NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0249n.06
Filed: April 1, 2009
No. 08-3392
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
VJOLETE KALAJ, )
) ON PETITION FOR REVIEW
Petitioner, ) FROM A DECISION OF THE
) BOARD OF IMMIGRATION
v. ) APPEALS
)
ERIC H. HOLDER, JR., Attorney General of the ) OPINION
United States )
)
Respondent. )
BEFORE: COLE and CLAY, Circuit Judges; CLELAND, District Judge.*
COLE, Circuit Judge. Petitioner Vjolete Kalaj seeks review of the Board of Immigration
Appeals’s (“BIA”) final order of removal to Albania. The BIA dismissed Kalaj’s appeal of the
immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and
protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”). Specifically, the BIA concluded the Kalaj failed to
establish her membership in a particular social group and failed to show that the Albanian
government was unwilling or unable to protect her. For the reasons set forth below, we DENY
Kalaj’s petition for review.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-3392
Kalaj v. Holder
I. BACKGROUND
A. Factual Background
Kalaj is a native and citizen of Albania who entered the United States around February 5,
2001, on a non-immigrant visa. She alleges that she immigrated here to escape past persecution,
which she describes as attempted kidnappings for the purpose of forcing her into prostitution. She
also fears that she will face similar future persecution if forced to return to Albania. Her fear stems
from three separate incidents that occurred in Albania in 2001. During the first incident, Kalaj was
returning from a store when she was approached by three men. The men asked her if she had an
interest in traveling to Italy to work as a waitress. Kalaj declined, understanding the encounter as
a attempt to recruit her for prostitution. Three days later, she encountered one of the same men, who
asked her if she had changed her mind about going to Italy. When Kalaj stated that she had not, the
man acted in an aggressive manner—in tone and facial expression. Two weeks after the second
incident, when Kalaj was again returning home from a store, a white Mercedes Benz stopped in front
of her. Two men emerged from the car, while the driver remained in the vehicle. Fearing for her
safety, Kalaj dropped her groceries and ran. The men pursued and caught her and began dragging
her back to the vehicle. A good Samaritan, Gjovalin Boka, intervened by yelling at the men to
release her. Faced with this confrontation, the men fled the scene, shouting that they knew where
Kalaj lived and that they would return.
In her testimony before the IJ, Kalaj alleges that she did not report the incidents to authorities
because she feared retribution against her family, was aware that in other similar instances the police
had been unresponsive, and feared visiting the local village officer’s home because doing so might
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Kalaj v. Holder
raise suspicions of impropriety.
Instead, Kalaj fled to her uncle’s home in Elbasan, Albania, approximately five to six hours
away, where she hid for five days. Her uncle arranged for Kalaj to purchase to false passport. She
used the passport to travel to Italy, where she stayed with an aunt for two weeks. There, her aunt
obtained another false passport for Kalaj, and Kalaj traveled with a smuggler to the United States.
The smuggler allegedly took her passport from her when she arrived here.
B. Procedural Background
Kalaj filed an application for asylum with the Immigration and Naturalization Service
(“INS”), now part of the United States Department of Homeland Security. The INS conducted an
interview and referred the matter to an IJ. On January 3, 2002, the INS issued a Notice to Appear
(“NTA”), thereby initiating removal proceedings against Kalaj. The NTA alleged that she was
subject to removal under section 237(a)(1)(A) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1227(a)(1)(A), as an alien not in possession of valid entry documents. Through counsel,
Kalaj conceded removability but filed a supplemental application for asylum and sought withholding
of removal and protection under the CAT.
On July 30, 2003, an IJ conducted Kalaj’s first hearing, denying all her applications on the
ground that she was not credible. Kalaj appealed, and the BIA remanded for a new decision or for
further hearings as determined necessary by the IJ because the IJ’s previous decision did not set forth
specific findings of fact to support her adverse credibility finding and the denial of Kalaj’s claims
on the merits.
On remand, a different IJ conducted a de novo hearing on Kalaj’s claims. The IJ found Kalaj
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Kalaj v. Holder
credible but denied her applications for asylum, withholding of removal, and protection under the
CAT. Kalaj appealed to the BIA. On March 13, 2008, the BIA dismissed the appeal, finding that
Kalaj failed to establish membership in a particular social group and failed to show that the Albanian
government was unwilling or unable to protect her. This petition for review followed.
II. LAW AND ANALYSIS
A. Standard of review
When, as here, the BIA issues a separate opinion, rather than summarily affirming the IJ’s
decision, we review the BIA’s decision as the final agency determination. See Khalili v. Holder, No.
