Malaj v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0708n.06
Filed: September 29, 2006

No. 05-3213

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Florinde MALAJ, )
)
Petitioner, )
)
v. ) On Petition for Review of an Order
) of the Board of Immigration
Alberto R. GONZALES, Attorney General, ) Appeals
)
Respondent. )

Before: BOGGS, Chief Judge; SUTTON, Circuit Judge; and SCHWARZER, District Judge.*

PER CURIAM. Florinde Malaj (“Malaj”) petitions for judicial review of a Board of

Immigration Appeals (“BIA”) decision upholding the Immigration Judge’s decision denying her

application for asylum, withholding of removal, and protection under the Convention against Torture

(“CAT”). For the following reasons, we vacate the decisions of the IJ and BIA and remand for

proceedings consistent with this opinion.

I

Malaj is a native and citizen of Albania in her early 20s. The following account is based on

her testimony before the Immigration Judge (“IJ”). Malaj became involved in politics in Albania

in September 2000, when she joined the Democratic Party (“DP”), with which other members of her

*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
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Malaj v. Gonzales

family were already involved. She served as an observer for the DP on election day in the October

2000 local election and the June 2001 parliamentary election. Following the October election, Malaj

gave a speech at a demonstration in which she discussed election irregularities committed by the

Socialist Party. The police broke up the demonstration and arrested some demonstrators, including

Malaj. The police detained Malaj for six or seven hours, during which they sexually touched her and

used offensive language, e.g., “You bitch, you, why are you here, bitch.”

While serving as an observer for the June 2001 elections, Malaj was approached by a man

who asked her how they could make the Socialist Party win in that area. Malaj responded that it was

a Democratic area and that the DP was going to win there. He offered her money to pay people to

vote Socialist. She declined. She subsequently noticed the same man talking to voters before they

voted. The next day she spoke at a demonstration about how she had been offered money to bribe

voters. After the demonstration, she was driving home with a friend, Majlinda Marinaj, when

another car forced them over. Two armed, masked men removed Malaj from her car, saying “we

going to show you now, how you, about your demonstration. We will show you how to speak now.”

The men forced Malaj’s friend to stay, and took Malaj away in their car.

The men drove about twenty minutes, while “talking dirty to me, to me for my family, was

mentioning some of my activities when I was demonstrating with the democracy party, repeating the

word I have said during the demonstrations,” according to Malaj. She pled for mercy, telling them

she would not involve herself in politics again. The men responded that that was not enough; they

would have to do or show something to her first. They arrived at a forest in an unpopulated area in

which there were abandoned bunkers built during the dictatorship. The men took her into a bunker,

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removed her clothes, beat her, bit her, and wrote with a pen on her naked body. They wrote “long

live socialist party, long live party in power” on her chest. Both men then raped her.

Malaj fell unconscious; when she regained consciousness it was getting dark (they had

abducted her when it was still light out). The men had taken her clothes. She noticed cuts and some

blood on her body and that they had written something on her legs. Malaj found a plastic bag to

cover herself and walked through the forest to get home, which she thought took about an hour.

Because of the late hour, her parents were up waiting for her. After washing herself in the bathroom,

including washing off the words the men had written on her body, her brother took her to a hospital

about an hour or two away. The doctor at the hospital treated Malaj for “bones, adjusting from my

beatings and bruises.” Malaj did not tell the doctor she was raped, because she did not want anyone

else touching her body again, and the doctor did not examine her pelvic area.

Two or three days thereafter, Malaj’s brother and father wanted to take her to a society that

provided medical assistance. She was evidently to go in order to get treatment for rape. It is unclear

from her testimony (or perhaps the translation thereof) whether Malaj herself went to the clinic or

whether her brother and father only went; and she seemed to suggest that she did not tell the doctors

there about the rape, either. Malaj did not tell either set of doctors that she was raped because she

“just wanted this things to forget and I didn’t want to mention anything about it.” Malaj explained

that she did not want anyone to know, not even a doctor.

