Balliu v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0564n.06
Filed: August 7, 2006

No. 03-3691

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ARMAND BALLIU, )
)
Petitioner, ) ON PETITION FOR REVIEW
v. ) OF AN ORDER OF THE
) BOARD OF IMMIGRATION
ALBERTO GONZALES, ) APPEALS
ATTORNEY GENERAL )
)
Respondent. ) OPINION
_______________________________________)

Before: Moore, Griffin, and Cudahy,* Circuit Judges.

RICHARD D. CUDAHY, Circuit Judge.

Armand Balliu seeks review of a final order of the Board of Immigration Appeals (BIA)

affirming without opinion the Immigration Judge’s (IJ’s) denial of his request for asylum,

withholding of removal and protection under the Convention Against Torture (CAT). Balliu

argues that the IJ erred in concluding that he had not established eligibility for asylum and

withholding of removal (on the basis of political opinion and membership in a social group), and

protection under the CAT. He further argues that the IJ erred by denying him a full and fair

hearing in violation of his due process rights. Additionally, Balliu argues that the BIA erred in

*
The Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.

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streamlining his case rather than sending it to a three-member review panel, and, finally, that the

BIA erred in affirming without opinion the IJ’s decision. For the reasons set forth below, we

deny Balliu’s petition for review on all counts.

I. BACKGROUND

Balliu is a native and citizen of Albania. Balliu’s great uncle, Abaz Ermenj, is one of the

founders, and the current chairperson, of the Balli Kombetar Party in Albania. The Party is an

anti-communist Albanian nationalist organization founded in roughly 1942. It has offices

worldwide with 30,000 to 40,000 members. Balli Kombetar was initially organized as a military

group with a political wing. The Party has, at times, held a small number of seats in the

Albanian Parliament.

Balliu’s family is highly political and active in the Balli Kombetar Party. Balliu, who

joined the Party when he was eighteen, claims that his family has long been persecuted for its

involvement in this political party and for its anti-communist political views. His great uncle,

Ermenji, fled to France, where he lived in exile during the communist period. Since the fall of

the communist regime, Ermenji has ended his exile and has returned to Albania for visits.

Additionally, another great-uncle of Balliu and Balliu’s maternal grandfather were killed by

communists in the 1940s. Around this time, the rest of Balliu’s family was interned in a village

where they were treated like slaves. Balliu testified that his cousin Bardhyul Balliu, who was

active in anti-socialist politics, died in police custody in the capital city of Tirana after being

abused. The 1999 U.S. Department of State Country Report on Human Rights Practices in

Albania discusses this incident. U.S. Dep’t of St., Country Reports on Human Rights Practices

1999, sec. 1, (Feb. 25, 2000). Balliu’s parents, who currently reside in Albania, are also active

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Balli Kombetar members.

In 1992 the Communist Party in Albania was defeated by the Democratic Party in the

national elections. In 1997, following a five-month period of chaos and anarchy in the country,

the Socialist Party won 111 out of the 155 parliamentary seats in the national parliamentary

elections. In 2005, the Democratic Party regained control of the Albanian Parliament, receiving

81 of the 140 available parliamentary seats.

Balliu believes he will be in danger if he returns to Albania, partly because it is known

that he is the future of the Balli Kombetar Party in his town. He argues that he will be

persecuted or killed by members of the Socialist Party because many members of the Socialist

Party were supportive of, and active in, the Communist Party or are related to old communist

leaders. Balliu testified to several incidents in which he was targeted by Emil Tushka, the son of

the Secretary of the Socialist Party in Gramsh (one of Albania’s thirty-six districts), by Nor

Hasa, the brother of the Chairman of the Albanian National Intelligence Service (SHIK) and by

several friends of these individuals. At the time this case was heard by the IJ, the Socialist Party

was still in power in Albania. Currently, the Democratic Party is in power, though members of

the Socialist Party continue to reside in Albania and are active in the Parliament.

Balliu testified that in March 1997, when Albania was experiencing severe civil disorder

and unrest, he was performing his required military service. On a specific day during March,

groups began burning the city hall, the bank, the police station and the local court in order to

destroy documents from the communist era. Balliu’s commanding officer asked him to hide

three boxes of military documents as well as ammunition in his house. After Balliu and his

officer went to Balliu’s house to store these materials, they were stopped by five people,

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including Tushka and Hasa. These men beat Balliu and accused him of trying to save the

documents. Ballui believes that these individuals wanted to burn the documents because they

were generated while their parents were Communist Party leaders in Gramsch, and presumably

these documents could implicate them criminally. Balliu treated his own injuries from the

beating.

