Mehilli v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1412

AGRON MEHILLI; SONILA MEHILLI; XHESIKA MEHILLI; XHONATHAN
MEHILLI; SERXHI MEHILLI;

Petitioners,

v.

ALBERTO GONZALES, Attorney General of the United States,

Respondent.

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

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Walter J. Gleason on brief for petitioners.
John M. Lynch, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Peter D.
Keisler, Assistant Attorney General, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.

December 22, 2005
 LYNCH, Circuit Judge. Petitioners in this immigration

case sought asylum relief, withholding of removal, and protection

under the Convention Against Torture (CAT). The Immigration Judge

and Board of Immigration Appeals denied relief, finding the asylum

application time-barred and the other claims meritless.

Petitioners did not timely seek judicial review of that decision;

instead, they moved for reconsideration before the BIA, were

denied, and then sought judicial review of that latter denial.

Their petition presents a question of first impression in

this circuit as to limits on jurisdiction: whether 8 U.S.C.

§ 1158(a), which forbids direct review of the decision that an

asylum application is time-barred, applies equally to review of the

BIA's denial of reconsideration on the same issue. We hold that it

does, and therefore that we have no jurisdiction as to denial of

asylum to the petitioners.

We do have jurisdiction over the denial of

reconsideration as to withholding of removal and CAT protection.

Since we find that the BIA did not abuse its discretion in denying

reconsideration of these claims, we deny the petition for review.

I.

Petitioners are a married couple, Agron and Sonila

Mehilli, and their three children, Xhesika, Xhonathan, and Serxhi

Mehilli. All rely on the application for relief of the father,

Agron Mehilli ("Mehilli").

-2-
A. Mehilli's Application and Testimony

Mehilli, a native of Albania, arrived in the United

States on a date which is the subject of some dispute. Mehilli

applied for asylum, withholding of removal, and CAT relief on June

23, 2001; in that application, he stated that he entered the United

States on December 5, 2000. He later changed that date of entry,

as we explain below. On January 14, 2002, the former Immigration

and Naturalization Service (INS)1 instituted removal proceedings

against him.

On May 9, 2003, Mehilli appeared before an initial

Immigration Judge. He testified that he left Albania in late

November of 2000 and traveled to Athens, then Milan, and finally

Los Angeles, arriving on December 5, 2000. Mehilli told the

initial IJ that he entered the United States using a false passport

bearing the name Fatmir Gjata. The initial IJ immediately asked

the government to check whether a Fatmir Gjata entered the country

on that date; the government ran a computer check and found no

matches. When this was relayed to Mehilli, he said, "I don't

believe it, because I came, that's the way I came from

Albania . . . that's the name." He added: "I cannot lie."

1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).

-3-
 Mehilli later appeared before a second IJ on three

different dates in 2003 to offer further testimony. At the first

of these hearings, the IJ said he would "start the case de novo"

and would take testimony even on issues covered by the initial IJ,

because he needed to make credibility determinations himself.

Mehilli then testified to a version of events that

differed substantially from both his earlier testimony and his

asylum application: he stated that he had traveled from Athens to

Milan using the name Fatmir Gjata, but that he had then traveled

from Milan to Los Angeles with a Slovenian passport bearing the

name Marko Brezar. He also stated that he arrived on May 4, 2001,

not December 5, 2000. Mehilli submitted as evidence a passport

bearing the name Marko Brezar; he also submitted a plane ticket

bearing the same name, which he said he had used to fly to Los

Angeles. Asked why he was changing his testimony, he testified

that "the person that gave me these passports and tickets" told him

"not to show the name and date that I arrived here."

During the same hearing, the second IJ addressed

Mehilli's motion for a new trial, in which he argued that the

initial IJ had behaved improperly by discounting Mehilli's

credibility and trying to impeach his testimony on peripheral

issues. The second IJ denied this motion, stating:

Your client has admitted to us that he was
lying to the Immigration Judge at the last
hearing. So I'm finding your motion here less
than convincing where . . . you seem to be

-4-
 complaining that the Judge was impugning your
client's credibility at the last hearing
unfairly, when, in fact, it turns out that
your client was lying to the Judge.

The IJ went on to find that, since Mehilli offered little proof

other than his own testimony as to his arrival date, and since he

was not credible given his false testimony under oath, he had not

proved that he arrived in the United States within a year before

filing his asylum application; this failure rendered him ineligible

for asylum.

