Shllaku v. Gonzales

139 F. App'x 700
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 2, 2005
Docket04-3679
StatusUnpublished
Cited by6 cases

This text of 139 F. App'x 700 (Shllaku 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
Shllaku v. Gonzales, 139 F. App'x 700 (6th Cir. 2005).

Opinion

COOK, Circuit Judge.

Petitioners, all Albanian citizens, concede their removability from the United States, but challenge the denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture. They also challenge an Immigration Judge’s finding that their application was frivolous, and the Board of Immigration Appeals’s affirmance of the *701 IJ without opinion. For the following reasons, we affirm the BIA and deny the petition.

I

Petitioners Alfred and Ardiana Shllaku are the parents of petitioners Klaudia and Paul Shllaku. Ardiana and Klaudia Shllaku entered the United States using false passports in 1998. The INS initiated removal proceedings against them in Michigan. Mrs. Shllaku conceded her removability and applied for asylum, withholding of removal, and CAT protection.

Alfred and Paul Shllaku entered the United States without being admitted or paroled by an immigration officer. The INS initiated removal proceedings against them in New York, and Mr. Shllaku conceded removability and applied for asylum, withholding of removal, and CAT protection.

A New York Immigration Judge then consolidated the Michigan and New York cases, and transferred the consolidated case to Michigan. There, the IJ heard testimony from Mr. Shllaku and another witness, Loc Gilaj. In 2002, Mrs. Shllaku withdrew her application, choosing to rely only upon her husband’s application. But the IJ, with Petitioners’ approval, considered her application as evidence supporting Mr. Shllaku’s application.

The IJ ultimately denied the application, finding Mr. Shllaku’s testimony incredible, and both Mr. and Mrs. Shllaku’s applications frivolous. Petitioners appealed to the BIA, which affirmed the IJ without opinion. They then petitioned this court for review, challenging the IJ’s findings that Mr. Shllaku was not credible and that Mr. and Mrs. Shllaku submitted frivolous applications, and the BIA’s affirmance without opinion.

II

A. The Credibility Finding

Petitioners first challenge the IJ’s finding that Mr. Shllaku’s testimony of past persecution was incredible. We review an IJ’s credibility determination for substantial evidence. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Specific reasons going to the heart of the applicant’s claim must support an adverse credibility finding. Id. at 926. These reasons may include affirmative inconsistencies in, or omissions from, an applicant’s testimony, application, or both. Liti v. Gonzales, 411 F.3d 631, 635 (6th Cir.2005).

Here, the IJ based his adverse credibility finding on several inconsistencies going to the heart of Mr. Shllaku’s claim.

1. Inconsistency Regarding 1991 Events

Mr. Shllaku testified that he participated in a political demonstration on April 2, 1991, and was arrested the following day. His application, however, says nothing about an April 1991 arrest. Asked to explain its absence from the application, Shllaku claimed he “wrote his application briefly” so he could explain more fully in his testimony.

The IJ was not obliged to accept this rather implausible explanation. It would be one thing to omit minor details in an application, or to simply provide a general summary of past persecution — but it is quite another to provide a rather detailed chronology, as Shllaku’s application did, that omits one of the most significant events supporting one’s claim. Cf. Liti, at 635 (omission of details from testimony was “insubstantial” and could not support incredibility finding, given that the application only gave general summary and gave no specific details of any events). This inconsistency goes to the heart of Mr. *702 Shllaku’s past-persecution claim, and thus supports an adverse credibility finding.

2. Inconsistency Regarding 1997 Events

Mr. Shllaku testified that he was arrested two days after participating in a July 3, 1997, demonstration, and sentenced to sixty days in prison, where he suffered beatings and daily torture. His application, however, mentions the arrest but says nothing about beatings or torture in prison — which would have been, by far, the worst persecution he suffered. This inconsistency goes to the heart of Mr. Shllaku’s past-persecution claim, and thus supports an adverse credibility finding.

Also, Mrs. Shllaku’s application — which Mr. Shllaku submitted for consideration as part of his own application — states that Mr. Shllaku was arrested at the demonstration on July 3, rather than two days later. Asked to explain this inconsistency, Mr. Shllaku responded incomprehensibly, casting further doubt on his credibility. See Guang Run Yu v. Ashcroft, 364 F.3d 700, 704 (6th Cir.2004) (minor date discrepancies may buttress an adverse credibility finding where more significant inconsistencies also support the finding).

3. Inconsistency Regarding 1998 Events

Mr. Shllaku testified that police came to his home on February 2, 1998, and beat him in front of his screaming wife and children. He testified that he was arrested on February 4, 1998, then held for ten days. His application, however, states that the arrest occurred on February 11. More importantly, his wife’s application adds the detail — which, if true, he would not have omitted from his testimony and application — that during the beating, both she and her husband were beaten unconscious. This creates another inconsistency going to the heart of Mr. Shllaku’s claim, and thus supports an adverse credibility finding.

Together, these inconsistencies provide substantial evidence of Shllaku’s incredibility and thus his ineligibility for asylum, withholding of removal, or CAT protection. Shllaku points to nothing in the record compelling a contrary conclusion. We therefore affirm the denial of his application.

B. The Frivolity Finding

Mr. and Mrs. Shllaku also challenge the IJ’s finding that their applications were frivolous because they submitted false documents to support them.

If an IJ declares a petitioner’s application frivolous, the alien becomes permanently ineligible for immigration benefits, but not withholding of removal. 8 U.S.C. § 1158(d)(6); 8 C.F.R. § 208.20. An application is frivolous if “any of its material elements is deliberately fabricated.” 8 C.F.R. § 208.20.

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Bluebook (online)
139 F. App'x 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shllaku-v-gonzales-ca6-2005.