Ramani v. Ashcroft

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Ramani, et al. v. Ashcroft, et al. No. 02-4362

ELECTRONIC CITATION: 2004 FED App. 0260P (6th Cir.)

File Name: 04a0260p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Richard A. Kulics, IMMIGRATION LAW

FOR THE SIXTH CIRCUIT CENTER, Birmingham, Michigan, for Petitioners. Daniel E.

_________________ Goldman, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondents. ON BRIEF: Richard

SEFIT RAMANI; LINDITA X A. Kulics, IMMIGRATION LAW CENTER, Birmingham,

RAMANI; and ARDIT RAMANI, - Michigan, for Petitioners. Alison Marie Igoe, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

Petitioners, - for Respondents.

- No. 02-4362

-

v. > _________________

,

- OPINION

JOHN ASHCROFT , Attorney - _________________

General of the United States; -

IMMIGRATION AND - DANNY C. REEVES, District Judge. Petitioners Sefit

NATURALIZATION SERVICE, - Ramani (“Ramani”), Lindita Ramani, and Ardit Ramani seek

Respondents. - review of the Board of Immigration’s (“BIA”) decision

- affirming the denial of their requests for asylum, withholding

N of removal, and protection under the Convention Against

On Appeal from the Board of Immigration Appeals. Torture. For the reasons that follow, we AFFIRM the BIA’s

Nos. A77 621 623; A77 621 624; A77 621 625. decision.

Argued: June 9, 2004 BACKGROUND

The Ramanis are ethnic Albanians and citizens of

Decided and Filed: August 4, 2004 Macedonia who entered the United States without inspection

on or about October 19, 1999. Subsequently, on October 21,

Before: SILER and GIBBONS, Circuit Judges; REEVES, 1999, the Immigration and Naturalization Service (“INS”)

District Judge.* charged Ramani with being an alien present in the United

States without having been admitted or paroled into the

country and instituted removal proceedings against him. At

the initial removal hearing, Ramani requested permission to

file a written application for asylum, which was submitted

September 19, 2000. The court set a hearing date on the

*

The Hono rable Danny C. Reeves, United States District Judge for merits of Ramani’s application for April 13, 2001.

the Eastern District of Kentucky, sitting by designation.

1

No. 02-4362 Ramani, et al. v. Ashcroft, et al. 3 4 Ramani, et al. v. Ashcroft, et al. No. 02-4362

Approximately two weeks before the merits hearing, that he was supposed to appear in court on October 12, 1999,

Ramani sought to offer two documents for admission into but he was afraid to do so. Specifically, he testified that he

evidence to support his request for asylum. The first was fearful of being “torture[d] while in the custody of the

document was represented to be a copy of a legal summons police.”

from a Macedonian court directing Ramani to appear on

October 12, 1999. The second document was a purported Lindita Ramani testified that the police came to her house

copy of an extract from the Macedonian penal code. At the and arrested her husband on two occasions. While she could

April 13, 2001 hearing, the INS objected to the introduction not remember the dates of those arrests, she estimated that it

of these documents. After the Immigration Judge (“IJ”) asked was from “1997 and on.” She indicated that the last

about the location of the originals of the documents, Ramani demonstration she recalled her husband attending was in

testified that he had given the summons to his attorney who 1999. However, she could not recall how long after this

claimed to have misplaced it. Ramani further testified that his demonstration they came to the United States.

uncle mailed a copy of the penal code extract to him after

obtaining it from an attorney in Macedonia. He stated that he After evaluating the testimony presented at the hearing, the

had torn off the portion of the document that he felt was IJ denied Ramani’s request for asylum, withholding of

irrelevant. Ramani’s attorney admitted that he had made no removal, and protection under the Convention Against

attempt to obtain a copy of the Macedonian law from a source Torture. Specifically, the IJ found that Ramani was not a

from which the IJ could have taken judicial notice. credible witness. He noted that Ramani could not remember

any of the organizers of the July 1997 demonstration other

During the hearing Ramani testified that he is a citizen of than Rufi Osmani. Also, he pointed out that Ramani’s

Macedonia but that he is an ethnic Albanian. He stated that references to his arrests were very general and that his

prior to arriving in the United States he lived in Tateshposto, testimony was vague, in that he could not specifically

Struga, which is approximately twenty kilometers from the remember the dates of his alleged arrests.

