[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 7, 2005
No. 04-15171 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-437-248
MIRIAN SALLAKU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 7, 2005)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Mirian Sallaku, through counsel, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order: (1) affirming the Immigration Judge’s (“IJ”)
order denying his applications for asylum, withholding of removal, and CAT relief;
and (2) concluding that the IJ did not violate Sallaku’s due process rights. After
review, we deny Sallaku’s petition.
I. BACKGROUND
A. Sallaku’s Arrival
On March 5, 2002, Sallaku, a native and citizen of Albania, arrived in Miami
International Airport and attempted to enter the United States on a false Slovenian
passport. Sallaku stated to an INS officer that he was a citizen of Albania entering
the United States in search of political asylum.1
At the time of his arrival, Sallaku provided a sworn statement to an INS
officer that he: (1) was arrested in Albania in 1991 while participating in a political
demonstration against the “old dictator”; (2) was denied university admission in
1991 on account of his family’s political beliefs; (3) subsequently lived in
Germany until 1997 and was arrested again when he returned to Albania in 1997;
(4) applied for (but was denied) an American visa in 2001; (5) was threatened by
1
We acknowledge that under the Homeland Security Act of 2002, the INS was abolished
and its functions were transferred to the newly-created Department of Homeland Security
(“DHS”). See Yang v. United States Att’y Gen., – F.3d –, 2005 WL 1789659, at *6 (11th Cir.
July 29, 2005). However, in this case, we still refer to the INS.
2
men in blue masks, armed with machine guns near his house in October 2002
during elections; and (6) left Albania because he was afraid of the political
situation due to his (and his father’s) involvement in a political organization, the
Albanian Society for the Politically Persecuted People (“ASPPP”).
On March 12, 2002, the INS interviewed Sallaku and determined that he had
a credible fear of persecution. At the interview, Sallaku indicated that he was
arrested and detained for three days in 1991 because he was a member of ASPPP
and had demonstrated against the government. Because of his continued
involvement in ASPPP, Sallaku had been approached by an Albanian official in
August 2002 and told that he would be jailed if he continued to make anti-
government statements.
The INS then served Sallaku with a notice to appear, charging him with
removability as an alien who fraudulently attempted to procure admission into the
United States, 8 U.S.C. § 1182(a)(6)(C)(i), and as an immigrant not in possession
of a valid entry document, 8 U.S.C. § 1182(a)(7)(A)(i)(I). During the September
26, 2002 hearing before the IJ, Sallaku conceded his removability and requested
political asylum, indicating that he would file an application for asylum.
At the hearing, the INS submitted the Department of State Country Report
on Human Rights Practices in Albania for 2001 (“2001 Country Report”).
According to the 2001 Country Report: (1) Albania is a republic with a multiparty
3
parliament, with the Socialist party holding the majority of parliamentary seats; (2)
local police in Albania have committed human rights abuses, including beating
detainees and prisoners, and arbitrarily arresting persons and prolonging their
detention; (3) the opposition party, the Democratic Party (“DP”), credibly had
reported incidents of police harassment of its members; and (4) DP supporters had
charged police with attacking them while they rallied.
B. The Asylum Application
On October 17, 2003, Sallaku filed an application for asylum and
withholding of removal, which contained these statements. Sallaku’s family had
opposed the Albanian communist regime since 1965. The communist leaders thus
imprisoned two uncles for 25 years for their political beliefs, murdered another
uncle, and tortured his father.
Because of his opposition to the Albanian government, Sallaku was
imprisoned in 1991 and 1997. Sallaku is a member of the opposition party, the
DP, and a member of the ASPPP, an organization that helps former persecutees
“rebuild their lives.” Sallaku was threatened and beaten by people controlled by
the Albanian government. For example, Sallaku was arrested on February 8, 1991,
for his participation in the DP and was interrogated and detained in isolation for
ten days. During this detention, Sallaku was beaten twice daily with rubber sticks
(at 10:00 a.m. and 6:00 p.m.) by men wearing masks and was fed “every two
4
days.” Sallaku was asked to testify against friends, but refused, and was told that
he would be executed without trial. After ten days in isolation, Sallaku was
transferred to a cell with other protestors, who were released on March 15, 1991.
Sallaku went to Germany in 1991 in search of higher education and returned to
Albania in 1997.