08-3296, 2009 U.S. App. LEXIS 4023, at *15 (6th Cir. Feb. 27, 2009) (citing Morgan v. Keisler, 507
F.3d 1053, 1057 (6th Cir. 2007)). “Questions of law are reviewed de novo, but substantial deference
is given to the BIA’s interpretation of the INA and accompanying regulations.” Id. (citations
omitted). The BIA’s factual findings are reviewed under the substantial-evidence standard. See
Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007).
B. Asylum
Under the INA, an applicant for asylum must demonstrate that she is a “refugee.” 8 U.S.C.
§ 1158(b). An individual qualifies as a refugee when she is unable or unwilling to return to her
home country due to “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).
Kalaj argues that she is entitled to asylum because she faced past persecution and possesses
a well-founded fear of future persecution. She claims membership in a social group defined as
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Kalaj v. Holder
young, impoverished, single, uneducated women who risk kidnapping and forced prostitution.
Relying on this Court’s decision in Rreshpja v. Gonzales, 420 F.3d 551 (6th Cir. 2005), the BIA
rejected this argument, concluding that Kalaj’s claimed membership group did not constitute a
“particular social group” as that term is contemplated by the INA. Id. at 555-56; 8 U.S.C.
§ 1101(a)(42)(A). Because this issue was resolved squarely by our Rreshpja opinion, we must agree.
The facts of that case and the case at hand are remarkably similar. There, petitioner Rreshpja
argued that she faced persecution as an attractive, young woman who feared being kidnapped and
forced into prostitution if removed to Albania. Rreshpja, 420 F.3d at 554. This Court rejected
Rreshpja’s claim that her demographic constituted a social group under the INA for two reasons.
First, the Court reasoned that “almost all of the pertinent decisions have rejected generalized,
sweeping [social group] classifications for purposes of asylum,” and thus Rreshpja’s claimed
membership in the “young (or those who appear to be young), attractive Albanian women who are
forced [or may be forced] into prostitution” group did not constitute a “particular social group.” Id.
at 555 (citations omitted). Arguably, decisions from our sister circuits raise questions about the
breadth of what constitutes a “particular social group,” see Mohammed v. Gonzales, 400 F.3d 785,
798 (9th Cir. 2005) (determining that Somalian females potentially subject to female genital
mutilation qualify as a social group); Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005)
(concluding that gender or membership in a tribe is sufficient to constitute a social group), but this
Court may not reconsider a prior panel’s published opinion and Kalaj’s claimed “particular social
group” is not distinguishable. See Barr v. Lafon, 538 F.3d 554, 571 (6th Cir. 2008) (citing Salmi v.
Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 206(C)).
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Kalaj v. Holder
Second, the Rreshpja Court reasoned that “a social group may not be circularly defined by
the fact that it suffers persecution. The individuals in the group must share a narrowing
characteristic other than their risk of being persecuted.” Rreshpja, 420 F.3d at 556 (citing
Castellano-Chacon v. INS, 341 F.3d 533, 548 (6th Cir. 2003)). Thus, a petitioner must set out some
common, immutable social-group characteristic beyond the risks of persecution associated with
one’s home country. See In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985) (“Whatever the
common characteristic that defines the group it must be one that the members of the group cannot
change, or should not be required to change because it is fundamental to their individual identities
or consciences.”). Here, Kalaj presents no such immutable group trait other than a generalized risk
to women associated with the reportedly high levels of human trafficking in Albania. As such, Kalaj
has not established membership in a particular social group and is ineligible for asylum under the
INA. Therefore, we need not consider the BIA’s conclusion that Kalaj failed to show that the
Albanian government was unwilling or unable to protect her.
C. Withholding of removal
To prevail on a petition for withholding of removal an alien must show that her “life or
freedom would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The
burden of proof to establish eligibility for withholding of removal is more stringent than that required
for asylum. Rreshpja, 420 F.3d at 557 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32
(1987)). As Kalaj has not established that she is eligible for asylum, she cannot satisfy the more
stringent requirements for withholding of removal. See Koliada v. INS, 259 F.3d 482, 489 (6th Cir.
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2001).
D. Protection under the CAT
The BIA determined that Kalaj failed to contest the IJ’s denial of protection under the CAT.
“Before raising an immigration issue in federal court, a petitioner must normally present all
reviewable issues to the BIA.” Khalili, 2009 U.S. App. LEXIS at *7. Failure to exhaust an issue
to the BIA generally results in waiver of that issue. Id. (citing Hasan v. Ashcroft, 397 F.3d 417, 420
(6th Cir. 2005); Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)). Moreover, Kalaj did not
raise the issue in her Petition for Review to this Court nor did she provide any substantive briefing.
Therefore, we conclude Kalaj waived her claims under the CAT.
III. CONCLUSION
For the reasons set forth above, we DENY Kalaj’s petition for review.
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