Vushaj v. Ashcroft

File Name: 05a0118n.06
Filed: February 15, 2005
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 03-4570

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SOKOL VUSHAJ and DRITA VUSHAJ, )
)
Petitioners-Appellees, )
) ON PETITION FOR REVIEW OF AN
v. ) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ALBERTO GONZALES, )
)
Respondent-Appellant. )

Before: GIBBONS and SUTTON, Circuit Judges; EDGAR, District Judge.*

SUTTON, Circuit Judge. Albanian citizens Sokol Vushaj and his wife Drita Vushaj seek

review of a decision of the Board of Immigration Appeals (BIA) denying their petition for asylum,

withholding of removal and protection under the Convention Against Torture. The BIA concluded

that the petitioners were not credible and that, even if their testimony were credited, they had not

demonstrated past persecution or a well-founded fear of future persecution. We agree and deny the

petition.

*
The Honorable Robert Allan Edgar, Chief United States District Court Judge for the
Eastern District of Tennessee, sitting by designation.
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Vushaj v. Gonzales

On October 21, 2000, Drita Vushaj, using fraudulent documents, entered the United States

via Dulles International Airport in Virginia. Several months later, on March 17, 2001, her husband,

Sokol Vushaj, also using fraudulent documents, entered the United States via San Francisco

International Airport. Immigration authorities interviewed each spouse about the fraudulent

documents and about their reasons for attempting to flee Albania for the United States and

temporarily allowed them to enter the United States.

The couple eventually conceded removability, and Sokol filed an application on his and

Drita’s behalf for asylum, withholding of removal and protection under the Convention Against

Torture. In the application, Sokol emphasized two reasons for obtaining asylum. First, he alleged

that as Catholics, he and his family have been persecuted by Muslims. Attempting to bolster this

point, he noted that on September 3, 1999, Muslims kidnapped him and held him for ransom.

During the kidnapping, he added, he was beaten and warned never to wear a crucifix or to attend

church again, and he was released only when his father sold much of his family’s property to pay

the ransom.

Second, Sokol alleged that he and his wife fear that if she is forced to return to Albania, she

will be kidnapped and sold into prostitution in Europe. To support this claim, Sokol noted that in

October 2000, three armed men approached his wife and threatened to shoot her if she did not get

in the car with them. One of the men allegedly grabbed her arm, but she managed to break free and

run into the woods. Relying on these incidents, Sokol said that he will be killed if he returns to

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Albania (because he is Catholic) and that he and his wife will live in constant fear that criminal

gangs will kidnap his wife and sell her into prostitution.

In an oral opinion spanning thirty-five pages of transcript, the Immigration Judge (IJ) found

that neither petitioner was credible. According to the IJ, the information that Sokol and Drita

provided at their border interviews, in the application and during the immigration hearing contained

numerous material inconsistencies. At one point in his application, Sokol stated that his kidnappers

knew he was Catholic when they picked him up because everyone in his village is Catholic. But at

another point in his application, he stated that “criminal gangs” captured him for ransom and beat

him only when they later discovered he was Catholic. In his application, he stated that his father had

to sell much of the family’s property to pay his ransom, but in his testimony he said that no one paid

any ransom. Nor did he mention his kidnapping during his interview at the border, saying instead

that Muslims were chasing him. In the interview at the border, he said that his wife had been

kidnapped three times but, in their application and in their testimony, the Vushajs said that Drita had

faced one attempted kidnapping.

Sokol also testified that he came to the United States because he received numerous threats

but he never was able to detail their source or substance, much less corroborate them. And neither

his statements at the border nor his application contain any allegations of recent threats. In another

inconsistency, Sokol at one point testified that there was no church in his village, but later said that

there was a church. He testified that it is unsafe for him to go to church in Albania, even though

other parts of the record indicate that all of the people in his village are Catholic.

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Sokol also testified that he had not attended church in Albania since 1999, at some time

before his marriage. But Sokol was married on January 18, 1999, which would mean that he last

could have attended church for 17 days in January, and more importantly would mean that he

stopped attending church nine months before he allegedly was kidnapped and threatened by Muslims

because of his religious beliefs.

