NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0464n.06
Filed: June 29, 2007
06-3318
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAN FLORIN BORTAS, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE BOARD
v. ) OF IMMIGRATION APPEALS
)
ALBERTO GONZALES, United States )
Attorney General, )
)
Respondent. )
Before: RYAN, DAUGHTREY, and ROGERS, Circuit Judges.
PER CURIAM. The petitioner, Dan Florin Bortas, seeks review of a final order of
removal by the Board of Immigration Appeals (BIA) that affirmed the immigration judge’s
denial of Bortas’s application for asylum and withholding of removal under the Immigration
and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3), and denial of relief under the
United Nations Convention Against Torture, 8 C.F.R. §§ 1208.16(c) and 1208.18. Because
the petitioner’s asylum application was denied as untimely and because he does not raise
a valid statutory or constitutional claim relating to this denial, we lack jurisdiction to review
that portion of the BIA’s order. Moreover, we conclude that the denial of his application for
withholding of removal was supported by substantial evidence and, therefore, affirm the
remainder of the order.
06-3318
Bortas v. Gonzales
Petitioner Bortas is a Romanian national who illegally entered the United States
through Mexico and was arrested by INS border patrol agents on February 22, 2000.
Despite his claim that he was in detention for three weeks following arrest, the official
records indicate that Bortas posted a $5,000 bond and was released from custody two
days later, on February 24, 2000.1 When the INS instituted removal proceedings against
Bortas, his counsel indicated that he planned to file an asylum application. However, when
the first hearing was convened in the immigration court on April 10, 2001, an application
had not yet been filed. The attorney for the government pointed out, in response to the
petitioner’s request for a continuance, that Bortas had already missed the one-year
deadline for filing an application for asylum. As a result, the immigration judge continued
the proceedings and instructed Bortas’s attorney to address the issue of timeliness in the
application.
When the hearing resumed on September 25, 2001, and Bortas submitted his
application for asylum, the immigration judge asked him to review it for accuracy before
signing it. Bortas confirmed that he had been over his application “line by line and word
for word” and that nothing needed to be changed; his attorney confirmed the same. In his
application Bortas indicated that he had never before applied for refugee status, asylum,
withholding of deportation, or withholding of removal and acknowledged that the application
1
Bortas initially testified that he had notified im m igration authorities im m ediately that he wished to seek
asylum but later retreated from this assertion, saying in response to questioning from the im m igration judge
that he had not sought perm ission to stay in the country at that tim e.
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Bortas v. Gonzales
was being filed more than a year after his arrival in the United States. He explained this
delay by stating that he “thought that he had applied previously while detained.” After
reading this statement, the immigration judge asked whether Bortas had explained the
reason for the delay in greater detail anywhere in the document. Bortas’s attorney replied
that he had not.
In his asylum application, Bortas indicated that he was persecuted as the result of
his attempt to protect the workers in a state-owned mine in Romania, where he was
employed as a geologist, from the effects of radiation emanating from mining operations.
He reported being beaten up by security guards from the mine on three occasions, listing
these incidents as occurring in December 1998, February 1999, and December 2000, even
though the latter was an impossible date in view of Bortas’s arrival in this country in
February 2000. The application also reflected that after the third incident, Bortas left the
mine area and moved to his mother’s home in northeastern Romania. He further indicated
in the application that the arrival of a threatening letter at that address led him to flee to
Mexico and then, nine days later, to the United States.
A review of the petitioner’s testimony at the April 2001 hearing reveals additional
discrepancies. He said at that time, for example, that the Romanian mine where he had
worked had closed in 1996 and that the attack listed in the application as happening in
December 2000 had actually occurred three years earlier, in December 1997. Moreover,
Bortas testified that he was physically attacked only two times, rather than the three
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Bortas v. Gonzales
occasions set out in the written application. When the immigration judge inquired about
this contradiction, Bortas replied that the third incident was merely a verbal attack, not a
physical attack, in direct contradiction to the description in the application. Among other
discrepancies, the petitioner testified that he had fled to his mother’s home in 1997 and
stayed there until he left Romania in 2000. Asked why he had waited so long to leave
Romania, Bortas answered, “I tried to find work so I stayed.”
