Petition for Writ of Certiorari — Nikolbibabaj v. Mukasey (No. 07-1306)
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9 ) (?) Supreme Court, U.S.
N°. —974306 APR 14 2008
In OpiC® OF THE CLERK
Supreme Court of the Anited States
e
KRIST NIKOLBIBAJ,
LINDITA NIKOLBIBIAJ, AND
DONIKA NIKOLBIBAJ,
Petitioners,
Wis
MICHAEL B. MUKASEY, Artrorney GENERAL,
Respondent.
¢
On Petition For A Writ Cf Certiorari
To The United States Court of
Appeals For The Sixth Circuit
4
PETITION FOR A WRIT OF CERTIORARI
with Appendix
4
* Marshal E. Hyman
Russell Reid Abrutyn
MARSHAL E.. HYMAN & ASSOCIATES
3250 W. Big Beaver
Suite 529
Troy, MI 48084
248-643-0642
Fax 643-0798
Attorney for Petitioners
*Counsel of Record
April, 2008
LEGAL ADVANTAGE @ 432 Walnut Street @ Cincinnati, OH 45202
(800) 581-2252
QUESTIONS PRESENTED FOR REVIEW
i. Petitioners filed a motion to reopen claiming
that they received ineffective assistance of counsel
in their asylum proceedings. Consistent with
agency precedent, they notified their previous
attorney of their allegations. Did the Sixth Circuit
disregard agency and federal court precedent when
it found that they did not give their previous
attorney sufficient time to respond when that
attorney never responded?
2: Other than the Sixth Circuit, the other
circuit courts of appeal to address the issue permit
substantial compliance with the procedural
requirements for alleging ineffective assistance of
counsel in immigration proceedings if _ the
noncitizens have satisfied the underlying purposes
of those requirements. Did the Sixth Circuit err by
requiring “slavish adherence” to those
requirements?
3. The Sixth Circuit denied Petitioners’
petitions for review after concluding that they did
not show that, but for their attorneys’ mistakes,
they would have been allowed to remain in the
United States. Did the Sixth Circuit impose too
high a burden and create a circuit split where the
other courts of appeals and the agency require
noncitizens to show only a reasonable probability of
a different outcome?
TABLE OF CONTENTS
pages
SESE ERD ORE i
ee Sey do ay ae ce wi ii
DOSE eee rr iv
ees eo So ys 054, oe taw he 2
IE a eee oo ee os eee RS 2
Relevant Provisions Involved ................ 2
eo eas Sa da 5 Sn wee aes 5
Reasons For Granting The Writ .............. 12
I. Ineffective Assistance Of
Counsel In Removal Proceedings
Implicates Due Process And
Fundamental Fairness Concerns........ 13
II. The Decision Of The Sixth
Circuit Conflicts With Those Of
Other Circuits Permitting Substantial
Compliance With Procedural
Requirements For Alleging Ineffective
Assistance of Counsel And It Imposes
An Unreasonable and Vague Burden..... 16
il
III. The Ineffective Assistance Of Counsel
Prejudiced Petitioners But The
Sixth Circuit Imposed An
Impossibly High Burden..............
IV. The Ineffective Assistance Of Counsel
Prejudiced Petitioners And Deprived
Them Of Meaningful Review Of
Their Meritorious Asylum Claim........
RIN iN cna Gers Gr ea ews awa
Appendix
A — Order Denying Rehearing (1/17/08) .......
B — Circuit Court Opinion (8/10/07) ..........-
C — Decision of the Board of Immigration
PI) 8 ko oS eS
D — Decision of the Board of Immigration
PIE os oe ER
E — Decision of the Board of Immigration
PARE TA es a A ee
F — Decision of the Board of Immigration
PG CTI) os as Po ce we ee ws
G — Oral Decision of the Immigration
PU RIPE gid aes 2 nb wen we eee
iil
TABLE OF AUTHORITIES
Cases Pages
Ardestani v. INS, 502 U.S. 129 (1991)......... 13
Barry v. Gonzales,
445 F.3d 741 (4 Cir. 2006)......... 12,18
Dakane v. Attorney General, 399 F.3d 1269
CRP Oe on es 12-13, 18, 20-21
Fadiga v. Attorney General,
O66 Fae £62 Go Cir. OCT) . ... 2 oe 12, 20
Gonzales v. Thomas, 547 U.S. 183 (2006) ...... 21
Grigoryan v. Mukasey, 515 F.3d 999
Se Ge Es ko i wre ee 12, 20-21
Habchy v. Gonzales,
471 F.3d 858 (8th Cir. 2006)......... 12,18
Kenyeres v. Ashcroft, 538 U.S. 1301 (2003)....14
Lu v. Ashcroft,
poe ee tar tae Cir: 2008}. 2. 12,18
Matter of Assaad,
231. &N. Dec. 553 (BIA 2003)...... 13, 20
Matter of Lozada,
191. & N. Dec. 637 (BIA 1988)... ... passim
Matter of Y-L,
241.&N. Dec. 151 (BIA 2007)......... 14
Obleshchenko v. Ashcroft,
392 F.3d 970 (8 Cir. 2004) ......... 13, 20
Ramirez v. Gonzales, 2007 WL 2694012
(G™ Car, Sent. 34, 2007)... . 2 ne ees 18
Rojas-Garcia v. Ashcroft,
339 F.3d 814 (9 Cir. 2001) ......... 12,18
Sako v. Gonzales, 434 F.3d 857
Oe NE is eh Sa oe 13, 18, 20
Scorteanu v. INS,
aoe © .o0 207 (6" Cir: 2003)... . Se. 17
Xue v. BIA,
a0 F .20 21] GC" Cm. 2006)... . 2. ee 15
Yang v. Gonzales,
Rie fae igo (2* Cir. 2007)... ....:- 12,18
Zhang v. Gonzales,
Soe Pe 107 (2 Cir. 2006)... . 2 2. 21
Statutes Pages
are © FR eeIOD ws eve a Se ve kas 19, 22
tr © LD Bok os oe i ee we ce 14
Pee OIE) os eee cot eeueseeye 14
ME EE bc ca vo a doa aw ake wee 2
Regulations Pages
re ee BA) ee eo ee eM hess 17
RE Ba BS 6) Se ee eS 17
Other Authorities Pages
Fun. i. 0. 107-2o0, 116 Stat. 2135... ee. 8
vi
PETITION FOR WRIT OF CERTIORARI
Petitioners Krist Nikollbibaj, Donika
Nikollbibaj, and Lindita Nikolibibaj respectfully
petition that a writ of certiorari issue to review the
opinion and order of the United States Court of
Appeals for the Sixth Circuit entered in this case on
August 10, 2007, and January 17, 2008,
respectively. The Sixth Circuit decision conflicts
with decisions from the Second, Third, Fourth,
Fighth, Ninth, and Eleventh Circuits, which permit
substantial compliance with the _ procedural
requirements for claiming ineffective assistance of
counsel in removal proceedings and_ where
Petitioners complied with the agency’s
requirements.
