Ymeri v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1058

XHEVDET YMERI; JULIANA YMERI;
BESMIR YMERI; BIRSEN YMERI,

Petitioners,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Susanna L. Shafer, for petitioners, with whom Daniel F.
Cashman, Cashman & Lovely, P.C., was on brief, for petitioners.

Alison M. Igoe, United States Department of Justice,
Office of Immigration Litigation, with whom Peter D. Keisler,
Assistant Attorney General, United States Department of Justice,
Civil Division, and Christopher C. Fuller, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief, for
respondent.

October 20, 2004

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 JOHN R. GIBSON, Senior Circuit Judge. Xhevdet and

Juliana Ymeri and their two children, Besmir and Birsen, are

natives and citizens of Albania, seeking review of the Board of

Immigration Appeals' order of removal, including its denial of

their applications for asylum, withholding of removal, and

protection under the Convention Against Torture. We deny review.

Xhevdet Ymeri filed an asylum application, and the other

family members rely on his application as derivative applicants.

The Ymeris arrived in Boston on a flight from Italy on

May 4, 1999. They carried counterfeit Greek passports using false

names. They had arrived in the United States under the transit

without visa program, under which aliens from certain countries

were allowed to board a plane bound for the United States and be

admitted to the United States without a visa pursuant to agreements

with transportation carriers, who guaranteed the aliens' immediate

and continuous passage to another country.1 See 2 Charles Gordon,

et al., Immigration Law & Procedure §§ 15.02[3], 15.03 (2004).

Availability of the transit without visa privilege at the time in

question depended on nationality and the privilege was available to

Albanians only in a restricted form, requiring them to be on a

direct through flight. 22 C.F.R. § 41.2(i) (1999). Greek nationals

were not subject to such a restriction. The Ymeris presented their

1
The transit without visa program was suspended effective
August 2, 2003, for national security reasons. 68 F.R. 46948-01
(Aug. 7, 2003) (amending 22 C.F.R. § 41.2(i)).

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false Greek passports to the Immigration Inspector at Logan

airport, who detected the documents as counterfeit. The Ymeris

then admitted the documents were false.

On May 6, 1999, the INS charged all four Ymeris with

removability on the ground that they did not have a valid passport

or visa. Additionally, the INS charged the adults, Xhevdet and

Juliana, with removability on the ground that they sought by

willfully misrepresenting a material fact to procure admission or

other benefits under the Immigration and Nationality Act. Xhevdet

Ymeri filed for asylum and withholding of removal, alleging that he

had been beaten on account of his membership in the Democratic

Party in Albania and that if he returned to Albania, his life and

the lives of his family would be in danger.

At an initial hearing on November 2, 1999, the Ymeris

denied the two charges of removability against them and denied the

underlying factual charges--that they had no visa or passport and

that they had sought to procure Immigration benefits by willfully

misrepresenting a material fact. Xhevdet Ymeri testified as

follows:

Q: When you entered the United States, did you
attempt to enter using a [passport from
Greece]?
A: Yes.
Q: And did your wife also enter with a Greek
passport?
. . .
A: Yes.
Q: And you're not from Greece, are you?
A: No.

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INS counsel showed Juliana Ymeri a Greek passport and asked, "Is

that the passport that you used to try to come into the United

States?" She answered, "Yes." The Ymeris' counsel admitted that

they had no proof that they had a valid, unexpired visa or other

valid entry document. The Immigration Judge found that the Ymeris

were removable.

At the asylum hearing on July 6, 2000, Xhevdet Ymeri

testified that he became involved with the Democratic Party in

Albania in 1990 and that he joined the party in 1992. Xhevdet said

the Democratic Party was in power from 1992 to 1997, but in 1997

the Communists took the government by force. On September 12,

1998, a Democratic Party leader, Azim Hydari, was assassinated.

Following the assassination, Ymeri participated in demonstrations.

He said that ten days after the assassination, the police picked

him up at a "party place" and took him to the police station, where

they beat him until he "fainted and [he] was like a slave." He

said the beating dislocated his shoulder, and his ears were

"horning" several times a day, even at the time of the hearing.

Then two weeks later, police again picked him up and took him to

the station, where they kept him overnight. He said they beat him

until he fainted. He was revived with cold water four or five

times, until his tormentors finally threw him outside on the

street. He said he was bedridden for "like three weeks," and that

when he recovered, he walked to Greece. He said he stayed in

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Greece for two or three months, but came back when he heard that

"they started having pressure on my wife and I heard that people

and women were disappearing." He said he returned to Albania, sold

his house, and left within twenty-four hours, with his wife and

children. They went to Athens, where a friend "fixed" them some

passports, and then on to Italy where they caught a flight to

Boston. Once in Boston, Ymeri said that the police stopped him and

he told them he was going to Toronto. He said the police then

told him that he had false documents and he admitted they were

false.

