NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0641n.06
Case No. 19-4224
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 12, 2020
ALTIN BASHKIM SHUTI, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE BOARD OF
) IMMIGRATION APPEALS
WILLIAM P. BARR, Attorney General, )
)
Respondent. )
BEFORE: BOGGS, STRANCH, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. After Altin Shuti committed unarmed robbery, the Department
of Homeland Security moved to deport him. Shuti objected, arguing that his crime doesn’t qualify
for removal and that he would be persecuted if deported to Albania. The Board of Immigration
Appeals rejected Shuti’s claims. Because unarmed robbery (as Michigan defines it) is a crime of
violence, and because Shuti did not establish that he is more likely than not to be persecuted in
Albania, we deny the petition for review.
I.
Altin Shuti is an Albanian citizen. When he was thirteen, his family fled to the United
States because they feared persecution by the Socialist Party of Albania, which had placed Shuti’s
father in a forced labor camp. Shuti became a lawful permanent resident and his parents became
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United States citizens. But six years later, Shuti pled guilty to unarmed robbery, and the
Department of Homeland Security moved to deport him.
The Department of Homeland Security notified Shuti that he was removable because his
Michigan unarmed robbery conviction was a “crime of violence” as defined by 18 U.S.C. § 16.
Shuti agreed and conceded that he was removable.
But Shuti’s case didn’t end there. Shuti claimed that he would be persecuted in Albania
and applied for relief under the Immigration and Nationality Act and the Convention Against
Torture. The agency denied his request.
So Shuti changed his approach and argued on appeal that he was not removable. There
were two statutory definitions of a “crime of violence,” and Shuti claimed that one of the two was
unconstitutional. See 18 U.S.C. § 16; id. § 16(b). Our court agreed: We remanded to the Board
of Immigration Appeals for further proceedings. Shuti v. Lynch, 828 F.3d 440, 451 (6th Cir. 2016)
(Shuti I).
On remand, the agency held that Shuti’s conviction still qualified under the unchallenged
definition of a “crime of violence,” 18 U.S.C. § 16(a). The agency also affirmed the denial of
Shuti’s request for relief under the Immigration and Nationality Act and the Convention Against
Torture.
Shuti now petitions for review and argues that the agency erred by: (1) holding that his
unarmed robbery conviction is a “crime of violence,” (2) denying him relief under the Immigration
and Nationality Act and the Convention Against Torture, and (3) denying his request to remand
for additional factfinding. None of these arguments is persuasive, so we deny the petition for
review.
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II.
Shuti’s first argument is that the agency erred by holding that his unarmed robbery
conviction is a “crime of violence.” We review the agency’s decision de novo. See Van Don
Nguyen v. Holder, 571 F.3d 524, 528 (6th Cir. 2009).
A lawful permanent resident is removable if he has been convicted of a “crime of violence.”
A “crime of violence” is defined as “an offense that has as an element the use, attempted use, or
threatened use of physical force.” 18 U.S.C. § 16(a); see also 8 U.S.C. §§ 1227(a)(2)(A)(iii)
(allowing removal for aggravated felonies), 1101(a)(43)(F) (defining aggravated felonies to
include crimes of violence).
To determine whether Shuti’s unarmed robbery conviction is a “crime of violence,” we
apply what is known as the categorical approach. We focus solely on the elements of the crime
and ask they “fit[] within the ‘generic’ federal definition of a corresponding aggravated felony.”
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). We also ask whether there is a realistic
probability that an individual could be prosecuted without using, attempting to use, or threatening
to use physical force. Id. at 190–91; see Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019)
(Thapar, J., concurring) (“[W]e must engage in a hypothetical exercise to determine whether the
crime’s elements could be committed in a non-violent fashion.”). If so, the offense doesn’t count
as a “crime of violence.”
In Shuti’s case, we don’t have to start our analysis from scratch. We recently determined
that Michigan unarmed robbery qualifies as a “crime of violence” under § 4B1.2(a)(1) of the
Sentencing Guidelines. United States v. Fuller-Ragland, 931 F.3d 456, 465 (6th Cir. 2019). The
Sentencing Guidelines and the provision here share almost identical definitions of a “crime of
violence.” Compare 18 U.S.C. § 16(a) (“an offense that has as an element the use, attempted use,
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or threatened use of physical force against the person or property of another”), with U.S.S.G.
§ 4B1.2(a)(1) (“any offense . . . [that] has as an element the use, attempted use, or threatened use
of physical force against the person of another”). In fact, we have often used one to help interpret
the other. United States v. Verwiebe, 874 F.3d 258, 263–64 (6th Cir. 2017); see Hernandez-
Maldonado v. Barr, 773 F. App’x 280, 282 (6th Cir. 2019) (recognizing that because 18 U.S.C.
