Dushi v. Gonzales

152 F. App'x 460
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 19, 2005
Docket04-3369
StatusUnpublished
Cited by1 cases

This text of 152 F. App'x 460 (Dushi v. Gonzales) 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
Dushi v. Gonzales, 152 F. App'x 460 (6th Cir. 2005).

Opinions

CLAY, Circuit Judge.

Petitioner, Lulzim Flamur Dushi, is an Albanian citizen who petitions for review [462]*462from a decision of the Board of Immigration Appeals (“BIA”), affirming an order of an Immigration Judge (“IJ”) which denied Petitioner’s claims for withholding of removal pursuant to Immigration and Naturalization Act (“INA”), Section 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”) pursuant to 8 C.F.R. § 208.16(c) et seq.

For the reasons set forth below, we DENY the petition for review.

I. BACKGROUND

A. Procedural History

Petitioner Lulzim Flamur Dushi (“Dushi”) applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) in April 1999. On November 2, 2000, Dushi was charged with being removable from the United States under Section 212(a)(6)(A) of the INA and ordered to appear before an immigration judge. At a hearing before Immigration Judge (“IJ”) Elizabeth Hacker in Detroit on July 13, 2001, Dushi, through his attorney, conceded removability and asserted that he would be seeking asylum and withholding of removal under the INA and protection under the United Nations Convention Against Torture. A hearing on Dushi’s claims was held on November 20, 2002, at which Dushi and his mother testified. In an oral decision issued the same day, the IJ denied all of Dushi’s claims for relief. The IJ found that his application for asylum was untimely as he could not establish that it was filed within one year of his arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B), and that he had not met the statutory requirement to excuse this missed deadline, of “changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period.” 8 U.S.C. § 1158(a)(2)(D). The IJ also found that his application for asylum would fail in any event because Dushi had not established past persecution or a well-founded fear of future persecution. The IJ denied Dushi’s request for withholding of removal and protection under the Convention Against Torture on the merits. Among other findings, the IJ found the testimony of Dushi and his mother not to be credible.

Dushi appealed to the Board of Immigration Appeals (“BIA”) for review. The BIA dismissed his appeal on February 27, 2004. The BIA agreed with the IJ that Dushi’s petition for asylum was untimely and that Dushi had failed to establish persecution or a well-founded fear of future persecution on account of membership in a protected group. The BIA affirmed the IJ’s determination that Dushi had not established that it was more likely than not that he would be tortured if returned to Albania. The BIA adopted the decision of the IJ and affirmed based on the reasons set forth in her decision.

Dushi petitioned this court for review of the BIA’s decision on March 22, 2004. Presumably because this Court is without jurisdiction to review the determination that his asylum petition was untimely, see Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004) (citing 8 U.S.C. § 1158(a)(3)), Dushi does not challenge the denial of asylum in his brief to this Court.

B. Substantive Facts

1. Petitioner’s Asylum Application

In an affidavit submitted in connection with his asylum application, Dushi averred that he was born in Albania and came to the United States with his mother on December 25, 1998. He asserted that he had been arrested, beaten, and deprived of [463]*463food because of his public support of the Democratic Party in Albania and his involvement with the Anti-Communist Association.

Dushi stated that his family had never supported Communism, and that his maternal grandfather was sentenced to fifteen years in prison and tortured because of his open opposition to the Communist Party. Dushi stated that his parents actively demonstrated for democracy. Dushi averred that in March of 1991, police came to his family’s home and “violently” led his father away. His father returned the next day bruised and bleeding. Dushi asserted that in April 1991, his parents attended another demonstration. His mother was severely beaten by police and hospitalized for ten days. His father was shot several times and beaten, and died on May 5,1991.

Dushi conceded in his affidavit that the Democratic Party, which his family supported, came into power in March 1992 but insists that “communism remained a threat. Everything worked the same way. Nothing had changed. The corruption and police brutality continued.” In June 1997, the Socialist Party returned to power. In September 1998, a prominent democratic leader, Azem Hadjari, was killed. Dushi asserted that he and his uncle participated in Hadjari’s funeral, and that a pro-democracy demonstration was held on the day of his funeral. According to Dushi, the demonstration became violent, and he and three friends were arrested and taken to the police station. Dushi stated that they were beaten and deprived of food for 24 hours.

Dushi averred that he and his mother then hid with various relatives for three months, finally leaving Albania on December 20, 1998. Dushi stated that they traveled to Macedonia, Switzerland, Canada, and finally the United States, where they arrived on December 25,1998.

2. Witness Testimony

Dushi’s mother, Lajla Dushi, testified as Dushi’s only other witness at the hearing.1 She testified that she participated in the “December 13th” organization “of ex-persecuted people.” She stated that she participated in peaceful demonstrations beginning in 1990. She joined these protests because she was against communism.

Ms. Dushi testified that at some point in 1991, the police came to the family’s home and arrested her husband. He returned twenty-four hours later after having been tortured by police because he was anticommunist.

Ms. Dushi testified that she and her husband attended another pro-democracy demonstration in April 1991. The police hit her on the head, causing her to lose consciousness for twenty-four hours. Her husband was shot, went into a coma, and died in May 1991.

Ms. Dushi testified that on September 14, 1998, her son attended the funeral of “one of founders of Democratic Party”— presumably Hadjari. Ms. Dushi did not attend. She testified that her son re[464]*464turned the next day with a black eye and bruises on his face and body. She testified that he had gone to the funeral “[b]ecause of his hate for socialists and because that’s the reason that his father would [sic] died.”

After Petitioner returned, Ms.

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186 F. App'x 574 (Sixth Circuit, 2006)

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