Qafalijaj v. Ashcroft

107 F. App'x 614
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 24, 2004
DocketNos. 02-3954, 02-3955, 02-3956
StatusPublished
Cited by1 cases

This text of 107 F. App'x 614 (Qafalijaj 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
Qafalijaj v. Ashcroft, 107 F. App'x 614 (6th Cir. 2004).

Opinion

QUIST, District Judge.

Petitioners Luc Qafalijaj, Gjyste Qafalijaj, and Mírela Qafalijaj petition for review of a final order of removal issued by the Board of Immigration Appeals (BIA), which affirmed the Immigration Judge’s (IJ) denial of their requests for asylum. Petitioners claim that the BIA’s summary review of the IJ’s decision violated then-due process rights and, alternatively, that there is no substantial evidence to support the IJ’s denial of their asylum claim. For the reasons stated below, the petition is DENIED.

BACKGROUND

The members of the Qafalijaj family are natives and citizens of Albania. The husband, Luc Qafalijaj, and the wife, Gjyste Qafalijaj, entered the United States on August 29, 2000, as non-immigrant visitors for pleasure with authorization to remain for a period not beyond February 28, 2001. Their daughter, Mírela Qafalijaj, entered into the United States on or about January 7, 2000, without being admitted or paroled. The Immigration and Naturalization Service (INS) started removal proceedings on April 12, 2001, against Mírela as an alien in the United States without having been admitted or paroled and against Luc and Gjyste as being removable for having remained longer than permitted.

Lead petitioner Luc Qafalijaj (hereinafter, “Petitioner”) has applied for asylum. A spouse or child of someone who has been granted asylum may be granted the same status as that person. Petitioner contends that he should receive asylum because he suffered persecution at the hands of the regime due to his membership in and political activity on behalf of the Albanian Democratic Party and because he has a well-grounded fear that he would again be persecuted should he return to Albania. His claim that he suffered persecution based on his political opinions and activities turns on several allegations, including that he was placed in an internment camp by the former communist regime; he was later arrested and beaten by elements of the succeeding socialist regime because of his Democratic Party activism; his daughter was kidnaped and raped; and his bedroom was bombed. The IJ heard Petitioner’s and his daughter’s testimony and viewed Petitioner’s application documents and other forms of documentary evidence which Petitioner submitted in an effort to corroborate his testimony.

The IJ found Petitioner’s testimony not credible because it was internally inconsistent and contradicted Petitioner’s application documents and the documentary evidence. The IJ concluded that Petitioner failed to make the requisite showing of past persecution or a well-founded fear of future persecution. Consequently, the IJ held that Petitioner was not a refugee and denied his asylum application. Petitioner and his family were ordered removed from the United States. A BIA member summarily affirmed the IJ’s decision with a one-sentence opinion. Petitioner then filed the petition for review now before the court. He makes three arguments: (1) the BIA’s summary affirmance of the IJ’s decision without a separate opinion constitutes a failure to engage in meaningful review and thus violates the Fifth Amendment’s guarantee of due process rights; (2) the IJ and BIA disregarded and distorted substantial evidence supporting Pe[616]*616titioner’s asylum application; and (3) the IJ and BIA abused their discretion in denying Petitioner’s asylum claim and withholding the removal claim.

STANDARD OF REVIEW

The IJ, acting for the Attorney General,1 has discretion to grant asylum to any alien who qualifies as a “refugee.” 8 U.S.C. § 1158(a) & (b). The statute defines a refugee as an alien who is unable or unwilling to return to his home country “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). Even if the alien qualifies as a refugee, the IJ may, in his discretion, deny asylum. 8 U.S.C. § 1158(a) & (b). Thus, fielding a request for asylum “involves a two-step inquiry: (1) whether the applicant qualifies as a ‘refugee’ as defined in § 1101(a)(42)(A), and (2) whether the applicant merits a favorable exercise of discretion by the [IJ].” Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citation omitted).

At the first step, we review the IJ’s factual determination as to whether the alien qualifies as a refugee under the substantial evidence test.2 The IJ’s decision will be upheld unless, in view of the evidence presented, “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.1992) (a petition for review of an asylum rejection will be granted only if the evidence “not only supports a contrary conclusion, but indeed compels it”) (emphasis in original). Credibility determinations are findings of fact, falling within the [617]*617first step of determining whether an alien qualifies as a refugee and subject to review only for whether the IJ’s finding is supported by substantial evidence. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.2004) (citing Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003)). Regarding the second step of the asylum inquiry, the discretionary judgment to grant asylum to a refugee is “conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).

Under our deferential standard of review, we may not reverse the BIA’s determination simply because we would have decided the matter differently. Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir.2004) (citing Klawitter, 970 F.2d at 151-52). Where, as here, the BIA adopts the decision of the IJ in lieu of issuing its own opinion, we treat the IJ’s decision as the final agency decision and review it directly. Denko v. INS, 351 F.3d 717, 726 (6th Cir.2003). Our review is restricted to the contents of the administrative record. 8 U.S.C. § 1252(b)(4)(A).

DISCUSSION

A. Fifth Amendment — Due Process

Petitioner first argues that the procedures the IJ and BIA used to adjudicate this case violated his due process rights. Petitioner challenges on due process grounds the BIA’s practice of summarily affirming the decisions of IJs without rendering their own opinions, also known as the streamlining procedure. He argues that the practice of summary affirmance “is violative of both the spirit and the letter” of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (holding that due process requires a meaningful right to be heard), “does not appear to comport with our historical notions of due process,” and deprived him of meaningful review of the IJ’s decision.

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107 F. App'x 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/qafalijaj-v-ashcroft-ca6-2004.