NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0864n.06
Nos. 09-4442; 09-4444 FILED
UNITED STATES COURT OF APPEALS Dec 21, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
ALEKSANDER SPAQI,
Petitioner,
ON PETITION FOR REVIEW
v. OF A FINAL ORDER FROM THE
BOARD OF IMMIGRATION
ERIC H. HOLDER, JR.,
Attorney General,
Respondent.
___________________________/
BEFORE: SUHRHEINRICH, MOORE, and COOK, Circuit Judges.
RICHARD F. SUHRHEINRICH, Circuit Judge. Aleksander, Preke, Prene, Bernardina,
and Andrian Spaqi petition this court for review of the Board of Immigration Appeals’s (“BIA”)
decisions denying their applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In Case No. 09-4442, Aleksander (“Aleksander”) petitions
for review of the BIA’s denial of asylum on the grounds that the BIA violated his constitutional right
to procedural due process. He also claims that he established past persecution and a well-founded
fear of future persecution, and that it is more likely than not that he will be persecuted or tortured
if returned to his country of origin. In Case No. 09-4444, Prek, Prene, Bernardina, and Andrian
(collectively “Petitioners”) claim that the Immigration Judge (“IJ”) abused her discretion when she
denied their motion to sever their derivative applications after the principal applicant, Prek Spaqi,
was determined to be statutorily barred from asylum and withholding. They also contend that the
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BIA abused its discretion when it denied their motion to remand, and that they qualify for protection
under the CAT.
Because we conclude that Aleksander’s claim fails on the merits, we do not address his due
process claim. We DENY Aleksander’s requests for asylum and withholding of removal. Because
he waived his challenge to the BIA’s denial of his CAT claims, we DENY review of Aleksander’s
request for protection under the CAT.
We also DENY the Spaqi family’s petition for review in Case No. 09-4444, because the BIA
did not abuse its discretion in denying the motion to sever. The Spaqis failed to challenge the IJ’s
denial of their CAT claim, and it is therefore beyond the scope of this court’s review.
I. BACKGROUND
Petitioners in these consolidated cases belong to the same immediate family. They are all
natives of the former Yugoslavia who were all born in the village of Djakvoica near the Albanian
border in what is now Kosovo. The parties to the petition for review in Case No. 09-4444 are Prek
Spaqi (“Prek”), his wife Prene, their daughter Bernardina, and son Andrian. Their son Aleksander
Spaki (“Aleksander”) is a party to a separate but consolidated petition for review in Case No. 09-
4442.
The Spaqis entered the United States without permission near Laredo, Texas on September
4, 2004. On the same day, the Department of Homeland Security (“DHS”) filed Notices to Appear
(“NTA”) against Prek, Prene, Bernardina, and Andrian, charging them with being subject to removal
for entering the United States without having been admitted or paroled. DHS filed an NTA against
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Aleksander on November 2, 2004. Each of the petitioners admitted the factual allegations in the
NTAs and conceded removability. An IJ granted their motions to change venue to Detroit,
Michigan.
On August 24, 2005, Prek filed applications for asylum, withholding of removal, and
protection under the CAT, listing other family members as derivative beneficiaries.1 Aleksander was
included on his father’s application as a derivative beneficiary. Aleksander was twenty years old at
the time of entry and turned twenty-one shortly thereafter.2 The IJ “separated out” Aleksander’s
claim because he was twenty-one years old, and could not longer qualify as a derivative beneficiary
of his father. Aleksander appeared before an IJ the same day in a preliminary master calender
hearing. On October 5, 2005, Aleksander filed a separate application for asylum, withholding of
removal, and protection.
On November 6, 2006, Prek Spaqi testified before the IJ in support of his applications for
relief. Administrative Record (“A.R.”), 09-44423, at 634-91. Prek testified that his family was
involved in a land dispute with their neighbors, the Romojas. Prek stated that sometime around
1984, the Serbian government “created a law to fix . . . the parts of land in Kosovo,” and a
1
A spouse and children under age twenty-one may also be granted asylum if the “principal
applicant,” 8 C.F.R. § 1208.21(a), lists them on his application and they are in the United States.
Id. § 11208.3(a). See 8 U.S.C. §§ 1158(b); 1101(b)(1).
2
Aleksander was born on October 10, 1983. He entered the United States on September 4,
2004. He turned twenty-one on October 10, 2004.
3
The testimony of Prek Spaqi and Nicole Pepa, is part of the record in both Case Nos. 09-
4442, and 09-4444. For ease of reference, the citations provided are found in Case No. 09-4442.
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commission from Gjakova seized a portion of Prek’s land and opened a road behind his house. A.R.
637-38. Prek told the IJ that he filed a complaint with the Directory in Pristina, that “experts” were
sent to the site, and that the Directory ruled that “the Commission from Gjakova” had to return the
land to Prek. A.R. 641. The Gjakova Commission appealed that decision to the Supreme Court,
which ruled that the Gjakova Commission had to return the land to the Spaqis and close the road it
was constructing behind Prek’s house. A.R. 642.