The IJ stated that despite this ruling, he would hear

Mehilli's testimony as to the merits of all three claims for

relief.2 Mehilli testified as follows: He became a member of

Albania's Democratic Party in 1992 and played an active role in the

party. Beginning in 1993, he owned a bakery in Tirana, the

Albanian capital. In 1997, the rival Socialist Party came to

power, and Mehilli began to feel pressure from government

officials. In February 1997, members of the Socialist Party came

to Mehilli's bakery and told him to close it down; they told him

they were closing bakeries like his because they wanted to "take

the Democratic Party off the power." Mehilli refused. When

Socialist officials started paying return visits to bakeries,

asking them why they had not closed as ordered, Mehilli moved to a

2
The IJ noted that this would permit him to make an alternative
finding as to asylum, which would be necessary should the
determination of ineligibility be reversed on appeal.

-5-
new space elsewhere in Tirana; the bakery occupied the first floor,

while Mehilli and his family lived upstairs. The bakery kept

running even after Mehilli left Albania, and Mehilli was still

receiving money from its operation, even up to the time of the

hearing.

In the summer of 2000, Mehilli testified, he received a

letter purporting to levy a $20,000 fine against his bakery; the

letter stated that if Mehilli did not pay, he would be killed. He

offered no evidence as to who might have sent the letter. However,

he testified that several days later, he went to pick up his voting

card and discovered that his and his wife's names were misspelled

on their cards; at this point, he testified, he realized the

incidents were connected -- Socialists had altered his card so he

could not vote, and the fine was being levied for political

reasons. He admitted on cross-examination, however, that many

voters experienced problems with the voter registration lists.

Several days after the voting card incident, Mehilli

testified, police officers came to his home at 5 a.m. and searched

it. He testified that the officers pushed him against a wall and

said, "we came to pick up the guns that you have illegally, because

you're a member of the Democratic Party, you have guns." Finally,

Mehilli testified that in November 2000, unknown assailants tried

to kidnap his younger son. He stated that one day, as his wife,

her brother, and his son were leaving the brother's home, three

-6-
people "tried to grab" his wife and take her son from her arms. He

could not identify the assailants; he said they must have been

Socialists because the kidnapping attempt "was a continuance . . .

of their actions" against him.

Mehilli's wife, Sonila, also testified. As to the

attempted kidnapping, she testified that an armed man tried to grab

her son and she pushed him away; as she did so, her brother opened

fire, frightening the man off. She stated that she did not fall to

the ground at any time during the incident. As to the search,

Sonila Mehilli said she saw an officer push her husband, and that

no one else was pushed.

B. The IJ's Decision and Subsequent Appeals

The second IJ's oral decision of September 5, 2003

rejected Mehilli's application on numerous grounds. The IJ

reaffirmed his finding that Mehilli was time-barred from seeking

asylum. He noted that Mehilli's application was dated June 23,

2001, and that on the application Mehilli wrote that he had entered

the United States on December 5, 2000. However, he also noted that

Mehilli admitted testifying falsely under oath to the initial IJ.

The IJ found, based on these facts and his observations of

Mehilli's demeanor, that Mehilli was not credible. Since Mehilli

had relied largely3 on his own testimony to prove his date of

3
Mehilli also relied implicitly on several Albanian documents he
submitted, one of which appeared to be dated December 2000; his
claim (though never made clear on the record) seemed to be that the

-7-
entry, the IJ found that Mehilli had not established an arrival

date and thus had not established that his application was filed

within one year of arrival.4 The IJ also rejected Mehilli's claim

that he should be exempted from the deadline due to extraordinary

circumstances -- specifically, ineffective assistance of counsel --

because Mehilli had not complied with the regulatory requirements

for making such a claim.

Nonetheless, the IJ proceeded, in the alternative, to

consider Mehilli's asylum claim, and other claims for relief, on

their merits.5 The IJ pointed to a number of inconsistencies in

Mehilli's story. These included, inter alia, (1) that Mehilli's

documents' existence demonstrated that he was still in Albania in
late 2000. However, the IJ explicitly found that the documents
were "not genuine"; he noted that the documents were not properly
authenticated and that someone apparently had attempted to alter
one of the documents by writing over the printed date with a pen.
4
The IJ found Mehilli's explanation for his false testimony --
that he had been told not to reveal the existence of the "Marko
Brezar" documents -- not credible.
5
An asylum applicant bears the burden of establishing
eligibility by proving he or she is a "refugee" -- that is, by
proving past persecution or 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)(A). "[I]n order to establish refugee status, an
alien must support his claim of persecution through credible
testimony." Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.
2005). Because withholding of removal places a higher burden of
proof on the applicant than does asylum, failure to carry the
burden for asylum necessarily dooms a withholding claim. See,
e.g., Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir.
2005). As to CAT protection, an applicant must show that he or she
"more likely than not . . . would be tortured if removed." 8
C.F.R. § 208.16(c)(2).