Albanian border. Ramani testified that his association with

the police began in 1997 when he began to participate in The IJ also concluded that Ramani’s story was not

demonstrations that promoted rights for ethnic Albanians. He corroborated by the Country Report for Macedonia, which

indicated that the group that typically organized the was offered into evidence by the INS. Although the IJ

demonstrations was “some kind of a party, VDSH, acknowledged that this report related to incidents occurring

Democratic Party of Albania.” Although Ramani testified in 2000, not 1999 (the general period when Ramani claimed

that he was a member of this group, he claimed that he had his problems arose), he found that the report did not

left his membership card at his mother’s house in Macedonia. corroborate Ramani’s claim that ethnic Albanian minorities

He stated that the group conducted several additional were tortured by police for participating in demonstrations.

gatherings in 1998. He further claimed that his problems with The IJ noted that the Country Report indicated that the

the police resurfaced in 1999 after a group of Albanian Macedonian government generally respected its citizens’ right

refugees arrived from Kosovo. Ramani stated that, in to freedom of assembly and that demonstrations regularly

September 1999, following a demonstration in Valesht, he occurred there without incident.

was stopped by the police as he was returning home.

According to Ramani, the officers beat him several times over The IJ declined to admit into evidence the purported copy

a thirty minute period. As a result of this incident, he stated of the legal summons and the alleged extract of the

No. 02-4362 Ramani, et al. v. Ashcroft, et al. 5 6 Ramani, et al. v. Ashcroft, et al. No. 02-4362

Macedonian penal code because the translation of these of the current proceedings may not constitute a basis for

documents did not comply with 8 C.F.R. § 3.33. In addition, a finding of bias in the absence of a display of a deep-

the IJ found that the document purporting to be a copy of a seated favoritism or antagonism that would make fair

legal summons was not the original and had not been properly judgment impossible.

authenticated. The IJ also refused to take judicial notice of

the document purported to be an extract from the Macedonian The Board further concluded that Ramani received a full and

penal code. He noted that Ramani’s attorney had made no fair hearing and agreed with the IJ that he had not met his

attempt to produce the law from available, admissible burden of proving eligibility for asylum, withholding of

sources. removal, or relief under the Convention Against Torture.

Ramani filed a notice of appeal of the IJ’s decision with the JURISDICTION AND STANDARD OF REVIEW

BIA and objected on two grounds. Specifically, he stated that

This court has jurisdiction over Ramani’s request for

[t]he Immigration Judge erred in finding that Respondent asylum pursuant to the Immigration and Nationality Act

did not qualify as a refugee and that [he] did not show § 242(a)(1). See 8 U.S.C. § 1252 (a)(1). However, to the

that he had a well founded fear of persecution, despite extent that Ramani has failed to exhaust his administrative

the fact that Respondent presented substantial testimony remedies with respect to certain claims, this court does not

that [he] did qualify as a refugee and had a well founded have jurisdiction to address those claims, as discussed infra.

fear of persecution. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994); Dokic v.

INS, 899 F.2d 530, 532 (6th Cir. 1990). Upon review of the

The Immigration Judge erred in finding that claims that are properly before the court, the panel must

Respondent’s testimony, and demeanor was of consider whether the BIA correctly determined that Ramani

questionable credibility even though at trial failed to sustain his burden of establishing eligibility for

Respondent’s testimony, and demeanor was credibile asylum. See 8 C.F.R. § 208.13(a) (an alien applying for

[sic], and that it was believable, consistant [sic] and asylum bears the burden of demonstrating that he or she is a

sufficiently detailed to be found credible. refugee). In reviewing decisions rendered by the BIA that an

alien is not eligible for asylum, this court reviews

In his BIA brief, however, Ramani simply alleged that the IJ administrative findings of fact concerning whether the alien

was biased. Notably, Ramani did not object in his BIA qualifies as a refugee under a substantial evidence test. Yu v.

appeal brief to the IJ’s refusal to admit the two documents Ashcroft, 364 F.3d 700, 702-703 (6th Cir. 2004) (“findings of

that were at issue at the merits hearing. In addition, Ramani fact are [reviewed under 8 U.S.C. § 1252(b)(4)(B), which]

did not challenge the IJ’s finding that he was not a credible basically codifies the Supreme Court’s substantial evidence

witness in his brief to the BIA. standard”). Thus, an IJ’s factual determinations will be

reversed only if “any reasonable adjudicator would be

Ultimately, the BIA rejected Ramani’s claim of prejudice compelled to conclude to the contrary.” 8 U.S.C.

stating that § 1252(b)(4)(B).

any opinion formed by the Immigration Judge on the

basis of facts introduced or events occurring in the course

No. 02-4362 Ramani, et al. v. Ashcroft, et al. 7 8 Ramani, et al. v. Ashcroft, et al. No. 02-4362