The Sixth Circuit, in conflict with the Third,
Fifth, Eighth, Ninth, and Eleventh Circuits,
required Petitioners to show that, but for their
previous attorneys’ errors, they would have been
permitted to remain in the United States. This
impossibly high standard is in conflict with
decisions from other circuits and the agency., which
only require noncitizens to show a _ reasonable
probability that the errors affected the outcome.
The Petitioners’ previous attorneys failed to
timely file their asylum application, failed to file a
brief on appeal, and failed to file a procedurally
correct motion to reopen, resulting in the summary
dismissal of their claim on procedural grounds.
OPINIONS BELOW
The opinion and orders of the Sixth Circuit
Court of Appeals, App., :nfra, Al and Bl, are
unreported. The opinions of the Board of
Immigration Appeals, App., infra, Cl through F1,
are unreported. The oral decision of the
Immigration Judge, App., infra, Gi, is unreported.
STATEMENT OF JURISDICTION
The judgment of the United States Court of
Appeals for the Sixth Circuit, App., infra, Bl, was
entered on August 10, 2007. The court denied
Petitioner’s timely petition for rehearing on
January, 17, 2008, App., infra, Al. The jurisdiction
of the Supreme Court is invoked under 28 U.S.C. §
1254(1).
RELEVANT PROVISIONS INVOLVED
At all times relevant to this case, 8 U.S.C. §
1158 provided in relevant part:
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United
States or who arrives in the United States (whether
or not at a designated port of arrival and including
an alien who is brought to the United States after
having been interdicted in international or United
States waters), irrespective of such alien's status,
may apply for asylum in accordance with this
section or, where applicable, section 1225(b) of this
title.
(2) Exceptions
(B) Time limit
Subject te subparagraph (D), paragraph (1) shall
not apply to an alien unless the alien demonstrates
by clear and convincing evidence that the
application has been filed within 1 year after the
date of the alien's arrival in the United States.
At all times relevant to this case, 8 U.S.C. §
1252 provided in relevant part:
(B) Denials of discretionary relief
Notwithstanding any other provision of law
(statutory or nonstatutory),, including section 2241
of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except
as provided in subparagraph (D), and regardless of
whether the judgment, decision, or action is made
in removal proceedings, no court shall have
jurisdiction to review—
(ii) any other decision or action of the Attorney
General or the Secretary of Homeland Security the
authority for which is_ specified under this
subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security,
other than the granting of relief under section
1158(a) of this title.
(4) Scope and standard for review
Except as provided in paragraph (5)(B)—
(D) the Attorney General's discretionary judgment
whether to grant relief under section 1158(a) of this
title shall be conclusive unless manifestly contrary
to the law and an abuse of discretion.
STATEMENT
(i) Nature of the Case
This case presents two important and
recurring questions. The first is how much of an
opportunity must a noncitizen give his previous
attorney to respond to an allegation of ineffective
assistance of counsel, where the attorney had two
months to respond before the agency issued a
decision, the attorney is facing criminal and
disciplinary proceedings’ resulting from _ his
representation of other noncitizens, and agency and
federal court precedent have never before imposed
a specific timetable. The second question is
whether an aggrieved noncitizen must show that,
but for the previous attorney’s mistakes, he would
have won his case or whether, consistent with
precedent from the agency and other circuits, the
noncitizen must show only a reasonably probability
of success or substantial prejudice.
(ii) Factual Background
Mr. Krist Nikollbibaj, his wife Lindita
Nikollbibaj, and their daughter Donika Nikollbibaj
(“Donika”) are Serbian citizens from the newly
independent country of Kosovo.! On December 31,
1998, they were admitted to the United States after
presenting Slovenian passports.
Mr. Nikollbibaj was born on April 10, 1971 in
Gjakove2, Kesovo. After he graduated high school
in 1989, he completed one year of military service.
