

reasons. An adverse credibility finding must be based on issues that go to the heart of the

applicant’s claim.” Sylla, 388 F.3d at 926 (internal citations and quotation marks omitted). As a

general rule, discrepancies have no bearing on an applicant’s credibility unless they serve to enhance

the applicant’s claim of persecution. Id. Nonetheless, the cumulative effect of minor inconsistencies

can support adverse credibility findings. Yu, 364 F.3d at 704.

In this case, the IJ denied relief on the basis of Shehu’s lack of credibility and corroboration.

The IJ characterized Shehu’s testimony as “nonresponsive, argumentative and less than forthright.”

-8-
No. 04-3882
Shehu v. Ashcroft

The IJ noted that, despite describing himself as a Republican Party activist, Shehu presented no

proof that he was active in support of any political party. Furthermore, Shehu’s residence in Greece

from 1992 to 1998 “substantially undercut” his claim of such political activities. The IJ also noted

numerous inconsistencies between Shehu’s testimony at the hearing and his affidavit. There were

inconsistencies regarding his alleged mistreatment and beatings by authorities while he was still in

Albania, and pertaining to his and his family’s political affiliations during the 1990's. There was no

corroboration of his family’s activities.

Moreover, the IJ noted that Shehu was out of the country from 1992 to 1997, he was not part

of the land dispute, and he offered no statements from surviving family members regarding the

alleged attacks by Albanian officials against family members in the 1990's. The IJ, citing a profile

report indicating that organized crime was prevalent and active in Albania, found that no evidence

existed to demonstrate that government officials were “in any way involved in these activities.” The

IJ found Shehu’s account of the attack on his brother to be inconsistent and unreliable and noted that

there was no evidence that Shehu’s family ever sought the help of the government or even reported

the attacks. The IJ characterized Shehu’s testimony as “subjective speculation and conspiracy

theorems relating to what he believes occurred.” In short, the IJ concluded that the Shehu family

difficulties arose from a local land dispute, and the only documents offered in this regard related to

Shehu’s mother’s land interests.

The IJ also found that Shehu’s credibility was further undermined by his vagueness regarding

the details of his time spent in Mexico and Greece, and inconsistencies concerning his legal status

in those countries. The record indicates that despite claims that he applied for asylum in Greece and

-9-
No. 04-3882
Shehu v. Ashcroft

Mexico, Shehu was unable to produce any documentation regarding his status in either country. In

particular, with respect to the issue of asylum in Mexico, the IJ found Shehu’s loss of his passport

and expulsion note to be suspicious, noting “a reasonable probability that [Shehu] may have been

granted asylum in Mexico and purged himself of the very documents which would disprove this

grant.”

Given that these significant and substantiated inconsistencies go to the heart of Shehu’s

claims for relief, we conclude that substantial evidence supports the IJ’s adverse credibility

determinations. Sylla, 388 F.3d at 925-926.

Shehu next contends that the IJ erred in finding that he had “firmly resettled” either in

Greece or Mexico. 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15. Although the IJ mentioned the

issue of firm resettlement in her decision as a factor mitigating against the grant of asylum, neither

the IJ nor the BIA used resettlement as the basis for the denial of Shehu’s asylum claim. Instead,

as noted, Shehu’s asylum application was denied because it was not timely filed pursuant to 8 U.S.C.

§ 1158(a)(2)(B). Thus, Shehu’s argument in this regard is without merit.

Finally, Shehu petitions for review of the BIA’s denial of his request for withholding of

removal and protection under the CAT. Even if not entitled to asylum, an alien may secure

withholding of removal if he can demonstrate that his “life or freedom would be threatened in that

country [to which he would be sent] because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant must

establish a “clear probability of persecution.” I.N.S. v. Stevic, 467 U.S. 407, 413 (1984). This

burden of proof is more stringent than that required to establish eligibility for asylum. I.N.S. v.

- 10 -
No. 04-3882
Shehu v. Ashcroft

Cardoza-Fonseca, 480 U.S. 421, 431-432 (1987); Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.

2004). To establish a clear probability, the applicant must demonstrate that “it is more likely than

not” that he or she will be persecuted upon return. 8 C.F.R. § 208.16(b)(2).

To be eligible for protection under the CAT, the applicant must establish “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. § 208.16(c)(2). “Torture” is specifically defined under 8 C.F.R. § 208.18(a)(1) as “any act

by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”

for such purposes as obtaining a confession, punishment, intimidation, or any reason based on

discrimination of any kind, “by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.” See also Ali v. Reno, 237 F.3d 591,

597 (6th Cir. 2001). This Court will uphold the BIA’s decision concerning withholding and the

CAT unless it is manifestly contrary to law. Castellano-Chacon, 341 F.3d at 545, 552.

On the basis of the record set forth above, and particularly in light of the IJ’s viable adverse

credibility determinations, the BIA did not err in concluding that “notwithstanding earlier difficulties

of his family with respect to a land dispute, [Shehu] has not demonstrated that he has experienced

any past harm or that he now maintains a well-founded fear of either persecution on one of the five

protected grounds, or torture at the hands of, or with the acquiescence of, the government, in

Albania.” This conclusion is supported by substantial evidence and is not manifestly contrary to

law.

VI.

For the foregoing reasons, we deny Shehu’s petition for review.

- 11 -
No. 04-3882
Shehu v. Ashcroft

- 12 -