Adnan Bushati v. Eric H. Holder, Jr.

310 F. App'x 883
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 18, 2009
Docket08-3291
StatusUnpublished
Cited by1 cases

This text of 310 F. App'x 883 (Adnan Bushati v. Eric H. Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adnan Bushati v. Eric H. Holder, Jr., 310 F. App'x 883 (6th Cir. 2009).

Opinion

MERRITT, Circuit Judge.

Petitioner Adnan Bushati, as lead petitioner, on behalf of himself, his wife and two minor children, as “derivative” petitioners, seeks review of the final order of removal issued by the Board of Immigration Appeals, which affirmed the immigration judge’s denial of Bushati’s petitions for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. As to the asylum issue, the question is whether we lack jurisdiction due to the untimeliness of the *884 petition, and the withholding of removal questions are whether petitioner has made the requisite showing of “clear probability” of future persecution under the Immigration Act, 8 U.S.C.' § 1231(b)(3), or the “likelihood of torture” under the U.N. Convention Against Torture, implemented by regulation issued by the Attorney General. 8 C.F.R. § 1208.18(a)(1). We conclude that the asylum petition is untimely and that petitioner has not otherwise made the requisite showing for withholding of removal.

Bushati is an Albanian citizen. In Albania, he was a member of the Democratic Party. He asserts that because of his political affiliation he was persecuted by the Albanian police at various times between 1991 and 2003. In November 2001, he legally entered the United States as a nonimmigrant visitor for pleasure with authorization to stay for a period not to exceed August 6, 2002. The Bushati children entered the United States at an unknown time and place.

Bushati filed an application for asylum on June 10, 2004, two and a half years after entry, listing his wife and children as derivative applicants. Bushati and his wife were then charged with being subject to removal for staying beyond the period permitted. The children were also charged with being subject to removal as aliens who arrived without being admitted or paroled. All the Bushatis appeared before an immigration judge and, through counsel, conceded removability. The Bushatis appeared, again with counsel, at a multi-day evidentiary hearing in March 2006. On March 17, 2006, the immigration judge rendered her oral decision denying Bushati’s application. (J.A. at 16.) The Bushatis timely appealed the decision to the Board of Immigration Appeals, which adopted and affirmed the immigration judge’s decision in a brief opinion on February 27, 2008. (J.A. at 10.) This petition for review followed.

I. Asylum Application Untimely

The Immigration and Naturalization Act requires that an asylum applicant “demonstrate! ] by clear and convincing evidence that the application has been filed within one year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). This requirement is subject to exceptions in cases when “the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within” the required one-year period. 8 U.S.C. § 1158(a)(2)(D). Another section of § 1158 converts the limitations issue into a jurisdictional issue: “[n]o court shall have jurisdiction to review any determination of the Attorney General” regarding whether changed or extraordinary circumstances exist to excuse an application for asylum that is filed later than one year after entry into the United States. 8 U.S.C. § 1158(a)(3).

Bushati testified that he left Albania on November 9, 2001, and came to the United States, staying until May 2002. He testified that he returned to Albania that month because his son had been targeted by kidnappers and his father passed away. Because he could not find his Albanian passport, Bushati testified that he left the United States through Canada, flew to Greece and drove to Albania. Bushati presented no documentary or other evidence of this travel back to Albania. Bushati testified that he returned to the United States with his son in December 2003, but he had no documentation to verify the date of his return.

*885 The immigration judge found that Bushati failed to prove that his asylum application, filed on June 10, 2004, was timely because it was filed more than one year after his last entry into the country. Based on the lack of supporting documentation or other evidence demonstrating either that Bushati left the United States in 2002 or returned in 2003, as noted above, the immigration judge found that Bushati last entered the United States in November 2001, making his asylum application in June 2004 untimely. The Board agreed with the immigration judge’s finding that the asylum application was not timely filed. We conclude that this finding is well supported by the evidence. The petitioner offers no evidence, other than his own testimony, of the trip — no passport stamps or other evidence of a series of flights to or return from Greece. We, therefore, lack jurisdiction to review the denial on the ground of untimeliness of Bushati’s application for asylum.

II. Withholding of Removal

Bushati also seeks removal of the Board’s decision to deny him withholding of removal under the Immigration and Naturalization Act and the Convention Against Torture.

Bushati testified that, beginning in 1991, he became a member of the Albanian Democratic Party, which opposed the then-in-power communist regime. The Communist Party has been out of power for more than a decade, and the Democratic Party is now the governing party. Bushati testified that because of his membership in the Democratic Party, he was detained, beaten and otherwise harassed on numerous occasions between 1991 and his departure from Albania in 2001. Bush-ati testified that he was appointed to an election commission in June 1997 to oversee elections that year and was arrested by police. He testified that the police told him that he was beaten for reporting “stolen votes by the Socialist Party” at the polling place he was monitoring. He testified that he was arrested and beaten again in September 1997. Bushati testified that he was then arrested and detained in September 1998 for causing “turmoil” at the funeral for the then-Democratic Party leader and that he was arrested in October 2000 for reporting vote fraud in an election and participating in public demonstrations concerning the election.

The immigration judge stated that three of the documents submitted by Bushati to verify his membership in the Democratic Party were all from the same person, were dated on the same date and contained only very general statements concerning his alleged detentions and mistreatment due to political affiliation. The immigration judge noted that none of the documents were originals. Nor did Bushati explain during the hearing how he obtained them or why the documents submitted to verify his detentions and mistreatment were all from the same person. She also noted that the generalized nature of the documents did not provide the type of specific information that can be given great weight.

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310 F. App'x 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adnan-bushati-v-eric-h-holder-jr-ca6-2009.