Sallaku was arrested a second time on July 5, 1997, for organizing and
participating in illegal gatherings following elections on June 29, 1997. After
being detained for 24 hours, he was released on bond. Upon being released,
Sallaku was ordered to get into an army jeep with three men. The men drove
Sallaku to a limestone mine at Dajti mountain, removed him from the jeep, and
placed one revolver in his mouth and pointed one on each side of his head. The
driver told Sallaku that he could shut up and stay home with his mother or join his
friend at the bottom of the mine. Sallaku remained silent and after 15 minutes, he
was returned to the jeep and driven home. After this incident, Sallaku minimized
his actions against the socialist government for a few years.
On February 2, 2002, while with two friends, Sallaku was pulled aside by
two men who sprayed him with gasoline and told him that his days were over and
5
that this was the end of the Sallaku family. At that point, Sallaku decided that his
life was in danger and that he had to leave Albania.2
C. The Asylum Hearing
At the asylum hearing, Sallaku submitted newspaper articles describing the
arrest and imprisonment of his uncles and the death of a third uncle. The INS
submitted the 2001 Profile of Asylum Claims and Country Conditions on Albania
(“Asylum Profile”), which indicated that: (1) in 1997, Albania was brought close
to anarchy when various “pyramid schemes” collapsed and caused many citizens to
lose their life savings; (2) the June 1997 election brought the Socialist party to
power and represented “the first step on the road to normalcy;” and (3) since 1997,
Albania steadily has resumed normalcy. The Asylum Profile also stated that most
claims based on political opinion are because of mistreatment of the applicants
during the communist regime between 1945 and 1990, and that “[w]ith the socialist
party currently leading a coalition government, it is highly unlikely in today’s
circumstances that many applicants will have credible claims to political
persecution.” The Asylum Profile further stated that most asylum claims:
are generally amplified by the assertion that a reconstituted
communist regime has come to power. Claims relying on this premise
are contradicted by virtually all state actions, and those who truly
were persecuted by the communists resent the comparison. Both
2
In support of his application, Salluku also submitted many documents, including
government documents and affidavits from friends.
6
major parties trace their roots to the communist regime and both
repudiate it thoroughly . . . There is virtually no evidence that
individuals are targeted for mistreatment on political grounds . . .
Applicants often cite current membership in the non-profit [ASPPP]
formed after the 1992 elections, although documents apparently
provided by it cannot be vouched for.
Finally, the Asylum Profile advised that: “Adjudicators should explore all the
motivations an applicant might have for requesting asylum, including family
members already present in the United States. . . . It bears repeating the vast
majority of asylum claims involve economic, not political considerations.”
The INS also submitted the 2002 Department of State Country Report on
Albania, which essentially was the same as the 2001 Country Report. Finally, the
INS filed a Forensic Document Laboratory Report from the U.S. Department of
Justice, stating that two of the government documents Sallaku submitted could not
be authenticated because the documents: (1) lacked security features and reliable
indicia of the source of origin; (2) did not have official government letterheads;
and (3) were produced by ink jet or laser copier technology, which is not the
expected production process for important government documents.
At the asylum hearing, Sallaku testified that he: (1) presently resides in
Florida with his sister and her family, and his parents; and (2) has no remaining
close relatives in Albania. When asked to describe his arrests, he testified:
7
The first arrest took place on February 1990. I participated in one of
these anti-government activities. And I was kept for a long time in
detention for one month. And during this one month period of time I
was threatened to death, I was beaten up by rubber sticks, and I could
not tell these faces of the people that were beating me up because their
faces were covered. Masks were on their faces . . . The beating went
along with curses, threats against me like you wanted the changes . . .
Your luck will follow your uncle’s luck . . .
He testified further that: (1) they fed him green soup and a hard piece of bread once
a day; (2) sometimes, he was kept in a big room that measured four meters by four
meters, and other times, he was kept in an isolation room that measured one-half
meter by one-half meter; (3) he spent almost two weeks in the isolation room; (4)
he “looked like a zebra” and “was totally swollen, black and white stripes,” when
he was released; and (5) it took him five to six months to recover. According to
Sallaku, he was arrested because of his activities as a member of the DP.
Regarding his arrest in 1997, Sallaku testified that: (1) he was taking part in
a protest against the result of an election wherein the socialist party regained
power; (2) he was taken directly to prison and held for less time than the previous
time; (3) he was mistreated with rubber sticks; and (4) he was taken to the Dajti
mountain area, where “a gun was put to [his] head,” and he was given warnings.