The immigration judge rejected the asylum application as untimely, finding
that Bortas had the opportunity to file a timely application but failed to do so. In his
decision, the immigration judge also rejected Bortas’s attempt to justify the delay by
alleging that he thought he had filed an application while in detention, finding incredible
Bortas’s assertion that he was detained for three weeks and concluding that there was no
proof “that he filed or believes that he filed an[] . . . application during his two days of
incarceration.”
The immigration judge found, in addition, that even if Bortas had filed a timely
application for asylum, it would fail on the merits because Bortas’s testimony was not
credible. Finally, the judge found that Bortas was ineligible for withholding of removal,
noting that even if he had been able to prove past persecution, he could not establish a
reasonable fear of future persecution because “he ha[d] demonstrated, through his
testimony . . . , that he could live with his mother in another part of Romania and not suffer
any persecution.”
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Bortas v. Gonzales
On appeal to the BIA, Bortas contended that his right to due process had been
violated, making what we find to be a completely spurious argument that the immigration
judge was “clearly . . . biased towards Respondent and his claim for asylum.” The BIA
rejected Bortas’s due process claim, finding that he “failed to cite instances of misconduct
on the part of the Immigration Judge to support the notion that the decision was based on
anything other than his understanding and knowledge of the applicable laws and
regulations and what he adduced from his participation in the case.” With regard to the
underlying claims, the BIA affirmed the immigration judge’s determination that the
petitioner’s application had not been timely filed and, further, that it did not qualify under
one of the exceptions to the statutory time-bar. The BIA also affirmed the immigration
judge’s decision denying the petitioner’s request for withholding of removal, noting that the
discrepancies in Bortas’s testimony thoroughly undermined his claim that he would be
subjected to future persecution if sent back to Romania.
We find no legal basis upon which to overturn the BIA’s decision. First, the
petitioner’s unsupported due process claim is simply insufficient to excuse the untimely
filing of his petition for asylum, which, under 8 U.S.C. § 1158(a)(2)(B), had to be submitted
within one year of his arrival in the United States. In Amir v. Gonzales, 467 F.3d 921 (6th
Cir. 2006), we rejected a claim, similar to Bortas’s, that the immigration court “abused its
discretion in not receiving further evidence” because “the question of whether to admit or
not admit evidence is not a constitutional question nor one involving statutory construction.”
Id. at 924. Moreover, the specific evidence now claimed to have been improperly rejected
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Bortas v. Gonzales
by the immigration judge as unreliable – an employment record proffered by Bortas that
was conceded to be both improperly translated and unauthenticated – was not mentioned
as part of the petitioner’s contention before the BIA that the immigration judge was biased
against him. We conclude that any error in the immigration judge’s ruling was waived
when it was not raised before the BIA. It certainly cannot be resurrected at this late date
as a basis upon which to excuse the petitioner’s violation of Section 1158(a)(2)(B). It
follows that, under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA’s
determination of timeliness.
Second, the immigration judge’s decision to deny withholding of removal based on
his factual determination that Bortas was not credible is supported by substantial evidence,
given the great number of material inconsistencies in and between the petitioner’s written
application for asylum and his testimony at the hearings in the immigration court. Indeed,
the petitioner’s lack of credibility alone is sufficient to support the denial of his request for
withholding of removal, because the only evidence offered to establish his fear of future
persecution was his own testimony. In addition, the immigration judge determined that
Bortas could be safely relocated within Romania based on the petitioner’s testimony that
he had lived for three years without persecution at his mother’s home. Bortas’s argument
that the threatening letter he received there established the likelihood of future persecution
is undercut by the content of the letter, which threatened Bortas with harm only if he
returned to his previous residence in a different area of Romania.
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Bortas v. Gonzales
As for the petitioner’s request for relief under the U.N. Convention, given the
evidence concerning relocation within Romania outlined above, Bortas has obviously failed
to “establish that it is more likely than not that he . . . would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
For these reasons, we DENY review of the final order of the Board of Immigration
Appeals affirming the decision of the immigration judge to deny asylum and the withholding
of removal in this case.
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