-8-
testimony as to the search was at sharp variance with affidavits in

which he said twenty soldiers tore his house apart and pushed him,

his wife, and his children; and (2) that his wife's testimony that

she never fell during the kidnapping attempt contradicted Mehilli's

statement in an affidavit that she was pushed to the ground. Based

on the inconsistencies and on Mehilli's initial false testimony,

the IJ again found Mehilli not credible.

Further, the IJ found that even assuming Mehilli was

credible, Mehilli had not proved persecution. He found that the

harms Mehilli described were not serious enough to constitute past

persecution, and that even if they were, Mehilli had not

established a nexus with a protected ground. As to fear of future

persecution, the IJ found that Mehilli had offered no proof; he

noted that Mehilli's family continued to live safely in Albania and

that his bakery continued to operate without apparent problems. As

to withholding of removal and CAT protection, the IJ found that

Mehilli's inability to meet the burden for asylum doomed his

withholding claim and that Mehilli had failed to adduce any

evidence of torture.

Mehilli appealed to the BIA, arguing that the IJ's

findings had been erroneous and that his consideration of Mehilli's

false testimony constituted a denial of fundamental fairness. On

December 17, 2004, the BIA affirmed using its "adoption and

affirmance" procedure. It noted that Mehilli's fundamental

-9-
fairness argument was meritless because the IJ did not err in

considering Mehilli's "admittedly false testimony."

Mehilli did not seek judicial review of that decision.

Instead, he moved for reconsideration. On February 24, 2005, the

BIA denied the motion. Mehilli timely petitioned for review of

this denial.

II.

On appeal, Mehilli makes two primary arguments. First,

he says the BIA should have reconsidered his case because the

second IJ improperly characterized his false testimony before the

initial IJ as perjury; he argues that that characterization "so

impermissibly burdened the evaluation of [his] credibility and the

authentication of his documents so as to implicate fundamental

fairness principles."6 Second, he argues that the IJ relied

heavily on State Department reports concerning improving conditions

in Albania and that this reliance "precluded discrete consideration

of the Petitioners' particular circumstances of persecution." The

6
Mehilli also argues that he was denied fundamental fairness
because the IJ incorrectly found that his documents had to meet the
authentication requirements of 8 C.F.R. § 287.6(b), which applies
to documents from nations not signatory to the Hague Convention on
Abolishing the Requirement of Legalization for Foreign Public
Documents, Oct. 5, 1961, 33 U.S.T. 883, 527 U.N.T.S. 189.
Mehilli's argument is that while it is true that Albania was not a
signatory at the time of his hearings before the IJ, "in practice"
the U.S. Embassy in Tirana treated Albania as if it were. This
argument has no merit: 8 C.F.R. § 287.6 contains no such exception
for Albanian documents, and Mehilli presents no evidence that such
an exception exists.

-10-
government, meanwhile, argues that under 8 U.S.C. § 1158(a)(3),

this court lacks subject matter jurisdiction to review the BIA's

refusal to reconsider its decision that Mehilli's asylum claim was

time-barred; as to the other relief, the government argues there

was no abuse of discretion in denying reconsideration.

A. Jurisdiction Over Denial of Motion to Reconsider as to Asylum

Two jurisdiction-limiting statutes are at play. The

first, 8 U.S.C. § 1158(a)(3), enacted in 1996,7 provides that "[n]o

court shall have jurisdiction to review any determination of the

Attorney General under paragraph (2)." This limitation refers,

inter alia, to determinations as to whether the applicant complied

with the one-year filing deadline for asylum, id. § 1158(a)(2)(B),

and as to whether extraordinary circumstances excuse an alien's

belated filing, id. § 1158(a)(2)(D).

The second provision was added in 2005. As part of the

REAL ID Act, Congress reframed the limits on jurisdiction to

provide an exception:

Nothing in subparagraph (B) or ©, or in any
other provision of [the Immigration and
Nationality Act] (other than this section)
which limits or eliminates judicial review,
shall be construed as precluding review of
constitutional claims or questions of law
raised upon a petition for review filed with
an appropriate court of appeals in accordance
with this section.