He married Mrs. Nikollbibaj in 1995. Donika was
born in Kosovo and their son, Daniel, was born in
the United States.
When he completed his military service, he
returned home and began working with the
Democratic League (“LDK”). The goal of the LDK
was to liberate Kosovo through peaceful means.
1 Kosovo, over Serbian objections, declared its independence
on February 17, 2008.
https://www.cia.gov/library/publications/the-world-
factbook/geos/kv. html (last visited April 9, 2008). It is not
clear if Petitioners are citizens of Kosovo or Serbia.
2 Gjakove is called Djakovica by Serbia.
Pe ee Oe Ge ee eR ee ee ag
He helped his brother Xhevalin distribute
the LDK literature. After Xhevalin came _ to
America in 1992, Mr. Nikollbibaj formally joined
the group and eventually became a party leader for
his village. Before the war with Serbia started,
most of the village belonged to the LDK and they
held several secret meetings a week.
When Mr. Nikollbibaj was young, the polite
came to their house looking for his older brothers.
They slapped him and questioned him about his
brothers’ activities. While distributing supplies
and literature for the LDK, Mr. Nikollbibajy was
arrested and severely beaten on January 23 and
June 7, 1998.
The last time the police came, in July of
1998, they tore his wife’s shirt off. They threatened
to do anything they wanted to unless he divulged
the names of his political associates. The police
arrested him and raped his wife in front of Donika.
A week later, he and his family left Kosovo.
Before he left Kosovo, the Kosovo Liberation
Army (“KLA”), the ethnic Albanian guerilla army
that fought Serbia, tried to recruit him. He refused
because he wanted a peaceful solution to Kosovo's
problems and did not support the KLA’s violent
political agenda. Even though he did not join the
group, the Serbian police sometimes accused him of
supporting the KLA. The KLA declared him to be a
deserter.
They went from Kosovo to Hungary. Mr.
Nikollbibaj) was afraid to remain in Hungary
because he thought he would be sent back to
Kosovo. Two weeks later, they went to Austria.
They applied for asylum in Austria but their
application was denied. They remained in Austria
for about five or six months and then came to the
United States, where Mr. Nikollbibaj’s brothers,
Vitor and Xhevalin, could help him. Vitor came to
the United States seeking asylum in 1985 and he is
now a lawful permanent resident.
Although he fled in fear of the Serbians, he is
afraid to return to Kosovo because the KLA has
targeted those who did not join them. Mr.
Nikollbibaj will be viewed as a traitor and Serb-
collaborator.
Serb violence against ethnic Albanians in
Kosovo reached genocidal proportions. Serbian
forces went from town to town, murdering dozens
or even hundreds of civilians in each town.
Gjakove was the sight of mass murder and ethnic
cleansing by the Serbians.
The State Department reported that political
killings continued into 2003. Among those killed or
attacked were several prominent LDK officials,
witnesses who testified against KLA members, and
police officers who investigated the KLA. The KLA
was responsible for killing Aibanian “collaborators”
and it targeted rival political organizations, such as
the LDK.
When the Serbian forces withdrew from
Gjakove, ethnic Albanians quickly filled the gap.
There were numerous allegations that these
security forces, which consisted of the former KLA
members, attacked minorities and ethnic Albanians
who were deemed to be insufficiently loyal to the
forces. These security forces targeted Catholic
Albanians and other perceived enemies in Gjakove.
Gjakove had the largest Catholic population in
Kosovo and they suffered harassment and
intimidation following the war.
(iii) Agency Proceedings
Mr. Nikollbibaj hired David Paruch, a
Michigan attorney, to file their asylum application.
Mr. Paruch timely filed the application on
December 30, 1999, but the Immigration and
Naturalization Service (“INS”)$ returned it to him
because he did not submit enough copies. Mr.
Paruch resubmitted the application on January 6,
2000. The INS again returned the application. Mr.
Paruch did not resubmit it until September 17,
2001.
3’ The Homeland Security Act abolished the INS effective
March 1, 2003 and transferred its functions to various
agencies within the Department of Homeland Security. Pub.
L. No. 107-296, 116 Stat. 2135, 2192. The BiA and the
Immigration Court remain part of the Department of Justice.
This petition refers to the INS with respect to actions it took
during its existence and to the appropriate agencies for events
occurring after March 1, 2003.
On November 8, 2001, the INS referred the
asylum application to the Detroit Immigration
Court because the Petitioners entered the United
States under the Visa Waiver program. On May
14, 2004, following a merits’ hearing, the
Immigration Judge (“IJ”) denied their applications
and ordered them removed. The IJ concluded that
they were barred from asylum because they were
firmly resettled in Austria and did not file their
application within one year of entering the United
States. The IJ also concluded that (1) they were
not_credible, (2) their claim lacked corroboration,
(3) they did not suffer past persecution, and (4)
they lacked a_ well-founded fear of future
persecution. App. G1.
Still represented by Mr. Paruch, Petitioners
timely appealed to the Board of Immigration
Appeals (“BIA”). Mr. Paruch sought, and obtained,
an extension of the briefing deadline but failed to
file a timely brief to the BIA. The BIA summarily
dismissed Mr. Nikollbibaj’s appeal solely because
Mr. Paruch did not file a brief. The BIA did not
address the merits of the appeal. App. F1.