Juliana Ymeri also testified at the asylum hearing. The

Immigration Judge revisited the question of removability, asking

the Ymeris' counsel:

Q: Do you have anything to offer this Court
showing that the mother did not by fraud or by
willfully misrepresenting material facts seek
to procure or have procured a visa or other
documentation for admission into the United
States? Do you have anything to offer to this
court?

Counsel responded, "No."

Juliana testified that the first time Xhevdet was beaten,

she cared for him at home because she was a nurse, and she used

medicines she had at home for the children. He had a shoulder

injury and some bruises that "weren't that important." The second

time Xhevdet was beaten was worse because he could not stand on his

feet and it took three or four days until he stopped bleeding. She

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said she did not take him to a hospital because she could not drive

their car and she did not call a taxi because they did not have a

phone and it would have taken half an hour. She said that after

Xhevdet went to Greece, the police would ask about his whereabouts;

when she refused to say where he was, they "started offending me

with different rude words that I couldn't even mention in here."

She said that the policemen's conversation was sexual in nature.

Juliana identified a letter she said she received from

the Democratic Party. The document was a form letter, with blanks

for name and date, filled in as Xhevdet Ymeri and April 20, 1999.

The letter stated that Xhevdet Ymeri was a member of the Democratic

Party and one of its "fist [sic] activists." It concluded, "With

the government falling into the hands of the communist Party, the

residence of the democrats is in danger." Juliana said that as

soon as she got this letter, she became alarmed and asked Xhevdet

to come home from Greece.

The Ymeris introduced the testimony of Professor Nicholas

Pano, an expert on conditions in Albania. Prof. Pano testified

that Xhevdet Ymeri's account of arrest and beating by police was

consistent with police procedure in Albania. He testified that

late 1998 was "a period of extreme confrontation between the

Socialist Government that had just come to power and the Democratic

Party." He said that although the Albanian government has tried to

restrain the police and "these kinds of arrests" are less frequent

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now than in 1998, there was a possibility that Ymeri would be

arrested again if he returned to Albania.

The government introduced the November 1998 Country

Report for Albania by the State Department's Bureau of Democracy,

Human Rights and Labor. The report stated:

The settling of accounts persists but
individuals are rarely targeted for
mistreatment on political grounds. The
government lacks the resources and will to
carry out such retribution.

The Immigration Judge began by determining that

removability was established as to all four Ymeris.

The Immigration Judge found that there was no evidence

that the police who allegedly made sexual comments to Juliana did

so because of Xhevdet's political opinions or activity.

The Immigration Judge found that Xhevdet's testimony

about his treatment at the hands of Albanian police was incredible

or at least exaggerated. First, the Immigration Judge pointed out

that Xhevdet stated in a sworn statement taken upon his arrival in

the United States that he had never been arrested anywhere in the

world for anything. This statement conflicted with Xhevdet's

crucial testimony that he had been arrested twice by Albanian

police. The Immigration Judge concluded that Xhevdet was not able

to explain the inconsistency and that the inconsistency cast doubt

on his story about what actually occurred in Albania. Second, the

Immigration Judge pointed to conflicts in Xhevdet's accounts of how

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seriously he was injured by the first police beating and to a

conflict between Xhevdet's account and Juliana's account.

Similarly, the Immigration Judge concluded that Juliana's testimony

concerning the minor medical treatment required after the second

police beating did not accord with Xhevdet's account of an

extremely severe beating. Third, the Immigration Judge found that

Xhevdet's testimony that he came home from Greece for one day only

and was able to sell his house and wind up his affairs within

twenty-four hours was "curious," and even if true, was inconsistent

with a claimed fear of persecution. The Immigration Judge

emphasized Xhevdet's testimony that he was able to register the

house sale with governmental officials, which was inconsistent with

his claimed fear that the government would detain him. The

Immigration Judge concluded that it was more likely that Xhevdet

was never arrested in Albania.

The Immigration Judge also found that there was no

credible evidence that Xhevdet played a major role in the

Democratic Party. The letter referring to him as an "activist" was

suspect because it was only a form letter and because it had some

indicia of fraudulence, such as misspelling of the party name.

Furthermore, Xhevdet's vague and unreliable testimony about party

history and ideology cast doubt on the extent of his involvement

with the party. The Immigration Judge found that Xhevdet "has had

a very small role in the Democratic Party."