After completing his military service in October 1997, Balliu returned to work as an auto

parts dealer. In September 1998, he attended an anti-socialist rally to protest the assassination of

Democratic Party opposition leader Azem Hajdari. Balliu was arrested after this event at a

coffee shop. He testified that he was detained overnight and was hit with a club. His face was

swollen and bruised and he lost three teeth. Following his release from custody the next day, he

had to be treated in the hospital. Balliu was unable to work during the full two weeks it took him

to recover from his injuries. Balliu also testified that he believes he was being followed after his

release from prison. Soon after Balliu’s return to work, his store was vandalized. In October,

1998, he arrived at work and found a threatening note left in his store which read, “You dirty

nationalist! Why do you continue to persist?” Balliu decided to sleep in his store following this

event to protect his property. On the night of November 15, 1998, when Balliu was sleeping in

the shop, it was set on fire. Balliu testified that when he awoke he heard the same voices of the

individuals who had attacked him for protecting the military documents. Balliu managed to

escape the fire, but his property was destroyed. Following this incident, Balliu went into hiding

by living with his cousin for several months. He testified that the police asked his parents about

his whereabouts when he was in hiding.

On June 8, 1999, Balliu entered the United States with a fraudulent passport. On August

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18, 2000, the Immigration and Naturalization Service (INS) charged Balliu with removal under

Section 237(a)(1)(A) of the Immigration and Nationality Act. The notice to appear was filed

with the court on August 21, 2000. Balliu, through counsel, admitted the allegations and

conceded that he was subject to removal. However, in lieu of removal he requested relief based

on eligibility for asylum, withholding of removal to Alabania and relief under CAT. In the

alternative, he requested voluntary departure.

On May 4, 2001, the IJ issued an oral decision in which she found Balliu subject to

removal as charged, denied his applications for relief and CAT protection, denied his request for

voluntary departure, and ordered him removed from the United States to Albania. The IJ

concluded that Balliu had not established that he was entitled to relief based on several factual

determinations. First, the IJ found that because Balliu was not a political leader and did not have

close ties to his great-uncle such that Balliu might be considered a political successor, the

reasonableness of his fear of persecution was reduced. Further, the fact that Balliu’s great-uncle

and parents, members of the Balli Kombetar party, are able to live unharmed in Albania further

reduces the reasonableness of Balliu’s fear of persecution. The IJ also stated that because the

United States Department of State Country Reports for Albania reported that Albania was

experiencing widespread civil disrest affecting the general population at the time Balliu testified

he was attacked, Balliu had not been able to prove that he had suffered more than the general

population in Albania during that period.

Balliu appealed the IJ’s decision to the BIA. On April 16, 2002, the BIA affirmed the

decision of the IJ without opinion. This petition for review followed.

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 II. DISCUSSION

A. Asylum, Withholding of Removal, and Protection Under the CAT

Balliu argues that the IJ erred in denying his petition for asylum. The Attorney General

has discretion to grant asylum to any alien who qualifies as a refugee. In order to demonstrate

refugee status, an alien must present specific facts demonstrating that he or she 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. §§ 1158(b)(1), 1101(a)(42)(A). An applicant for asylum must

provide specific factual information to demonstrate that he or she has suffered past persecution

or has a well-founded fear of future persecution based on one of five protected grounds. Koliada

v. INS, 259 F.3d 482, 487 (6th Cir. 2001). In cases such as this, where the BIA affirmed the IJ’s

decision without opinion, we review the IJ decision as a final administrative order. Yu v.

Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). We review the IJ’s factual determinations about

Balliu’s eligibility for asylum under a substantial evidence test. Id. We may reverse the

determination of the IJ only if the evidence presented by Balliu is “so compelling that no

reasonable factfinder could fail to find the requisite persecution or fear of persecution.” Id. at

702-03 (citing Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)). This highly deferential standard

requires us to uphold decisions below if they are supported by “reasonable, substantial, and

probative evidence on the record considered as a whole.” Koliada v. INS, 259 F.3d at 486

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We may not reverse an IJ’s decision

“simply because [we are] convinced that [we] would have decided the case differently.”

Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir. 1995) (internal quotation marks omitted).

