Gishta v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0165p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioners, -

EDISON GISHTA; MANJOLA GISHTA; ENEA GISHTA,

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No. 03-4101

v.

,

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ALBERTO GONZALES, Attorney General, -

Respondent. -

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On Appeal from the Board of Immigration Appeals.

Nos. A79 287 256; A77 340 484; A77 340 485.

Argued: December 9, 2004

Decided and Filed: January 19, 2005*

Before: MERRITT, GIBBONS, and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: Richard A. Kulics, IMMIGRATION LAW CENTER, Birmingham, Michigan, for

Petitioners. Daniel E. Goldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Respondent. ON BRIEF: Richard A. Kulics, IMMIGRATION LAW CENTER,

Birmingham, Michigan, for Petitioners. M. Jocelyn Lopez Wright, David V. Bernal, UNITED

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

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Petitioners in this immigration case, Edison,

Manjola, and Enea Gishta, are citizens and natives of Albania.1 The adult petitioners, Edison and

Manjola, came to the United States approximately nine months apart and were placed in removal

proceedings separately. The family had a shared evidentiary hearing at which they were represented

by the same attorney, but the judge maintained separate records of the proceedings for Edison and

Manjola and issued separate orders of removal. They filed a combined notice of appeal with the

Board of Immigration Appeals (“the board”). The board issued separate decisions affirming the

*

This decision was originally issued as an “unpublished decision” filed on January 19, 2005. On March 15,

2005, the court designated the opinion as one recommended for full-text publication.

1

Edison and Manjola Gishta are married and are the parents of Enea Gishta, who was sixteen months old when

he entered the United States.

1

No. 03-4101 Gishta, et al. v. Gonzales Page 2

decisions of the immigration judge. The Gishtas filed this petition seeking review of the removal

orders. For the following reasons, we affirm the Board of Immigration Appeals.

I.

Edison Gishta was admitted to the United States on March 30, 2000.2 His wife, Manjola

Gishta, and son, Enea Gishta, attempted to enter the United States on January 16, 2001, by

presenting photo-substituted passports to immigration officials at the Los Angeles International

Airport. Mrs. Gishta admitted using a passport issued to an individual named Gitjana Duka in order

to gain entry to the United States and told the Immigration and Naturalization Service (“INS”) that

she paid $17,000 for the 3passport. Her initial stated reason for coming to the United States was “[t]o

be with [her] husband.” She also said that she planned to stay in the United States for as long as

possible, but realized that Albania would “get better” and that she would eventually return home to

Albania with her family. Mrs. Gishta also stated during the initial interview that she did not fear

harm, imprisonment, or persecution upon returning to Albania, but wanted the chance of a better

future that America provided.

The following day, Mrs. Gishta refused to board a plane to Italy and, after a phone call to

the residence where Mr. Gishta was staying, a credible fear interview was conducted during which

Mrs. Gishta indicated a fear of persecution if she returned to Albania.4 The INS refused to admit

Mrs. Gishta and her son, but ultimately referred her case for an asylum hearing and placed her in

expedited removal proceedings by serving her with a Notice to Appear (“NTA”) before an

immigration judge.

The NTA charged Mrs. Gishta and Enea as arriving aliens who 5

are inadmissible and subject

to removal under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and INA § 212(a)(7)(A)(i)(I),

8 U.S.C. § 1182(a)(7)(A)(i)(I).6 After Mrs. Gishta was apprehended by immigration officials in

January 2001, Mr. and Mrs. Gishta worked with an immigration attorney in Los Angeles to assemble

an asylum application. Mr. Gishta submitted an affirmative application for asylum on May 7, 2001.

The INS conducted an interview with Mr. Gishta on June 13, 2001, and subsequently rejected his

asylum application as untimely filed7 and initiated removal proceedings by filing with the

immigration court an NTA charging him with removability under INA § 237(a)(1)(A), 8 U.S.C.

2

The petitioners claim that the record is unclear as to when Mr. Gishta arrived in the United States. Mr.

Gishta’s Notice to Appear states that he was admitted to the United States on or about March 30, 2000. Mr. Gishta

himself testified that he arrived on March 30, 2000. Nevertheless, the immigration judge mistakenly stated in the oral

decision and order that Mr. Gishta was admitted to the United States on or about December 30, 2000, in Miami, Florida.