When the Romoja family refused to close the road, Preq’s brother proceeded to do so himself
one day while Prek was hunting. A.R. 643. Upon his return home, Prek observed the Romojas get
“real angry” at his brother, and that “12 people came . . . and started shooting.” Prek shot his pistol
“three times in the air[,] . . . two killings happened,” and two members of the Romoja family were
killed. A.R. 643-45. About an hour later, the police arrested Spaqi, his father and brother, and took
them to jail in Pia, Kosovo. A.R. 645. Following a hearing, Prek was sentenced to twelve years for
murder and attempted murder, and his brother was sentenced to death. A.R. 646. Prek appealed to
the Pristina Supreme Court, and on November 23, 1989, that court reduced his sentence to three
years, because of “mistakes” made by the trial court. A.R. 647, 652. According to Prek, the Pristina
Supreme Court determined that the Romoja family “did shoot on us,” and that he was “sentenced
before that I did kill somebody but that was not true.” A.R. 648.
Prek told the IJ that he did not go back to his village upon his release from prison, because
he feared retribution. He explained that “right away when . . . a member of [a] family there is killed
they are in a blood feud.” A.R. 653-54. Prek lived six or seven kilometers outside of his village
until 1996, when he left for Croatia. A.R. 655-57. He visited his village in Kosovo seven times,
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without incident. A.R.657-58. In 1998, he moved his entire family to Albania. A.R. 658-59. At
this time he learned from his wife that the Romoja family was “beating a lot their kids [and] their
men,” and that a priest had attempted a reconciliation, but that the Romoja family had refused. A.R.
659-60.
Nicole Pepa, a national of Kosovo, a legal permanent resident of the United States, and a
relative of the Spaqi family, also testified. A.R. 612-32. Pepa told the IJ that he has known the
Spaqi family since he was two years old, and that the Spaqis are “one of the most well known
families in Kosovo, and the most patriotic family in Kosovo.” A.R. 616. He explained that he was
“a chief for reconciliation of the blood-feud,” which he characterized as a non-governmental
reconciliation commission. A.R. 617, 632. Pepa stated that the blood feud between the Spaqis and
the Romojas began when the government seized the Romojas’s land and redistributed it to the Spaqi
family. Pepa indicated that he was unable to resolve the dispute between the two families. A.R.
621-25.
The IJ found Prek ineligible for asylum and withholding as a matter of law as a result of his
conviction and sentence for attempted murder. Counsel subsequently moved to sever the cases of
Prene, Bernardina, and Andrian, the three family members who remained as derivative beneficiaries.
The IJ denied the motion. After testimony was complete, the IJ issued an oral decision determining
that Prek was statutorily barred from asylum and withholding of removal as a result of his
commission of a particularly serious crime. The IJ also denied Prek’s application for protection
under the CAT. She then ordered Prek, Prene, Bernardina, and Andrian deported to Serbia.
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The Spaqi family appealed the decision. The BIA affirmed the IJ’s decision and dismissed
the appeal. The Spaqi family timely petitioned this court for review of the BIA’s decision.
On September 22, 2008, Aleksander testified at a hearing before the same IJ in support of
his application for relief. Aleksander also testified that his family was engaged in a blood feud with
the Romoja family in Kosovo, concerning “the land,” and that his life would be in danger if he
returned to Kosovo. Aleksander stated that he suffered many beatings from the older Romoja boys.
He stated that when he was about thirteen years old, he went to live with his aunt in a village
approximately ten kilometers away from Qerim, because his mother told him his life was in danger.
Aleksander reported that during his second year of high school, friends of the Romoja family beat
him on one occasion, pushing him to the ground and warning “that one day [they] are going to kill
the entire family.” Aleksander stated that he was afraid to report the incident to the police and that
when he told his parents, they said to be careful. Aleksander claimed that he wanted to go to college
but the Romoja family prevented it “[b]ecause they have many people that work for these things with
money.” Aleksander stated that he came to the United States with his family “to get out of danger.”
The IJ allowed Aleksander to introduce the transcript of his father’s proceeding. The IJ and
BIA therefore considered the testimony of Prek and Pepa in deciding Aleksander’s case.
On December 1, 2008, the IJ issued a written decision determining that Aleksander failed to
file within one year of entry and was therefore ineligible for asylum, denying his applications for
withholding of removal and protection under the CAT, and ordering him removed to Kosovo. The
IJ determined that Aleksander failed to show past persecution or a well-founded fear of future
persecution on account of a protected ground, and had not demonstrated a likelihood that he would
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suffer torture with the acquiescence of the Kosovo government. She found Aleksander credible but
concluded that his testimony was not sufficiently detailed and persuasive without corroborating
documentation. Aleksander filed a timely appeal.