Mr. Paruch moved the BIA to reopen and
accept his late brief. He asserted that he missed
the filing deadline because he was being treated for
prostrate cancer. The BIA denied this motion on
November 22, 2005, concluding that it was time
barred and that its initial decision was proper
given the failure to file a timely brief. App. E1.
Mr. Nikollbibaj hired Alexander Azzam. At
the time, and unbeknownst to Mr. Nikollbibaj, the
State of Massachusetts and the BIA had suspended
him from practicing law.4 On December 20, 2005,
after being reinstated to practice, Mr. Azzam filed a
motion to reopen with the BIA. He also petitioned
the Sixth Circuit for review of the BIA’s November
22, 2005 decision.®
The BIA denied Mr. Azzam’s motion on
February 21, 2006, as number barred and because
he did not submit proof that he complied with the
procedural requirements for making a claim of
ineffective assistance of counsel against Mr.
Paruch. The BIA did not address the merits of the
claim. App. D1. The odd thing about Mr. Azzam’s
conduct is that he complied with the procedural
requirements for making an ineffective assistance
of counsel claim but never submitted the proof to
the BIA, even after the Department of Homeland
Security (“DHS”) noted the absence of the evidence.
Mr. Nikollbibaj hired current counsel, who
filed a motion to reopen with the BIA alleging that
he was prejudiced by Mr. Paruch and Mr. Azzam’s
ineffective assistance of counsel. The BIA denied
this motion on May 4, 2006. The BIA concluded
that the motion was number barred and that they
4 Mr. Azzam has since been convicted of defrauding his clients
in the Washtenaw County, Michigan circuit court and is
facing disciplinary proceedings in Massachusetts.
5 4s a further example of Mr. Azzam’s misconduct, he omitted
Donika Nikollbibaj from the petition for review. The court
refused to add her to that petition for review.
10
3 Ay
ey
did not satisfy the procedural requirements for
making an ineffective assistance of counsel claim
against Mr. Azzam because although they nctitied
him of their allegations, they did not provide him
with sufficient time to respond. The BIA also
asserted that when they deniea Mr. Azzam’s the
motion, they considered the merits of the ineffective
assistance claim made against Mr. Paruch. App.
Cl.
Mr. Nikollbibaj timely appealed from the
BIA’s denial of his three motions. The Sixth Circuit
consolidated the three petitions for review.
(iv) The Sixth Circuit’s Decision
On August 10, 2007, the Court denied the
petitions for review. Nuikollbibaj v. Gonzales, Nos.
05-4584, 06-3330, 06-3705 (6% Cir. Aug. 10, 2007)
(App. B1). The court affirmed the BIA’s denial of
the first two motions to reopen because the
decisions were in accordance with the BIA’s
regulations and procedural rules. Id. at 12-14. The
court upheld the denial of the third motion to
reopen because Mr. Azzam did not receive enough
time to respond to the ineffective assistance of
counsel claim. Id. at 15. Finally, the court found
that the ineffective assistance did not prejudice
Petitioners because they could not show that they
would have received asylum but for the ineffective
assistance of counsel. Id. at 17.
The court denied their timely petition for
rehearing on January 17, 2008. App. Al.
1]
REASONS FOR GRANTING THE WRIT
The Sixth Circuit’s decision conflicts with the
decisions of the other courts of appeal and with the
agency itself. The other courts that have addressed
the issue have found that substantial compliance
with the procedural requirements for alleging
ineffective assistance of counsel is sufficient, where
the underlying purposes of those requirements
have been met. See Yang v. Gonzales, 478 F.3d
133, 142-143 (24 Cir. 2007); Habchy v. Gonzales,
471 F.3d 858, 864 (8 Cir. 2006); Barry _v.
Gonzales, 445 F.3d 741, 746 (4t» Cir. 2006); Dakane
v. Attorney General, 399 F.3d 1269, 1272, n.3 (11%
Cir. 2005); Rojas-Garcia v. Ashcroft, 339 F.3d 814,
824-25 (9th Cir. 2001); Lu v. Ashcroft, 259 F.3d 127,
133 (34 Cir. 2001). The Sixth Circuit and the BIA
imposed, after the fact, a requirement that an
aggrieved noncitizen give his former attorney an
unknown amount of time to respond. This new
requirement will make it impossible for noncitizens
to act diligently and comply with statutory and
regulatory deadlines. Furthermore, the attorney in
this case, Mr. Azzam, had two months to respond
and has not responded in over two years.
The Sixth Circuit’s decision imposes a
substantially higher burden than that imposed by
every other circuit. See, _e.g., Grigoryan _v.
Mukasey, 515 F.3d 999, 1003 (9 Cir. 2008); Fadiga
v. Attorney General, 488 F.3d 142, 159 (34 Cir.
12
2007) (agreeing with the government that the
proper standard is “reasonable likelihood” or
“reasonable probability”); Dakane, 399 F.3d at
1274-75 (11% Cir. 2005); Obleshchenko v. Ashcroft,
392 F.3d 970, 972 (8 Cir. 2004). The Sixth Circuit
has imposed an impossibly high burden of proving
that but for the attorney’s mistakes, the noncitizen
would have been allowed to remain in the United
States. See Sako v. Gonzales, 434 F.3d 857, 864
(6% Cir. 2006). When relief is discretionary, it is
simply not possible for a noncitizen to prove this;
especially where noncitizens with identical claims
will receive different results from _ different
adjudicators. Moreover, Mr. Paruch’s failure to
timely file their asylum application or file a brief
and Mr. Azzam’s failure to file a proper motion to
reopen were per se prejudicial because these errors
resulted in the denial of Petitioners’ claims, not on
the merits, but on procedural grounds.