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 Balliu did not produce adequate evidence to meet the high burden of proof required for us

to determine that the IJ erred in denying him asylum. First, the IJ determined that Balliu did not

present evidence that proved he suffered more acutely than other persons in the population of

Albania during the period of general civil strife occurring in the country at the time of the attacks

on Balliu. This court’s “decisions demonstrate that to create a presumption of a well-founded

fear of future persecution, the applicant must establish that he or she was specifically targeted by

the government for abuse based on a statutorily protected ground and was not merely a victim of

indiscriminate mistreatment.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005). In

Daneshvar v. Ashcroft, 355 F.3d 615, 624-25 (6th Cir. 2004), this court declined to reverse the

denial of asylum to an Iranian man because, though there were widespread human rights abuses

in Iran, he had not presented any “credible evidence that he [would] be singled out for different

treatment if he [was] deported back to Iran.” Id. at 625. Additionally, in Ali v. Ashcroft, 366

F.3d 407, 410 (6th Cir. 2004) (citing Meghani v. INS, 236 F.3d 843, 847 (7th Cir. 2001)), we

found that an alien was not entitled to asylum because he had failed to demonstrate that the

abuse he endured came from persecution rather than from “civil unrest between competing

political factions.”

Here, the IJ relied on the United States Department of State Country Reports to aid in her

determination that Balliu was not specifically targeted. This Court has previously relied on

Country Reports for Albania when considering a political persecution claim, and has found a

Country Report to provide substantial evidence for the IJ’s determination. See Sterkaj v.

Gonzales, 439 F.3d 273, 276 (6th Cir. 2006). The 1999 Albania Country Report states that there

was “a 5-month period of chaos and anarchy,” both social and political, in 1997. U.S. Dep’t of

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St., Country Reports on Human Rights Practices in Albania 1999 (Feb. 25, 2000). There were

complaints about police behavior and reports that police in the country were “largely untrained

and often unreliable.” Id.

The IJ also reasonably found that the Country Reports and Asylum Profiles further

discredited Balliu’s claim because they state that Albania is a republic with a multi-party

Parliament, a Prime Minister and a President elected by the Parliament. There is a constitution,

and the constitution states that the Government is based on a system of elections that are free,

equal, general and periodic. Id. Additionally, a 1997 general election was considered by

international monitors to be relatively legitimate, and the 1999 Country Report further stated that

the right to peaceful assembly is generally respected. Id. Additionally, the 1999 Country Report

stated that in that year, there were no clear cases of detainees being held strictly for political

reasons. Additionally, if politically-motivated harassment or detention were to occur, the Report

found that opposition political leaders are most likely to face such treatment. Id., sec. 1.

The evidence Balliu presented to suggest that he was specifically targeted does not

compel a conclusion contrary to that reached by the IJ. Balliu testified that when he was

attacked while serving in the army, and when his store was set on fire, he recognized the

perpetrators as individuals who were members of the Socialist Party, who had familial

Communist Party ties and who knew of Balliu’s connection to the Balli Kombetar Party.

Additionally, during the first incident when he was attacked in the military, he testified that one

of his attackers called him a “foul Baliste,” which Balliu believed referred to his involvement in

the Balli Kombetar Party. While the name calling evidence could be interpreted to mean that

Balliu was targeted because of his direct connection to the Balli Kombetar Party, it nonetheless

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does not meet the high standard of proof necessary for us to find that the IJ erred. Taking into

account all of the other evidence, the name calling could also be reasonably interpreted to mean

simply that Balliu was attacked during a period of general political and social chaos when

various political groups were fighting and struggling for power. Balliu’s connection to the

military, not his involvement in the Balli Kombetar Party, may have been the main reason for

both the attack and the name calling.

Balliu also presented a newspaper article to support his claim that he was specifically

targeted due to his political affiliation with the Balli Kombetar Party. The article identified

Balliu by name, stated that his shop was burned and stated that he was threatened because of his

political affiliation with the Balli Kombetar in 1997 and 1998. However, the IJ did not find this

newspaper article credible and determined that it was biased based on the expert testimony of Dr.

Berndt Fischer, a professor, author and lecturer on Albania and the Balkins. Dr. Fischer testified

that all newspapers in Albania are very political, and he was thus skeptical of news articles

because of their political nature. The IJ also found it suspect that the newspaper reported on

incidents from 1997 and 1998 in May 2000. Thus, the IJ determined that she could not give the

newspaper substantial weight in her determination, which, considering Dr. Fischer’s testimony,

was a reasonable conclusion.

