Kalaj v. Gonzales

201 F. App'x 345
Procedural entryThis page is a short order in Kalaj v. Gonzales. Read the opinion of the Court — 137 F. App'x 851
Court of Appeals for the Sixth Circuit·Decided October 23, 2006·No. 05-3505·Unpublished

Opinion

RYAN, Circuit Judge.

The petitioners, Gjergj Kalaj, Roze Kalaj, Aurela Kalaj, Elvis Kalaj, and Jolanda Kalaj (Kalaj, et ah), appeal an order of the Board of Immigration Appeals (BIA) adopting and affirming an Immigration Judge’s (IJ) denial of their claim for asylum, withholding of removal, and protection under the Convention Against Torture. Because we find substantial evidence supports the IJ’s decision, we DENY Kalaj, et al.’s petition for review.

I.

Kalaj, et al. are citizens of Albania. Gjergj and Roze are husband and wife; the other petitioners are their children. They entered the United States as a group, gaining entry without inspection at Brownsville, Texas, on or about June 12, 2001. Kalaj, et al. were apprehended dur *347 ing their illegal entry, and the next day the Immigration and Naturalization Service (INS) served them with notices to appear at deportation hearings. Kalaj, et al. filed a petition for asylum, a claim for withholding of removal, and a claim for protection under the Convention Against Torture. Evidence was submitted in support of these claims.

Gjergj testified that he was a member and regional “secretary” of the Democratic Party in Albania and that as a result he and his family were persecuted. The first incident of persecution occurred on the 13th or 14th of September 1998, when he raised a caravan for the funeral of a prominent member of the Democratic Party who had been assassinated. Gjergj testified that two “shiks” or secret police threatened that he would “pay with [his] own life” if he continued in the funeral march and that he was “grabbed ... by the arm and pushed.” The funeral march soon descended into a riot during which shops were looted. A second incident occurred on March 20, 1999. Gjergj claims that on this date he gave a ten minute speech to a crowd of 120 people concerning the upcoming elections in 2000. Afterwards, he was detained by the police and a group of “gang members” who forced him to the ground and beat and kicked him.

Gjergj testified that a third incident occurred on June 13, 1999. He claims he was beaten up on this occasion when he and a group of other Christians were stopped on their way to church services and he was injured by “kicks, rubber sticks, beating, [and] kicking.” Lastly, Gjergj testified that on October 1, 2000, he was kicked and struck with the butt of a rifle during a “police” raid on a polling station. Gjergj was taken to a police station, where a doctor gave him two shots. He also claims to have been beaten twice at the station. After he was released, Gjergj went home and found that his wife had been “raped” while he was gone. He also testified that while he was gone his son was threatened with kidnaping if Gjergj continued his political activities. He claimed that his wife and son would verify these events, but, in the end, neither of them gave any testimony. The petitioners presented several unsworn affidavits from members of the Democratic Party in Albania, a medical affidavit from a doctor, and a newspaper article with the following headline: “The democrat Gjergj Kalaj, forced to leave his country!”

After reviewing the evidence, the IJ found that Gjergj’s testimony and the other evidence presented was not credible. As a result, he denied the petition for asylum, claim for withholding of removal, and claim for protection under the Convention Against Torture.

The IJ made several findings of fact. First, he found that neither of the 1999 incidents Gjergj mentioned during his testimony were included in his application for asylum and that he offered no plausible reason for their omission even after being questioned. In addition, the IJ noted that two signatures on separate documents purported to be that of “Fred Sterte” did not appear to match. A medical affidavit Gjergj submitted had the date changed from October 15, 2000, to October 1, 2000, and Gjergj could not account for who did this or when it was done. He could not explain what happened to the envelopes the documents from Albania were mailed in or even what color they were. The IJ further determined that other documentary evidence conflicted with Gjergj’s testimony. For instance, Gjergj claimed that he paid money to the association of the former politically persecuted and obtained a receipt before he came to the United States, but the receipt is dated April 4, 2002 — some months after Gjergj arrived in *348 the United States on June 12, 2001. Lastly, the IJ noted that Gjergj’s wife and son did not corroborate any of the persecution or threats they suffered individually even though they were available to testify, and Gjergj himself disclaimed any firsthand knowledge of the events. In addition to these findings regarding the evidence before him, the IJ also relied on the 2001 U.S. Department of State Profile of Asylum Claims and Country Conditions for Albania and the 2001 and 2002 U.S. Department of State Country Reports on Human Rights Practices, which stated that crime is still an issue in Albania, but that there are no indications that persecution on protected grounds is continuing.

Kalaj, et al. appealed the decision of the IJ to the BIA, but the BIA held that the IJ’s determination was correct and that his findings of fact were not “clearly erroneous.” Kalaj, et al. now appeal that decision to this court.

II.

“Because the BIA adopted the IJ’s reasoning with respect to [Kalaj, et alls] ... claims for asylum and withholding of removal, we review ... the IJ’s decision directly.” Singh v. Ashcroft, 898 F.3d 396, 401 (6th Cir.2005). The IJ’s legal conclusions are reviewed de novo, and the factual findings are reviewed for substantial evidence. Tapucu v. Gonzales, 399 F.3d 736, 738 (6th Cir.2005). We must uphold the IJ’s determination that an alien is not eligible for asylum when that decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks and citation omitted). We may reverse the IJ only if “a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id.

The Attorney General has discretion under the Immigration and Nationality Act (INA) to grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1)(A). The INA defines a “refugee” as an alien who is “unable or unwilling” to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An applicant for asylum must carry the burden of establishing that the “well-founded fear of persecution” is “both subjectively genuine and objectively reasonable.” Akhtar v. Gonzales, 406 F.3d 399

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Kalaj v. Gonzales, 201 F. App'x 345 (6th Cir. 2006).

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