3

In the interview Mrs. Gishta claimed that her husband’s name was Beni and that he was mayor of the town

where they lived in Albania.

4

She stated that her “life [would] be in danger” if she was sent home, that her family “had been persecuted for

being democrats,” and that communists had beaten her and threatened to kill her son.

5

The statute renders a person removable for seeking to procure a visa, other documentation, or entry into the

United States by fraud or by willfully misrepresenting a material fact. 8 U.S.C. § 1182(a)(6)(C)(i).

6

The statute renders a person inadmissible for lacking valid entry documents at the time he or she sought

admission. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

7

The applicable statute requires an applicant seeking asylum to file his or her application within one year from

the date of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Late filing is excusable if the applicant

“demonstrates to the satisfaction of the Attorney General” either “changed circumstances which materially affect the

applicant’s eligibility for asylum” or “extraordinary circumstances relating to the delay.” 8 U.S.C. § 1158(a)(2)(D).

No. 03-4101 Gishta, et al. v. Gonzales Page 3

§ 1227(a)(1)(A).8 Mr. Gishta admitted the factual allegations in the NTA and conceded

removability. The immigration judge ruled that Mr. Gishta’s asylum application was pretermitted

as untimely. The judge also denied the Gishtas’ request to consolidate their cases.

Mr. and Mrs. Gishta, along with Behar Lumani, Mr. Gishta’s brother-in-law, testified at the

evidentiary hearing held on January 23, 2002, in Detroit, Michigan. Mrs. Gishta admitted that she

gave inconsistent and inaccurate information to the INS during her airport and credible fear

interviews, including an incorrect name for her husband, wrong birth dates, and different reasons

as to why she did not want to return to Albania. She stated that she gave inconsistent and inaccurate

information because she was scared, not thinking clearly due to the fact that her son was ill, and

unaware of what she was saying to INS officials. Her testimony was that she did not realize what

she had told INS officials until she arrived in Michigan and had the opportunity to read the

documents relating to her interviews. Mrs. Gishta also testified, contrary to what she said at the time

of her second interview, that she did not speak with her husband on the telephone before the

interview took place, but rather spoke only to her sister-in-law and brother-in-law.9 Mr. Lumani

testified that he remembered Mrs. Gishta’s phone call in detail, that he repeatedly told her to tell the

truth, and that Mr. Gishta was not in the house when the call came.

The immigration judge gave the Gishtas the opportunity to make corrections to their asylum

applications at the evidentiary hearing, but the Gishtas confirmed the truth and accuracy of the

applications without making any changes to their applications. Mrs. Gishta testified that her family

members were all democrats and that she decided to become a member of the Democratic Party in

1996, when Behar Lumani was chosen as a leader. As a member of the party, Mrs. Gishta testified

that she attended meetings and demonstrations. Likewise, Mr. Gishta testified that he began

participating in democratic demonstrations in 1990 and joined the party in 1996.

The Gishtas were married in January 1998. On September 14, 1998, Mrs. Gishta participated

in a demonstration protesting the death of a democratic youth leader.10 She testified that thirty to

forty police officers tortured the demonstrators by beating them with rubber sticks, punching and

kicking them, and shooting them. Her specific testimony was that police stopped the car she was

riding in, beat her with a rubber stick, and shot the driver. The immigration judge asked Mrs. Gishta

why she failed to mention this incident in her written statement in support of her application to

which she responded, “a lot of things I didn’t say in the application, but it’s the truth and it happened

to me and I am here to say that and to declare that it happened to me and it’s in my mind and in my

heart and I lived that moment.”

Mr. Gishta testified that he became Behar Lumani’s chauffeur and bodyguard in 1997 or

1998, a position paid for by the democratic party. He further testified that, because of his position,

the socialist government issued a gun and ammunition to him. He held the position until November

1999, when Mr. Lumani resigned his political position and emigrated with his family to the United

States. Mr. Gishta testified that at the end of November 1999, when he was stopped for driving too

fast, Albanian police officers beat him and hit him in the back of the head with a pistol. He further

8

The applicable statute states that an alien who at the time of entry was inadmissible for lack of a valid visa or

other entry document is removable. 8 U.S.C. § 1227(a)(1)(A); 8 U.S.C. § 1182(a)(7).

9

Mr. Gishta also testified that he did not speak to his wife when the phone call came but was in the room with

his brother-in-law and sister.

