Drita Perlaska v. Eric H. Holder, Jr.

361 F. App'x 655
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 13, 2010
Docket08-4293
StatusUnpublished
Cited by10 cases

This text of 361 F. App'x 655 (Drita Perlaska 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
Drita Perlaska v. Eric H. Holder, Jr., 361 F. App'x 655 (6th Cir. 2010).

Opinion

KENNEDY, J.

Petitioner Drita Perlaska appeals an order of the Board of Immigration Appeals (“Board” or “BIA”) denying her applications for asylum, withholding of removal, and protection under the regulations promulgated pursuant to section 242(b) of the Foreign Affairs Reform and Restructuring Act of 1998, which implement the United States’ obligations under the Convention Against Torture (“CAT”). For the reasons set forth below, we DENY Perlaska’s petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, an ethnic Albanian, is a native of the former Yugoslavia and a citizen *656 of Kosovo. 1 On or about April 20, 2000, Petitioner sought admission into the United States by way of San Ysidro, California, after presenting immigration officials with an altered Austrian passport. Perlaska was denied admission and placed in the custody of the former Immigration and Naturalization Service. On April 22, 2000, an immigration official conducted an airport interview of Perlaska, in which she made a sworn statement indicating that she and her family suffered persecution in Serbia. On May 2, 2000, an asylum officer conducted a credible fear interview of Per-laska, in which she again made a sworn statement as to past instances of persecution. On May 9, 2000, Perlaska was issued a Notice to Appear that charged her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for failure to possess a valid entry document at the time of her entry into the United States. Petitioner successfully moved for a change of venue to Detroit, Michigan, where she was given a January 19, 2007, merits hearing before an immigration judge. Prior to the hearing, on October 5, 2006, Petitioner filed a motion requesting that the immigration judge assigned to the case recuse herself from the proceedings on the ground that the judge previously served as Chief Counsel for the Department of Homeland Security while Petitioner’s case was pending. The immigration judge denied the motion, however, and specifically noted that — although thousands of cases came across her desk — she did not have any direct or indirect contact with Perlaska’s case, nor did she ever provide advice or assistance to any members of the DHS staff regarding the case.

At the merits hearing on January 19, 2007, Perlaska testified on her own behalf and recounted several instances of alleged past persecution. One involved the death of one Mikel Marku, whom Petitioner claims is her maternal grandfather. According to Petitioner, on October 31, 1991, Marku and two cousins of Petitioner were together in a car when they were stopped and arrested by Serbian police. They were then detained for over twenty-four hours and were beaten by the officers. Upon being released from custody, Marku was admitted to a hospital and died soon thereafter. Perlaska admitted that she did not witness any of these events but was told about them by her cousins.

Petitioner next testified that on March 27, 1999, she and her grandmother — with whom Petitioner was living at the time— were forced out of their home by Serbian police and paramilitary forces. After their entire village was forced out of their homes, the Serbian forces divided the men and women into separate lines. While Petitioner was standing in line, four Serbian soldiers pulled her into a nearby wooded area. Petitioner initially testified that two of the men held her while another cut off her clothes and then threw her to the ground. She screamed for help but was hit on the head by one of the men, rendering her unconscious. The next thing she remembered was lying in her grandmother’s lap on the back of a tractor that was heading to a refugee camp. Upon additional questioning by the immigration judge, however, Perlaska testified that one of the men got on top of her and said he was going to rape her, and also that she felt pain in her vaginal area before she became unconscious. In her written asy *657 lum application, Petitioner stated that she told no one about the rape other than her husband. At one point in her testimony, however, she stated that the only people she told about the incident were her husband and also a doctor in New York who examined her after arriving in the United States. At another point in her testimony, she stated that she revealed the rape to doctors who were on site at the refugee camp.

Finally, Perlaska testified that she feared returning to Kosovo because “all kinds of things” could happen were she to return. She stated that most of her family has since moved to the United States. Her father was granted asylum by the United States on April 11, 1996. He subsequently filed derivative asylum applications for his immediately family members. All were granted asylum except Petitioner, who had reached the age of 21 and was not entitled to be claimed as a derivative of her father. Perlaska testified that her grandmother was still alive and living in Kosovo with Petitioner’s uncle. 2

In addition to testifying at the merits hearing, Petitioner also submitted several items of documentary evidence to support her claim. She submitted a letter from the psychiatrist in New York who examined her. The letter described Perlaska’s account of her “traumatic experiences” in Kosovo, including the rape, and concludes that her “very serious psychic disability” is due to those traumas. Perlaska also submitted general reports on the violence in the Kosovo province, as well as pictures of damage done to the home Perlaska had shared with her grandmother. Perlaska also submitted documentary evidence corroborating the death of Mikel Marku. Finally, Perlaska submitted a witness list that included the names of most of her relatives now living in the United States. None of these witnesses actually testified, however; Perlaska’s was the only testimony offered to the immigration judge.

At the end of the hearing, on January 19, 2007, the immigration judge denied Perlaska’s applications for asylum, -withholding of removal, and protection under the Convention Against Torture. On the same day, the IJ also issued an order and oral decision containing a detailed analysis of her reasons for denying Perlaska’s applications. The judge first found that Per-laska was not credible. In making this determination, the judge relied on numerous inconsistencies and omissions she found between the various statements Perlaska had made since arriving in the United States — specifically her airport interview and credible fear interview with immigration officials, her written applications, and her testimony at the merits hearing. The IJ then listed in substantial detail each of the inconsistencies and omissions that weighed in favor of her adverse credibility finding.

With respect to the events surrounding the death of Mikel Marku, the judge noted that although Perlaska testified that her two cousins were also arrested and beaten during the incident, Perlaska made no reference to her cousins being arrested and beaten during the credible fear interview. With respect to Perlaska’s alleged deportation from Serbia, the judge noted that Perlaska had been inconsistent as to when the deportation actually occurred: she stated in her credible fear interview that *658

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361 F. App'x 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drita-perlaska-v-eric-h-holder-jr-ca6-2010.