Mullai v. Ashcroft

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 27, 2004
• Docket: 02-4313
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Mullai v. Ashcroft No. 02-4313 ELECTRONIC CITATION: 2004 FED App. 0326P (6th Cir.) File Name: 04a0326p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COOK, Circuit Judge. Elma Mullai, a native and citizen of _________________ Albania, seeks review of a decision of the Board of Immigration Appeals affirming, without opinion, the order of ELMA MULLAI, X an immigration judge denying her request for asylum and Petitioner, - withholding of removal. Because substantial evidence - supports the IJ’s conclusion that Mullai neither suffered past - No. 02-4313 persecution nor has a well-founded fear of future persecution v. - in Albania, we deny Mullai’s petition for review. > , I JOHN ASHCROFT , Attorney - General; IMMIGRATION AND - Mullai, age fifty-two, was born and raised in Albania, the NATURALIZATION SERVICE, - daughter of a wealthy, Muslim family. After coming to Respondents. - power during the 1940s, the Communists confiscated her - family’s property and also arrested one of her uncles because N of his religious activities, sentencing him to seven years of On Appeal from the Board of Immigration Appeals. imprisonment. Another of Mullai’s uncles escaped arrest by No. A73 616 876. fleeing to the United States.

Submitted: August 6, 2004 According to Mullai, the Communist government targeted her for persecution on at least five occasions. In April 1989, Decided and Filed: September 27, 2004 after she criticized the president of Albania in a private conversation, the secret police detained her in jail for one Before: KENNEDY, SUTTON, and COOK, Circuit week, forbidding any contact with her family and repeatedly Judges. threatening her. She recounted to the IJ that on four separate occasions from December 1990 through December 1991, the _________________ Albanian police beat and kicked her during her participation in protests against the government. She explained the lack of COUNSEL medical records of treatment for the injuries sustained during the beatings by her decision not to seek medical treatment. ON BRIEF: Robert M. Birach, Detroit, Michigan, for Despite these experiences, Mullai received a college Petitioner. James A. Hunolt, Emily A. Radford, UNITED education under the Communist regime and held a chemical STATES DEPARTMENT OF JUSTICE, Washington, D.C., engineering position in a factory. for Respondent.

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Mullai alleges that after the Communist government 2002—twenty-four days after the voluntary-departure period collapsed in 1992, her persecution continued under the new expired. This court granted that motion. Democratic Party government. In November 1994, at a protest at which Mullai gave a speech, the police again beat II and kicked her. Then again two years later, after participating in a protest that she helped organize, the secret police Because the BIA affirmed the IJ’s decision without detained Mullai in jail for two days without food or water and opinion, we review the IJ’s decision as the final agency order, threatened her. Two days after being released, she lost her Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003), under the job. These events prompted Mullai to seek and obtain a visa “substantial evidence” standard. Under this deferential to visit the United States. But she did not leave Albania until standard of review, we uphold the IJ’s decision if it is a few months later, after the government—without apparent “‘supported by reasonable, substantial, and probative provocation—again took her into custody and deprived her of evidence on the record considered as a whole.’” Koliada v. food and water for two days. INS, 259 F.3d 482, 486 (6th Cir. 2001) (quoting INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992)). We are not entitled to Mullai entered the United States on October 2, 1996, with reverse “simply because [we are] convinced that [we] would authorization to remain for six months. Because she have decided the case differently.” Adhiyappa v. INS, 58 F.3d remained beyond the authorized six months, the INS served 261, 265 (6th Cir. 1995) (internal quotation marks omitted). her with a Notice to Appear in November 1997. Mullai then “Rather, in order to reverse the BIA’s factual determinations, applied for asylum, withholding of removal, and protection the reviewing court must find that the evidence not only under the United Nations Convention Against Torture, on the supports a contrary conclusion, but indeed compels it.” basis of past persecution due to her religion, membership in Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992) (citing a particular social group, and political opinion, and because Elias-Zacarias, 502 U.S. at 481). she feared future persecution in Albania. After a hearing, the IJ found that Mullai failed to demonstrate that she was A. Asylum entitled to asylum on the basis of her claims of religious and gender persecution. With respect to her allegations of Mullai bears the burden of establishing that she is a political persecution, the IJ concluded that Mullai had not “refugee” eligible for asylum either because she has suffered suffered past persecution and that even if she had, changed actual past persecution or because she has a well-founded fear country conditions rebutted the presumption of a well- of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. founded fear of future persecution. § 208.13(a); Elias-Zacarias, 502 U.S. at 481. If she demonstrates past persecution, she is entitled to a rebuttable The BIA summarily affirmed the IJ’s denial of Mullai’s presumption of a well-founded fear of future persecution. application for asylum, withholding of removal, and 8 C.F.R. § 208.13(b)(1). The government may overcome this protection under the Convention Against Torture, and granted presumption by establishing by a preponderance of the Mullai a thirty-day period for voluntary departure (ending evidence that there is “a fundamental change in circumstances November 25, 2002). Mullai now requests review of the such that [Mullai] no longer has a well-founded fear of denial of her application for asylum and withholding. She persecution in [her] country of nationality.” 8 C.F.R. also filed a motion for a stay of removal on December 18, § 208.13(b)(1)(i)(A). No. 02-4313 Mullai v. Ashcroft 5 6 Mullai v. Ashcroft No. 02-4313