A Ineffective Assistance Of Counsel In
Removal Proceedings Implicates Due
Process And Fundamental Fairness
Concerns
Although there is no right to appointed
counsel, the BIA and all of the federal courts have
found that ineffective assistance of counsel could
infringe upon a noncitizens’ right to a full and fair
hearing if the ineffective assistance prevented the
noncitizen from “meaningfully presenting his or her
case.” Matter of Assaad, 23 I. & N. Dec. 553, 558
(BIA 2003) (collecting cases). “We are mindful that
the complexity of immigration procedures, and the
13
enormity of the interests at stake, make legal
representation in deportation proceedings
especially important.” Ardestani v. INS, 502 US.
129, 138 (1991). The harmful effect of ineffective
assistance of counsel is especially felt in the asylum
context where the wrongful denial of asylum
results in the return of a refugee to the country of
persecution and possible death or torture.
An opportunity to present one’s
meritorious grievances to a_ court
supports the legitimacy and _ public
acceptance of a statutory regime. It is
particularly so in the immigration
context, where seekers of asylum and
refugees from persecution expect to be
treated in accordance with the rule-of-
law principles often absent in the
countries they have escaped.
Kenyeres v. Ashcroft, 538 U.S. 1301, 1305 (2003) (J.
Kennedy).
By their nature, asylum proceedings are
cooperative, not adversarial, and the BIA has
recognized that adjudicators have a duty to assist
applicants in putting forth their claims. Matter of
Y-L, 24 I. & N. Dec. 151, 161-62 (BIA 2007).
Congress has protected the right of asylum seekers
to seek judicial review of even discretionary denials
at a time when it has otherwise limited the
availability of other noncitizens to seek recourse in
federal courts. 8 U.S.C. §§ 1252(a)(2)(B)ai,
(b)(4)(D).
_ Asylum petitions of aliens seeking
refuge from alleged persecution are
among the hardest cases faced by our
courts. They are not games. And,
despite their volume, these suits are
not to be disposed of improvidently, or
without the care and judicial attention
... to which all litigants are entitled.
We should not forget, after all, what is
at stake. For each time we wrongly
deny a meritorious asylum
application, concluding that an
immigrant’s story is fabricated when,
in fact, it is real, we risk condemning
an individual to persecution ... we
must always remember the toll that is
paid if and when we err.”
Xue v. BIA, 439 F.3d 111, 113-14 (24 Cir. 2006)
(internal footnotes and citations omitted).
The agency has held that ineffective
assistance of counsel can violate a noncitizens’ due
process right to a full and fair hearing when it
results in prejudice. The federal courts have agreed
with the agency’s conclusion because of the
important due process rights at stake and the
consequences of deporting a noncitizen, especially a
refugee.
The Decision Of The Sixth Circuit
Conflicts With Those Of Other Circuits
Permitting Substantial Compliance
With Procedural Requirements For
Alleging Ineffective Assistance of
Counsel And It Imposes An
Unreasonable and Vague Burden
The BIA has established a procedure for
noncitizens to follow when alleging ineffective
assistance of counsel. In Matter of Lozada, 19 I. &
N. Dec. 637, 639 (BIA 1988), the BIA held that a
noncitizen alleging ineffective assistance of counsel
must (1) submit an affidavit attesting to the
relevant facts, (2) the noncitizen must notify
previous counsel of the allegations and give the
attorney an opportunity to respond, and (3) include
proof that a complaint was filed with the
appropriate’ disciplinary authorities or an
explanation as to why none was filed. Id. at 639.
The purpose of these requirements is to allow the
BIA to assess the substance of the allegations, weed
out meritless claims, allow an attorney whose
reputation has been besmirched to respond, and to
highlight the standards which should be expected
of attorneys in immigration proceedings. Id.
It is undisputed that Mr. Nikollbibaj
satisfied these requirements against Mr. Paruch
and at least two of the three requirements against
Mr. Azzam. The issue is whether he gave Mr.
16
Azzam sufficient opportunity to respond to the
allegations. App. B1.
The Sixth Circuit concluded that Mr.
Nikollbibaj did not provide Mr. Azzam _ with
sufficient opportunity to respond. Nikollbibaj,
supra, at 15. Mr. Nikollbibaj notified Mr. Azzam of
the allegations on March 15, 2006 at the same time
he filed his motion to reopen with the BIA. Mr.
Azzam did not respond in the two months it took
the BIA to decide the motion and, to date, Mr.
Azzam has never responded. He also has not
responded to the bar complaint filed’ in
Massachusetts, where he is licensed, even though
the disciplinary authorities have brought formal
charges against him. He has since been convicted
of defrauding his clients in the Washtenaw County,
Michigan, circuit court.
The BIA and the Sixth Circuit did not state
how long an alien must wait after notifying the
attorney before filing a motion to reopen. Without
a more definite rule, aliens risk waiting too long
and thereby having their motions to reopen denied
on timeliness grounds.
In this case, if Mr. Nikollbibaj waited for Mr.
Azzam to respond, he would have missed the 30
day filing deadline for filing a motion to reconsider
and the 90 day deadline for filing a motion to
reopen. 8 C.F.R. §§ 1003.2(b)(2), (c)(2). For
example, it took Mr. Paruch two months to respond
to the complaint filed against him by Mr. Azzam. If
Mr. Nikollbibaj waited two months for Mr. Azzam
17
”
to respond, the BIA would have denied his motion
because he failed to exercise due _ diligence.