On October 30, 2009, the BIA affirmed the IJ’s decision and dismissed the appeal. The BIA
agreed with the IJ’s determination that Aleksander was ineligible for asylum because his application
was filed after the one-year period, and was unable to establish changed or extraordinary
circumstances relating to the delay. In the alternative, the BIA“agree[d] with the [IJ]’s alternative
finding that [Aleksander] failed to demonstrate eligibility for asylum.” The BIA stated that it
agreed with the Immigration Judge that [Aleksander’s] evidence of a family blood
feud, where [Aleksander] was beaten up by members of the rival family, did not rise
to the level of past persecution on account of a statutorily protected ground. As noted
by the Immigration Judge, the discord between the families stemmed from a fatal
shooting, and an angry family seeking revenge for the death of their family member.
(I.J. at 13). See Klawitter v. INS, 970 F.2d 149 (6th Cir. 1992) (finding harm based
solely on a personal vendetta does not constitute persecution on account of a
statutorily protected ground).
A.R. at 3 (BIA Decision at 2). The BIA referenced the IJ’s finding that: “The alleged blood feud
has its origin in the criminal actions of certain members of the Spaqi family. [Aleksander] . . . failed
to establish that the alleged private actions targeted the Spaqi family as a group or that the
government has failed or refused to act.” A.R. at 92 (IJ Decision at 13).
The BIA also ruled that Aleksander failed to meet the higher standard for withholding of
removal and that he could not prove likelihood of torture by or with the acquiesence of the
government to qualify for protection under CAT.
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Aleksander filed a timely petition for review in this court. See 8 U.S.C. § 1252(b)(1). His
appeal was later consolidated with his family’s.
II. ANALYSIS
A. Standards of Review
Because the BIA issued its own opinion rather than summarily affirming the IJ, we review
the decision of the BIA as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057
(6th Cir. 2007). “To the extent the BIA adopted the [IJ]’s reasoning, however, this Court also
reviews the [IJ]’s decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Questions of law
are reviewed de novo. Id. We review both the IJ’s and the BIA’s factual findings under the
substantial-evidence standard. Id. “These findings are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted
and citation omitted).
B. Aleksander’s Appeal, Case No. 09-4442
1. Timeliness
The Board adopted the IJ’s determination that Aleksander was ineligible for asylum because
he failed to file within the one-year period, and that he failed to establish any changed or
extraordinary circumstances related to his delay. Because we conclude that substantial evidence
supports the BIA’s determination that Aleksander has not demonstrated eligibility for asylum, we
do not address this argument.
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2. Merits
Aleksander appeals the BIA’s alternative holding denying his asylum claim on the merits,
as well as his claims for withholding of removal and protection under the CAT. To qualify for
asylum relief, Aleksander must demonstrate that he was subject to past persecution or has a well-
founded fear of future persecution “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see also id. § 1158(b)(1)(B)(i);
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To establish that the persecution is “on account
of” the protected ground of his political opinion or social group, Aleksander must provide “some
evidence . . . direct or circumstantial,” that his persecutors are motivated by his political opinion or
social group. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). “Persecution is ‘the infliction of
harm or suffering by the government, or persons a government is unwilling or unable to control, to
overcome a characteristic of the victim.’” Awad v. Holder, 2011 WL 2711069, at *5 (6th Cir. July
12, 2011) (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (citing In re Kasinga, 21
I & N. Dec. 357 (BIA 1996))). “Asylum is not available to an alien who fears retribution solely over
personal matters.” Zoarab v. Mukasey, 524 F.3d 777, 781 (6th Cir. 2008).
As the testimony reflects, the blood feud related to the land dispute, which Prek himself
acknowledged was a “personal problem.” More importantly, the record shows that the police and
government authorities were active in both trying to resolve the land dispute and prosecute the
members of families who had engaged in murder or attempted murder of rival families. The land
dispute was resolved through the court system in Prek’s favor. Prek and his brother were arrested
for their role in shootings. And the court system again acted in Prek’s favor, eventually reducing his
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sentence from twelve years to three years. These facts belie any assertion that the government was
unwilling or unable to control the alleged perpetrators.
The record also established that after Prek left the village where he had been involved in the
killing of two members of the Romoja family, his family members remained there essentially without
harm. Moreover, Prek’s brother returned to Kosovo after his release from prison and did not report
any harm or harassment. Although Aleksander contended it was necessary for him to live with his
aunt ten kilometers from home, he did not suffer any serious harm from the Romoja family.
Aleksander claimed he was beaten by the older Romoja boys, but the incidents were never reported
to the police. See El Ghorbi v. Mukasey, 281 F. App’x 514, 517 (6th Cir. 2008) (holding that the
alien failed to show persecution for purposes of attaining asylum where she never complained to or
sought protection from the government or the police); Vata v. Gonzales, 243 F. App’x 930, 943 (6th
Cir. 2007) (holding that the alien failed to demonstrate that Albanian authorities were unwilling or
unable to protect him where he failed to report threatening phone calls to the Albanian police).
In short, in this case, the “culture of blood feud . . . is wholly independent of political
activity.” Kalaj v. Gonzales, 137 F. App’x. 851, 855 (6th Cir. 2005) (in the context of Albania). See
also Locaj v. Gonzales, 219 F. App’x 483, 485 (6th Cir. 2007) (same). Even assuming the Spaqi
family constitutes a meaningfully defined social group, Aleksander failed to establish his
membership in this social group motivated any persecution. See Locaj, 219 F. App’x at 485.