Substantial evidence supports the IJ’s determination that and the Profile of Asylum Claims) and Mullai’s evidence Mullai did not experience past persecution. For one thing, her describe the type of general civil disorder and lawlessness to ability to obtain an advanced degree under the Communist which anyone living in Albania would be exposed. At worst, regime does not reconcile easily with her claim that the the record contains allegations of the Socialist government’s Communist government targeted her for persecution. For persecution of Democratic Party members—the party that another, her treatment by the Communist government could previously persecuted Mullai. be reasonably viewed as motivated by her status as a protester rather than religious persecution. With respect to the As to our review of the IJ’s conclusion that changes in Albanian Democratic Party’s treatment of Mullai, the country conditions trump any presumed well-founded fear, incidents Mullai alleges do not meet this circuit’s definition Mullai urges us to assess as unwarranted the weight the IJ of “persecution”—“more than a few isolated incidents of gave to United States Department of State reports in verbal harassment or intimidation, unaccompanied by any evaluating her fear of future persecution. But Mullai herself physical punishment, infliction of harm, or significant provided a number of the State Department reports on which deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, the IJ relied (including the Country Reports on Human Rights 390 (6th Cir. 1998). And although Mullai obtained a visa for 1997 and 1999). Although this circuit acknowledges that soon after her detainment in May 1996, she waited over three State Department reports may be problematic sources on months (until after she was again detained in September which to rely, Koliada, 259 F.3d at 487 (citing cases from the 1996) to leave Albania. Because we find no evidence in the First, Fourth, and Seventh Circuits), in other cases we adopt record compelling us to reverse the IJ’s conclusion that the view that such reports “are generally the best source of Mullai did not suffer past persecution, we uphold the IJ’s information on conditions in foreign nations.” Kokaj v. decision that Mullai failed to demonstrate past persecution Ashcroft, 100 Fed. Appx. 506, 508 (6th Cir. 2004). And we severe enough to merit a grant of asylum on humanitarian have relied on State Department reports when reviewing an grounds. See In re Chen, 20 I. & N. Dec. 16 (BIA 1989) IJ’s decision. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 639 (holding that petitioner, who with his family members (6th Cir. 2004). Thus, the IJ’s reliance on these reports is suffered persistent and severe persecution throughout the supportable. Cultural Revolution as a result of their religious beliefs, was entitled to asylum on humanitarian grounds). B. Withholding of Removal