§ 16(a) “mirrors” § 4B1.2(a)(1) of the Sentencing Guidelines, the clauses are often read “the same
way” (quoting Verwiebe, 874 F.3d at 260)). Given the near-identical definitions, our analysis
under the Sentencing Guidelines that Michigan unarmed robbery is a “crime of violence” applies
here. Thus, the agency did not err in finding that Shuti had committed a “crime of violence.”
Shuti’s arguments to the contrary are unpersuasive. He contends that unarmed robbery
does not have an element of physical force because it includes offenses such as assault, which can
be carried out with barely any force (like spitting). But our job is not to “imagin[e] unlikely crimes
that theoretically could be covered” by Michigan’s unarmed robbery statute; rather, there must be
a “realistic probability the statute would be used to criminalize the conduct.” Verwiebe, 874 F.3d
at 260–61. Although “Michigan courts have made it clear that actual force is not necessary to
commit a robbery,” unarmed robbery does include the threatened use “of at least enough force to
overcome a victim’s resistance.” Fuller-Ragland, 931 F.3d at 462 n.5, 464–65. And under
Stokeling v. United States, “force necessary to overcome a victim’s resistance” qualifies as
“physical force.” 139 S. Ct. 544, 555 (2019).
Shuti also raises procedural objections. He says that res judicata and waiver bar the agency
from arguing he’s removable for committing a “crime of violence.” But neither doctrine applies
here.
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Res Judicata. Shuti contends that res judicata bars the agency from arguing that he is
removable after we vacated the first removal order in Shuti I. Res judicata prevents parties from
relitigating claims that have already been determined by a final judgment. See Arangure v.
Whitaker, 911 F.3d 333, 337 (6th Cir. 2018). But Shuti I did not render a final judgment on Shuti’s
removability: Our review was limited to whether one of the two definitions of a “crime of
violence” was unconstitutional. We did not terminate Shuti’s removal proceedings. Nor did we
decide whether Shuti was removable on other grounds. We merely vacated the prior judgment for
the Board of Immigration Appeals and directed it to conduct “further proceedings consistent with
[our] opinion.” Shuti I, 828 F.3d at 441, 451. Because there has been no final judgment, res
judicata does not apply.
Waiver. Shuti argues the agency waived its argument that he committed a “crime of
violence.” Waiver is the “intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
And to be sure, the agency did not specify which of the two definitions of a “crime of violence”
applied to Shuti until after we decided Shuti I. But that’s because it had no reason to. The entire
removal proceeding had been predicated on the idea that Shuti was removable under either or both
definitions of a “crime of violence.” When the Department of Homeland Security initiated
removal, it notified Shuti that he was removable because he had committed a “crime of violence.”
Then Shuti himself conceded that he was removable. Twice. It was only after we found one
definition of a “crime of violence” unconstitutional that there was an open question about whether
Shuti’s conviction still qualified under the other definition.
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Shuti insists the agency knew before Shuti I that one of the definitions for a “crime of
violence” may have been unconstitutional because the Supreme Court had decided that an
analogous clause in a different statute was unconstitutional. See Johnson v. United States, 576
U.S. 591, 606 (2015) (holding 18 U.S.C. § 924(e)(2)(B) unconstitutional). But we do not fault the
agency for failing to predict if, and how, a given circuit will extend Supreme Court precedent. The
agency has consistently maintained that Shuti is removable for committing a “crime of violence.”
So waiver does not apply.
III.
Next, Shuti claims that the agency erred by denying him relief under the Immigration and
Nationality Act (INA) and the Convention Against Torture (CAT). The INA and CAT offer relief
to noncitizens who show they would probably be persecuted if returned to their country of origin.
8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(c). But there are limitations: If a noncitizen has
committed a “particularly serious” crime, the INA offers no relief and the CAT offers only deferral
of removal. See 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). The agency held that
Shuti’s crime was “particularly serious,” so Shuti’s only remaining option was to apply for deferral
of removal under the CAT.
While Shuti may be eligible for relief under the CAT, that does not mean he is entitled to
it. An eligible noncitizen must still prove “that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); see id.
§ 1208.17(a). Shuti alleges that he will be physically tortured by the Socialist Party of Albania.1
But the agency determined that Shuti’s testimony was not credible and denied deferral of removal.
1
Shuti also claims he will be barred from attending college. Even if Shuti’s claim is true, it does not qualify as torture,
which is defined as “severe pain or suffering.” 8 C.F.R. § 1208.18(a)(1); see Almuhtaseb v. Gonzales, 453 F.3d 743,
751 (6th Cir. 2006).