Scorteanu v. INS, 339 F.3d 407, 414 (6 Cir. 2003)
(denying petition for review because the alien did
not exercise due diligence where he delayed filing a
motion to reopen while trying to locate his previous
attorney to obtain a response to the bar complaint).
Prior Sixth Circuit jurisprudence did not
impose on noncitizen a duty to give the previous
attorney an opportunity to respond as long as the
attorney is notified of the allegations. Sako, 434
F.3d at 863. In Ramirez v. Gonzales, 2007 WL
2694012, No. 06-3679 at *7 (6% Cir. Sept. 14, 2007),
the court noted that aliens do not have to wait until
they receive a response from the disciplinary
authorities before filing a motion to reopen.
Other circuit courts of appeal have rejected a
“slavish adherence” to the Lozada requirements.
These courts permit substantial compliance with
those requirements so long as their purpose is
satisfied. See Yang, 478 F.3d at 142-143 (24 Cir.
2007); Habchy, 471 F.3d at 864 (8 Cir. 2006);
Barry, 445 F.3d at 746 (4 Cir. 2006); Dakane, 399
F.3d at 1272, n.3 (11 Cir. 2005); Rojas-Garcia, 339
F.3d at 824-25 (9% Cir. 2001); Lu, 259 F.3d at 133
(34 Cir. 2001).
In this case, Mr. Nikollbibaj satisfied
Lozada’s purposes, if not’ perfectly, then
substantially. His previous attorneys and the state
bar associations were put on notice of their
mistakes, which Mr. Nikollbibaj detailed in his
affidavit and supported with witness affidavits.
Both attorneys had an opportunity to
respond during the agency proceedings but Mr.
Azzam never did. Had he done so, his response
would have been made part of the record. His
recent performance in this and other cases has
since been the subject of criminal prosecution and
state disciplinary proceedings.
Many of the mistakes in this case were clear:
the missing of the one year asylum deadline (8
U.S.C. § 1158(a)(2)(B)) for failure to file the proper
number of copies, the summary dismissal of the
appeal for failure to file a brief, and the summary
dismissal of a motion to reopen for failure to
include readily available proof of compliance with
Lozada.
After the fact and in disregard, not only for
agency and Sixth Circuit precedence, but decisions
from other circuit courts of appeal, the BIA and the
Sixth Circuit erroneously concluded _ that
Petitioners failed to comply with Lozada because
they did not give Mr. Azzam sufficient time to
respond to their allegations. This conclusion is in
error and deprived Petitioners of administrative
and judicial appellate review of their asylum claim,
which they were entitled to as a matter of right.
Ill. The Ineffective Assistance Of Counsel
Prejudiced Petitioners But The Sixth
Circuit Imposed An Impossibly High
Burden
The Sixth Circuit imposed too high a
standard for evaluating whether Petitioners were
prejudiced. It is impossible for noncitizens to show
that, but for the mistakes, they would have been
entitled to remain in the United States where
entitlement to relief is discretionary and turns on a
variety of subjective factors. Nikollbibaj, supra, at
17 (App. B1); see also Sako, 434 F.3d at 864.
The Sixth Circuit’s rule is much stricter than
that adopted by the agency. While the BIA has not
specified an exact standard for showing prejudice, it
has cited favorably to case law requiring a showing
of “substantial prejudice.” Assaad, 23 I. & N. Dec.
at 561-62. Ineffective assistance of counsel results
in a due process violation if it prevents an alien
from “reasonably presenting his case.” Lozada, 19
I. & N. Dec. at 638.
Moreover, most, if not all, of the circuit
courts of appeal have adopted the “reasonable
probability” or “substantial prejudice” standard.
See Grigoryan, 515 F.3d at 1003 n.1 (9t» Cir. 2008)
(“reasonable likehhhood”); Fadiga, 488 F.3d at 159
(34 Cir. 2007) (agreeing with the government that
the proper standard is “reasonable likelihood” or
“reasonable probability”); Dakane, 399 F.3d at
1274-75 (11 Cir.) (same); Obleshchenko, 392 F.3d
at 972 (8 Cir. 2004) (same). Counsel is not aware
of any other circuits applying as high a standard as
the Sixth Circuit.
20
Several circuits, in fact, have presumed
prejudice where, as here, counsel fails to file an
appellate brief. Grigoryan, 515 F.3d at 1003-04;
Dakane, 399 F.3d at 1274-75. These courts have
held that the denial of appellate proceedings
entirely is per se prejudicial. Grigoryan, 515 F.3d
at 1004-05; Dakane, 399 F.3d at 1274-75.
In the asylum context, it’ is especially
difficult for noncitizens to show that they would
have received asylum but for their attorneys’
mistakes because asylum law involves many
subjective determinations and different
adjudicators may reach different conclusions on the
same set of facts. See, e.g., Zhang v. Gonzales, 452
F.3d 167, 173-74 (24 Cir. 2006) (family members
with similar claims received different decisions on
their asylum applications). When the BIA has not
considered the merits of an asylum claim or
explained why it has denied the application, a
federal court cannot determine if the alien would
have received asylum but for the ineffective
assistance of counsel without overstepping its
authority as an appellate body. Gonzales _v.
Thomas, 547 U.S. 183, 186-87 (2006).