10

Mr. Gishta’s written asylum application asserts that he also participated in a protest on September 14, 1998,

in which police officers used “leather strips and other batons” against the demonstrators. It is not clear if Mr. and Mrs.

Gishta attended the same protest. Mr. Gishta did not mention the demonstration in his testimony nor allege any harm

from the protest.

No. 03-4101 Gishta, et al. v. Gonzales Page 4

testified that the officers came to his house a few days later and took him to the police station where

they held and beat him for three days.

Mr. Gishta testified that a day after he was released from the police station, he received a

letter informing him that the police intended to arrest him and instructing him not to leave. His

uncle took the letter to the police station to inquire into the reason for the impending arrest; the

police kept the letter. Mr. Gishta testified that hours after he received the letter his friends took him

to the city of Tirana. His written application states that he fled along with his mother, wife, and son

to stay with a friend in Tirana, but his written statement asserts that he separated from his mother,

wife, and son to stay with a friend in Tirana. Mr. Gishta testified at the hearing that he went to

Tirana alone, leaving his family in Malij because he did not believe they would be in danger of being

beaten by the police because they were not men. Mr. Gishta stayed in Tirana until he left Albania

to join his sister and brother-in-law in the United States in March 2000.

Mrs. Gishta testified that she was arrested by Albanian police on March 31, 2000, after going

to a neighbor’s home at a prearranged time to receive a phone call from her sister-in-law in the

United States letting her know that her husband had arrived safely. The police allegedly arrested

her at home and took her to an isolated room in the police station, holding her for three days. She

claims that over the three days the police questioned her about her husband, touched her

inappropriately, knocked her unconscious, punched her, and hit her with a rubber stick. Mrs. Gishta

testified that when she was released, she was warned that she would be arrested again if she did not

stop her political activities.

Mrs. Gishta claims that she was arrested two additional times in September and December

of 2000. She claims to have been held for a week and a half when she was arrested in September

and that she was tortured five or six times. In December she alleges that she was held for three days

and questioned by the same man who had questioned her during her previous two stays at the jail.

She testified that the man who questioned her threatened to kill her son if she did not stop speaking

out against communists. Her father gathered the money to pay for her to leave Albania, which she

did three weeks later, in January 2001.

Mrs. Gishta was questioned about the fact that none of her arrests in 2000 were mentioned

in the written 11

asylum application originally submitted by Mr. Gishta in May 2001 on behalf of the

entire family. Both Mr. and Mrs. Gishta responded that the arrests were not included because it

was Mr. Gishta’s application, not Mrs. Gishta’s. Mr. Gishta also testified that he was not aware of

his wife’s arrests because he was already in the United States when they allegedly occurred. Mr.

Lumani testified that he saw Mrs. Gishta in Albania shortly after her release from her first alleged

detention but that she did not mention the arrest at all nor have any visible injuries consistent with

being kicked, punched in the face, or beaten with a rubber stick.

The immigration judge found the Gishtas subject to removal from the United States as

charged, holding that they failed to meet their burden of proving eligibility for asylum and

withholding of removal. Mr. Gishta’s asylum application was denied on the ground that it was filed

beyond the one-year deadline and no exception to that requirement was met. The judge also entered

an alternative finding that, even assuming Mr. Gishta’s application was timely, it would still fail on

the merits. In addition, the immigration judge found that Mr. and Mrs. Gishta were not credible

11

There is a specific question on Form I-589 asking whether any member of the applicant’s family has ever

been arrested.

No. 03-4101 Gishta, et al. v. Gonzales Page 5

witnesses12 and that even if Mr. Gishta’s testimony was credible, the incidents of mistreatment he

described did not rise to the level of persecution and the application would still be denied. The

judge ordered the Gishtas removed to Albania. The Gishtas appealed to the board, challenging the

denials based on untimely filing and credibility grounds. The Gishtas argued that the interpretation

provided at the hearing was inadequate. The board affirmed the immigration judge’s decision on

August 5, 2003. The board found that the Gishtas failed to demonstrate that they were prejudiced

by any errors in interpretation. The case comes before this court on a petition for review of the

board’s final order.

II.

We must consider whether the board correctly determined that the Gishtas failed to sustain

their burden of establishing eligibility for asylum. The board’s decision will be upheld if it is

“supported by reasonable, substantial, and probative evidence on the record considered as a whole.”

Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (internal quotation omitted). This circuit

has noted that this is a deferential standard under which the court cannot reverse the board’s

determination simply because it would have decided the matter differently. The relevant inquiry is

whether the applicable evidence “was such that a reasonable factfinder would have to conclude that

the requisite fear of persecution existed.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)).

A.

The Gishtas argue that the interpretation provided at their removal hearings was a “cruel

sham.” The petitioners list six examples of “egregious” unintelligible translations that they argue

impacted the immigration judge’s credibility findings. The Gishtas rely on Amadou v. INS, 226 F.3d

724 (6th Cir. 2000), and Gonzales v. Zurbrick, 45 F.2d 934 (6th Cir. 1930), to argue that the

interpretation problems violated their due process rights. In Amadou, this court held that the

petitioner was deprived of his due process right to a full and fair hearing due to the incompetence

of the interpreter. Amadou, 226 F.3d at 726 (citing Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.

2000)). In Gonzales, the court held that an alien was not afforded a full and fair opportunity to be

heard because of the alien’s failure to understand the proceedings, noting that “[t]he function of an

interpreter is an important one . . . affect[ing] a constitutional right.” Gonzales, 45 F.2d at 937.

The instant case is factually distinguishable from Amadou and Gonzales. The immigration

judges were on notice that there were problems with the interpreters in Amadou and Gonzales. In

Amadou, the interpreter stated that he or she did not understand what the petitioner was saying and

was “having some problems . . . with some semantics” because the interpreter spoke a different

dialect of Fulani than the petitioner. Amadou, 226 F.3d at 725, 727. In the instant case there was

no indication that the interpreter was having a difficult time understanding the Gishtas or vice versa.

Likewise in Gonzales, Ms. Gonzales complained during the proceedings that she could not

understand the interpreter, which resulted in two successive interpreters being substituted.

12

The immigration judge based his lack of credibility findings on the following inconsistencies: the admitted

inconsistencies in Mrs. Gishta’s statements to the INS during her airport interviews; the discrepancies between the

Gishtas’ testimony and their written asylum applications; discrepancies between the written applications and the written

statements they submitted in support; false statements regarding the death of a democratic leader in Albania in Mr.

Gishta’s application and written statement; the omission of Mrs. Gishta’s arrests in Mr. Gishta’s original asylum

application despite the question asking if any family members had ever been arrested; the testimony from Mr. Gishta

that he was present in the room when Mrs. Gishta called the Lumani residence with the testimony of Mr. Lumani that

Mr. Gishta was not in the house at that time; Mr. Lumani’s testimony that he did not notice anything unusual in Mrs.

Gishta’s appearance when he saw her shortly after she alleges to have been released from detention during which she

sustained punches to her face; and the contradictions between the Gishtas’ claims concerning Albania and the State

Department’s reports on the country.

No. 03-4101 Gishta, et al. v. Gonzales Page 6

Gonzales, 45 F.2d at 935. In contrast, the Gishtas never complained about the interpreter during the

proceedings; they raised the issue for the first time in their administrative appeal. Therefore, unlike

Amadou and Gonzales, the immigration judge was never on notice of any alleged problem with the

interpreter and the board specifically determined that Mrs. Gishta “failed to demonstrate that she

suffered any harm that deprived her of due process, as she failed to demonstrate that there were any

defects in the proceedings below which resulted in prejudice to her.”

This case is also distinguishable from Amadou because the record does not indicate “that the

interpreter’s faulty translation directly prejudiced [the petitioner] because the judge and Board

denied his application based on the testimony at the hearing.” Amadou, 226 F.3d at 727. “To

prevail on a due process challenge to deportation proceedings, [an alien] must show error and

substantial prejudice. A showing of prejudice is essentially a demonstration that the alleged

violation affected the outcome of the proceedings; we will not simply presume prejudice.” Larita-

Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000) (quoting Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000)). As the respondent points out:

Here, petitioners have declined to demonstrate how the alleged inadequate

interpretation at the hearing could have changed the inconsistencies in Mrs. Gishta’s

statements to the INS – indeed, nowhere do they challenge the adequacy of

interpretation provided to Mrs. Gishta during the airport and credible fear interviews

when the inconsistent statements were made. Nor do they explain how the

inconsistencies between their written applications, their testimonies, and the

testimony [of] Mr. Lumani are attributable to the quality of interpretation.