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 The Immigration Judge also concluded that Xhevdet had

found a safe haven in Greece and that Xhevdet had not shown why he

could not safely relocate within Albania.

Based on the findings that Xhevdet had exaggerated his

role in the party and that he had not shown that he had been

arrested, the Immigration Judge found Xhevdet had not proved he was

eligible for asylum or entitled to withholding of removal or relief

under the Convention Against Torture.

The Board of Immigration Appeals affirmed the Immigration

Judge's decision without opinion.

I.

We review the removal order under 8 U.S.C. § 1252(b)(4),

according to which we may reverse the Board of Immigration Appeals'

factual determinations only if any reasonable factfinder viewing

the evidence as a whole would be compelled to conclude to the

contrary of the findings. 8 U.S.C. § 1252(b)(4)(B); see El Moraghy

v. Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003) (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)). We must uphold factual

determinations of the Board that are supported by reasonable,

substantial, and probative evidence. El Moraghy, 331 F.3d at 202.

A finding (including a credibility finding) is not supported by

substantial evidence if it is based on inferences or presumptions

that are not reasonably grounded in the record. Id.; Cordero-Trejo

v. INS, 40 F.3d 482, 487 (1st Cir. 1994). When, as here, the Board

-9-
has affirmed the Immigration Judge's decision without rendering its

own opinion, we review the Immigration Judge's decision as the

decision of the Board. Albathani v. INS, 318 F.3d 365, 373 (1st

Cir. 2003).

We review the Board's legal conclusions de novo, though

we give deference, where appropriate, to the agency's

interpretation of the underlying statute, in accordance with

administrative law principles. Albathani, 318 F.3d at 372. We

must judge the action of an administrative agency based only on the

reasoning provided by the agency, not based on substitute grounds

we construct ourselves to salvage the agency's action. El Moraghy,

331 F.3d at 203; Albathani, 318 F.3d at 378.

The Ymeris contest both the decision that they are

removable and the decision that they are not eligible for asylum or

withholding of removal. The Ymeris have not been admitted to the

United States. Unadmitted aliens are deemed applicants for

admission. 8 U.S.C. § 1225(a)(1). As applicants for admission,

they bear the burden of proving that they are clearly and beyond

doubt entitled to be admitted and are not inadmissible under 8

U.S.C. § 1182. 8 U.S.C. § 1229a(c)(2)(A). As applicants for

asylum, they bear the burden of establishing eligibility by proving

that they are refugees. 8 U.S.C. § 1158(b)(1); El Moraghy, 331

F.3d at 202. They also bear the burden of proof on their claims

for withholding of removal and relief under the Convention Against

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Torture. El Moraghy, 331 F.3d at 205.

II.

Xhevdet and Juliana Ymeri challenge the Immigration

Judge's finding that they were ineligible for admission under 8

U.S.C. § 1182(a)(6)(C)(i),2 for having, by fraud or willful

misrepresentation of a material fact, sought to procure a visa,

other documentation, admission into the United States, or other

benefit under the Immigration laws. The Immigration Judge's

determination of removability rested on a separate and independent

ground, that the Ymeris lacked the documentation necessary for

admission, see 8 U.S.C. § 1182(a)(7). The Ymeris do not challenge

the finding that they lacked the necessary documentation. However,

because the finding that Xhevdet and Juliana were guilty of fraud

or willful misrepresentation also has the effect of barring them

from the United States permanently (unless they obtain a waiver),3

2
8 U.S.C. § 1182(a)(6)(C)(i) provides:

Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to
procure (or has sought to procure or has
procured) a visa, other documentation, or
admission into the United States or other
benefit provided under this chapter is
inadmissible.
3
Before the Immigration Marriage Fraud Amendments of 1986,
Pub. L. No. 99-639, § 6, 100 Stat. 3537, 3543-44, the permanent bar
of section 1182(a)(6)(C)(i) only applied to fraud in connection
with obtaining documents, not entry. See Matter of Y-G-, 20 I&N
Dec. 794, 796-97 (B.I.A. 1994). It now applies to fraud or willful
misrepresentation in order to obtain admission or other benefit
under the Immigration laws. 8 U.S.C. § 1182(a)(6)(C)(i) (2000);

-11-
we must determine whether the finding is supported by substantial

evidence, even though the Ymeris are removable on another ground.

See Matter of Y-G-, 20 I&N Dec. 794, 796-97 (B.I.A. 1994).