IV. The Ineffective Assistance Of Counsel
Prejudiced Petitioners And Deprived
Them Of Meaningful Review Of Their
Meritorious Asylum Claim
The many mistakes in this case, individually
and in the aggregate, deprived Petitioners of due
21
process and prevented them reasonably presenting
their case. Petitioners are from Gjakove, Kosovo,
the scene of Serbia’s campaign of genocide, as
confirmed by the Federal Bureau of Investigation.
Mr. Nikollbibaj’s brother, Xhevalin, was granted
asylum in the United States.
Mr. Paruch tried, but failed to, timely file
their asylum application. The INS twice rejected
the application because Mr. Paruch did not include
enough copies. As a result, the IJ found their
application time-barred under 8 U.S.C. §
1158(a)(2)(B).
Mr. Paruch then failed to file a brief to the
BIA, because he was in the hospital, resulting in
the summary dismissal of Petitioners’ appeal. App.
Fi. Had he filed a brief, he could have submitted
Petitioners’ rebuttal evidence and evidence of
current country conditions. Because he did not file
a brief, the BIA never reviewed the merits of the
asylum claim.
Mr. Nikollbibaj turned to Mr. Azzam to
remedy Mr. Paruch’s mistakes but Mr. Azzam only
compeunded them. Mr. Azzam delayed taking
action until his license to practice law was restored.
Although Mr. Azzam _ satisfied the Lozada
requirements against Mr. Paruch, he failed to
provide proof to the BIA, even after the DHS noted
the absence of evidence. As a result, the BIA
denied the motion, not on the merits, but again on
procedural issues. As a result, the BIA never
considered the merits of Petitioners’ claim that Mr.
22
Paruch provided ineffective assistance of counsel or
that they suffered prejudice.
Petitioners were deprived of appellate
review, not once, but twice, by incompetent counsel.
The BIA and the Sixth Circuit had the authority,
and duty, to remedy these due process violations,
but they failed to do so. As a result, Krist
Nikollbibaj, Lindita Nikollbibaj, and their daughter
Donika, are facing imminent removal. to the
country that persecuted them.
23
CONCLUSION
Petitioners respectfully submit that the
Sixth Circuit erred in the following respects:
Petitioners fully or substantially complied
with the procedural requirements for alleging
ineffective assistance of counsel.
The’ ineffective assistance of counsel
prejudiced them by depriving them of the ability to
apply for asylum and to have meaningful appellate
review of their application and there is a
reasonable likelihood that they would have been
granted relief.
Therefore, Petitioners respectfully pray that
the Court grant their petition for writ of certiorari
and reverse the decisions of the Sixth Circuit Court
of Appeals and the BIA.
Respectfully Submitted,
Marshal E. Hyman
Counsel of Record
Russell Reid Abrutyn
APPENDIX
SIXTH CIRCUIT COURT APPEALS FILINGS:
Order Denying Rehearing,
filed 01/17/08
Opinion,
filed 08/10/07
BOARD OF IMMIGRATION FILINGS:
Decision of the Board of
Immigration Appeals,
filed 05/04/06
Decision of the Board of
Immigration Appeals,
filed 02/21/06
Decision of the Board of
Immigration Appeals,
filed 11/22/05
Decision of the Board of
Immigration Appeals
filed 07/28/05
Oral Decision and Order
of the Immigration Judge,
filed05/14/04
Nos. 05-4584/06-3330/3705
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
KRIST NIKOLBIBAJ, ET AL.,
Petitioners,
Vv.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL,
Respondent.
ORDER
BEFORE: MARTIN, BATCHELDER, and CLAY,
Circuit Judges.
The court having received a petition for
rehearing en banc, and the petition having been
circulated not only to the original panel members but
also to all other active judges of this court, and no
judge of this court having requested a vote on the
suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of thecases. Accordingly, the
petition is denied.
A-]
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green, Clerk
Leonard Green, Clerk
NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION
Nos. 05-4584; 06-3330;06-3705
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
KRIST NIKOLLBIBAJ, et al.,
Petitioners,
Vv.
ALBERTO GONZALES,
ATTORNEY GENERAL
Respondent.
ON APPEAL FROM THE BOARD OF
IMMIGRATION APPEALS
BEFORE: MARTIN, BATCHELDER and
CLAY, Circuit Judges.
CLAY, Circuit Judge. Petitioner Krist
Nikollbibaj, his wife, Lindita Nuikollbibaj, and
daughter, Donika Nikollbibaj (collectively,
“Petitioners’)' applied for 1) asylum under the
"The record is unclear whether Petitioners’ last name
is “Nikolbibaj”* or “Nikollbibaj.“ Compare J.A. 474
with J.A. 465. This opiriionuses “Nikollbibaj,” the
B-1
Immigration and Nationality Act (“INA”) § 208, 8
U.S.C. § 1158; 2) withholding of removal under INA
§ 241 (b)(3), 8 C.F.R. §208.16; and 3) protection under
the United Nations Convention Against Torture
(“Torture Convention”), 8 C.F.R. § 208.16. An
Immigration Judge (“IJ”) denied Petitioners’ asylum
applications on May: 14, 2004. The Board of
Immigration Appeals (“BIA”) summarily dismissed
Petitioners’ appeal and denied three motions to
reopen. Petitioners appeal the BIA’s denial of the
motions to reopen. For the reasons that follow, we
AFFIRM the BIA’s decision and DENY the petitions
for review.