The factors cited by the immigration judge in support of his credibility conclusions do not

relate to the translation errors listed in the Gishtas’ brief. The transcript of the evidentiary hearing

makes it clear that the Gishtas were responsive to the questions asked and that any isolated

interpretation problems did not prejudice the petitioners. Therefore, unlike Amadou, it is unlikely

that the “the interpreter’s faulty translation [ ] played a significant part in the judge’s credibility

determination.” 226 F.3d at 727. The transcript of the evidentiary hearing makes it clear that there

is no truth to the Gishtas’ assertion that it was “extremely difficult for [p]etitioner to understand

what was being asked of him and fully and accurately respond.”

Furthermore, the Gishtas argue that because the interpreter had been placed in removal

proceedings herself for being in the United States illegally, she was not qualified or competent to

serve as an interpreter. This information should be disregarded because it comes from editorial

statements and extra-record allegations. See INA §242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A) (“the

court of appeals shall decide the petition only on the administrative record on which the order of

removal is based”). The Gishtas’ inadequate interpretation argument provides no basis for reversing

the denial of relief on the ground that they were not credible.

The Gishtas also allege that the immigration judge and the board abused their discretion in

relying on the interpretation of a fraudulent and incompetent interpreter in denying the asylum claim.

The petitioners argue that they “have no idea what the rationale is behind the BIA’s decision” and

that the immigration judge’s decision “appears more irrational than rational.” “The Board’s

discretion is broad but it is not unlimited. It may not exercise its discretion in a way that is arbitrary,

irrational or contrary to law.” Daneshvar v. Ashcroft, 355 F.3d 615, 625-26 (6th Cir. 2004). There

is no indication in the record, contrary to petitioners’ assertions, that either the immigration judge

or the board acted arbitrarily, irrationally, or in a manner contrary to law. The Gishtas are simply

rehashing arguments raised elsewhere in their brief, none of which have merit. The abuse of

discretion claim is therefore rejected.

No. 03-4101 Gishta, et al. v. Gonzales Page 7

We conclude that the Gishtas’ interpretation claim has no merit and that the immigration

judge’s credibility finding is supported by the record.

B.

The Gishtas argue that their due process rights were violated because the board failed to

conduct a meaningful review of their claims on appeal. The board did not invoke its authority to

affirm without opinion, but rather exercised the authority under 8 C.F.R. § 1003.1(e)(5) to “issue

a brief order affirming, modifying, or remanding the decision under review . . .” See 8 C.F.R.

§ 1003.1(e)(4) (authorizing the board to affirm without an opinion). The board’s independent

review of the case is demonstrated by its citation of In re Burbano, 20 I. & N. Dec. 872 (BIA 1994),

which states that a brief decision affirming the immigration judge’s decision does not mean that the

board did not exercise its independent review authority over the case, but rather the board adopts

or affirms the immigration judge’s decision when it is “in agreement with the reasoning and result

of that decision.” Id. at 874. As the respondent points out, the board’s specific finding that the

Gishtas’ inadequate interpretation argument failed for lack of prejudice and provided no basis for

reversing the immigration judge’s decision also demonstrates that the board independently reviewed

the case. Therefore there is no merit to the Gishtas’ claim that the board did not engage in a

meaningful review of their case.

C.

Although the immigration judge stated that Mr. Gishta arrived in the United States on

December 30, 2000, the evidence is conclusive that Mr. Gishta in fact arrived on March 30, 2000.

It is clear that the immigration judge erred in stating that Mr. Gishta arrived on or about December

30, 2000. The Gishtas make much of this mistake because if Mr. Gishta had in fact arrived in

December 2000, then his asylum application would have been filed within the one year time limit

set forth in INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).

We affirm the board’s decision on the ground that Mr. Gishta’s application was untimely

filed. In addition to the fact the fact the record is clear that Mr. Gishta arrived in March 2000, more

than a year before he filed his asylum application, the board’s finding that the application was

untimely is not subject to judicial review. Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.

2003) (holding that the court is “barred from reviewing the BIA’s decision denying Castellano’s

application on the basis that it was untimely and must therefore affirm the BIA’s decision on this

point”).

III.

For the foregoing reasons, we affirm the decision of the Board of Immigration Appeals.