Because Aleksander failed to prove eligibility for asylum, he cannot establish the more
stringent standard for withholding of removal. See Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.
2005).
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Concerning his CAT claim, Aleksander asserts in his petition for review that it is more likely
than not that he would be persecuted or tortured upon removal. However, he makes no developed
argument particular to his CAT claim. He has therefore waived relief on those grounds. See Dillery
v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“It is well-established that ‘issues adverted
to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.’”) (quoting United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)); Shkabari v.
Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005) (holding that withholding of removal and CAT
claims not developed in brief were waived on appeal).
C. Spaqi Family Appeal, Case No. 09-4444
We review for abuse of discretion the BIA’s denial of a motion to remand. Abu-Khaliel v.
Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). See Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.
2005) (governing motions to reopen). We also review for abuse of discretion the BIA’s
determination that the IJ acted within her discretion in denying a motion to sever. Cf. id. (reviewing
an IJ’s denial of a continuance for an abuse of discretion because the grant of the continuance fell
within the discretion of the IJ). An abuse of discretion occurs when the denial of a motion “was
made without a rational explanation, inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination against a particular race or group.” Id.
(internal quotation marks and citation omitted).
The BIA agreed with the IJ’s denial of the Spaqi’s request to sever because “the [Petitioners]
were represented by counsel, their counsel had an opportunity to sever the cases prior to the merits
hearing, and the grounds for statutory denial had existed since the inception of the case.” A.R., 09-
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4444, at 4 (BIA Decision at 3). On appeal, Petitioners argue that “there was no conclusive indication
that the IJ would have found Prek statutorily ineligible for asylum and withholding of removal prior
to the IJ actually making such a ruling.” Pet. Br., 09-4444, at 21. There is a clear statutory basis for
the IJ’s finding, however, that Prek is statutorily ineligible for asylum based on his conviction for
attempted murder, an aggravated felony under the INA. See 8 U.S.C. § 1158(b)(2)(A)(ii) (stating
that an alien is barred from asylum if he has been convicted of a “particularly serious crime”); id. §
1158(b)(2)(B)(i) (stating that “a particularly serious crime” includes an “aggravated felony”); id. §
1101(a)(43)(A), (U) (defining “aggravated felony” as including “murder” and attempted murder);
id. § 1101(a)(43) (aggravated felony includes “such an offense in violation of the law of a foreign
country for which the term of imprisonment was completed within the previous 15 years”).
Furthermore, Petitioners disclosed this conviction on the family’s asylum application, suggesting
their awareness of its significance. And they do not contest its application on appeal. Accordingly,
the IJ provided a rational explanation for denying the motion to sever, which the BIA found to be
appropriate, and no abuse of discretion occurred.
The BIA properly styled the motion to remand as one to reopen, which it may deny when “the
movant has not established a prima facie case for the underlying substantive relief sought.” INS v.
Abudu, 485 U.S. 94, 104 (1988). The BIA denied the motion to remand because Petitioners failed
to satisfy “their heavy burden of demonstrating the result of their case would likely change upon
remand.” A.R., 09-4444, at 4 (BIA Decision at 3). The BIA concluded that the remaining Spaqi
family members did not provide evidence demonstrating past persecution or a well-founded fear of
future persecution on account of a protected ground.
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Prima facie evidence is that which “reveals a reasonable likelihood that the statutory
requirements for relief have been satisfied.” Alizoti v. Gonzales, 477 F.3d 448, 452 (6th Cir. 2007)
(internal quotation marks and citation omitted). As the BIA and the IJ found, “the evidence of record
simply indicates that [Petitioners] are part of a family that was involved in a blood feud with another
private family.” A.R., 09-4444, at 4 (BIA Decision at 3). Moreover, an individual applicant for
asylum must prove that he or she will be singled out for persecution. See Akhtar v. Gonzales, 406
F.3d 399, 405-06 (6th Cir. 2005). “‘Although acts of violence against an alien’s family members
may demonstrate a well-founded fear of persecution, absent a pattern of persecution tied to the
asylum applicant, himself or herself, acts of violence against family members do not necessarily
demonstrate a well-founded fear of persecution.’” Id. (quoting Gebremaria v. Ashcroft, 378 F.3d
734, 739 (8th Cir. 2004)). Thus, while relevant, familial status alone cannot support a claim for
persecution. Id. at 406 (citing Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)). Cf. Mapouya
v. Gonzales, 487 F.3d 396, 412 (finding that the applicant provided evidence tending to show that
he still faced an individualized threat of future persecution despite changed country conditions). The
evidence presented at the 2006 hearing focused primarily on Prek’s conflict with the Romojas, and
Prek’s subsequent departure from Kosovo, and Pepa’s efforts at reconciliation. Because this
evidence was insufficient to establish a prima facie case of eligibility with respect to Prek in that it
demonstrated simply a private dispute, it was likewise insufficient to establish eligibility for the
derivative family members.4 Thus, the BIA did not act abuse its discretion in concluding that the
4
The government argues that the derivative family members cannot establish prima facie
eligibility because they never filed their own applications. Because the BIA did not abuse its
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derivative beneficiaries had not established a prima facie case of eligibility for asylum or
withholding.
