File Name: 06a0121n.06
Filed: February 14, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-3178
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NAXHIDE KOXHA,
Petitioner,
v. ON APPEAL FROM THE
BOARD OF IMMIGRATION
ALBERTO R. GONZALES, APPEALS
Respondent.
/
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Naxhide Koxha, representing herself and her two
children in this action, petitions this Court for review of the Board of Immigration Appeals’s
summary affirmance of the immigartion court’s decision to deny her application for asylum,
withholding of removal, and relief pursuant to the United Nations’s Convention Against Torture.
Additionally, Koxha challenges the constitutionality of the Board of Immigration Appeals’s
procedure of affirmance without an opinion. Based on the following, this Court denies the petition
for review.
I.
Koxha entered the United States in Chicago on July 9, 2002. She applied for asylum on
September 23. On November 7, Koxha was sent a Notice to Appear. At the Master Calendar
No. 05-3178
Koxha v. Gonzales
Page 2
hearing on March 11, 2004, Koxha admitted that she and her two children were removable. After
a hearing on May 3, the immigration judge denied the application for relief on July 13. The Board
of Immigration Appeals affirmed the decision without opinion on January 18, 2005. A timely
petition for review was filed in this Court on February 15.
Naxhide Koxha is a citizen of Albania. According to her testimony given at the hearing,
Koxha and her family have been the subject of persecution in Albania based on their political
beliefs. She joined the Democratic Party with her husband in 1990, and they allegedly held
positions of power within the party beginning in 1996. On December 20, 1999, Koxha’s husband
was shot and he remained hospitalized until January 13, 2000. Koxha, along with her husband and
other members of the Democratic Party, were prevented from attending a demonstration on February
26, 2000. They were allegedly held for 2-3 hours and beaten by the police.
On July 1, 2000, Koxha’s son and some friends attempted to put up campaign posters for
Democratic Party candidates. The police saw this, tore up their posters, and took them into custody
for approximately seven hours. Upon their release, the boys made additional attempts to put the
posters up and each time were arrested and allegedly beaten. On October 7, Koxha’s husband was
participating in a political protest when he was shot and killed by masked men. Finally, on October
21, 2000, Koxha’s daughter was the target of an attempted kidnaping.
II.
A. Review of the Asylum Application
This Court’s review of administrative asylum and withholding of removal eligibility
determinations is limited to a deferential standard. In reviewing decisions of the Board denying an
No. 05-3178
Koxha v. Gonzales
Page 3
application for asylum, the determination is upheld if supported by reasonable, substantial, and
probative evidence on the record considered as a whole. Mikhailevitch v. INS, 146 F.3d 384, 388
(6th Cir. 1998 ) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will reverse only
if the evidence presented by Koxha was such that a reasonable factfinder would not fail in
concluding that the requisite fear of persecution existed. Elias-Zacarias, 502 U.S. at 483-84 (citing
NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939)).
The Attorney General may grant asylum to any person who qualifies as a “refugee.” 8
U.S.C. § 1158(b). A refugee is a person 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). To prove
one’s refugee status, one must present specific facts demonstrating suffering of past persecution or
a well-founded fear of future persecution motivated by one of these five statutorily protected
grounds. See Elias-Zacarias, 502 U.S. at 481. The applicant’s testimony, if credible, “may be
sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13(a). To prove a
well-founded fear of future persecution, an applicant must actually fear that he will be persecuted
upon return to his country, and he must present evidence establishing an “objective situation” under
which his fear can be deemed reasonable. INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987).
Koxha, in her effort to obtain asylum or similar relief, filed two applications and personally
testified before the immigration judge. In its credibility determination, the immigration court found
the inconsistencies between these three statements to be ultimately determinative. “[C]redibility
determinations are considered findings of fact, and are reviewed under the substantial evidence
No. 05-3178
Koxha v. Gonzales
Page 4
standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). Based on that standard, this Court must
treat findings of fact as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting 8 U.S.C. §
1252 (b)(4)(B)).
The immigration judge found inconsistencies in the evidence regarding both instances in
which Koxha’s husband was shot. Koxha’s first application failed to mention the December 19
shooting at all. Her second application detailed the December 19 shooting and named the shooters
as “two men sent by the Socialist Party.” Finally, at her hearing, Koxha testified to the shooting but
stated that she did not know who shot her husband. As to the October 2000 shooting, Koxha’s first
application named the shooters as members of the Socialist Party. Her second application does not
mention the incident at all, indicating only that her husband died on that day due to “complications”
from the previous shooting. Koxha later testified that the shooting occurred, but she did not know
who the shooters were.
There were other significant inconsistencies in the evidence presented by Koxha. The
incident involving Koxha, her husband, and several Democratic Party members being prevented
from attending a demonstration was first mentioned during Koxha’s testimony, but was not included
in either of the applications. Koxha also failed to mention the trouble her son had with the police
in either application, but did mention in those applications that he was in prison during the month
of July 2000. The immigration judge also noted that Koxha’s testimony regarding this incident
conflicted with her son’s testimony as to how severe his injuries were from the beatings – Koxha
described the injuries as physically life threatening and her son described them as mainly
No. 05-3178
Koxha v. Gonzales
Page 5
psychological. Additionally, Koxha failed to mention in her testimony her claims in the applications
that her husband was jailed on a weekly basis in July of 2000 and that her son had been tortured.