Sallaku additionally testified that, in 2002, (1) he was working at a restaurant that
was a gathering place for members of the DP; (2) the Albanian Secret Intelligent
Service, the “Shish,” heard about their meetings; (3) one day, he was coming out of
8
the restaurant with some friends, including Armand Binga and Xhemacle, and he
spotted a “Marks 505 model red Perchot” following them; (4) the car blocked their
path, and two people got out and grabbed his throat, shouting at him; (5) then they
sprayed gas on him; and (6) he thought that his life was over, but he heard them
receive a command from their walkie-talkie radio, and they left the scene. At that
moment, Sallaku made the decision to leave Albania.
On cross-examination, Sallaku clarified that, regarding the 1997 incident: (1)
the driver held a gun to his head; (2) the other two guards, who also had guns,
stood at the side and pressured him with threats; and (3) they were not wearing
masks, meaning that they were prepared to execute him. When asked whether one
of the individuals was holding a gun in his mouth, he explained: “I indicated that
that was in front of mouth. That was right here in my mouth in my head. I mean,
if I have to specify every part of my head, I’ll do. And two people were aside.”
Sallaku was “totally traumatized” by the event.
When asked to clarify how often he was fed while in prison in 1991, Sallaku
responded that the government did not pay attention to a feeding schedule and
sometimes fed them once a day and sometimes fed them once every two days.
Because of the trauma, Sallaku sometimes was not in the best position to recreate
exactly what had happened to him. Sallaku was beaten several times a day,
whenever the guards felt like it. Sallaku went to Germany on December 25, 1991,
9
to study agriculture and stayed there until May 1997. Sallaku did not finish his
degree because he had to return to Albania out of concern for his family’s safety.
When asked why his parents, who lived in Albania in 1997 and 2002, had
not come to testify and had not filed affidavits to corroborate his testimony about
the incidents, Sallaku responded he did not know that it was necessary, and if it
were necessary, they were willing to testify. When asked whether his proposed
witness, Nick Zekadie, had any first-hand knowledge regarding the incidents of
1997 or 2002, Sallaku stated that Zekadie had been in the United States for 15
years, explaining that Zekadie’s knowledge came from the conversations that he
had had with Sallaku about Sallaku’s experiences. The IJ inquired as to the
purpose of Zekadie as a witness, and Sallaku responded that he would testify as to
the conditions in Albania. The IJ responded that the INS had submitted sufficient
evidence as to the country conditions. The IJ stated:
I think [Sallaku’s parents] would have been witnesses that could have
at least testified when they saw their son shortly after the events that
he claims that were pertinent that led to his decision to leave. I’m not
going to ask that witness outside [to] come in because I believe the
best evidence is the Profile and Country Report and not someone[]
who has lived in the United States for a decade and a half and merely
made some revisits back to his native country to tell me what his
impressions of Albania are today. I think, if anything, that would
really cloud the evidence that we have on the record.
D. The IJ’s Decision
10
In an oral decision, the IJ found that Sallaku had failed to establish his
eligibility for relief, noting that: (1) Sallaku had resided in Germany for
approximately six years, between 1991 and 1997, but did not seek asylum there;
(2) his testimony about being taken to the mountains and threatened with a gun
was not as detailed as in his asylum application, calling into question whether the
event was “quite as chilling” as he had written; (3) his testimony about the 2002
incident was not as specific as in Xhemacle’s affidavit; and (4) his parents, who
were present in Florida at the time of the hearing, did not testify. The IJ
acknowledged that Sallaku had provided evidence that his uncles had problems
during the communist regime in Albania, but noted that, since the forensic report
questioned the authenticity of two documents submitted by Sallaku, he had
concerns as to the reliability of all of the documents that Sallaku submitted. The IJ
further acknowledged that Albania had not yet fully recovered from the dissolution
of its communist government in 1991, but noted that, according to the 2001
Country Report and the Asylum Profile: (1) the last elections in Albania were
deemed fair, and, although the socialist party held a small majority in Parliament,
the DP did have a presence there; and (2) it was highly unlikely that there could be
a credible claim of persecution based on one’s association with the ASPPP or with
the DP, as many asylum applicants simply fear a reprise of the former communist
regime, based on their family members’ past persecution.
11
The IJ further found that:
The respondent may have actually been a member of the [DP] himself
as the documents suggest . . . But the [c]ourt has found that the
respondent has failed to provide sufficient detail regarding the . . .
events . . . in . . . 1997, and the last incident in February of 2002. The
respondent’s testimony simply lacked the type of chilling, searing
testimony that one would normally provide on these last events . . .
The respondent’s affidavits and supporting documents are much more
detailed than his [testimony]. And corroborating evidence, such as his
parents, seem to be available . . . which might have bolstered or
supported his testimony or lack thereof. Yet the respondent has failed
to provide them to the [c]ourt to further analyze the documents, the
questionable authenticity of some of the most probative documents
submitted regarding his prison detention and release, and the arrests
by the [s]ecret police . . .
