Sami Shima v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 2018
• Docket: 15-71411
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

SAMI SHIMA, No. 15-71411

Petitioner, Agency No. A206-263-026

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 14, 2018 San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and SESSIONS,** District Judge.

Sami Shima (“Shima”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Shima bases his applications on his testimony that he had problems with a

member of the Albanian mafia named Sokol Daiko. Shima’s testimony explained

the nature of the problems to be predominately related to money Shima paid Daiko

for fraudulent United States visas that were never delivered to Shima. However,

Shima also explained that there were political undertones to the situation. Shima

supported the Socialist Party in Albania and Daiko supported the Democratic

Party.

The BIA agreed with the IJ’s denials of Shima’s applications and dismissed

his appeal. The BIA upheld the denial of Shima’s asylum application because

Shima was firmly resettled in Greece. Shima lived in Greece from approximately

1997 to 2011 and has a Greek permanent resident card that is valid until June 30,

2018. The BIA upheld the denial of Shima’s withholding of removal and CAT

protection applications because there was no clear error in the IJ’s adverse

credibility determination. The BIA noted that Shima was unable to explain why

Daiko would search for him in other countries when it was Daiko who owed Shima

money. The BIA also explained that Shima’s claims of fear were undercut by his

return to Albania multiple times following the alleged persecution.

In his petition for review, Shima contends that substantial evidence does not

support the findings of the IJ and the BIA (collectively, the “agency”) that he was

firmly resettled in Greece and that he was not credible.

2 15-71411 1. Aliens are not eligible for asylum if they have “firmly resettled in another

country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi). An

alien is firmly resettled if he “entered into another country with, or while in that

country received, an offer of permanent resident status, citizenship, or some other

type of permanent resettlement.” 8 C.F.R. § 1208.15. The Department of

Homeland Security (“DHS”) bears the initial burden of showing “an offer of

permanent resident status, citizenship, or some other type of permanent

resettlement.” Maharaj v. Gonzales, 450 F.3d 961, 973 (9th Cir. 2006) (en banc)

(quoting 8 C.F.R. § 208.15). The burden then shifts to the applicant to rebut it. Id.

“A finding of ‘firm resettlement’ is a factual determination that [this Court]

review[s] under the deferential substantial evidence standard.” Id. at 967.

Substantial evidence supports the agency’s determination that Shima was

firmly resettled in Greece prior to coming to the United States. When Shima came

to the United States in 2014, he had a current offer to live in Greece for four more

years. An offer of permanent residence in a third country is sufficient to establish

firm resettlement even if the asylum applicant did not accept the offer. See Vang v.

INS, 146 F.3d 1114, 1117 (9th Cir. 1998). Thus, DHS carried its initial burden

when Shima admitted he had a Greek permanent resident visa and by having

Shima’s passport containing the Greek permanent resident visa entered into the

record. Shima did not meet his burden of rebuttal. Shima initially argued that his

permanent status was not actually valid because he had left Greece to live in

3 15-71411 Albania from 2011 to 2013; however, he later admitted that he entered Greece

using his permanent resident status in February 2014 to sell his car. Shima also

argued that he is not safe from Daiko in Greece. The BIA did not discuss this

argument, but Shima’s lack of credibility and the fact that he spent an entire month

in Greece following his alleged issues with Daiko make this unbelievable. Thus,

substantial evidence supports the agency’s firm resettlement finding, and Shima is

therefore ineligible for asylum.

2. “Under the REAL ID Act, there is no presumption that an applicant for

relief is credible, and the IJ is authorized to base an adverse credibility

determination on ‘the totality of the circumstances’ and ‘all relevant factors.’”

Ling Huang v. Holder, 744 F.3d 1149, 1152–53 (9th Cir. 2014) (quoting 8 U.S.C.

§ 1158(b)(1)(B)(iii)). This Court “review[s] factual findings, including adverse

credibility determinations, for substantial evidence.” Yali Wang v. Sessions, 861

F.3d 1003, 1007 (9th Cir. 2017) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th

Cir. 2014)). The agency’s “findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B).

The agency’s adverse credibility determination is supported by substantial

evidence. Shima has not put forth a plausible explanation for why Daiko would

pursue him all across Europe when it is Daiko who owes Shima money. Further,

Shima returned to Albania multiple times after his problems with Daiko began. An

4 15-71411 applicant’s “return to the country in which he or she fears persecution may

undercut the [applicant’s] claim that his or her fear is objectively well-founded.”

Karouni v. Gonzales, 399 F.3d 1163, 1175 (9th Cir. 2005). Thus, the agency’s

determination that Shima was not credible is supported by substantial evidence.

The agency correctly reasoned that the adverse credibility determination

should result in denials of Shima’s applications for withholding of removal and

CAT protection. To qualify for withholding of removal based on a clear

probability of future persecution, an applicant must “establish by objective

evidence that it is more likely than not that [the applicant] will be subject to

persecution upon deportation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 430

(1987); see also 8 C.F.R. § 1208.16(b)(2)–(3). The agency correctly found that

Shima’s persecution claim lacks veracity, and he therefore cannot satisfy the

burdens of proof and persuasion necessary to establish eligibility for withholding

of removal. Similarly, Shima is unable to establish eligibility for CAT protection

given the adverse credibility determination and the lack of independent supporting

evidence. See 8 C.F.R. § 1208.16(c)(2); Shrestha v. Holder, 590 F.3d 1034, 1048–

49 (9th Cir. 2010) (affirming denial of CAT relief based on adverse credibility

determination and lack of additional supporting evidence).

For the foregoing reasons, Shima’s petition for review of the BIA’s decision

is DENIED.

5 15-71411 FILED Shima v. Sessions, Case No. 15-71411 MAR 01 2018 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.