Bitanji v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0657n.06
Filed: August 29, 2006

No. 05-3865
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MARSEL BITANJI, et al., )
)
Petitioners, )
)
v. ) ON APPEAL FROM THE
) BOARD OF IMMIGRATION
ALBERTO R. GONZALES, ) APPEALS
)
Respondent. )

BEFORE: GIBBONS and MERRITT, Circuit Judges; O’MEARA, District Judge.*

JOHN CORBETT O’MEARA, District Judge. Marsel Bitanji (“Bitanji”), his wife,

Anila Kola (“Kola”), and their daughter, Bruna Bitanji (“Bruna”), (collectively “Petitioners”)

petition for review of a decision by the Board of Immigration Appeals (“BIA”) that adopted and

affirmed an immigration judge’s (“IJ”) denial of their applications for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”). F or

the reasons set forth below, we affirm the orders of the BIA.

BACKGROUND FACTS

Petitioners Bitanji, Kola, and Bruna entered the United States from Albania on December

8, 2000. Bitanji, now 30, says he had been suffering political persecution in Albania since he

was 15 and that as a result of his support of opposition government forces, he fears for his life

and the lives of his family members.

*

The Honorable John Corbett O’Meara, United States District Court for the Eastern District
of Michigan, sitting by designation.
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In his asylum application, Bitanji claims to have been arrested and maltreated by the

Albanian police four times between 1990 and 1998. The first incident, on December 14, 1990,

followed his participation in a protest against the communist government in the city of Shkoder.

During his 24-hour detention, he was allegedly beaten "by five policemen with batons and wires

and metal objects," which left him in need of a one-night hospital stay for the treatment of back

injuries.

Bitanji says he was arrested, beaten and detained two more times within the next year,

once in April 1991, and again in May 1991. After his third arrest, Bitanji says he retired from

street demonstrations but continued to work underground. In particular, he started assisting a

group called “13 Dhjetor 1990" (December 13, 1990), also known as The Anticommunist

Political Society. When the Democratic Party won the Albanian elections in 1992, Bitanji says

his political persecution temporarily ended. In April 1997, Bitanji and Kola moved to Greece,

where he worked as a driver.

During the next three years, Bitanji claims to have returned to Albania only once. It was

on this trip that he says his fourth run-in with the police occurred. "Walking from one bus

station to another in Tirana," Bitanji says he was arrested and interrogated about the rallies that

had occurred in the city after the death of the local leader of the Democratic Party. Bitanji

claims the police beat him with rubber batons and held him for 48 hours.

Shortly after his family's return to Albania in August 2000, Bitanji says he began

planning a party for Bruna's third birthday on October 8, 2000. Three days before the event was

to occur, Bitanji says his friend told him that "during the party, masked socialist policeman [sic]

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were going to kidnap [his] daughter in order to 'give [him] a lesson' for [his] support to groups

opposing the Socialist Government.” Bitanji canceled the party and made plans to leave

Albania. On December 8, 2000, he and his family crossed the U.S. border in Texas near

Brownsville.

In their application for asylum, the Bitanjis submitted their passports and additional

paperwork aimed at corroborating their story. They also testified, along with Kola's mother, in

front of Immigration Judge Robert D. Newberry at a June 23, 2004 hearing.

Credibility problems emerged immediately. The passports indicated that Bitanji had

made at least five trips from Greece to Albania and back after he left the country in 1997. Asked

why he said in his asylum application that he had returned only once, Bitanji said he could not

explain the additional stamps. Kola, under a similar line of questioning, offered that the surplus

stamps on her passport were "stamped by the people who brought [them] here to cover

themselves."

The United States also questioned Bitanji's accounts of his detainments and beatings.

Regarding the December 1990 incident, for instance, Bitanji noted under cross-examination that

the police had broken his arm during his detention. Asked why he had mentioned only a bad

back in his application, Bitanji first noted that he "didn't know if for sure that [his] arm was

broken," and then later that his account of the arm injury was probably lost in translation. "In

the, probably in the application," he said, "that doesn't mention everything that I said from my

mouth because it was in through telephone." Bitanji did produce hospital records indicating that

his arm had been broken in December of 1990. The records were dated November 30, 2002.