Malaj did not go to the police because the station was far, the police would not have cared

because there were many cases like hers, and that the police were not the kind to take care of those

issues: “The people that do these things, their friends or relatives.” She also did not make a report

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to the Democratic Party because she did not want anyone to know of the rape, and she “didn’t want

to hear the party anymore, the word party anymore.”

Malaj and her family decided that she should leave Albania a few weeks after the rape. She

stated at her hearing before the IJ that a return to Albania would mean the end of her life, that the

people who had violated her would do more bad things to her and her family. She said that she was

from the most Democratic region and that she would fare worse elsewhere in Albania. Malaj

testified that she came to the United States illegally, via Italy and Canada, in July 2001. She did not

apply for asylum in Canada because she wanted to be with her brother (a different one) in the United

States, and she did not seek asylum in Italy because it was close to Albania and the men who raped

her might try to find her.

The IJ denied Malaj’s application for asylum, withholding of removal, and protection under

the CAT. The IJ concluded that Malaj had not “established her burden of proof as required.”

Much of the IJ’s oral opinion was given over to “call[ing] into question” or finding “suspect”

various aspects of Malaj’s testimony and the other evidence, including several documents from

Albania, that she submitted in support of her application. “[T]here are some aspects of her claim that

give this Court pause,” the IJ said. For example, the IJ found Malaj’s account of her travel to the

United States from Albania, via Italy and Canada, to be vague, and “question[ed] the authenticity”

of a document Malaj had submitted that purported to show her membership in the DP by citing a

State Department Country Report on Albania, which asserted that many Albanian asylum applicants

produce spurious documents. He also stated that while Malaj had noted on an I-589 application for

asylum and withholding of removal signed in June 2002 that she had been sexually harassed

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following her arrest in October 2000, and repeated that claim during the hearing before the IJ, the

notes taken by an asylum officer during an August 2002 interview only referred to her being hit with

a rubber stick on that occasion. The IJ also found the reaction of her family on the night Malaj

claims to have been raped “suspect in that they take her to the hospital”; seemed to find that the

hospital record from the night of the incident, which recorded that Malaj had contusion and multiple

lacerations, was inconsistent with her story; questioned the absence of any photographs of Malaj’s

condition after the incident; and noted that Malaj could not remember the zone number of the polling

location she had observed, and apparently did not know the name of the Socialist candidate. The IJ

questioned a letter written (after Malaj had arrived in the United States) by Malaj’s friend Majlinda

Marinaj, in which Marinaj recounted Malaj’s abduction, on the ground that Marinaj did not state in

the letter that she had called Malaj to check up on her after the incident.

Yet the IJ never explicitly found that Malaj was not credible. The basis of the IJ’s opinion

was that Malaj had not “established her burden of proof as required” and that “the instant case

doesn’t reveal sufficient past persecution or warrant a finding of any statutory eligibility for asylum,”

and that she had also not met the burden for meriting withholding from removal or protection under

the CAT. The closest the IJ came to a clear credibility determination was after noting that he would

deny the application as a matter of discretion. The IJ stated:

The Court . . . finds that [Malaj] has not met her burden by the meager proof of the
general testimony provided here. The Court did not find her testimony to be
specifically detailed and credible or a combination to the testimony corroborative
background evidence that would be necessary to prove the claim. The weaker the
applicant’s testimony, the greater need for corroborative evidence was solely [sic]
lacking here.

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The IJ granted Malaj voluntary departure, even though her counsel had not sought it.

(Malaj’s counsel stated that voluntary departure was “not so much a remedy as a curse these days.”)