Balliu also pointed the Court to the section of the 1999 Country Report that discusses the

fate of Bardhyl Balliu, a cousin of the petitioner. The Report states that Bardhyl was taken into

police custody and died while awaiting trial. The fate of Bardhyl is reported in the context of a

section concerning police committing extrajudicial killings. The Report does not suggest,

however, that Bardhyl was targeted due to his political persuasion or affiliation with the Balli

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Kombetar Party. Id. This evidence does not, therefore, persuade us that the IJ’s findings were

unreasonable.1

The IJ carefully considered Balliu’s political leader status. However, the IJ ultimately

determined that Balliu failed to present evidence to prove that he was a political leader, and that

his lack of political status reduced the reasonableness of his fear of political persecution. This

finding was reasonable given that the 1999 Country Report states that there were no politically

motivated disappearances or reports of political prisoners during that year. Id. The report further

states that (unlike Balliu) opposition political leaders were most likely to face politically-

motivated harassment or detention. Id.

The Record supports the IJ’s conclusion that Balliu was a fairly junior member of the

Balli Kombetar Party and that he did not hold a title or position within the party. Balliu testified

that his duties involved helping the party in local political activities by acting as a volunteer

driver and delivering mail and documents, and that he participated in political rallies. These

activities support a finding that Balliu was not a political leader.

The IJ also considered the fact that Balliu’s great-uncle, who is a political leader of the

Balli Kombetar Party, has been able to travel freely in Albania; further, Balliu’s parents, who are

involved in the party, have been living freely and without harm in Albania. The IJ reasonably

1
At oral argument, Balliu argued that Kalaj-Pali, et al. v. Gonzales, No. 04-4247, 2006
U.S. App. LEXIS 9592, at *14 (6th Cir. Apr. 14, 2005) provides a useful analysis under which
we should consider Balliu’s case. There, this Court ruled that the IJ erred in not finding a clear
nexus between the threats Kalaj-Pali and his family suffered and their political activities.
However, Kalaj-Pali can be distinguished from the present case because there was more
evidence that Kalaj-Pali was a political leader, and there was more evidence to suggest that the
attacks and threats Kalaj-Pali endured were political in nature and specifically targeted at Kalaj-
Pali because of his strong ties to and work with the Democratic Party. Additionally, Kalaj-Pali
is an unpublished case and thus is not controlling.

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concluded that these facts reduce the reasonableness of Balliu’s fear of persecution. See Hakeem

v. INS, 273 F.3d 812, 816-17 (9th Cir. 2001) (“An applicant’s claim of persecution upon return is

weakened, even undercut, when similarly-situated family members continue to live in the

country without incident.”).

Thus, the IJ’s determination that Balliu is not entitled to asylum based on the evidence

presented was reasonable, and we reject Balliu’s petition on this claim.

Balliu also seeks review of the IJ’s denial of withholding of removal and protection under

the CAT. Withholding of removal must be granted if an applicant can establish a “clear

probability” that his life or freedom would be threatened on account of one of the enumerated

grounds. INS v. Stevic, 467 U.S. 407, 429 (1984). Because Balliu failed to meet the less difficult

standard for asylum, he necessarily failed to meet the more stringent standard for withholding of

removal. Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004); Daneshvar v. Ashcroft, 355 F.3d

615, 625 (6th Cir. 2004) (“Because substantial evidence supports the Board’s determination that

Petitioner is ineligible for asylum, it therefore follows that he cannot satisfy the more stringent

standard for withholding of deportation.”).

Balliu has also failed to satisfy the standards to qualify for CAT relief. In order to

qualify for CAT relief, a petitioner must show that “it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.” See 8 C.F.R. § 208.16(c)(2).

While, for CAT relief, Balliu does not have to link the harm faced with the five protected

grounds for asylum and withholding, Castellano-Chacon v. INS, 341 F.3d 533, 551-52 (6th Cir.

2003), the evidence presented does not meet the standard of showing that it is more likely than

not that he will be tortured. He failed to prove there is a specific threat towards him due to his

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political or familial ties, or that the past persecution he suffered was due to more than the general

political unrest in Albania, which has since subsided. Thus, we cannot conclude that he is more

likely than not to be tortured if he returns to Albania.

