Lacinaj v. Ashcroft

133 F. App'x 276
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 27, 2005
DocketNo. 03-4003
StatusPublished
Cited by1 cases

This text of 133 F. App'x 276 (Lacinaj v. Ashcroft) 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
Lacinaj v. Ashcroft, 133 F. App'x 276 (6th Cir. 2005).

Opinion

POLSTER, District Judge.

Petitioner Alfred Lacinaj, a citizen of Albania, seeks review of a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s decision to deny his claims for asylum and withholding of deportation under the Immigration and Nationality Act (“INA”) and relief under the Convention Against Torture (“CAT”). Lacinaj asserts that the Immigration Judge (“IJ”) erred when she found his testimony to be incredible and when she excluded certain hearsay testimony of Lacinaj’s employer. Because we conclude that the IJ’s adverse credibility determination was supported by substantial evidence, and her decision to exclude evidence did not violate due process, we AFFIRM the BIA’s decision and DENY Petitioner’s request for review.2

I.

Petitioner Alfred Lacinaj is an Albanian citizen who entered the United States on or about December 1, 1993, as a nonimmigrant visitor for pleasure with authorization to remain until June 1, 1994. In January 1994, Lacinaj, through counsel, filed an application for asylum wherein he asserted the following facts. Lacinaj fled from Albania to Yugoslavia in 1982 “because of the oppressive and dictatorial regime of the Communists and their persecution of the Catholic minority.” He lived in the part of Kosovo, Yugoslavia, where the Albanians lived and “became active in demonstrations against the Serbian government for its inhuman treatment of the Albanian Yugoslavian.” He was arrested in 1991 after participating in a pro-Albanian demonstration, detained overnight and warned not to participate in such demonstrations again. According to Lacinaj, he could not live in Albania “because I have nothing and I left it when I was persecuted as a Catholic minority in a Muslem [sic] majority and being anti Communist. I lived for the past 10 years in Yugoslavia and now I have been persecuted in Yugoslavia for my political activities and opinions.” When asked on the application what he thought would happen to him if he returned to his home country, he responded, “If I were to return to Yugoslavia, I would be arrested and detained in jail for my political views and opposition to the Serbian government which discriminates and persecutes Albanians who seek the independence of the [279]*279District of Kosova [sic].” When asked if he or any member of his family ever belonged to any political organizations or groups in his home country, Lacinaj responded only that he belonged to an informal secret organization in Kosovo which advocated independence of Albanians and staged demonstrations against the Serbian government. When asked if he or any member of his family had ever been mistreated or threatened by the authorities of his home country or a group controlled by the government, he responded, “I was arrested in 1991 for taking part in an anti[-]government demonstration and was arrested and detained for two days.”

Lacinaj was subsequently interviewed under oath by an asylum officer. During the interview, Lacinaj stated that he was not afraid to return to Albania, but that he did not want to go back because of his family’s experiences with the Albanian government. He stated that his father was jailed from 1980-1991 for his criticism of the Albanian government, and that his brother was killed by Albanian border guards in 1982 as he tried to flee the country. Lacinaj indicated that he returned to Albania in 1993 because of the mistreatment of Albanians in Yugoslavia and he wanted to see how Albania had changed. Lacinaj stated that he had no particular problems in Albania but that the family land had been confiscated, his mother was living with his sister and he couldn’t find a job. He said that being in Albania was hard because of all the things that happened to his family. The asylum officer found Lacinaj’s testimony to be sufficiently detailed and credible. However, he concluded that Lacinaj was not eligible for asylum because (1) the events Lacinaj described did not constitute past persecution, (2) the detention of Lacinaj’s father 15 years earlier did not warrant a grant of asylum to Lacinaj based on grounds of past persecution, (3) country conditions had changed to such an extent that Lacinaj no longer had a well-founded fear of future persecution, and (4) in any event, Lacinaj admitted that the government had done nothing to him personally and he did not fear returning to Albania.

Lacinaj remained in the United States beyond June 1, 1994 without authorization from the former Immigration and Naturalization Service (“INS”). In March 1996, the INS commenced removal proceedings against him. At a hearing in April 1996, Lacinaj admitted the factual allegations against him and conceded deportability. Rather than accepting an order of deportation, he filed a second application for asylum and withholding of deportation which mirrored the same assertions he made in his first asylum application.

At a merits hearing in February 1997, Lacinaj moved to withdraw his second application for asylum and withholding of deportation in exchange for a grant of voluntary departure. After ensuring that Lacinaj understood the consequences of such action,3 the IJ withdrew Lacinaj’s asylum application and granted him up to January 15, 1998 to depart voluntarily— with the warning that if he failed to depart in a timely manner, the grant of voluntary departure would be withdrawn without further notice and an order of deportation to Albania would be entered.

On February 13, 1998, Lacinaj, through new counsel, filed a motion to reopen his deportation proceedings based on ineffective assistance of his first counsel and changed country conditions in Albania. The IJ granted his motion, after which Lacinaj filed a third application for asy[280]*280lum. The third application, which contained assertions materially different from those in the first two applications, alleged the following facts. Lacinaj’s brother was murdered in September 1982 “due to political action,” and his father was imprisoned in Albania from 1979 to 1991 “due to his democratic views,” shortly after which he died. Lacinaj claimed that he was actively involved in “anti-government, anti-Communist” demonstrations in Albania in 1990, was arrested and beaten by police on December 13,1990 and detained until December 17, 1990. Unlike his previous two asylum applications, Lacinaj now claimed that he fled Albania for Yugoslavia in 1990, that he was imprisoned in a camp organized by Serbian forces and was treated inhumanely along with other inmates for thirty-three months. Lacinaj stated that the Serbian forces released him to the Albanian government in July 1993 but, “[d]ue to my involvement in anti-government activities, I still feared for my life so I fled to the United States.” Lacinaj asserted that he would be murdered if he returned to Albania.

In support of his third asylum application, Lacinaj submitted numerous documents including his previous asylum applications and a document entitled “Verification from the District Court of the City of Shkodra attesting to mistreatment of the family members of Mr. Lacinaj in Albania.” This last document, which began by reciting that it was prepared at Lacinaj’s request, stated among other things that Lacinaj fled Albania for Yugoslavia in 1982, and lived in Yugoslavia for eleven years before returning to Albania.

A merits hearing was held on March 5, 2001.

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