The BIA affirmed the IJ’s decision. The BIA denied Malaj’s due process claims on appeal,

stating that Malaj had not shown that the IJ had been biased or that any of the IJ’s actions had

prejudiced the outcome of the hearing. With respect to the merits of Malaj’s claim, the BIA wrote

that

[w]e agree that the respondent has failed to carry her burden of proof for asylum and
has failed to establish grounds for granting the other forms of relief requested. In this
regard, the respondent has failed to establish that she has suffered past persecution
on account of a protected ground, or that she has a well-founded fear of persecution
if returned to Albania on account of her political opinion. Moreover, the record fails
to establish that it is more likely than not that she will be persecuted or that she will
be tortured upon her return there.

The BIA added that “[i]nasmuch as we are in agreement with the decision of the Immigration Judge

as noted above, we adopt and affirm his decision.”

II

A

“When the BIA adopts the reasoning of the IJ, we review the IJ’s decision” directly. Denko

v. INS, 351 F.3d 717, 723 (6th Cir. 2005). See also Nazarko v. Gonzales, 2006 WL 1208071, at *1-2

(6th Cir. 2006); Kalaj-Pali v. Gonzales, 174 F. App’x 975, 978 (6th Cir. 2006). We review

administrative findings of fact, including whether an alien qualifies as a refugee, under the

substantial evidence standard. Such findings are “conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.

2005) (internal quotation marks and citations omitted).

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Resolution of an asylum request involves a two-step inquiry: (1) whether the alien qualifies

as a refugee, and (2) whether the alien merits a favorable exercise of administrative discretion. 8

U.S.C. § 1158(b)(1); Chen v. Gonzales, 447 F.3d 468, 471-72 (6th Cir. 2006). The alien has the

burden of proof at both stages. Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004). A “refugee”

is defined as an alien who is unable or unwilling to return to his home 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); Chen, 447

F.3d at 471. An alien “must establish either that he has suffered actual past persecution or that he

has a well-founded fear of future persecution.” Pilica, 388 F.3d at 950. Persecution “requires more

than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical

punishment, infliction of harm, or significant deprivation of liberty.” Pilica, 388 F.3d at 950 (citing

Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)).

An alien may establish a well-founded fear of future persecution by demonstrating: (1) that

he has a fear of persecution in his home country on account of race, religion, nationality, membership

in a particular social group, or political opinion; (2) that there is a reasonable possibility of suffering

such persecution if he were to return to that country; (3) that he is unable or unwilling to return to

that country because of such fear. Pilica, 388 F.3d at 950 (citing Mikhailevitch, 146 F.3d at 389; 8

C.F.R. § 208.13(b)(2)(i)). A well-founded fear of persecution must be both subjectively genuine and

objectively reasonable. Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004).

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The burden of proving eligibility for asylum is less than the burden of proving entitlement

to withholding. Singh, 398 F.3d at 401. Thus, “an alien who fails to qualify for asylum necessarily

does not qualify for withholding of removal.” Ibid.1

When determining that an alien’s testimony is not credible, the IJ must include in his or her

decision “specific reasons” explaining that conclusion. Singh, 398 F.3d at 402. “Moreover, the IJ’s

‘adverse credibility finding must be based on issues that go to the heart of the applicant’s claim.

They cannot be based on an irrelevant inconsistency. If discrepancies cannot be viewed as attempts

by the applicant to enhance his claims of persecution, they have no bearing on credibility.’” Id. at

402 (quoting Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)). Furthermore, “[s]peculation and

conjecture cannot form the basis of an adverse credibility finding, which instead must be based on

substantial evidence.” Vasha v. Gonzales, 410 F.3d 863, 869 (6th Cir. 2005) (internal quotation

marks removed) (quoting Shire v. Ashcroft, 388 F.3d 1288, 1296 (9th Cir. 2004)).

B

Malaj challenges the opinions of the BIA/IJ on two grounds: first, that they were

unsupported by substantial evidence, and second, that she was denied her due process rights for a

variety of reasons. With respect to her first argument, Malaj asserts that the IJ did not make a

specific credibility finding, and that one was required.

In Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005), Judge Posner noted that

1
Malaj does not raise any argument regarding the denial of her request for protection under
the CAT, and therefore waives such argument. See Kasa v. Gonzales, 128 F. App’x 435, 438 n.1
(6th Cir. 2005).