B. Right to a Full and Fair Hearing

Balliu argues that he was deprived of due process because the IJ improperly conducted

his hearing. He argues the IJ erred by beginning the examination of Balliu herself, questioning

him from the bench in a prejudicial manner, denying him the opportunity to present all the

evidence he had and by articulating prejudice regarding country conditions in Albania. Balliu

provides few details about the specific behavior of the IJ, other than to note that the IJ began

proceedings by questioning the petitioner in a “haphazard” fashion. Balliu also argues the IJ

improperly took over the role of prosecutor in cross-examining him, without the benefit of direct

examination.

We review a due process challenge to an IJ’s manner of conducting a removal hearing de

novo. Ivezaj v. INS, 84 F.3d 215, 220 (6th Cir. 1996). Aliens are entitled to due process of law

in deportation proceedings under the Fifth Amendment. Reno v. Flores, 507 U.S. 292, 306

(1993). “A violation of due process occurs when ‘the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his case.’” Hassan v. Gonzales, 403

F.3d 429, 436 (6th Cir. 2005) (citing Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000)).

However, immigration judges have “broad discretion in conducting their hearings,” and “mere

intimidation or interruption by a judge does not render a hearing unfair.” Ahmed v. Gonzales,

398 F.3d 722, 725 (6th Cir. 2005).

Balliu failed to show that the IJ’s conduct was unreasonable and resulted in an unfair

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hearing. Balliu does not cite specific instances of such conduct in his brief, and indeed, the

transcript of the hearing shows no intimidating or hostile conduct on the part of the IJ. The IJ in

fact overruled many of the government’s objections to Balliu’s exhibits, and rejected the

government’s claims that there were inconsistencies between various statements Balliu had

made.

Balliu also argues that the IJ improperly took over the role of prosecutor in cross-

examining the petitioner, without the benefit of direct examination. However, the record does

not support this claim. An IJ has the authority to “interrogate, examine, and cross-examine the

alien and any witnesses.” 8 U.S.C. § 1229a(b)(1). There is no indication in the record that the IJ

exceeded her authority by questioning Balliu. The IJ asked Balliu several foundational questions

at the beginning of the hearings, and questioned Balliu about most of the factual aspects of his

claims for relief before counsel gave an opening statement. While the IJ did not explain the

reasons for her questioning, given the numerous objections from the government regarding

relevancy and authentication of Balliu’s exhibits, we can assume she was attempting to gain

further information in order to inform her evidentiary determinations. At no point did she

restrict Balliu from providing additional testimony, as he claims.

C. BIA Streamlining Procedure

Balliu argues that the BIA erred by streamlining his case rather than submitting it to a

three-member panel for review because the IJ made clearly erroneous factual determinations. In

Vasha v. Gonzales, 410 F.3d 863, 876 (6th Cir. 2005) this court noted that “[w]hether an alien

may challenge the BIA’s use of its streamlining procedure . . . remains an open question before

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this court.” The court found, without deciding the question whether an alien may challenge the

BIA’s streamlining procedure, that Vasha would lose on this point because substantial evidence

supported the IJ’s determination that he was not eligible for asylum and was not eligible for

withholding of removal. Likewise, here, Balliu is unable to prevail on this point because the IJ’s

decision was supported by substantial evidence, and Balliu was unable to show that the IJ erred

in determining that he was not eligible for asylum, withholding of removal or CAT relief.

D. BIA Summary Affirmance Without Opinion Procedure

Balliu further argues that the BIA erred in summarily affirming the IJ’s denial of his

claims for relief without issuing a written opinion. A Board member who is initially assigned a

case may affirm without opinion if:

[T]he Board member determines that the result reached in the decision under review was
correct; that any errors in the decision under review were harmless or nonmaterial; and
that (A) The issues on appeal are squarely controlled by existing Board or federal court
precedent and do not involved the application of precedent to a novel factual situation; or
(B) The factual and legal issues raised on appeal are not so substantial that the case
warrants the issuance of a written opinion in the case. 8 C.F.R. §1003.1(e)(4).

This court has not determined whether judicial review of the BIA’s application of the affirmance

without opinion procedure is appropriate. See Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003).

However, in Denko, this court assumed review was appropriate without conclusively deciding

the issue. We choose to follow this model here, and find that Balliu’s challenge to the BIA’s

decision to use this approach fails because substantial evidence supports the IJ’s conclusion that

Balliu is not entitled to asylum or withholding of removal.

III. CONCLUSION

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For the foregoing reasons, Balliu’s petition for review is DENIED.

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