7
See Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub. L. No. 104-208, § 604, 110 Stat. 3009-691.

-11-
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119

Stat. 231-310 (codified at 8 U.S.C. § 1252(a)(2)(D)); see also Sena

v. Gonzales, 428 F.3d 50, 52 (1st Cir. 2005) (per curiam) (citing

§ 106(a)(1)(A)(iii) and concluding that the court had jurisdiction

because constitutional and legal questions were presented).

These provisions present two questions. The first is

whether a denial of reconsideration -- as opposed to the initial

BIA decision on appeal from the IJ -- is a decision "under

paragraph (2)" of § 1158(a) such as to strip this court of

jurisdiction. Second, if we answer that question in the

affirmative, we must examine whether jurisdiction has been restored

by § 1252(a)(2)(D).

1. Section 1158(a)(3) and Motions for Reconsideration

As to the first question, we hold that Mehilli has not

gained a right to judicial review of the BIA's timeliness

determination that he would not have had on a petition from an

initial rejection by waiting and then attacking a denial of

reconsideration of the same issue. Recognition of jurisdiction in

these circumstances would circumvent both the purposes of the

jurisdictional limitation and the purposes of reconsideration.

This is also the conclusion reached by other circuit courts that

have addressed the issue under related statutory provisions. See

Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) ("[I]f we

are divested of jurisdiction to review an original determination by

-12-
the Board . . . we must also be divested of jurisdiction to review

the Board's denial of a motion to reopen [on the same grounds.]");

see also Mariuta v. Gonzales, 411 F.3d 361, 364-65 (2d Cir. 2005)

(where an order denying a motion to reopen is based on an

evaluation of the right to the underlying relief sought, the order

is "under" the statute controlling the underlying relief); Durant

v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2004) (orders of removal

and denials of motions to reopen "are sufficiently connected" that

permitting review of the latter when the INA bars review of the

former "would provide an improper backdoor method of challenging a

removal order"); Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir.

2003) (applying an INA jurisdictional bar to denial of a motion to

reopen where petitioners' "principal claim" rested on a decision

entrusted to the discretion of the Attorney General).8 This leaves

8
The government suggests in its brief that the Ninth Circuit took
a contrary position in Medina-Morales v. Ashcroft, 371 F.3d 520
(9th Cir. 2004). It is true that Medina-Morales held that a
judicial review bar imposed by the INA –- specifically, 8 U.S.C.
§ 1252(a)(2)(B)(I) -- did not apply to review of a BIA denial of a
motion to reopen. 371 F.3d at 527. Nonetheless, we doubt Medina-
Morales is in conflict. There, petitioner initially applied for
adjustment of status, then abandoned the claim, and later moved to
reopen to reassert it. Id. at 524. The BIA denied his motion to
reopen. Id. The Ninth Circuit concluded that it had jurisdiction
despite the general statutory bar on review of adjustment-of-status
determinations. It reasoned that since petitioner had abandoned
his adjustment-of-status claim, the IJ had never ruled on
adjustment of status at all. Id. at 527. Therefore, the denial of
reopening was not a decision "under" the adjustment-of-status
provision, but instead a decision "under" the provision that had
provided grounds for petitioner's removal -- a provision over which
the court had jurisdiction. Id. Medina-Morales thus is compatible
with the proposition that when an order denying reconsideration

-13-
the question of the effect of the REAL ID Act's redefinition of the

jurisdictional limitation.

2. The Effect of Section 1252(a)(2)(D)

The relevant provision, 8 U.S.C. § 1252(a)(2)(D),9 states

in relevant part that "[n]othing in subparagraph (B) or ©, or in

any other provision of [the INA] (other than this section) which

limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of law."

Under the terms of this limited jurisdictional grant,

"discretionary or factual determinations continue to fall outside

the jurisdiction of the courts of appeals," Vasile v. Gonzales, 417

F.3d 766, 768 (7th Cir. 2005), and BIA findings as to timeliness

and changed circumstances are usually factual determinations, see

Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 957 (11th Cir.

2005); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005).

Here the untimeliness finding was a factual one, based on Mehilli's

lack of credibility.

Mehilli, however, makes what he purports to be a

constitutional argument as to the timeliness finding. He argues

that (1) the second IJ's characterization of Mehilli's false

engages a previous decision "under" a given provision, the order is
also a decision "under" that underlying provision.
9
The subsection took effect immediately upon enactment in May
2005 and "appl[ies] to cases in which the final administrative
order of removal . . . was issued before, on, or after the date of
the enactment." REAL ID Act § 106(b).

