Elezaj v. Gonzales

163 F. App'x 358
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 22, 2005
Docket04-4059
StatusUnpublished
Cited by4 cases

This text of 163 F. App'x 358 (Elezaj 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
Elezaj v. Gonzales, 163 F. App'x 358 (6th Cir. 2005).

Opinion

SILER, Circuit Judge.

Petitioner Klodian Elezaj, an Albanian citizen, entered the United States in 2000. Approximately one year later he sought asylum under 8 U.S.C. § 1158 et seq., withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding under the Convention Against Torture (the “CAT”) as codified in 8 C.F.R. § 1208.16(c), on the basis that he was persecuted in Albania for his political affiliation with the Democratic Party. The immigration judge (“IJ”) denied his application for asylum for untimeliness, and denied the remainder of the claims on the merits for lack of evidence. The Board of Immigration Appeals (“BIA”) affirmed. Elezaj appeals the IJ’s decision, and contends that the BIA violated his due process rights in granting a summary affirmance without opinion. For the reasons set forth below, the petition is DENIED.

DISCUSSION

Because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision is reviewed as the final administrative order. See Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004). We review factual determinations for substantial evidence, and legal conclusions de novo. See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004). Therefore, reversal is only warranted if this court “finds that the evidence not only supports a contrary conclusion, but compels it.” Id.

Petitioner raises four issues in his brief. We address them in turn.

1. The BIA’s Summary Affirmance Without Opinion Violated Elezaj’s Due Process Rights.

Elezaj argues that the BIA’s streamlining procedures violate due process. However, we held in Denko v. INS, 351 F.3d 717, 730 (6th Cir.2003), as well as in several cases since, that the streamlining procedures are constitutional and raise no due process red flags. See, e.g., Hassan v. Gonzales, 403 F.3d 429 (6th Cir.2005). Elezaj neither raises new issues that call into question these holdings, nor distinguishes them. Therefore, the constitutional challenge fails.

2. The Asylum Application was Not Timely Filed nor Properly Preserved.

The IJ determined that Elezaj failed to file his claim within one year of his entry into the United States, as re *360 quired by 8 U.S.C. § 1158(a)(2)(B). We agree with the government that we lack jurisdiction to review this finding. See 8 U.S.C. § 1158(a)(3) (appellate jurisdiction does not apply to the facts underlying a determination of timeliness). Moreover, Elezaj failed to exhaust his administrative remedies, which also precludes our jurisdiction. See 8 U.S.C. § 1252(d)(1).

3. The IJ’s Adverse Credibility Finding was Supported by Substantial Evidence.

The IJ primarily denied all of Elezaj’s claims, including the asylum claim, on the basis that he did not find Elezaj credible; and absent corroborative evidence, he denied Elezaj’s claim. While it is often the case that there is little to no corroborative testimony, “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” Ouda v. INS, 324 F.3d 445, 451-52 (6th Cir.2003) (citing 8 C.F.R. § 208.13(a)). To warrant an adverse credibility finding, discrepancies or omissions have “to be viewed as attempts by the applicant to enhance his claims of persecution .... ” Daneshvar v. Ashcroft, 355 F.3d 615, 623 (6th Cir.2004) (internal citations omitted). In other words, they must go to the heart of the applicant’s case. Id.

Here, the IJ found discrepancies in Elezaj’s claim of when he entered the United States, as it changed three times. The IJ also found Elezaj’s claims of being kidnaped and beaten twice incredible. In March 2000, he claims that police kidnaped and beat him during a protest rally against vote manipulation by the ruling socialists. The IJ noted that this rally was strangely timed as it occurred six months after the alleged vote tampering, with no explanation. Elezaj claimed to have been detained for 24 hours before going to the hospital for his injuries, yet when asked how he arrived there, he said that the police officers who kidnaped and beat him also escorted him to the hospital. Moreover, the release date on the medical records contradicted the asserted timing. Then, for the second kidnaping, there was much confusion as to when this event occurred: August 1999 or August 2000. This single incident, for a period during the hearing, then morphed into two separate incidents — implying three total; yet Elezaj insisted that there were only two incidents. Further, Elezaj could not decide whether there were three or five “agents” and whether they beat him up and then took him away in a police car, or took him away in a blue van and then beat him. The documentary evidence he submitted was also deemed incredible. For example, in additional to the questionable validity of the medical records, the newspaper article was dated thirteen months after the reported incident, and articles are known to be for sale in Albania. The Sterki affidavit neither corroborated Elezaj’s story, nor appeared to be written by someone who knew the facts.

Additionally, there were numerous inconsistencies between Elezaj’s testimony and his written application, and several omissions in the latter. “Like inconsistencies, omissions may form the basis of an adverse credibility determination, provided that they are substantially related to the asylum claim.” Vasha v. Gonzales, 410 F.3d 863, 871 (6th Cir.2005). Thus, we cannot conclude that the evidence compels a finding that Elezaj was credible.

4. The IJ’s Finding as to Elezaj’s Potential for Future Persecution or Torture was Supported by Substantial Evidence.

Despite ruling that the asylum petition was untimely, the IJ analyzed the evidence under the asylum rubric and

*361

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Related

Ceraj v. Mukasey
Sixth Circuit, 2007
Beshkenadze v. Gonzales
238 F. App'x 49 (Sixth Circuit, 2007)
Ramaj v. Gonzales
466 F.3d 520 (Sixth Circuit, 2006)

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Bluebook (online)
163 F. App'x 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elezaj-v-gonzales-ca6-2005.