Substantial evidence also supports the IJ’s determination Mullai also seeks review of the IJ’s denial of withholding that even if Mullai suffered past persecution, changed country of removal. To obtain such relief, she must show by a “clear conditions rebut the presumption of a well-founded fear of probability” that her life or freedom would be threatened on future persecution in Albania. Although Mullai alleged account of her race, religion, nationality, membership in a persecution by the Communist and Democratic Party particular social group, or political opinion. INS v. Stevic, governments, she has not demonstrated that the current 467 U.S. 407, 429-30 (1987); Mikhailevitch, 146 F.3d at 391. government controlled by the Socialist Party would target her Because the lesser standard for establishing asylum eligibility for persecution. See Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir. eludes Mullai, we conclude that she cannot meet the more 1996); Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986). As stringent requirements for withholding of removal. INS v. the IJ noted, both the United States Department of State Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); Castellano- reports (the Country Reports on Human Rights for Albania Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (“[A] No. 02-4313 Mullai v. Ashcroft 7 8 Mullai v. Ashcroft No. 02-4313

greater quantum of proof is required as to the likelihood of Though jurisdictional questions abound among the circuit persecution in the country of risk in order to establish courts concerning voluntary- departure decisions, we answer eligibility for withholding.”). here only the question of whether a court may reinstate voluntary departure where the voluntary-departure period C. Voluntary Departure granted by the BIA expires before petitioner seeks either a stay of removal or a stay of voluntary departure. Having concluded that substantial evidence supports the IJ’s denial of asylum, we next address Mullai’s alternative Mullai never moved to stay the time for voluntary request that the court reinstate the BIA’s grant of a thirty-day departure, and she only moved to stay removal after the period for voluntary departure. Because we lack the authority expiration of the voluntary-departure period. As a result, the to grant Mullia’s request, we deny it. period for voluntary departure authorized by the Attorney General expired. Any judicial order to “reinstate” at this time The relief of voluntary departure is governed by § 240B of would necessarily authorize a new opportunity to voluntarily the Immigration and Nationality Act, 8 U.S.C. § 1229c, depart, a function assigned to the Attorney General’s office providing that “[t]he Attorney General may permit an alien by 8 U.S.C. § 1229c and denied to the courts by 8 U.S.C. voluntarily to depart the United States at the alien’s own § 1229c(f) and § 1252(a)(2)(B)(i). Our application of the expense” (thereby avoiding the usual consequences of statutes today is consistent with the development of this issue deportation) if the alien is not otherwise disqualified. in the majority of circuit courts that have considered it after Voluntary departure thus is typically granted by the the passage of the IIRIRA. See, e.g., Reynoso-Lopez v. immigration judge to qualifying aliens in tandem with the Ashcroft, 369 F.3d 275, 282 (3d Cir. 2004) (collecting denial of the more favorable relief of asylum, withholding of authorities that hold that courts do not have jurisdiction to departure, or the like. If the alien appeals a decision of the reinstate or extend a voluntary-departure order). immigration judge to the Board of Immigration Appeals and the Board affirms, it too may grant a period of voluntary This lack of a pre-expiration motion to stay disqualifies departure. Mullai from benefitting from our decision in Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003). Nwakanma The Illegal Immigration Reform and Immigrant relied on a court’s injunctive power to stay pending matters Responsibility Act of 1996 (IIRIRA) includes provisions that and thereby avoided colliding with the IIRIRA constraints on preclude judicial review of the grant or denial of voluntary courts’ jurisdiction: “[I]n granting a stay of voluntary departure. The statute provides: “No court shall have departure, we do not pass on the substance of the decision to jurisdiction over an appeal from denial of a request for an grant voluntary departure; we only stay the immediate order of voluntary departure under subsection (b) of this effectiveness of the relief already granted by respondent in his section, nor shall any court order a stay of an alien’s removal discretion, to allow the petitioner to receive appellate review.” pending consideration of any claim with respect to voluntary Id. departure.” 8 U.S.C. § 1229c(f). Additionally, 8 U.S.C. § 1252(a)(2)(B)(i) provides that “no court shall have In Mullai’s case, due to the absence of a stay, the jurisdiction to review . . . any judgment regarding the granting discretionary relief granted by respondent Ashcroft expired by of relief under . . . [8 U.S.C.] section 1229c [voluntary its own terms. Thus a decision at this time to reinstate would departure] . . . .” No. 02-4313 Mullai v. Ashcroft 9

pass on the substance of the decision to grant voluntary departure rather than staying its effectiveness. III We accordingly deny Mullai’s petition for review and deny her request to reinstate the expired voluntary-departure period.