Lastly, Petitioners did not challenge the IJ’s denial of Prek’s application for protection under
the CAT in his petition to the BIA. The claim has not been exhausted and is therefore beyond the
scope of this court’s review. 8 U.S.C. § 1252(d)(1).
III. CONCLUSION
For the foregoing reasons, we DENY the petition for review in Case No. 09-4442. We also
DENY the petition for review in Case No. 09-4444.
discretion in denying the motion to reopen on other grounds, we need not and do not address the
procedural requirements for filing a motion to reopen as a derivative beneficiary. Compare Haddad
v. Gonzales, 437 F.3d 515, 518 n.5 (6th Cir. 2006) (noting that filing a motion to reopen as a
derivative “is incompatible with the statute and regulations”), with Selami v. Gonzales, 150 F. App’x
504, 506-07 (6th Cir. 2005) (unpublished opinion) (dismissing derivative’s petition for review
because she had filed no independent asylum application of her own and noting the government’s
suggestion that she file a motion to reopen accompanied by her own application).
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
Because the BIA did not properly review the full record, Aleksander Spaqi has established a due-
process violation arising out of the BIA’s treatment of his untimely asylum application. On the
merits, the BIA erred as a matter of law when it concluded that Aleksander could not show
persecution on account of a protected ground as a result of the harm he experienced as a member of
the Spaqi family. I therefore would grant Aleksander’s petition for review of the BIA’s decision in
Case No. 09-4442 denying Aleksander’s requests for asylum and withholding of removal. Because
Aleksander waived challenge to the BIA’s denial of his CAT claims, I would, however, deny review
of the portion of Aleksander’s petition requesting protection under the CAT. I agree with the
majority’s disposition of Case No. 09-4444.
In Case No. 09-4442, I would remand to the BIA with instructions to consider the one-year
finding in light of the full record, and to address in the first instance whether Aleksander has
demonstrated past persecution or a well-founded fear of future persecution by persons whom the
government of Kosovo is unable or unwilling to control. Because the BIA’s analysis of Aleksander’s
withholding of removal claim turned on its analysis of his asylum claim, the BIA should also
determine whether Aleksander meets the withholding-of-removal standard.
The BIA agreed with the IJ’s determination that Aleksander was ineligible for asylum based
upon his failure to file within the one-year period, and his failure to establish any changed or
extraordinary circumstances related to this delay. Aleksander concedes that, in general, asylum
applicants must file their applications for asylum within one year after their arrival in the United
States. See 8 U.S.C. § 1158(a)(2)(B). He argues, however, that he qualifies for an exception for a
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late-filed application because he has demonstrated “the existence of . . . extraordinary circumstances
relating to the delay in filing an application within the period specified.” Id. at § 1158(a)(2)(D).
Pursuant to 8 U.S.C. § 1252(a)(2)(A) and (B), when an asylum application is denied as
untimely, this court has jurisdiction to review only “constitutional claims or questions of law,” 8
U.S.C. § 1252(a)(2)(D), and not “discretionary or factual questions,” arising out of that
determination, Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Aleksander claims that
he was denied procedural due process because, when reviewing the IJ’s one-year finding, the BIA
considered an incomplete Administrative Record. Because this is a constitutional claim, he contends
that we may assert jurisdiction.
As an alien, Aleksander is “entitled to the due process of law in deportation proceedings,”
Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009), which “requires that an alien be afforded
a full and fair hearing,” Gilaj v. Gonzales, 408 F.3d 275, 290 (6th Cir. 2005). “Due process [also]
demands a reasonably accurate and complete transcript to allow for meaningful appellate review and
to allow the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj v.
Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). “To prevail on a due process claim, [Aleksander] must
demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially affected
the outcome of [his] case.” Al-Ghorbani, 585 F.3d at 992.
I believe that Aleksander has established a violation of his procedural due-process rights.
First, and most importantly for the due-process analysis, it appears that the BIA did not review “a
reasonably accurate and complete transcript [that would have] allow[ed] for meaningful appellate
review and [for Aleksander] to mount a challenge to the proceedings conducted before the IJ.”
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Sterkaj, 439 F.3d at 279. The IJ found that Aleksander did not provide documentation “to
corroborate his inclusion on his father’s application, or that his father’s application was filed within
one year of entry to the United States.” Administrative Record (“A.R.”), 09-4442, at 90 (IJ Decision
at 11). The BIA agreed with the IJ that Aleksander “turned 21-years-old shortly after entry, and
failed to produce documentation to meet his burden of demonstrating extraordinary circumstances.”
Id. at 2 (BIA Decision at 1).
