Xhamixhi v. Gonzales

188 F. App'x 472
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 5, 2006
Docket05-3952
StatusUnpublished
Cited by5 cases

This text of 188 F. App'x 472 (Xhamixhi 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
Xhamixhi v. Gonzales, 188 F. App'x 472 (6th Cir. 2006).

Opinion

ROGERS, Circuit Judge.

Blendi Xhamxhi petitions the court to review the order of the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of Xhamxhi’s application for asylum. Xhamxhi, a native Albanian and member of the Albanian Democratic Party, applied for asylum based on his claim of political persecution. The IJ denied the application after finding Xhamxhi not to be credible because Xhamxhi’s hearing testimony contradicted his application, and the BIA affirmed. Xhamxhi now appeals, arguing that substantial evidence does not support the BIA’s adverse credibility determination. For the following reasons, we deny the petition for review.

Xhamxhi arrived in the United States in June 2001 after traveling from Albania through Italy, Belgium, Spain, and the Netherlands. Upon his arrival in the United States, Xhamxhi was interviewed by an officer of the Immigration and Naturalization Service and referred to the immigration court. Xhamxhi thereafter filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. In his asylum application, Xhamxhi asserted that he and his family had suffered persecution as a result of their membership in the Albanian Democratic Party. Xhamxhi explained that his father was a founding member of the Democratic Party in his village and that Xhamxhi himself joined the youth forum of the Democratic Party in 1994 and performed propaganda work. In 1997, members of the Socialist Party won control of the government and began persecuting those affiliated with the Democratic Party.

Xhamxhi alleged in his application that he and members of his family were beaten, threatened, and arrested by police on several occasions and that supporters of the Socialist Party harassed them. Xhamxhi’s application describes several incidents of alleged persecution. In June 1997, Xhamxhi’s father was stopped by police officers and beaten while returning from a Democratic Party gathering and, in June 2000, Xhamxhi’s father was attacked by masked men while working on his farm. In September 2000, four armed supporters of the Socialist Party appeared at Xhamxhi’s house and threatened him and his mother with harm if they voted for the Democratic Party. On September 26, 2000, while Xhamxhi and two friends were posting flyers, four men—two masked officers and two men in suits—threatened and beat them. As a result, Xhamxhi spent seven days in bed and missed “one of the votes.” In October 2000, officers stopped, threatened, and hit Xhamxhi while he was protesting against allegedly manipulated elections. On December 10, 2000, Xhamxhi, his uncle, and others were stopped by masked officers after participating in a Democratic Party rally and Xhamxhi was taken to the police station, beaten, and held for two days without food. In late December 2000, Xhamxhi and his friends were “jumped” by masked officers, beaten, and held for one day. In February 2001, *474 Xhamxhi became a Ml member of the Democratic Party, and two officers appeared at Xhamxhi’s house and told his mother that the police chief wanted to question Xhamxhi regarding his anti-government activities. The officers told Xhamxhi’s mother to tell Xhamxhi to go to the police station. Xhamxhi’s mother later recounted the officers’ visit to Xhamxhi and told him that he had to leave the country. Xhamxhi left Albania in March 2001. Xhamxhi asserts that, if he is forced to return to Albania, he will be arrested and possibly killed.

The IJ conducted a hearing regarding Xhamxhi’s asylum application in January 2003. Xhamxhi testified through an interpreter. After Xhamxhi testified, the IJ excluded some evidence for lack of foundation because the evidence, consisting of letters from family and friends verifying Xhamxhi’s story, had been submitted unaccompanied by envelopes or an explanation as to how Xhamxhi acquired them. The IJ then denied Xhamxhi’s application, finding that it was “deliberately fabricated” and thus frivolous. The IJ denied Xhamxhi’s application because she found Xhamxhi not to be credible. In particular, the IJ found that Xhamxhi’s testimony conflicted with his asylum application and that he omitted events in both his application and when testifying. First, Xhamxhi stated in his application that the incident on September 26, 2000, involved four attackers—two dressed as police officers and two as civilians—but he testified later that there were only three attackers, all wearing police clothing. The IJ noted that, on cross-examination, Xhamxhi failed to offer any explanation for this inconsistency. Second, Xhamxhi failed to mention at the hearing that he first suffered persecution in early September 2000, when members of the Socialist Party appeared at his house and threatened him and his mother. Although Xhamxhi stated on cross that he did not mention the incident because he was asked only when he had first been beaten, the IJ noted that counsel had asked Xhamxhi about the first incident without further qualification. Third, Xhamxhi failed to mention the October 2000 incident at the hearing. Finally, Xhamxhi testified that he and his friends were beaten at a rally in February 2001, but this incident was not mentioned in his asylum application. Xhamxhi later explained that he had in fact been speaking of the October 2000 incident.

In addition, the IJ noted several other inconsistencies that, “while not central to the asylum claim,” were “particularly troubling.” First, Xhamxhi testified that he had obtained his passport from his parents by mail but later stated that he had obtained it from his cousin. Second, a statement from Xhamxhi’s father (a statement the IJ excluded) concerning the February 2001 incident failed to mention that officers had told Xhamxhi’s mother that the chief of police wanted Xhamxhi for questioning. Third, Xhamxhi’s testimony was inconsistent regarding whether it was his uncle or his cousin that lived in the United States, although Xhamxhi later explained that it was his father’s cousin whom he called his “uncle.” Fourth, according to the IJ, Xhamxhi stated in his application that his father was one of the founders of the Democratic Party in his village, but Xhamxhi later described his father’s activities at the hearing as only helping out and doing propaganda. Fifth, Xhamxhi did not testify regarding the persecution of his father. Sixth, the IJ found Xhamxhi’s testimony inconsistent with the State Department’s report and profile of Albania because, among other things, the report and profile noted that there were “few instances” of political persecution in Albania in 2001.

*475 Finally, the IJ made two additional findings supporting her denial of asylum. First, Xhamxhi “failed to even address the possibility of internal relocation.” Second, Xhamxhi “also failed to establish that his detentions for 48 or 24 hours were not as a result of lawful sanction.” According to the IJ, it was reasonable to assume that at least one of Xhamxhi’s arrests may have resulted from his attending a rally for which a permit was not obtained.

Xhamxhi appealed the IJ’s decision to the BIA. The BIA held that the IJ erred by (1) relying upon inadmissible documents to impeach Xhamxhi’s testimony, (2) finding Xhamxhi’s use of “cousin” and “uncle” inconsistent, and (3) deeming Xhamxhi’s application frivolous. However, the BIA concluded that the IJ’s adverse credibility determination was not clearly erroneous.

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188 F. App'x 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xhamixhi-v-gonzales-ca6-2006.