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When an [IJ] says not that he believes the asylum seeker or he disbelieves her but
instead that she hasn’t carried her burden of proof, the reviewing court is left in the
dark as to whether the judge thinks the asylum seeker failed to carry her burden of
proof because her testimony was not credible, or for some other reason.

We have previously remanded a petition where the lack of an explicit credibility determination by

the IJ rendered this court unable to conduct a meaningful review. Pirgu v. Ashcroft, 121 F. App’x

652-53, 654 (6th Cir. 2005). In that case the petitioner claimed that on three occasions, members

of the Albanian National Intelligence Service (“SHIK”) had confronted him after he had taken part

in pro-DP demonstrations; on the last occasion he had been detained for two days and beaten. In

denying the application, the IJ did not make a credibility determination regarding the petitioner’s

testimony. Id. at 653-54. We stated that “[a] determination of credibility as to Pirgu’s testimony

and any other relevant evidence will enable this Court to conduct a meaningful review as to whether

a nexus existed between Pirgu’s political activities and any abuse that he suffered,” and remanded.

Id. at 654.

Other circuits have followed a similar approach to that of Pirgu in analogous cases. In Diallo

v. Ashcroft, 381 F.3d 687, 699 (7th Cir. 2004), the Seventh Circuit remanded “to untangle the basis

for the [IJ’s] decision” where, inter alia, the IJ failed to make a credibility determination. The Diallo

court noted that “the limits of our deferential standard of review are tested when we are asked to

defer to findings of fact that the [IJ] has not made.” Id. at 698. In a case where credibility was the

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central issue, the Ninth Circuit has held that the BIA erred in not remanding when the IJ had failed

to make an explicit credibility determination.2 Mendoza Manimbao, 329 F.3d at 657, 661.

Credibility is central to this case. (Neither the IJ nor the BIA stated, for example, that the

rape, if it occurred, did not amount to persecution, or that it was not politically motivated.) The IJ’s

references to finding aspects of Malaj’s story “suspect,” or commenting that they gave the IJ pause,

do not amount to a credibility determination.

Indeed, the government does not argue that the IJ made a credibility determination. The

government instead argues that the IJ did not have to make a specific credibility determination, citing

cases in which, for example, the BIA reversed an IJ’s credibility determination but upheld the denial

of the petitioner’s application on the ground that the petitioner failed to produce corroborating

evidence when such could be expected to be available, and this court found the BIA’s decision to

be supported by substantial evidence. See Liti v. Gonzales, 411 F.3d 631, 639-40 (6th Cir. 2005);

Dorosh v. Ashcroft, 398 F.3d 379, 381-83 (6th Cir. 2004).

We have stated that “an applicant for asylum is not required to produce corroborating

evidence of persecution: the alien's own testimony can be sufficient to support an application for

asylum, where the testimony is believable, consistent, and sufficiently detailed to provide a plausible

and coherent account of the basis for his fear.” Pilica, 388 F.3d at 954 (citations and quotation

marks omitted). However, while

2
The court noted that “a passing reference to insufficiency or disbelief cannot constitute an
adequate credibility determination.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir.
2003).

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[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration, we have upheld the BIA’s rule that where it is
reasonable to expect corroborating evidence . . . [t]he absence of such corroborating
evidence can lead to a finding that an applicant has failed to meet her burden of
proof. We have noted that supporting documentation must be provided only if it is
of the type that would normally be created or available in the particular country and
is accessible to the alien, such as through friends, relatives, or co-workers.

Vasha, 410 F.3d at 872 n.3 (ellipsis and second alteration in original) (citations and internal

quotation marks omitted).