To the contrary, the record before the BIA should have included a transcript of the first
hearing in Aleksander’s case which would have corroborated Aleksander’s claim that he had been
included in his father’s application. Aleksander described this hearing in detail in his appeal to the
BIA and noted the particular case number of the asylum application in which he was originally
included as a derivative beneficiary. In addition, Aleksander provided to the BIA a copy of his
father’s I-589, which listed Aleksander as a derivative beneficiary. At the hearing, held before the
one-year period expired, the IJ separated out Aleksander’s case because he could no longer be
included on his father’s application. The IJ then deliberately scheduled a hearing to occur before
Aleksander’s twenty-second birthday, and suggested that he would thereby remain eligible for filing
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a separate application for asylum.1 The Administrative Record in Aleksander’s case, however, did
not include the key transcript.
Instead of considering the referenced materials, the BIA relied on the IJ’s findings, which
mischaracterized the proceedings below. Inexplicably, the same IJ who concluded that Aleksander
did not demonstrate that he was included in his father’s timely application had herself separated out
1
An excerpt of that hearing follows:
[Judge for the Record:] Let the record reflect that the Respondent is present and this
case was part of the father’s file, file A 98 490 634, and that . . . Grace, will you make
a copy of that and put it in his file as well. . . . [T]his matter will be separated out at
this point because the Respondent is now 21 years of age.
...
[Judge:] Is there a separate Application for him?
[Aleksander’s Attorney (“Attorney”):] No, Your Honor. I miscalculated the age and
I did not prepare a separate Application.
...
[Judge:] I assume you’re going to consolidate this with the father?
[Attorney:] Yes, Your Honor.
...
[setting a hearing date for October 21]
[Judge:] And unfortunately he won’t be eligible for Asylum but only eligible
for—well, yes he will be because he’s, be 21.
[Attorney:] . . . I can submit the Application prior to the one year anniversary, Your
Honor. . . .
[Judge:] Right, because of his 21st birthday.
[Attorney:] Right.
[Judge:] . . . October 12, 2005, at 11:00.
[Department of Homeland Security (“DHS”):] That still passes his 21st, his 22nd
birthday.
[Attorney:] I will submit, I will...
[Judge:] When’s his 22nd birthday?
[DHS:] He was born October 10, ‘83, so he turned 21 October 10, of ‘84, ‘04, I’m
sorry.
[Judge:] Well, let’s make it October 5, then.
Supp. App’x at 2-4.
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Aleksander’s case and had adjudicated his father’s timely application. Furthermore, the BIA’s
assertion that Aleksander’s application was four years late is belied by the record. The IJ found that
Aleksander entered the United States on September 4, 2004, and filed his asylum application on
October 5, 2005, which is a little over thirteen months after entry. Despite this finding, the IJ
erroneously asserted in its decision that Aleksander filed his application almost four years after his
arrival. The BIA simply repeated this error.2
The BIA’s treatment of the one-year issue suggests that the BIA either did not independently
review the record, or at most, reviewed an incomplete one. As a result, Aleksander was deprived
of his right to have the evidence presented “fairly considered.” Ahmed v. Gonzales, 398 F.3d 722,
725 (6th Cir. 2005). We have stated that “[w]hat is required is merely that [the BIA] consider the
issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir.
2003) (internal quotation marks omitted); see Abdulai v. Ashcroft, 239 F.3d 542, 549-50 (3d Cir.
2001) (suggesting that “the BIA denies due process to an alien when it acts as a mere rubber-stamp”)
(internal quotation marks omitted). I do not believe the BIA’s opinion in this case meets that
threshold.
The government counters that Aleksander did not exhaust his due-process challenge before
the BIA. “Although an alien’s due process challenge generally does not require exhaustion (the BIA
2
The erroneous four-year finding is crucial because the BIA and IJ provided very little
analysis of Aleksander’s argument that he qualified for an exception to the one-year period, and such
a discretionary exception hinges on the reasonableness of the time taken by the applicant to file the
petition.
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lacks authority to review constitutional challenges), the alien must raise correctable procedural errors
to the BIA.” Sterkaj, 439 F.3d at 279. “[O]nly claims properly presented to the BIA and considered
on their merits can be reviewed by this court in an immigration appeal.” Ramani v. Ashcroft, 378
F.3d 554, 560 (6th Cir. 2004); 8 U.S.C. § 1252(d)(1) (providing that federal courts cannot exercise
jurisdiction over an appeal from an order of removal if the alien has failed to exhaust all
administrative remedies). Aleksander asserted in his brief to the BIA that his separate application
should be treated as timely because he was included as a derivative on his father’s timely
application.3 Aleksander then described in detail the hearing in which the IJ instructed Aleksander
to file a separate petition, and explained that his father’s asylum application, which he submitted
with his appeal, clearly listed him as a derivative beneficiary. I conclude, therefore, that Aleksander
“rais[e]d correctable procedural errors to the BIA” and exhausted those claims relevant to his due
process challenge. Sterkaj, 439 F.3d at 279.
“To constitute fundamental unfairness . . ., a defect in the removal proceedings must have
been such as might have led to denial of justice.” Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir.
2005) (internal quotation marks omitted). “To prevail on a due process claim,” therefore,
Aleksander bears the burden of demonstrating “actual prejudice, and that the alleged prejudice
materially affected the outcome of his . . . case.” Mapouya v. Gonzales, 487 F.3d 396, 416 (6th Cir.