The record as a whole supports a finding that the Ymeris

presented fraudulent passports to United States Immigration

officials to obtain admission to the United States or other benefit

under the Immigration laws. Both Xhevdet and Juliana admitted in

the sworn statements taken at Logan Airport that they presented

Greek passports to the Immigration Inspector and that they were

citizens of Albania, not Greece. Xhevdet stated that the passport

was not his true passport, and Juliana stated that she had bought

her passport through a friend in Greece. The passports bore the

names Vasileios Papadopoulos and Viktoria Megarisiotou. Xhevdet

testified at the hearing that the Immigration Inspector stopped him

and during their conversation told Xhevdet that he had false

documents. Xhevdet then admitted the documents were false.

A person who knowingly presents a false passport as if it

were genuine has engaged in a willful misrepresentation. See

Esposito v. INS, 936 F.2d 911, 912 n.1 (7th Cir. 1991). There is

no doubt from the record that the Ymeris knew their documents were

counterfeit and listed false names and nationality.

see Immigration Marriage Fraud Amendments, 100 Stat. at 3543-44
(adding "or other benefit provided under this Act"); Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, Div. C, Title III, § 308(f)(1)(D), 110 Stat. 3009-
621 (1996)(substituting "admission" for "entry").

-12-
 The Ymeris argue that they admitted to the Inspector that

their passports were false, and they contend that they therefore

were not guilty of misrepresentation, citing In re Kasinga, 21 I&N

Dec. 357, 368 (B.I.A. 1996), and Matter of Y-G-, 20 I&N Dec. 794,

797 (B.I.A. 1994). In both those cases and in Matter of D-L- & A-

M-, 20 I&N Dec. 409, 412-13 (B.I.A. 1991), aliens who possessed

fraudulent passports were not rendered inadmissible by section

1182(a)(6)(C)(i) because they did not present the passports to

United States officials to gain admission to the United States, but

admitted the falseness of the documents immediately and

voluntarily. The Ymeris' testimony in this case is that they

presented the false passports to the Immigration Inspector. The

Inspector detected that the documents were false, and the Ymeris

then admitted the passports were false. The Ymeris did not confess

the falseness of their documents until the Inspector had caught

them. This is substantial evidence to support the Immigration

Judge's determination that they sought to procure admission or

other Immigration benefit by a willful misrepresentation.

The Ymeris contend that they intended to proceed to

Canada under the transit without visa program and therefore did not

intend to enter the United States. Section 1182(a)(6)(C)(i) covers

aliens who have sought by fraud or misrepresentation to procure one

of several kinds of benefits: a visa, other documentation,

admission into the United States, or other benefit under the

-13-
Immigration laws. The Ymeris contend that they did not try to

obtain any of the covered types of benefits. The government

counters that the Ymeris only wanted to get to Boston and then

apply for asylum, thus making fraudulent use of the transit

without visa program to gain admission into the United States

without ever intending to proceed to Canada.4 This issue of

whether the Ymeris intended to go to Canada or stay here was not

argued before the Immigration Judge, and the Immigration Judge

therefore made no findings on whether the Ymeris ever intended to

4
The government cites Matter of Shirdel, 19 I&N Dec. 33
(B.I.A. 1984), contending that participating in the transit without
visa program without intent to proceed to a third country falls
within § 1182(a)(6)(C)(i). Shirdel held that arriving in this
country under transit without visa status amounted to an "entry"
covered by 8 U.S.C. § 1182(a)(19)(1982), the predecessor to §
1182(a)(6)(C)(i). 19 I&N Dec. at 36-37. This holding is in
apparent tension with our holding in United States v. Kavazanjian,
623 F.2d 730, 736-37 (1st Cir. 1980), that neither arriving in this
country as a transit without visa participant nor obtaining parole
pending an asylum determination amounts to "entry." We need not
resolve that tension here for two reasons. First, the statute now
refers to "admission," rather than "entry," so the exact question
has changed somewhat. See note 4, supra. Second, and more to the
point, § 1182(a)(6)(C)(i) now covers aliens who seek "admission or
other benefit provided under this chapter." (Emphasis added.) The
version of the statute in effect when Shirdel was decided did not
contain the "other benefit" language. See 8 U.S.C. § 1182(a)(19).
The transit without visa privilege is a benefit provided under the
Immigration laws. An alien who transits through this country as a
transit without visa participant has obtained one of the benefits
listed in § 1182(a)(6)(C)(i), regardless of whether the alien
effects an "entry." We therefore rely on the amended statute,
rather than Shirdel.