In this case, the IJ’s analysis of the documentary evidence that Malaj had submitted mostly

consisted of calling into question (though not negating) the authenticity of documents, which goes

to Malaj’s credibility. The IJ did note that Malaj had not submitted a police report, but did not

address Malaj’s contention that she did not go to the police because they would not have cared and

her intimation that the police were not to be trusted. Cf. Liti, 411 F.3d at 640; Dorosh, 398 F.3d at

383. The IJ also found it “curious” that Malaj did not submit any photographs, although again did

not address Malaj’s statements that because of the nature of the incident she wanted to remove the

signs of the assault from her body and not tell or show anyone about the incident. Finally, the IJ

questioned her account that she served as an election observer by noting that she had not submitted

any documentation of that service, although the IJ did not state that such evidence was of the kind

normally created or available in Albania, cf. Liti, 411 F.3d at 640, particularly in light of the fact that

she submitted a DP membership card.

As in Pirgu, we note that in the absence of an explicit credibility determination in this case,

we are unable to conduct a meaningful review, and for that reason remand for further proceedings

consistent with this opinion. We take the opportunity to note that a determination that the applicant

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is not credible must be supported by specific reasons, must be based on issues that go to the heart

of an applicant’s claim, and must not rest on speculation or conjecture.

C

Malaj raises a number of due process claims. We review a due process challenge de novo.

Mikhailevitch, 146 F.3d at 391. “Fifth Amendment guarantees of due process extend to aliens in

[removal] proceedings, entitling them to a full and fair hearing. To constitute fundamental

unfairness, however, a defect in the removal proceedings must have been such as might have led to

a denial of justice.” Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001) (internal

quotation marks and citations omitted). Petitioner “has the burden of showing that the alleged error

prejudiced his case.” Kasa, 128 F. App’x at 439.

Malaj argues that the failure to swear in the interpreter in accordance with 8 C.F.R. § 1003.22

amounts to a due process violation. First, the record does not make clear whether the interpreter was

sworn in or not. Second, Malaj is unable to show prejudice even if the interpreter was not sworn in.

The IJ himself drew attention on two occasions to what it thought was the interpreter’s failure to

interpret word for word rather than in summary. The IJ warned the interpreter to translate word for

word. The IJ also carefully asked Malaj’s counsel if he had any objections or concerns about the

translation, and the counsel said no, with the exception of the two occasions that the IJ had noted and

addressed.

Malaj also challenges the IJ’s neutrality. Malaj was entitled to a neutral arbiter. Hassan v.

Gonzales, 403 F.3d 429, 436-37 (6th Cir. 2006). While the IJ was an assertive questioner of Malaj,

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and was occasionally brusque, our review of the record does not reveal that the IJ was biased or that

Malaj was unable to present her case fully.

Malaj argues that the IJ’s granting her voluntary departure where she did not ask for it

violated her right to due process. Malaj cites no case in which the grant of voluntary departure was

ruled a denial of due process, and does not demonstrate prejudice.

Malaj also argues that the absence of a credibility finding by the IJ, and what she refers to

as the lack of a reasoned opinion by the IJ and BIA generally, violates her right to due process.

Malaj cites Khan v. Gonzales, 148 F. App’x 303, 307 (6th Cir. 2005), and its statement that

“[a]lthough the Supreme Court has never specifically defined the requirements of due process in a

deportation hearing, Congress has set forth minimal procedural requirements, including a reasonable

opportunity to examine the evidence and to present witnesses, and a decision based on reasonable,

substantial, and probative evidence.” (citations omitted). Malaj states in her brief that “the lack of

a credibility finding is closely intertwined with the evaluation of evidence.” Petitioner’s Br. at 25.

We have previously noted that allegations that the IJ erred in analyzing the evidence do not in

themselves result in a due process violation. Kasa, 128 F. App’x at 440. We decline to hold that

an IJ’s neglecting to make an explicit credibility determination, even where one is central to the case,

automatically results in a due process violation. We thus reject Malaj’s due process challenges to

the IJ’s decision.

III

For the foregoing reasons, we VACATE the decisions of the IJ and BIA, and REMAND the

matter for proceedings consistent with this opinion.

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