The IJ concluded that Sallaku had failed to provide sufficient, credible, and
detailed evidence to meet his burden of proof, and, “[a]s such, the [c]ourt finds that
the respondent has also failed to establish a level of past persecution that could be
deemed to be reliably credible, or to meet the higher burden for withholding of
removal. . . .”
E. Appeal to the BIA
Sallaku appealed to the BIA, which adopted and affirmed the IJ’s decision,
and dismissed Sallaku’s appeal. The BIA also found that the IJ had not violated
Sallaku’s due process rights by preventing Zekadie from testifying because: (1)
Sallaku admitted that Zekadie did not have first-hand knowledge regarding the
incidents upon which Sallaku’s asylum application was based; and (2) Zekadie had
12
been living in the United States for the past 15 years, yet was going to testify about
the present conditions in Albania. The BIA additionally noted that, when asked
why he did not bring his parents to testify, who did have first-hand knowledge of
the events, Sallaku stated that he did not know it was necessary.
II. DISCUSSION
A. Adverse Credibility Determination
On appeal, Sallaku challenges the IJ’s conclusion, affirmed by the BIA, that
he failed to demonstrate past persecution.3
The IJ’s factual determinations are reviewed under the substantial evidence
test, and this Court should “affirm the [IJ’s] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).
“Credibility determinations likewise are reviewed under the substantial evidence
test.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 818 (11th Cir.
2004).
3
This Court should review the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (internal
citations omitted). “Insofar as the [BIA] adopts the IJ’s reasoning, [this Court should] review the
IJ’s decision as well.” Id. (internal citations omitted). Here, because the BIA expressly adopted
the IJ’s decision as to the adverse credibility determination and the merits of the claims, this
Court reviews the IJ’s decision under the substantial evidence test. See id.
13
An alien is entitled to asylum if he can establish, with specific and credible
evidence: (1) past persecution on account of religion or other statutorily listed
factor; or (2) a “well-founded fear” that his religion or other statutorily listed factor
will cause future persecution. 8 C.F.R. §§ 208.13(a), (b); Al Najjar v. Ashcroft,
257 F.3d 1262, 1287 (11th Cir. 2001). If an alien is unable to meet the “well
founded fear” standard for asylum, “he is generally precluded from qualifying for
either asylum or withholding of [removal.]” Id. at 1292-93. Similarly, the burden
on the alien seeking CAT relief is higher than the burden imposed on the asylum
seeker. Id. at 1303.4
“The trier of fact must determine credibility, and this [C]ourt may not
substitute its judgment for that of the IJ with respect to credibility findings.”
D-Muhumed, 388 F.3d at 818. “[A]n adverse credibility determination alone may
be sufficient to support the denial of an asylum application” when there is no other
evidence of persecution. Forgue, 401 F.3d at 1287. “Once an adverse credibility
finding is made, the burden is on the applicant alien to show that the IJ's credibility
decision was not supported by specific, cogent reasons or was not based on
4
As a preliminary matter, contrary to Sallaku’s argument on appeal, the IJ did make a
finding that Sallaku had not suffered past persecution, as the IJ explicitly found that, because
Sallaku had failed to provide sufficient, credible, and detailed evidence, he “also failed to
establish a level of past persecution that could be deemed to be reliably credible, or to meet the
higher burden for withholding of removal. . . .” In addition, because the BIA expressly adopted
the IJ’s findings, it was not required to make its own finding regarding past persecution.
14
substantial evidence.” Id. (citations omitted). “A credibility determination, like
any fact finding, may not be overturned unless the record compels it.” Id. (internal
quotations and citations omitted).
Sallaku relied on three main incidents to establish past persecution: (1) in
February of 1990 or 1991, he was arrested, detained, and beaten on a daily basis
for 30 days; (2) in 1997, he was detained for 24 hours and taken to the mountains
where he was threatened by people who held guns to his head; and (3) in February
of 2002, men stopped him and sprayed gasoline on him as they threatened him.
