Linadi v. Gonzales

167 F. App'x 515
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 14, 2006
Docket04-4507
StatusUnpublished
Cited by4 cases

This text of 167 F. App'x 515 (Linadi 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
Linadi v. Gonzales, 167 F. App'x 515 (6th Cir. 2006).

Opinion

JULIA SMITH GIBBONS, Circuit Judge.

Tereze Linadi, a native and citizen of Albania, appeals the denial of her claim for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. Linadi applied for asylum on the basis of political persecution, claiming that as a member of the Democratic Party of Albania she had been beaten or attacked by political opponents on five separate occasions. The Immigration Judge (“IJ”) found that Linadi was not a credible witness and denied her application. The Board of Immigration Appeals (“BIA”) affirmed in a short opinion. Linadi appeals to this court on two grounds.

First, Linadi claims that the BIA’s streamlined review process — specifically, single-judge review, the clearly erroneous standard for reviewing factual findings and the issuance of a summary affirmance— violated her constitutional right to due process. 1 It should first be noted that an administrative appeal to the BIA is provided by statute, not by the Constitution. See Denko v. INS, 351 F.3d 717, 729 (6th Cir.2003) (citing Guentchev v. INS, 77 F.3d 1036, 1038 (7th Cir.1996)); see also Albathani v. INS, 318 F.3d 365, 376 (1st Cir.2003) (“An alien has no constitutional right to any administrative appeal at all.”); Zhang v. U.S. Dept. of Justice, 362 F.3d 155, 157 (2d Cir.2004) (same). Relying on this reasoning, this court has previously held that the streamlined procedures of the BIA do not violate due process. Denko, 351 F.3d at 729-30. This conclusion aligns with that of every other circuit to consider this issue. See Demirzhiu v. Ashcroft, 96 Fed.Appx. 263, 266 n. 3 (6th Cir.2004) (collecting cases). For the reasons outlined in Denko, we find no violation of Linadi’s right to due process in the case at hand.

Linadi also purports to argue that the IJ’s findings are not supported by substantial evidence. The IJ based his adverse ruling on a finding that Linadi was not a credible witness. Credibility determinations are considered findings of fact and are reviewed under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.2004). The substantial evidence standard is deferential, and the decision must be upheld if it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered *517 as a whole/ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). This court must affirm the IJ’s determination unless “the evidence not only supports a contrary conclusion, but indeed compels it.” Csekinek v. INS, 391 F.3d 819, 821-22 (6th Cir.2004) (internal quotation marks and citation omitted). The credibility determination “must be supported by specific reasons,” and “[a]n adverse credibility finding must be based on issues that go to the heart of the applicant’s claim.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir.2004).

The evidence in this ease strongly supports the IJ’s determination that Linadi lacks credibility. Linadi produced little evidence to corroborate the alleged incidents of political persecution, and her testimony contained a number of discrepancies that go to the very heart of her claim for asylum. The affidavit describing a 1990 incident refers only to attendance at a rally and mentions nothing that could be construed as political persecution. Despite Linadi’s claims that she was beaten by police at the rally, her witness makes no reference to any attack or beating. He states only that Linadi was with him and participated in the demonstration. The only evidence of a 1998 incident is a statement from a supposed doctor — also named Linadi — that refers to a “wound in the hand.” The affiant admits to not knowing whether an attack took place, but stated that “[biased on her words, they were wounds from being beaten.” By producing this statement and testifying that she saw a doctor, Linadi directly contradicted her application for asylum, in which she stated that she did not seek medical treatment after the 1998 attack. This statement is the only evidence of any physical injury suffered by Linadi, despite her claims of being beaten three times and raped once. An alleged incident in 1999 is corroborated only by a friend’s statement that she “heard screams” and “was told” that Linadi had been attacked. The friend did not witness the attack. Although supposedly an eye-witness, Linadi’s mother-in-law did not produce a statement or testify at the hearing.

Even had these witness statements produced better evidence of political persecution, they were unauthenticated and unverified. Although referred to as affidavits, the statements were not sworn, dated or notarized, raising severe doubts as to their authenticity. Moreover, Linadi produced no witnesses to verify her claims, despite the fact that at least two lived in the city in which the hearing was held.

Linadi further testified that she went into hiding at her brother’s house to escape the government. While in hiding, she claimed to have crossed the border into Montenegro to visit an aunt. When asked why she would risk detection from border officials, Linadi first said she had bypassed border control. Only after the IJ pointed out the exit stamps on her passport did Linadi testify that she did in fact encounter officials at the border. Linadi also claimed to have been attacked a final time while in hiding. The only evidence of this incident is a statement from an Albanian cousin describing an attempted attack. This statement suffers from the same authenticity problems as the others, and Linadi could not even decide how she had obtained it. After first testifying that the original hand-written statement was mailed to her in a specific envelope, it was proven that the piece of paper, which had never been creased, could not have fit inside the envelope without being folded. Only then did Linadi remember that the statement arrived in a larger envelope. She also claimed that the larger envelope contained the smaller envelope, even though the smaller envelope was postmarked. When Linadi produced the larg *518 er envelope for the IJ, he noted that it had been mailed from Greece (not Albania) and had coincidentally been ripped in the two places where the date of mailing would normally appear.

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167 F. App'x 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linadi-v-gonzales-ca6-2006.