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Shuti challenges the agency’s rulings that his crime was “particularly serious” and that he
failed to establish a clear probability of torture in Albania. Since the Board of Immigration
Appeals adopted the immigration judge’s decision, we review both decisions. Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009). When reviewing the agency’s factual determinations, we use
the “‘highly deferential’ substantial-evidence test, meaning those findings stand ‘unless any
reasonable adjudicator would be compelled’ to disagree.” Kilic v. Barr, 965 F.3d 469, 473 (6th
Cir. 2020) (quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). And we review the agency’s
legal conclusions de novo. Id.
“Particularly Serious” Determination. Shuti first argues that the agency should have used
the categorical and modified categorical approach to determine whether his crime was
“particularly serious.” But the only cases Shuti cites for support address the standards for
“aggravated” or “violent” felonies. And Shuti does not explain why this caselaw—wrested from
different contexts—would bind our analysis about whether a crime is “particularly serious.” See
In re N-A-M-, 24 I. & N. Dec. 336, 344 (BIA 2007) (“[No] decision of which we are aware, has
ever suggested that the categorical approach . . . is applicable to the inherently discretionary
determination of whether a conviction is for a particularly serious crime.”).
Shuti next challenges the evidence the agency reviewed to determine whether his crime is
“particularly serious.” Shuti concedes the agency could consider any reliable evidence. But he
says the agency should not have considered his dismissed or uncharged conduct or the conduct of
other defendants. Except Shuti never explains why dismissed or uncharged conduct is
categorically unreliable. Nor does he provide any relevant authority to support his claim. So Shuti
forfeited this argument. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is
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not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to put flesh on its bones.” (cleaned up)).
Deferral of Removal Determination. Shuti argues the agency erred by rejecting as not
credible his testimony that he will face persecution if deported to Albania.
To prove he will be tortured in Albania, Shuti offers evidence of past mistreatment by the
Socialist Party of Albania. At his removal hearing, he testified that when he was eight years old
Socialist Party members threatened to kill him and his family. The problem for Shuti is that his
story was disputed by his own witness: his father. At the same removal hearing, Shuti’s father
testified that Shuti himself was never threatened or subjected to any mistreatment while in Albania.
Given the contradicting stories—and the lack of independent evidence corroborating Shuti’s
memories as an eight-year-old—we are not “compelled to disagree” with the agency’s finding that
Shuti’s testimony was not credible. Kilic, 965 F.3d at 473 (cleaned up).
Shuti also points to his family history, asserting that the Socialist Party of Albania had
persecuted his relatives in the past. He also notes a 2013 State Department report on Albania,
which references police beatings and corruption. But Shuti offers no credible evidence that Shuti
himself is likely to be tortured in present-day Albania. See id. at 474.
Shuti argues the agency failed to consider the totality of the circumstances and erred by
requesting corroborating evidence without sufficient notice. Both arguments are meritless. First,
Shuti argues the agency should have considered evidence of conditions in Albania and Shuti’s age
when he was allegedly threatened. But the immigration judge explicitly referenced both factors in
its decision. The immigration judge even determined that conditions in Albania had improved
markedly from Shuti’s childhood. Second, as Shuti acknowledges, we have already determined
that “federal law does not entitle illegal aliens to notice from the Immigration Court as to what sort
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of evidence the alien must produce to carry his burden.” Gaye v. Lynch, 788 F.3d 519, 530 (6th
Cir. 2015). So precedent forecloses this argument.
For all these reasons, the agency did not err in denying Shuti deferral of removal.
IV.
Shuti’s third and final argument is that the agency erred by denying his request to remand
for additional factfinding. We review the agency’s decision for abuse of discretion. Marqus v.
Barr, 968 F.3d 583, 592 (6th Cir. 2020).
A motion to remand is granted only where the “evidence sought to be offered is material
and was not available and could not have been discovered or presented at the [evidentiary]
hearing.” Shakkuri v. Barr, 780 F. App’x 286, 294 (6th Cir. 2019) (brackets in original). Shuti
argues remand is warranted here because conditions in Albania have changed since the agency
denied deferral of removal in 2015. But the only evidence Shuti provides is a report showing that
government officials sometimes mistreat suspects and prisoners. Shuti submitted nearly identical
information about police misconduct at his initial removal hearing. Thus, Shuti provides no new,
material evidence for consideration. See Shakkuri, 780 F. App’x at 294–95. The agency did not
abuse its discretion by denying remand.
We deny the petition for review.
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