THE USE OF A SUMMARY AFFIRMANCE None of Ramani’s arguments concerning the consideration

of evidence was properly presented to the BIA. It is proper

Ramani argues that the BIA’s brief dismissal of his appeal for an appellate court to consider waived all issues not raised

constituted a violation of due process. He concedes, however, in an appellant’s briefs, even if the issue has been raised in the

that the BIA “certainly has the authority to affirm, without notice of appeal. Farm Labor Organizing Comm. v. Ohio

opinion, or issue a brief opinion, in any case in which the State Highway Patrol, 308 F.3d 523, 528 n.1, 544 n.8 (6th

Board member concludes that there is no legal or factual basis Cir. 2002); Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir.

for reversal of the decision by the Service or the [IJ],” citing 1999). Neither Ramani’s notice of appeal to the BIA, nor his

8 C.F.R. § 1003.1, which provides for summary affirmance. BIA appeal brief, advanced his current argument that the IJ

This provision permits the BIA to issue summary misused certain evidence. While his BIA appeal brief did

affirmances, with little or no discussion, as well as decisions discuss the use of the Country Report for Macedonia, noting

without opinion in immigration appeal cases meeting certain that “[t]hese reports are infamous for providing an overly rosy

criteria. Ramani suggests that the use of these affirmances picture of most countries,” it did not make his current

can violate due process in certain circumstances. This court, argument that “State Department Opinions are not always

however, has recently examined the use of summary reliable,” it provided no legal basis for this argument, and it

affirmances, concluding that their use does not violate due was mentioned only in the context of Ramani’s claim that the

process. Denko v. INS, 351 F.3d 717, 726-30 (6th Cir. 2003). IJ was biased. By failing to properly present these claims to

the BIA, Ramani failed to exhaust his administrative remedies

IMPROPER CONSIDERATION OF EVIDENCE on these issues.

Before a federal court may assert jurisdiction over an alien The purpose of Section 1252(d)(1)’s exhaustion

removal appeal, the alien must have exhausted all requirement is (1) to “ensure that the INS, as the agency

administrative remedies. 8 U.S.C. § 1252(d)(1). The United responsible for construing and applying the immigration laws

States argues that Ramani’s claim that the IJ improperly and implementing regulations, has had a full opportunity to

considered and disregarded certain evidence was not properly consider a petitioner’s claims,” Theodoropoulos v. INS, 358

presented to the BIA and, therefore, is not subject to review F.3d 162, 171 (2d Cir. 2004); (2) to “avoid premature

by this court. interference with the agency’s processes,” Sun v. Ashcroft,

370 F.3d 932, 940 (9th Cir. 2004); and (3) to “allow the BIA

Ramani argues that the IJ improperly relied “on evidence to compile a record which is adequate for judicial review.”

which was not admitted[] in order to reach his decision” and Dokic, 899 F.2d at 532. In this case, these goals would be

misused “the evidence which had been admitted.” Regarding subverted by considering an issue that was not properly

his first argument, he complains that the IJ did not receive the presented to the BIA. Had Ramani presented his current

Macedonian summons into evidence, yet used that exhibit to arguments to the BIA, this matter could have been properly

impugn Ramani’s credibility. He next argues that the IJ dealt with by immigration judges whose experience in these

should not have relied upon the Country Report for matters is useful. In addition, the record on these issues could

Macedonia, a political and social analysis of Macedonia have been more fully developed if they had been presented

produced by the State Department. Ramani has numerous below.

complaints both about the State Department’s reliability as

well as the IJ’s “selective quotations” from the report.

No. 02-4362 Ramani, et al. v. Ashcroft, et al. 9 10 Ramani, et al. v. Ashcroft, et al. No. 02-4362

Unlike many contexts in which exhaustion of exhausted); Harchenko v. INS, No. 00-3789, 22 Fed. Appx.

administrative remedies is a court-created doctrine, Section 540, 543 (6th Cir. 2001) (“[w]e shall only consider the

1252(d)(1) provides that federal courts are without sufficiency of the IJ’s decision and the BIA’s affirmance of

jurisdiction to hear an immigration appeal when that decision. Petitioner’s other arguments are precluded as

administrative remedies have not been exhausted. Perkovic, unexhausted issues, which this court has no jurisdiction to

33 F.3d at 619. In Chung Young Chew v. Boyd, the Ninth review”).

Circuit held that

In Perkovic, this court recognized that if an alien presents

[f]ailure to take an available appeal to the Board from an both exhausted and unexhausted claims, only those claims

order of deportation constitutes a failure to exhaust that are properly exhausted may be considered. 33 F.3d at

administrative remedies, thereby depriving a court of 619. The Perkovic court also noted that in Dokic the court

appeals of jurisdiction to review any aspect of such order. had concluded that the alien’s claims were unexhausted