2007); see Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005) (stating that “a constitutional
3
Aleksander incorrectly asserted to the BIA that he had been included on his father’s
application when he was still a minor. It appears that his father’s application was filed after
Aleksander had attained age 21. The core of his argument to the BIA, however, was that it was
reasonable for him to have relied on the derivative application under the circumstances.
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violation results in prejudice if it “potentially [affected] the outcome of the proceedings.” (internal
quotation marks omitted) (alteration in original)).
First, had his claim been reviewed properly, Aleksander’s untimely filing may have been
excused on grounds of changed or extraordinary circumstances. The IJ and BIA have discretion to
consider an untimely application if the alien demonstrates “the existence of changed . . . or
extraordinary circumstances.” 8 U.S.C. § 1158(a)(2)(D).4 Among the non-exhaustive list of
“extraordinary circumstances” provided by the governing regulations is the exception that arises
when:
[t]he applicant filed an asylum application prior to the expiration of the 1-year
deadline, but that application was rejected by the Service as not properly filed, was
returned to the applicant for corrections, and was refiled within a reasonable period
thereafter.”
8 C.F.R. § 1208.4(a)(5)(v). Aleksander appeared before the IJ, was included on an asylum
application filed before the one-year period expired, and filed his own separate application a month
later, at a hearing scheduled by the IJ herself. Thus, Aleksander was included on an application filed
before the conclusion of the one-year period, and his derivative “application . . . was rejected . . . as
not properly filed.” Id. (emphasis added). In addition, this exception requires that the application
“was refiled within a reasonable period” after the first application was rejected. Id. It surely appears
4
“Changed circumstances”may include “[i]n the case of an alien who had previously been
included as a dependent in another alien’s pending asylum application, the loss of the spousal or
parent-child relationship to the principal applicant through . . . attainment of age 21.” 8 C.F.R.
§ 1208.4(a)(4)(i)(C). Aleksander had turned 21 before his father’s application was filed, but the
examples provided by statute are not exhaustive. Aleksander’s argument may be analogous to this
ground for an exception to the one-year period.
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more reasonable that Aleksander filed his application one year and one month rather than four years
after his arrival, and roughly six weeks after his derivative application was rejected.
By showing that the Administrative Record lacked a key hearing transcript which contributed
to inadequate review of his claims, Aleksander has established “actual prejudice” that “materially
affected” his eligibility for asylum. Mapouya, 487 F.3d at 416. The BIA, however, alternatively
denied his asylum claim on the merits. Whether the violation “materially affected the outcome of
his . . . case,” id. (emphasis added), therefore, turns on our review of the BIA’s alternative findings.
If the outcome of his case would have been different but for the one-year finding, then Aleksander
has established prejudice, and the BIA must reconsider its determination in light of the complete
record.
Aleksander appeals the BIA’s alternative denial of his asylum claim on the merits, as well
as the BIA’s denial of his claims for withholding of removal and protection under the CAT. To
qualify for asylum, Aleksander must show that he is a “refugee” within the meaning of the INA
§ 101(a)(42), 8 U.S.C. § 1101(a)(42); see 8 C.F.R. § 1208.13(a). To establish that he is a refugee,
Aleksander must demonstrate that he has suffered past persecution or has a well-founded fear of
future persecution “on account of race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42); see id. at § 1158(b)(1)(B)(i); Berri v. Gonzales, 468
F.3d 390, 396 (6th Cir. 2006).
Aleksander claimed to have suffered persecution on account of his membership in particular
social group: the Spaqi family. The BIA determined that Aleksander’s membership in his own
family did not constitute membership in a particular social group and that conflict between the
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families did not give rise to harm on account of a protected ground. The BIA did not find that
Aleksander failed to show the requisite severity of harm. Rather, the BIA’s analysis was limited to
nexus—that Aleksander had not shown that any harm to him was on account of a ground specifically
protected by the INA (race, religion, nationality, membership in a particular social group, or political
opinion).
The BIA erred as a matter of law when it determined that “Spaqi family members embroiled
in a blood feud,” A.R., 09-4442, at 3 (BIA Decision at 2)—which the IJ characterized as
Aleksander’s immediate family and close relatives—do not constitute a particular social group. Both
Aleksander and Prek identified the particular social group suffering persecution as consisting of Prek
Spaqi, his children, and his close relatives. In Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir.
2003), this court adopted the BIA’s definition of a “particular social group” as composed of
individuals who share a “common, immutable characteristic.” Id. at 546-47. “[A] common,
immutable . . . characteristic” includes those qualities that members “either cannot change, or should
not be required to change,” such as “sex, color, or kinship ties.” Bi Xia Qu v. Holder, 618 F.3d 602,
606 (6th Cir. 2010) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)) (emphasis
added).