Substantial evidence supports the IJ’s conclusion that Sallaku’s testimony
about these three incidents was not credible and did not satisfy his burden of
establishing past persecution. A careful comparison between Sallaku’s testimony,
his asylum application, his credible fear interview, and his sworn statement taken
by the INS reveals some inconsistencies, including: (1) Sallaku initially stated,
during the asylum hearing and in his sworn statement, that he was arrested in 1990,
but later acknowledged that it was in 1991; (2) his application stated that he was
fed every two days during his 1990 detention, yet, he testified that he was fed
sporadically; (3) at the credible fear interview, Salluku told the asylum officer that
he was imprisoned for only three days in 1991, whereas, in his asylum application
and at the hearing, he maintained that he was imprisoned for a month; and (4) his
application stated that during the 1997 incident, three guns were pointed at him and
15
the driver threatened that he could end up at the bottom of the mine, yet, at the
asylum hearing, he testified that only one gun was pointed at him, and he did not
mention the mine. Also, Sallaku traveled to Albania from Germany and failed to
apply for asylum in Germany (where he stayed from 1991-97) following his
alleged persecution in 1991.
Further, in his asylum application, Sallaku’s story is vague concerning the
2002 gasoline incident, as he stated only that he essentially was covered in gasoline
by two men. However, at the hearing, he testified as to the color and make of the
car driven by his alleged attackers, and generally provided more detail about the
incident. In addition, as the IJ noted, Xhemacle’s affidavit was more detailed than
Sallaku’s testimony, and contradicted Sallaku’s testimony as to the color of the car.
In his sworn statement to the INS, Sallaku stated that, in October 2001, he
was threatened near his house by masked men dressed in blue, armed with machine
guns, a claim that he did not mention again. Therefore, the record does contain a
number of inconsistencies.
Also telling with regard to Sallaku’s credibility is the Asylum Profile, which
stated that claims by Albanian nationals based on political grounds are likely to be
incredible, and that such claims are usually amplified by the assertion that a
reconstituted Communist regime has come to power. This is the exact claim that
Sallaku made in his asylum application. Indeed, the Asylum Profile cautions
16
adjudicators to look closely at claims such as Sallaku’s, and explore other
motivations that the claimant may have, including family members already present
in the United States. Notably, all of Sallaku’s immediate family members reside in
the United States, and he has no close relatives in Albania.
Additionally, while Sallaku testified that he resided with his parents in
Florida, and resided with them when he lived in Albania, they did not testify or
provide corroborating affidavits. Although Sallaku testified that he was not aware
that his family members could be witnesses, his attorney stated that he had asked
Sallaku for any witnesses who may know about his claim. Moreover, as the IJ
noted, two of Sallaku’s supporting documents could not be authenticated, further
casting doubt upon the credibility of his claim.
Given the above-mentioned inconsistencies and the additional evidence
casting doubt on the credibility of Sallaku’s claim, the record does not compel
reversal of the IJ’s adverse credibility determination. See Forgue, 401 F.3d at
1287. Accordingly, substantial evidence supports the IJ’s determination that
Sallaku failed to establish his eligibility for asylum, and, because he has failed to
do so, he likewise has failed to establish eligibility for withholding of removal and
CAT relief. See Al Najjar, 257 F.3d at 1292-93.
B. Salluku’s Due Process Claim
17
Salluku also argues that the BIA erred by finding that his due process rights
were not violated when the IJ refused to allow him to present Zekadie’s testimony.
Sallaku contends that under Forgue, the IJ is required to consider all of the
evidence offered by an asylum applicant.5
In order to prevail on a due process challenge, an alien must establish that he
was deprived of liberty without due process of law and that the IJ’s errors caused
him substantial prejudice. Lonyem v. United States Att’y Gen., 352 F.3d 1338,
1341-42 (11th Cir. 2003). In a removal proceeding, an alien shall have “a
reasonable opportunity to introduce evidence on [his] own behalf.” 8 U.S.C. §
1534(c)(2). Further, the alien, at any time during the hearing, may request that the
IJ issue a subpoena for the presence of a witness “upon a satisfactory showing that
the presence of the witness is necessary for the determination of any material
matter.” 8 U.S.C. § 1534(d)(1).
Sallaku has not established that the proposed witness’ testimony was
“necessary for the determination of any material matter.” See id. As the BIA
noted, Sallaku wished to have Zekadie testify as to Albania’s country conditions,
yet, he admitted that Zekadie had not lived in Albania for 15 years and would be
testifying based only on his occasional visits to the country. In addition, as the IJ
5
This Court reviews de novo an alien’s constitutional challenges. See Lonyem v. United
States Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).
18
noted, there was ample evidence about Albania’s country conditions, and there is
no indication that Sallaku was prevented from submitting his own reliable evidence
as to Albania’s country conditions. Moreover, as the BIA noted, Sallaku admitted
that Zekadie had no first-hand knowledge of his problems in Albania. Thus,
Sallaku has not established a due process violation.
PETITION DENIED.
19