Pepaj v. Mukasey

307 F. App'x 891
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 21, 2009
Docket06-3491, 07-3130
StatusUnpublished
Cited by6 cases

This text of 307 F. App'x 891 (Pepaj v. Mukasey) 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
Pepaj v. Mukasey, 307 F. App'x 891 (6th Cir. 2009).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioners Leke Pepaj (“Leke”) and Justina Pepaj (“Justina”) (referred to jointly as “the Pepajs”) seek review of the Board of Immigration Appeals’ (“BIA”) order affirming the immigration judge’s (“IJ”) denial of their applications for asylum and withholding of removal. The Pepajs argue that (1) the IJ was biased, which violated the Pepajs’ due-process rights, (2) the BIA deprived the Pepajs of their due-process rights by not adequately explaining its decision and by taking administrative notice of certain facts, (8) the BIA abused its discretion by dismissing the Pepajs’ appeal of the IJ’s denial of the Pepajs’ application for asylum and withholding of removal, and (4) the BIA abused its discretion in denying the Pepaj s’ motion to reopen. For the reasons explained below, we DENY the petition for review.

I. FACTS AND PROCEDURE 1

The Pepajs are Albanian citizens. Leke was born on March 8, 1957, in Albania. Leke married his fellow Albanian, Justina, on August 21, 1990, and the couple has one son. Leke arrived in the United States without a valid visa on or about April 3, 2001. Shortly thereafter, on September 13, 2001, Leke filed an administrative application with the former Immigration and Naturalization Service (“INS”) 2 for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), which was referred to the IJ. Leke was charged with being subject to removal pursuant to 8 U.S.C. § 1227(a)(1)(A) on April 6, 2002. On April 16, 2002, Leke conceded removability before the IJ.

Justina left Albania on February 5, 2003, and landed at Chicago’s O’Hare International Airport on February 6, 2003. Justina had a passport issued in another per *893 son’s name and was charged with being subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), (7)(A)(i)(I), on February 19, 2003. While Justina was at O’Hare, an INS officer interviewed her. During this interview, Justina stated that she was coming to the United States “to be with [her] husband” because she did not “want to be by [her]self.” Joint Appendix (“J.A.”) at 84 (Justina’s Sworn Stmt, at 4). Justina also stated that she was not afraid to return to Albania, but that she did not want to return “[b]ecause life over there is very sad and [she didn’t] want to live there anymore.” J.A. at 86 (Justina’s Sworn Stmt, at 6). Justina submitted an application for asylum, withholding of removal, and CAT protection, basing her application on Leke’s claims. The application was referred to an IJ, Justina’s venue was changed from Chicago to Detroit, and Justina’s and Leke’s cases were consolidated. Subsequently, Justina appeared before the IJ and conceded removability.

On June 28, 2004, the IJ held the merits hearing. The Pepajs testified and presented several pieces of documentary evidence. According to the evidence, Leke and his family faced problems in Albania for more than 50 years due to their opposition to the Communist government that ruled Albania until 1992. When one of Leke’s brothers was 16 years old, he was imprisoned for political reasons for five years, from 1966 to 1971. 3 Further, according to Leke’s written statement, when Leke was in eighth grade, he was “singled out as [an] enemy of the communist party” for an essay he wrote in which Leke “explained [his] opinion [on what he] thought was right.” J.A. at 107 (Leke Asylum App. at 21). Because of this essay, “[t]he party secretary and the police interrogated and beat” Leke, and Leke was not allowed to continue with his education past the eighth grade. Id. When asked about the topic of the essay during his hearing testimony, Leke explained that the essay was about “spring in our life, spring in our hearts” and what Leke thought about those issues. J.A. at 121 (Hr’g Tr. at 50). Leke testified that he “wrote for the dream in [his] heart about this thesis because [he] was suffering, [he] was deprived of [his] rights.” Id. Leke also acknowledged that this was “the biggest thing that happened to” Leke and that, because of the essay, he was called in front of his entire village and “pointed out as an enemy to the State.” Id. However, during his testimony, Leke did not mention being beaten as a result of writing the essay until directly asked about this omission on cross-examination. When given the opportunity to explain the omission, Leke stated that “it has been always a hard thing to mention what happened to me.” J.A. at 152-53 (Hr’g Tr. at 101-02).

Leke further testified that he became involved in the Democratic Party in 1990. He recounted the various positions he held in the Democratic Party over the years, as well as his many encounters with the police and other persons associated with the Communist and Socialist parties. During many of these encounters, Leke claimed that he was “beaten” and “offended,” but he did not detail exactly how he was beaten and offended. J.A. at 127-33 (Hr’g Tr. at 70-76). Leke had previously mentioned these events in his written statement; however, Leke did not testify at the hearing about all of the events detailed in his statement. Leke also did not mention during his testimony or in his written statement any negative actions taken against him from 1992-1997, when the Democratic Party was in power in Albania.

Leke did provide some details regarding a police raid of his house at midnight on October 16, 2000, following an election. *894 He testified that the police searched his home and “violated me, [and] attacked [Justina] as well. They throw away my son and afterwards I was taken into police station.” J.A. at 133 (Hr’g Tr. at 76). Leke further explained that the police “push[ed his] son.” Id. In Leke’s written statement, however, Leke stated only that the police “tortured and interrogated” Leke at the police station; he made no mention of the police harming Justina or his son. J.A. at 110 (Leke Asylum App. at 24).

Leke also testified that, due to his political activities, he received repeated verbal threats “about kidnaping [his] wife and [his] son.” J.A. at 132, 134-35, (Hr’g Tr. at 75, 77-78). These threats continued until at least February 16, 2001, when Leke “took the steps to protect [him]self and [his] family” by moving the family to Montenegro. J.A. at 137 (Hr’g Tr. at 80). Leke made no mention of written threats. Leke also claimed that his life was threatened on February 4, 2001, when bullets were shot over Leke’s head, followed by a phone call stating that the next shots would be fired “on [Leke].” J.A. at 135 (Hr’g Tr. at 78).

According to Leke’s testimony, he and the family went back and forth several times between Albania and Montenegro before he left for the United States. Even though Leke was in Montenegro at the time he made preparations to leave for the United States, Leke returned to Albania and left from that country for the United States on April 3, 2001.

Justina also testified at the hearing.

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307 F. App'x 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pepaj-v-mukasey-ca6-2009.