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Under cross-examination, Bitanji also claimed that he had been hospitalized following the May

1991 incident with the police. Asked why he could not produce hospital records to verify his

hospitalization, Bitanji said "[T]here were other people in the hospital and I don't know who kept

the records." Similarly, Bitanji could not explain why he had indicated in his application that he

was simply walking from one bus station to another during the alleged 1998 incident with the

police, while his testimony suggested that he had joined a rally immediately prior to his arrest.

As for the plot to kidnap his young daughter, Petitioners offered a one-page affidavit

from Mal Cekini, Bitanji's friend and informant, as evidence of the plot's political underpinnings.

Cekini, who belonged to "2 Prill 1991," an anti-Communist association of which Bitanji was not

a member, says he learned of the plot from the "[a]ssociation's section in charge of security and

protection of its members." Cekini did not supply any specific details of political retribution,

noting only that "[t]hese methods are known and exercised several times toward members of

family persons who oppose the government in power. . ." After learning of the plot, Bitanji says

he went into hiding, though he continued to work as the manager of his brother's local restaurant

during this time.

Both parties submitted Country Reports from the U.S. Department of State in support of

their positions. While the documents suggest that the Albanian police are "often unreliable" and

sometimes abusive, the climate is stable and there is no evidence of persecution of citizens for

political reasons. In addition, although there is trafficking in women and children, most

instances occur in the 14- to17-year-old age group.

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Based on the testimony, as well as the supporting documents, the IJ found Petitioners

lacked credibility. Even assuming their stories to be true, the IJ did not believe that their

treatment rose to the level of past persecution or that they had a well-founded fear of future

persecution. He denied their request for asylum, withholding of removal, and relief under CAT

on January 26, 2004.

The Bitanjis appealed to the BIA, where, on June 1, 2005, a panel consisting of a single

board member adopted and affirmed the decision of the IJ. On June 30, 2005, Petitioners filed

their timely appeal to this court.

DISCUSSION

1. CREDIBILITY OF PETITIONERS’ CLAIMS

Petitioners contend that, contrary to the rulings of the BIA and IJ, they have credibly

established their eligibility to remain in the country. In determining the merits of removal

appeals, this court reviews the final agency determination. See 8 U.S.C. § 1252(a)(1). Where

the BIA adopts the reasoning of the IJ, the court may treat the adopted parts of the IJ’s decision

as the final agency determination. See Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003).

The standard of review in deportation cases is whether substantial evidence supports the

agency decision. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Yu v. Ashcroft,

364 F.3d 700, 703 n.2 (6th Cir. 2004). This highly deferential standard was codified by 8 U.S.C.

§ 1252(b)(4)(B), which states, "[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude the contrary." This court has noted that

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it "may not reverse the Board's determination simply because [it] would have decided the matter

differently." Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001) (citation omitted).

To qualify for asylum under the Immigration and Naturalization Act, an alien must

establish that he is a "refugee." 8 U.S.C. § 1158(b)(1)(A). A refugee is a person 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 of proof is on the applicant to

demonstrate that he has suffered persecution or has a well-founded fear of future persecution,

i.e., a reasonable person in his "objective situation" would fear persecution. Id.; see also

Perkovic v. INS, 33 F.3d 615, 620-21 (6th Cir. 1994). If the alien establishes past persecution, a

rebuttable presumption of future persecution arises. The government may rebut that

presumption if the evidence suggests that the alien no longer faces a likelihood of persecution or

may avoid persecution by moving within his country. 8 C.F.R. § 1208.13(b)(1)(I).

In evaluating the credibility of the applicant's case for asylum, the IJ must consider a

number of factors, including,

the inherent plausibility of the applicant's or witness's account, the
consistency between the applicant's or witness's written and oral
statements, . . . the internal consistency of each such statement, the
consistency of such statements with other evidence of record (including
the reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements . . .

8 U.S.C. § 1158(b)(1)(B). An alien's own testimony may be sufficient to establish persecution,

but only "'where the testimony is believable, consistent, and sufficiently detailed to provide a

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plausible and coherent account of the basis for his fear.'" Perkovic, 33 F.3d at 21 (citation

omitted).

To qualify for withholding of removal, an alien must demonstrate that there is a "clear

probability of persecution." Gumbol v. INS, 815 F.2d 406, 411 (6th Cir. 1987). This standard is

stricter than the "well-founded fear" required of asylum applicants. INS v. Cardoza-Fonseca,

480 U.S. 421, 430-31 (1987). Thus, petitioners who fail to meet the burden of proof for asylum

will also fail on their appeal for withholding of removal. Mikhailevitch v. INS, 146 F.3d 384,

391 (6th Cir. 1998). To qualify for relief under CAT, the alien must “establish that it is more

likely than not that he or she would be tortured if removed to the proposed country of removal.”

Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (quoting 8 C.F.R. 208.1(c)(2)).

Because the BIA adopted the reasoning of the IJ, this court reviews the IJ's decision.

After considering the Bitanjis' testimony and asylum applications, the IJ found numerous

inconsistencies in the record and noted that, even if the testimony were credible, the situation

does not give rise to a well-founded fear of persecution or the likelihood of torture. Given this

analysis, the IJ (and thus the BIA) did not err in deciding that the Petitioners lacked credibility.

He made a reasonable and well supported determination based on the inconsistencies in the

Bitanjis' stories and the State Department's assessment of the situation in Albania. There is

nothing in the record compelling this court to reverse.

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2. DUE PROCESS

Recent streamlining of the BIA review process allows single members of the Board to

issue brief orders in cases not suitable for affirmance without opinion or a full written opinion

separate from that of the IJ below. 8 C.F.R. § 1003.1(e)(5). Petitioners argue that this

streamlining robbed them of de novo review and thus violates due process. Using rather colorful

language,1 they contend that single-member panels and BIA opinions adopting the reasoning of

IJs will lead "to a slippery slope of the elimination of a fair review of administrative procedures."

We review de novo claims of due-process violations in deportation cases. Denko, 351

F.3d at 726 (citation omitted). This court recently affirmed the constitutionality of single-

member review, noting that “the BIA’s streamlining procedures do not themselves alone violate

an alien’s rights to due process.” Id. at 730. When the BIA adopts the reasoning of the

immigration judge, "we are not forced to guess at the rationale of the [Board], but instead we

evaluate the [IJ's] explanation as that of the Board." Denko, 351 F.3d at 730. It is the burden of

the Petitioners then to prove that the streamlined procedure resulted in insufficient review of

their appeal. Id. at 728.

While Petitioners are correct to insist on a fair review, see Reno v. Flores, 507 U.S. 292,

306 (1993), the record indicates that they have received one. As noted, recent changes to the

immigration appeals process, deemed constitutional by this court, explicitly allow for the sort of

1

In their brief supporting their appeal to this court, Petitioners write, “It is amazing to see
Orwell’s horrific vision of the future being implemented before our very eyes.”

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streamlined review that occurred in this case. Further, the BIA's opinion, though brief and

issued by only one Board member, signals consideration of the IJ's reasoning. The Board wrote,

"We find that the numerous inconsistencies and discrepancies highlighted in the Immigration

Judge's decision were actually present in the record and provided ample basis to doubt the

veracity of the lead respondent's claims." While the BIA did not expound on the IJ’s reasoning,

it was in no way required to do so. In determining whether the Petitioners’ appeal has merit, this

court may avail itself of the full scope of the IJ's decision, which was properly reasoned and

issued. Thus, the Bitanjis have not presented sufficient basis for a finding that their due process

rights have been abridged in any way.

For all of these reasons, the BIA’s orders are AFFIRMED.

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