Finally, the immigration judge found the proof offered regarding the alleged kidnapping of
Koxha’s daughter to be inconsistent. While Koxha testified to the kidnapping, she failed to mention
the incident on either of her written applications. Koxha attempted to explain that the failure was
because she thought she could explain the situation later and therefore just wrote about general
threats in her application. The immigration judge dismissed this explanation on the grounds that the
application clearly instructs applicants to write about all incidents in detail and the fact that Koxha
filled out the second application with the assistance of counsel. In addition to these inconsistencies,
Koxha failed to include on her written applications that her son had been arrested in the United
States on August 12, 2002.
Given the cumulative effect of these inconsistencies we conclude that there exists substantial
evidence in the record to support the immigration judge’s adverse credibility finding.
B. Constitutionality of an Affirmance Without Opinion
In Koxha’s brief to this Court, she spends a large portion of her argument discussing the
recent changes to the immigration court’s procedures. Specifically she argues that the Board of
Immigration Appeals’s practice of issuing affirmances without an opinion is unfair to applicants and
unconstitutional. This Court is bound by the precedent of its previous decisions. Johnson v. City
of Cincinnati, 310 F.3d 484, 509-510 (6th Cir. 2002). Therefore, we must turn our attention to this
Court’s holding in Denko v. INS for guidance in this case. 351 F.3d 717 (6th Cir. 2003).
No. 05-3178
Koxha v. Gonzales
Page 6
In Denko, a Ukrainian citizen appealed the decision by the Board of Immigration Appeals
denying relief. Id. In that appeal, Denko raised the claims that the Board’s procedure in allowing
a single member to issue summary affirmances of an immigration judge’s order violated due process
and that Denko’s due process rights were violated by the Board’s issuance of an affirmance without
opinion. Id. at 720. “[T]he Fifth Amendment entitles aliens to due process of law in the deportation
proceedings.” Id. at 726 (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). Under 8 C.F.R. §
1003.1(a)(7), a single Board member is authorized to issue a decision affirming an immigration
judge’s decision without stating the basis for such an affirmance.
“[A] challenge to the summary affirmance procedure cannot stand when the only evidence
that the summary affirmance procedure causes the [Board] to disregard its review responsibilities
is the nature of the procedure itself combined with statistics indicating that thorough review would
be difficult.” Denko, 351 F.3d at 728 (citing Albathani v. INS, 318 F.3d 365-378-79 (1st Cir. 2003)).
This Court held that Denko had provided no evidence showing the Board failed to give her case
proper review. Id. Therefore, “the [Board’s] streamlining procedures do not themselves alone
violate an alien’s rights to due process.” Id. at 730.
In this case, Koxha’s argument against the fairness and constitutionality of the Board’s
procedures is a retreading of the argument brought before this Court in Denko. Koxha argues that
the procedures are unfair based upon the nature of the procedure itself. As stated in Denko, this is
insufficient to establish a due process violation. See id. at 728. Koxha states in her brief that she
has more to her argument than this, but merely cites to potential errors made by the original
immigration judge. In Denko, this Court addressed that argument by stating that demonstrating a
No. 05-3178
Koxha v. Gonzales
Page 7
single failure in an immigration judge’s decision does not immediately mean that the Board’s
streamlined procedures violate the applicant’s right to a fair review because of the remaining
appellate venue that is the Court of Appeals. Id. at 730.
Although Koxha’s brief does a commendable job enumerating a case against the procedures
of the Board of Immigration Appeals, she is following in the footsteps of Denko and must therefore
end at the same place: a denial of her appeal. Therefore, the constitutional challenge to the Board
of Immigration Appeals’s procedures must fail.
III.
For the reasons stated above, this Court DENIES her petition for review.
No. 05-3178
Koxha v. Gonzales
Page 8
MERRITT, Circuit Judge, concurring. In these asylum cases I place substantial reliance
on the country reports of the State Department and human rights organizations. These reports now
show that the political and human rights situation in Albania is greatly improved. The latest State
Department report, dated September 2005 (www.state.gov/r/pa/ei/bgn/3235.htm), says that the party
of the asylum claimant in this case is now in power:
On July 24, 2005, Alfred Moisiu was sworn in as President of the
republic. A nonpartisan figure, nominally associated with the
Democratic Party, he was elected as a consensus candidate of the
ruling and opposition parties. The peaceful transfer of power from
President Meidani to President Moisiu was the result of an agreement
between the parties to engage each other within established
parliamentary structures. This “truce” ushered in a new period of
political stability in Albania, making possible significant progress in
democratic and economic reforms, rule of law initiatives, and the
development of Albania’s relations with its neighbors and the U.S.
....
The July 3, 2005 general elections were considered a sign in the right
direction in terms of Albania’s consolidation of democracy. The
Democratic Party and its allies returned to power in a decisive
victory, pledging to fight crime and corruption, decrease the size and
scope of government, and promote economic growth. Their leader,
Sali Berisha, was sworn in as Prime Minister on September 11, 2005.
The Rule of Law and the judiciary have been greatly improved. The harassment and
persecution described by Koxha in the 1990's are no longer prevalent. I put a good deal more
credence in these objective events than in the subjective credibility findings of the Immigration
Judge. The fact that an applicant, who speaks a foreign language, not English, does not recite all
the details of her case when she first applies for asylum seems less significant to me than the actual
No. 05-3178
Koxha v. Gonzales
Page 9
conditions in the country in trying to judge the probability of persecution. For the reason that
Albanian country conditions are much changed for the better, I concur.