Drita’s testimony, the IJ concluded, also undermined the credibility of the application. In

her entry interview, she stated that she was not aware of any persecution that had ever happened to

any of her family members, which undercut Sokol’s claim that he was abducted and held for ransom

for three days in September of 1999, eight months after his and Drita’s January 1999 wedding. In

her entry interview, she never mentioned that anyone had ever tried to kidnap her, but only stated

that “they” kidnapped two girls from her village and forced them into prostitution and that she came

to the United States because Albania offers no security and no jobs. Even though Sokol stated in

the asylum application that men had tried to kidnap Drita and sell her into prostitution in Europe,

Drita testified at the hearing that she did not know where the men planned to take her or why they

would want to kidnap her. She later testified that she thought they would take her to Italy. When

asked why she thought that, she responded that two girls from her village were kidnapped and taken

to Italy. When asked how she knew that they were taken to Italy, she said that she heard reports on

the television but could explain no further. When questioned specifically about her religion, she

stated that she attended an Albanian Catholic Church in Detroit about two to three times a month

but could not name the church or give its location.

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On the basis of these inconsistencies, among others, the IJ found that the applicants were not

credible. Even assuming that some version of their testimony was true, the IJ concluded that they

had not demonstrated any past persecution and did not have a well-founded fear of future

persecution.

The BIA affirmed the lack-of-credibility finding and stated that even if the applicants were

wholly credible, “we would conclude that the respondents failed to demonstrate that any problems

they experienced in Albania rose to the level of persecution.” JA 5. The BIA agreed that the record

did not support the applicants’ claim and that they had not established any well-founded fear of

future persecution if they return to Albania. This appeal followed.

The Attorney General may grant asylum if an applicant qualifies as a refugee. 8 U.S.C. §

1158(b)(1). A refugee is one who “is unable or unwilling to return to” his or her country “because

of persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The

burden falls on the applicant to show that he or she meets this definition, Mikhailevitch v. INS, 146

F.3d 384, 389 (6th Cir. 1998), and the applicant has two options in trying to make this showing.

First, an applicant may “establish that he or she has suffered persecution,” at which point there is

a presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). The

government may rebut that presumption by showing that conditions in the applicant’s country have

changed so “that the applicant no longer has a well-founded fear of persecution.” 8 C.F.R. §

208.13(b)(1)(i)(A). Second, the applicant may show that he or she has a well-founded fear of future

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persecution, 8 C.F.R. § 208.13(b)(2), which “must be both subjectively genuine and objectively

reasonable,” Mikhailevitch, 146 F.3d at 389.

Our standard of review in this area is familiar. We will affirm the BIA’s decision on these

issues if it is supported by substantial evidence, see INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992),

and will reverse only where the evidence in the record “not only supports a contrary conclusion, but

indeed compels it.” Mikhailevitch, 146 F.3d at 388 (quotation marks and citation omitted).

In our view, the record amply supports the IJ’s adverse-credibility determination. As fairly

shown by the inconsistencies noted above, the petitioners have not given a consistent or credible

explanation of their reasons for leaving Albania or the events that precipitated their departure. See

Yu v. Ashcroft, 364 F.3d 700, 703–04 (6th Cir. 2004). Having failed to shoulder their burden of

demonstrating eligibility for asylum either at the administrative level or here, they cannot establish

reversible error regarding the BIA’s decision.

We also agree with the BIA that, even if some version of these events is true, it does not rise

to the level of past persecution or establish that the petitioners hold a well-founded fear of future

persecution based on their membership in a religious or social group. In claiming that Muslims will

kill him if he returns to Albania because he is Catholic, Sokol points to just one incident in which

he was kidnapped and released. But even this one incident, which occurred after Sokol lived as a

Catholic in Albania for nearly a quarter of a century, appears to have taken place not because of

Sokol’s faith but because the kidnappers wanted a ransom. And Drita’s attempted kidnapping

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Vushaj v. Gonzales

appears at most to have resulted from random crime, not a targeted effort to harm her because of her

religious beliefs.

Finally, having failed to establish grounds to support a grant of asylum, the petitioners

necessarily have failed to meet the more rigorous requirements for withholding of removal or

protection under the Convention Against Torture. See Yu, 364 F.3d at 703 n.3.

For these reasons, we deny the petition for review.

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