Klodian Yzo v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 6, 2008
No. 07-12839
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

BIA No. A79-399-471

KLODIAN YZO,
Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.
________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(March 6, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Klodian Yzo, who states that he is a native and citizen of Albania, petitions

this Court to review the decision of the Board of Immigration Appeals (“BIA”)

denying his motion to reopen his asylum proceedings. On appeal, Yzo argues that
the BIA erred by not reviewing the IJ’s finding that his application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), and

relief under the United Nations Convention on Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (“CAT”), was frivolous because there was

no conclusive evidence that he knowingly fabricated material elements of his claim

and he was not given an adequate opportunity to explain the discrepancies in his

testimony.1 After careful review, we deny the petition for review.

We review the BIA’s denial of a motion to reopen for an abuse of discretion.

Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). The BIA abuses its

discretion if it exercises that discretion in an arbitrary or capricious manner. Abdi

v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).

The relevant facts are straightforward. On April 19, 2001, Yzo arrived in

the United States, seeking entry under the Visa Waiver Program and requesting

asylum under the INA and relief under the CAT. In June 2001, Yzo submitted an

application for asylum, withholding of removal, and relief under CAT, alleging

1
We are unpersuaded by the government’s argument to dismiss the appeal, although we
pause to note we discern no abuse of discretion in the BIA’s refusal to apply equitable tolling to
Yzo’s ineffective-assistance-of-counsel claim -- a decision that is entirely consistent with our
binding precedent. See, e.g., Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149-50 (11th Cir. 2005)
(finding no abuse of discretion in BIA’s denial of untimely motion to reopen based on ineffective-
assistance-of-counsel claim, where the motion was time-barred under 8 C.F.R. § 1003.2(c)(2)). We
observe that the BIA aptly noted that the reason for the IJ’s disbelief of Yzo’s claim had nothing to
do with the assistance of counsel, but rather, “stemmed largely from [Yzo’s] own ‘inconsistent’ and
confusing testimony.”
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that, because of his membership in the Democratic Party (“DP”) in Albania, he and

his family had suffered persecution and he feared future persecution.

At an initial hearing, Yzo was advised of the consequences of filing a

frivolous application for asylum, and he swore that his application was true and

complete. In proceedings before an IJ on January 11, 2002, a forensics expert

opined that Yzo’s birth certificate was fabricated. Yzo then testified about various

incidences of arrests and beatings, as well as his travels to various countries in

which he never sought asylum. He also described his involvement with the DP in

Albania, as well as his employment as a bodyguard and driver for the DP’s leader.

Notably, during cross-examination, Yzo (1) changed his answers regarding the date

he joined the DP; (2) gave inconsistent spellings of the name of the man for whom

he alleged he had worked; and (3) gave conflicting testimony regarding an incident

during which he claimed to have been beaten, the number of times he had been

arrested, and the dates of his prior arrests.

The IJ denied Yzo’s application for asylum, withholding of removal, and

relief under CAT, and found Yzo’s application to be frivolous. The IJ ordered Yzo

removed to Albania or to another country if Albania was not his true country of

nationality. The IJ based its frivolity decision on these facts: (1) Yzo’s birth

certificate was fabricated; (2) he admitted that most of his documents were not

genuine; and (3) he gave inconsistent testimony concerning his participation in the
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DP and the details regarding his encounters with police. The IJ found that Yzo had

not been truthful and noted that his testimony regarding his membership in the DP

“is so basic to the claim that his changing the dates only diminishes the claim to

asylum to an even weaker and weaker point.” The IJ concluded: “[m]erely the

testimony and the lack of consistency is enough to show that this application for

asylum is fraudulent,” and that “[h]e’s fabricating his answers within his asylum

application.”

Yzo appealed the IJ’s decision to the BIA, arguing that his “somewhat

inconsistent” testimony was not “substantial enough to justify the decision that the

application was frivolous . . . .” On October 23, 2003, the BIA affirmed the IJ’s

decision, finding that the record provided adequate support for the IJ’s finding that

Yzo’s application was frivolous. The BIA noted that many of Yzo’s evidentiary

documents were fraudulent and that his testimony lacked credibility with respect to

material elements of his claim. Following the BIA’s order, Yzo did not file a

petition for review with this Court.