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go to Canada.5 The evidence would support either the conclusion

that the Ymeris intended to go to Canada or the opposite conclusion

that they always intended to stay in the United States. We may not

make our own findings on disputed issues of fact that were not

resolved by the BIA. See El Moraghy, 331 F.3d at 203. However,

even accepting the Ymeris' story that they wanted to continue to

Canada and therefore did not attempt to enter this country, they

still attempted to gain another benefit under the Immigration laws-

– the privilege of traveling as transit without visa participants.

Eligibility for transit without visa status depended on

country of citizenship and required some showing of citizenship in

a participating country. 8 C.F.R. § 212.1(f) (1999) (transit

without visa required alien to be in possession of travel documents

establishing identity and nationality). The Ymeris showed

documents to the Immigration Inspector falsely indicating Greek

citizenship in an effort to benefit from the transit without visa

program, thus seeking a benefit under the Immigration laws.

The Ymeris' attempt to transit through this country

using false passports was foiled when the Immigration Inspector

detected the fraud. However, section 1182(a)(6)(C)(i) expressly

covers attempts to procure admission or other Immigration law

5
The Immigration Judge did note in passing that Xhevdet Ymeri
"apparently was headed to Canada for some reason," but we do not
take this as a finding of fact on an issue that was never raised
before the Immigration Judge.

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benefits, as well as successful accomplishment of those goals.

There was substantial evidence to support the Immigration

Judge's finding of removability.

III.

The Ymeris contend that there was not substantial

evidence to support the Immigration Judge's finding that Xhevdet

was not credible in his account of the arrests and beatings that

form the basis for his persecution claim. The Immigration Judge's

credibility determination was based on numerous inconsistencies in

Xhevdet's testimony and earlier statements, inconsistencies between

his story and Juliana's, and reliance on the putative letter from

the Democratic Party that appeared to be fraudulent. These

inconsistencies concerned whether Xhevdet had been arrested at all,

how severely he was injured in the alleged beatings, and whether he

was a prominent Democratic Party activist. These inconsistencies

went to the heart of Xhevdet's claim of past persecution on account

of political opinion. Nothing in the record explains those

inconsistencies or deprives them of their power to discredit

Xhevdet's story. The Ymeris contend, relying on Akinmade v. INS,

196 F.3d 951, 955-56 (9th Cir. 1999), that Xhevdet's statement at

the airport that he had never been arrested could not be used

against him because he made that statement to get into the country,

rather than as part of his asylum application. In Akinmade the

Immigration Judge discredited an asylum applicant's testimony

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because he had used a fraudulent passport to get into the United

States. The court distinguished between misstatements an alien

might make simply in order to get into the country and statements

that pertained to asylum issues rather than admissibility. Id.;

accord Yongo v. INS, 355 F.3d 27, 33 (1st Cir. 2004). Xhevdet's

denial that he had ever been arrested goes to the heart of his

asylum claim, and he does not show any reason why he thought it

necessary to deny previous political arrests in order to be

admitted to this country. The reasons the Immigration Judge gave

for doubting Xhevdet's story of activism, arrest and beating are

cogent and well-founded in the record. See Bojorques-Villanueva v.

INS, 194 F.3d 14, 17 (1st Cir. 1999) (upholding adverse credibility

finding based on multiple inconsistencies going to central facts of

claim).

The Ymeris contend that the Immigration Judge erred in

failing to consider all relevant incidents in the aggregate to

decide whether the Ymeris' experiences amounted to persecution on

account of political opinion. However, once the Immigration Judge

made a valid finding that Xhevdet's story was not credible, it was

no longer necessary to count the discredited statements as true in

deciding whether the Ymeris' experiences rose to the level of

persecution. The same answer disposes of the Ymeris' claim that

they were entitled to a presumption under 8 C.F.R. §

208.13(b)(1)(ii) that they would be unsafe anywhere in Albania;

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this presumption only arises on a showing of past persecution,

which was negated in this case by the adverse credibility findings.

The Ymeris challenge the Immigration Judge's finding that

Xhevdet had found a safe haven in Greece. This finding is not

necessary to the Immigration Judge's well-supported conclusion that

Xhevdet had not borne his burden of proof on his claim for asylum

or for withholding of removal, and so we need not belabor it.

There was substantial evidence to support the Immigration

Judge's adverse credibility findings, which were fatal to the

Ymeris' asylum, withholding of removal, and Convention Against

Torture claims.

IV.

The Ymeris contend that the Board's use of its summary

affirmance procedure, 8 C.F.R. § 1003.1(e)(4) (2004), was erroneous

because the Immigration Judge's underlying decision was erroneous.

Because we have concluded that the Immigration Judge's decision was

not erroneous, we need not pursue this argument any further.

REVIEW DENIED.

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