It follows that failure to raise, on such an appeal, a because the alien had not presented his present claims during

particular question concerning the validity of the order the course of administrative proceedings. Id. at 620 n.4; see

constitutes a failure to exhaust administrative remedies Ivezaj v. INS, 84 F.3d 215, 219 (6th Cir. 1996), superceded by

with regard to that question, thereby depriving a court of statute on other grounds as stated in Visha v. INS, No. 00-

appeals of jurisdiction to consider that question. 3446, 51 Fed. Appx. 547, 551 (6th Cir. 2002), (“Perkovic

distinguished Dokic on the grounds that exhaustion was not

309 F.2d 857, 861 (9th Cir. 1962); accord Marrero v. INS, found in Dokic because Dokic was making a due process

990 F.2d 772, 779 (3d Cir. 1993); Alvarez-Flores v. INS, 909 argument not previously raised with the BIA, and so, by

F.2d 1, 8 (1st Cir. 1990); Farrokhi v. INS, 900 F.2d 697, 700 holding Dokic’s appeal was barred by the exhaustion

(4th Cir. 1990); Youssefinia v. INS, 784 F.2d 1254, 1258 (5th doctrine, the Dokic court was really insisting that appellate

Cir. 1986); Bajwa v. Cobb, 727 F. Supp. 53, 56 (D. Mass. issues must be raised below.”).

1989). These cases provide a stricter requirement than merely

requiring an alien to exhaust all avenues of appeal; they Having considered these authorities, we hold that only

further require the alien to preserve each claim by presenting claims properly presented to the BIA and considered on their

it to the BIA. merits can be reviewed by this court in an immigration

appeal. Because the arguments currently presented by

In this circuit, several cases have suggested that Section Ramani were not presented to the BIA, they are not subject to

1252(d)(1)’s exhaustion requirement mandates that only those review by this court.

claims presented to the BIA may be appealed to this court.

Cf. Perkovic, 33 F.3d at 619 (finding that claims had been REVIEW OF IMMIGRATION JUDGE’S OPINION

exhausted because “they were presented to the immigration

judge and then to the [BIA], which definitively resolved the Ramani also argues that the court should not review the

claims on their merits”); Dokic, 899 F.2d at 532 (“[a]t no time BIA’s decision, but should review the IJ’s decision directly

during the course of these administrative proceedings did since it was much more thorough than the BIA’s. When the

petitioners present their claims that counsel was ineffective BIA utilizes a summary affirmance, it is proper to review the

and that the record was inadequate” and thus the claims were IJ’s decision directly. Denko, 351 F.3d at 730. In this case,

unreviewable because they had not been administratively however, the BIA did not utilize a summary affirmance.

No. 02-4362 Ramani, et al. v. Ashcroft, et al. 11

Rather, it issued a decision disposing of the single issue

presented in Ramani’s BIA appeal brief, i.e., whether the IJ

was biased. In his BIA appeal brief Ramani simply claimed

that the “major stumbling block for this claim is the Court’s

overwhelming prejudice. . . . The result is a fundamental

denial of due process. . . . The aims of Justice, in this

administrative Court which is a part of the U.S. Department

of Justice, have been completely perverted in this matter.”

Ramani’s five-page BIA appellate brief was little more than

an attack on the IJ’s impartiality. While his BIA appeal brief

does briefly discuss the use of the Country Report for

Macedonia (an issue he now raises on appeal), this issue was

not discussed as a basis for his BIA appeal, as it was

mentioned only in passing, in reference to the IJ’s supposed

“biased rendition” of the Country Report. The thrust of the

BIA brief was that the IJ was biased. It was the only issue

clearly advanced by Ramani, and discussion of this issue

continued throughout the entire brief.

Ramani did briefly argue that he had a reasonable fear of

persecution in his BIA appeal brief. Perhaps because Ramani

provided little support for this argument, relying only on

conclusory statements, the BIA did not discuss this argument

in affirming the IJ. It is not necessary to directly review the

IJ’s decision on this issue, however, because Ramani did not

advance this argument in his current appeal to this court.

Regarding the issues the Petitioner did present to this court,

i.e., whether the IJ misused certain evidence, this court will

not review the IJ’s decision directly on these issues because

they were not presented to the BIA, and thus Ramani did not

exhaust his administrative remedies for these claims.

Therefore, in this case, review of the BIA’s opinion is

sufficient to resolve those issues properly before this court.

The petition for review of the Board of Immigration

Appeals is DENIED.