Over three years later, in April 2007, Yzo, proceeding with a new attorney,

filed a motion to reopen the proceedings, alleging, inter alia, that (1) new, material

evidence was now available; (2) conditions in Albania had changed since the

hearing; (3) his father had received new threats from Albanian government forces;

and (4) his Albanian family feared for their lives. Yzo submitted telephone bills
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and a 2006 U.S. State Department report on Albania’s country conditions, in

support of the motion to reopen.

On May 8, 2007, Yzo filed an amended motion to reopen and included

various documents made available after the filing of the first motion. In the

amended motion Yzo alleged that his previous counsel was ineffective for failing

to submit important documents at his merits hearing, over three years earlier. He

also asserted that after the BIA’s decision, he had hired a different attorney, who

also provided ineffective assistance by failing to file a timely motion to reopen.

On May 25, 2007, the BIA denied Yzo’s motion to reopen. The BIA first

noted that the motion to reopen was filed more than 90 days after the BIA’s final

decision in 2003, and thus was time-barred. The BIA further noted that even if the

motion was not time-barred, the BIA’s earlier finding that Yzo’s application for

asylum was frivolous barred further consideration of his asylum claim.2 Thus, the

BIA denied Yzo’s motion to reopen as to the asylum claim because neither the

general conditions in Albania nor his allegation that his father had been threatened

2
The BIA also concluded that to the extent Yzo’s sought to reopen his withholding-of-
removal claim based on changed country circumstances and new threats to his family, the motion
should be denied because the most recent country report for Albania stated that human rights were
generally respected and that citizens were able to exercise their rights to change the government
peacefully. On appeal, Yzo does not raise any argument challenging these conclusions concerning
his withholding-of-removal claim and therefore has abandoned any argument. See U.S. Att’y Gen.
v. Sepulveda, 401 F.3d 1226, 1228 n.2 (“When an appellant fails to offer argument on an issue, that
issue is abandoned.”).

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satisfied the standard for a motion to reopen, particularly in light of the IJ’s earlier

finding, previously affirmed by the BIA, that Yzo was not credible. This petition

for review followed.

Section 208(d)(6) of the INA provides that an alien who makes a frivolous

application despite having received notice of the consequences of doing so, “shall

be permanently ineligible for any benefits under the [INA].” 8 U.S.C. § 1158(d)(6).

The implementing regulation describes a frivolous application as one in which the

IJ or the BIA, after first being satisfied that the applicant had been provided with

an opportunity to account for discrepancies and implausible aspects of the

application,3 finds that “any of its material elements is deliberately fabricated.” 8

C.F.R. § 1208.20.

Here, we discern no abuse of discretion in the BIA’s denial of Yzo’s motion

to reopen, in light of the earlier frivolity determination as to his asylum application

3
Yzo was given a “meaningful opportunity” to account for discrepancies in his asylum
claim. In his order denying Yzo’s claim, the IJ noted that Yzo was given “ample opportunity” to
address discrepancies such as fraudulent documents, as well as issues concerning verification of his
identity. Moreover, the IJ found that even assuming Yzo’s identity as an Albanian, the lack of
consistency in his testimony “is enough to show that [his] application for asylum is fraudulent.”
Yzo had the opportunity to explain any discrepancies in his testimony when he filed his appeal with
the Board on February 11, 2002. However, rather than explain the inconsistencies in his testimony,
Yzo simply asserted that “they were not substantial enough to justify [a frivolous finding].”
Ultimately, the Board concluded in its October 23, 2003 decision that Petitioner submitted
fraudulent documents and that his testimony “lacked credibility in relation to material elements of
his claim.” At that point, Yzo had another chance to contest the adverse credibility finding by filing
a petition for review in this Court. He failed to do so. Simply put, at this late date, Yzo’s suggesiton
that he was not given sufficient opportunity to challenge the credibility finding is wholly
unpersuasive and directly contradicted by the record.
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-- a frivolity determination that is amply supported by substantial evidence in the

record, including Yzo’s birth certificate, which the IJ found to be fabricated; Yzo’s

own admission that some of his documents were not genuine; Yzo’s wholly

inconsistent testimony on his participation in the DP and his encounters with

authorities. Under 8 U.S.C. § 1158(d)(6), Yzo was legally barred from receiving

the relief he requested in the motion to reopen, that is, asylum. Accordingly, we

deny the petition for review.

PETITION DENIED.

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