-14-
statements before the first IJ as "perjury" was incorrect because

Mehilli withdrew the false statements, and therefore they did not

constitute perjury as a legal matter, and (2) the perjury

characterization so infected the second IJ's credibility

determination as to render the decision as to timeliness, and the

proceedings in general, fundamentally unfair and a violation of due

process requirements.

The argument fails to bring Mehilli's asylum claim within

the REAL ID Act exception. A claim would at least have to be

colorable for the exception to apply. As the Ninth Circuit has

said in a related context:

[A] petitioner may not create the jurisdiction
that Congress chose to remove simply by
cloaking an . . . argument in constitutional
garb. . . . [T]o invoke our jurisdiction, a
petitioner must allege at least a colorable
constitutional violation. To be colorable in
this context, the alleged violation need not
be substantial, but the claim must have some
possible validity.

Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)

(citations omitted) (quoting Flores-Miramontes v. INS, 212 F.3d

1133, 1135 n.3 (9th Cir. 2000); and United States v. Sarkisian, 197

F.3d 966, 983 (9th Cir. 1999)) (internal quotation marks omitted).

Torres-Aguilar noted that any other outcome "would allow [aliens]

to circumvent clear congressional intent to eliminate judicial

review." Id. We do not have to decide now how strong a showing of

a constitutional claim is needed to give us jurisdiction.

-15-
Mehilli's argument is not even colorable: a routine credibility

finding by an IJ reasonably based on false statements by an

applicant cannot possibly raise a due process "fundamental

fairness" argument. The argument is frivolous.10

Further, to the extent Mehilli's brief may be read as

arguing (1) that, as to credibility, the IJ incorrectly weighed the

evidence, failed to explicitly consider certain evidence, or simply

reached the wrong outcome, and (2) that that purported error

constituted a due process violation, Mehilli still fails to state

a colorable constitutional claim within the ambit of

§ 1252(a)(2)(D). As we have held, such arguments are not properly

viewed as constitutional challenges at all, but instead as simple

claims that substantial evidence did not support the IJ's

credibility finding. See Albathani v. INS, 318 F.3d 365, 372 (1st

Cir. 2001) (stating that petitioner's argument that the IJ

"improperly overlooked evidence" and in so doing violated

petitioner's due process rights "is, in our view, just a variation

on a substantial evidence challenge, and so we apply the usual

substantial evidence standard"); see also Kalitani v. Ashcroft, 340

F.3d 1, 5 (1st Cir. 2003) ("Kalitani's [due process] argument boils

down to an assertion that the IJ should have believed her. But the

10
The argument would still fail for this reason even if it had
been presented on a direct petition for review. Mehilli gains no
further rights to review by making the argument on a motion for
reconsideration.

-16-
IJ was not compelled to believe her, and substantial evidence . .

. supports his decision not to do so.").

B. Withholding of Removal and CAT Protection

There is no question that we have jurisdiction over the

denial of reconsideration as it relates to the withholding of

removal and CAT claims. We review BIA decisions on motions to

reconsider solely for abuse of discretion. Hossain v. Ashcroft,

381 F.3d 29, 31 (1st Cir. 2004). "In the reconsideration context,

we will find an abuse of discretion if the denial was made without

a 'rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis' (such as race)."

Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento

v. INS, 274 F.3d 26, 28 (1st Cir. 2001)).

In its denial of reconsideration, the BIA stated that it

was "not persuaded" that the BIA relied too heavily on country

condition reports about Albania prepared by the State Department.

It also stated that (1) the IJ properly found that Mehilli was not

credible, (2) the IJ properly found that even if Mehilli were

credible the incidents he described did not constitute persecution,

(3) it saw "no basis" to disturb its finding that Mehilli's hearing

was fundamentally fair, and (4) Mehilli had demonstrated no error

of fact or law in the BIA's prior decision.

There was no abuse of discretion. In the end, Mehilli's

own testimony was supportably found not credible. His two

-17-
arguments on reconsideration -- fundamental fairness and over-

reliance on country condition reports -- do not undercut that

finding. That ends the matter. See Settenda v. Ashcroft, 377 F.3d

89, 93 (1st Cir. 2004) ("The IJ's well documented finding that

Settenda failed to support his application for asylum and

withholding with credible testimony dooms his claim on appeal.").

III.

The petition for review is denied.

-18-