Because family identity may be common, distinctive, and immutable, we observed that a
particular social group defined by “membership in the same family[] is widely recognized” in this
circuit and others as falling within the INA’s protection. Al-Ghorbani, 585 F.3d at 995; see, e.g.,
Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) (“Our prior opinions make it clear that we
consider family to be a cognizable social group within the meaning of the immigration law.”); Jie
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Lin v. Ashcroft, 377 F.3d 1014, 1029 (9th Cir. 2004) (“Where family membership is a sufficiently
strong and discernible bond that it becomes the foreseeable basis for personal persecution, the family
qualifies as a ‘social group.’”); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There can, in
fact, be no plainer example of a social group based on common, identifiable and immutable
characteristics than that of the nuclear family.”). Accordingly, under our circuit precedent, a “known
family” bound by immutable kinship ties—which is thus particular and socially visible 5—constitutes
a particular social group. Toma v. Gonzales, 179 F. App’x 320, 324 (6th Cir. 2006) (internal
quotation marks omitted). In accordance with widespread precedent, Aleksander has thus
demonstrated membership in a particular social group by virtue of membership in his family.
There is no suggestion, furthermore, that Romoja family members bear a grudge particular
to Aleksander—instead, they want to harm him because of his membership in the Spaqi family,
which provides the nexus required by statute. Compare Torres, 551 F.3d at 630 (vacating BIA’s
order denying relief because applicant’s “testimony is rife with examples that provide his family’s
history”—namely, the targeting of his older brothers—as the cause of his persecution), with Demiraj
5
According to the BIA, the “key characteristics of a particular social group are particularity
and social visibility.” Al-Ghorbani, 585 F.3d at 994 (citing Matter of S-E-G-, 24 I. & N. Dec. 579,
582 (BIA 2008)). When holding that the family may satisfy the particularity and social-visibility
requirements, we explained that:
The essence of the particularity requirement . . . is whether the proposed group can
accurately be described in a manner sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of persons. Social visibility,
on the other hand, requires that the shared characteristic of the group should generally
be recognizable by others in the community. The shared characteristic must be
considered in the context of the country of concern and the persecution feared. Id.
(internal citations and quotation marks omitted). There is no suggestion that the
Spaqi family is not distinct and recognizable in their community.
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v. Holder, 631 F.3d 194, 199 (5th Cir. 2011) (concluding that “[t]he record here discloses a
quintessentially personal motivation” for vengeance, and not one based on family membership).
Thus, the BIA erred when it concluded that conflict between the families did not constitute harm on
account of a protected ground.
Because the stated basis for denying asylum relief on the merits was improper, Aleksander
has shown that the due-process violation may have “materially affected the outcome of his . . . case.”
Mapouya, 487 F.3d at 416. Consequently, on remand, the BIA should review the IJ’s one-year
finding in light of the full record. See Ahmed, 398 F.3d at 728 (“The proper remedy for this due
process violation is to give [petitioners] an opportunity to have their case heard fairly.”).
To prevail ultimately on his asylum claim, Aleksander must show past harm or well-founded
fear of future harm that rises to the level of “persecution,” and that the persecution is “by the
government or persons [the] government is unwilling or unable to control.” Kante v. Holder, 634
F.3d 321, 325 (6th Cir. 2011) (internal quotation marks omitted); see Gilaj, 408 F.3d at 283-85. The
BIA did not specifically address whether the severity of the alleged harm rose to the level of
persecution or whether the government of Kosovo is unable or unwilling to protect him from the
harm. “When the BIA does not fully consider an issue,” as a “reviewing court” we are “‘not
generally empowered to conduct a de novo inquiry into the matter being reviewed.’” Bi Xia Qu, 618
F.3d at 609 (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006)). Because the BIA did not fully
consider whether Aleksander is eligible for asylum, we must “remand to the [BIA] for additional
investigation or explanation.” Thomas, 547 U.S. at 186 (internal quotation marks omitted).
Accordingly, I would remand to the BIA for consideration of whether Aleksander has established
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past persecution or well-founded fear of future persecution from which the government of Kosovo
is unable or unwilling to protect him. In addition, the BIA’s dismissal of Aleksander’s withholding
of removal claim was based on its analysis of his asylum claim. Therefore, the BIA must also
consider on remand whether Aleksander has established “that there is a clear probability that he will
be subject to persecution if forced to return to” Kosovo, such that he is entitled to withholding of
removal. Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004).
Because the BIA did not properly review the full record, Aleksander has established a due-
process violation arising out of the BIA’s treatment of his untimely asylum application. On the
merits, the BIA erred as a matter of law when it concluded that Aleksander could not show
persecution on account of a protected ground as a result of the harm he experienced as a member of
the Spaqi family. I therefore would grant Aleksander’s petition for review of the BIA’s decision in
Case No. 09-4442 denying Aleksander’s requests for asylum and withholding of removal. I would
remand to the BIA with instructions to consider the one-year finding in light of the full record, and
to address in the first instance whether Aleksander has demonstrated past persecution or a well-
founded fear of future persecution by persons whom the government of Kosovo is unable or
unwilling to control. Because the BIA’s analysis of Aleksander’s withholding of removal claim
turned on its analysis of his asylum claim, the BIA in my view must also determine whether
Aleksander meets the withholding-of-removal standard.
For the reasons explained above, I respectfully dissent in Case No. 09-4442.
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