BACKGROUND
Petitioners are ethnic Albanians from Kosovo
and Roman Catholics. Petitioner “completed the
middle school and the high school .... [iJn 1989,” (J.A.
369), and served for one year as a “foot soldier’ in the
army of the former Yugoslavia, (J.A. 371). He
maintains that his older brothers, Xhevalin
Nikollbibaj (“Xhevalin”) and Vitor Nikollbibaj
(“Vitor”), were actively involved in political activities
in Kosovo.
last name to appear in Petitioners’ passports.
B-2
The record shows that “Serbian police
authorities,” (J.A. 350), arrested and interrogated
Xhevalin for “believing [in] human rights for
Albanian people[,] ... talking, [] spreading mail, [and]
trying to convince people” to support Kosovo
independence, (J.A. 351). In 1992, Xhevalin came to
the United States and was granted asylum. Notably,
after leaving Yugoslavia, Xhevalin was convicted in
absentia of making public political statements:
...on April 18, 1992 at about 9 p.m. in
the restaurant RINIA in Djakovica, in
the presence of a considerable number
of patrons, [Xhevalin] did shout the
slogans: “Kosovo a Republic,” “Kosovo
Belongs to the Albanians,” and “We will
Not Tolerate Serbian . Occupation,
Because This Country Belongs Only to
the Albanians,” - thereby committing a
criminal act against the foundations of
the social system of socialist self-
management and the security of the
[Socialist Federal Republic of
Yugoslavia] under Article 114 of the
Yugoslav Criminal Code. Whereupon ....
the court hereby SENTENCES the
defendant Xhevalin [ Ito a term of 5
(five) years in prison.
(J.A. 476) (formatting added). Xhevalin’s persecution
in Kosovo, as a result of his political activities, is well
established in the record.
With respect to Vitor, the record shows that he
was involved with the Democratic League (“LDK”), a
political party that “aim[s] [ ] to show to the world
the massacres that [Albanian] people [have] suffered”
in Kosovo. (J.A.372) Since the “former Yugoslavia
was together, [ ] they used to call [LDK members]
separatists” because LDK “wanted to separate
Yugoslavia as a country.” (J.A. 325) Vitor testified
that he
start[ed] writing slogans on buildings.
[LDK] wrote slogans, slogans all over
the place. [LDK] want[ed] to separate
from Yugoslavia; [ ] [and] wantfed]
Kosovo to be a republic. And so in the
meantime, a lot of police from Serbia
was transported, and they came, and
they sent them into Kosovo, and they
started investigating [LDK]....
Sometimes they beat [LDK members],
sometimes they let [LDK members] go,
sometimes threaten[ed] ... to kill [LDK
members].
(J.A.326-27) Vitor was arrested “two times from
home,” detained, interrogated, and beaten by the
poiice. (J .A. 329) The record indicates that Vitor “left
B-4
{Kosovo] because of a Serb abusement (sic) that they
did to ... [him] and [his] family, for... anti-government
ideas that [they] had.” (J.A. 324- 25) In 1985, Vitor
came to the United States and applied for asylum,
but became a “lawful permanent residen[t] through
cancellation of removal before his asylum application
was adjudicated.” (Pet. Br. at 13; see also J.A.323-24)
Petitioner maintains that, like Xhevalin and
Vitor, he joined LDK and became politically active.
More specifically, he alleges that “[a]fter [he]
completed military service ... [he] started to be
involved with Democratic League.” (J.A. 372)
According to Petitioner,
together with [his] brother Xhevalin,
{he] [ | spread ... papers. saying the
Kosovo Republic. So, [he] helped [his]
brother Xhevalin to distribute those
papers .... [and] in 1992, [he] got the
membership card of the Democratic
League.
(J.A. 374) Although he does not provide specific
details, Petitioner maintains that the Serbian police
targeted him and frequently detained and
interrogated him because of his brothers’ and his own
political activities. See, e.g., J.A. 382 (Petitioner
alleges that Serbian police “question[ed] [him] a
couple of times about [his] brothers.”).
Petitioner alleges that, in the course of his
involvement with LDK, “[he] was promoted” and
became “head of the group for the village,” or “leader
of the Village.” (J .A. 375) Petitioner affirms that he
“led 10,000 LDK members in fhis] village.” (J.A.376)
As a party leader, Petitioner's “duty was to tell the
people ... to liberate Kosovo through peaceful means,
not war:” Id. He held “secret meetings, and then,
communicated with different people during those
meetings.” Jd. With respect to these meetings,
Petitioner testified ,as follows:
Question: How often would you have these secret
meetings?
Answer: So there were about two, three days a
week. During the difficult time when
immediately before the war, then we
had them more often.
Question: How many people would be at each of
these meetings?
Answer: Around-sometimes there were 2,000,
3,000; sometimes there were 500,
around 500. But most they were - some
of them were scared of the police.
Question: Where would you have these meetings?
Answer: Sometimes we had them in secret
places. Yeah, sometimes in_ the
B-6
mountains where the police couldn’t see
us.
(J.A. 377) (formatting added).
Petitioner affirms that before leaving Kosovo,
the Kosovo Liberation Army (“KLA”),- an ethnic
Albanian guerilla force fighting for Kosovo
independence, “called on [him] and requested that
[he] join them.” (J.A.385) Although Petitioner
didnotjoin the KLA “[b]ecause [he] [ ] was for peace,
not war,” (J.A. 3 86), the Setbian police “thought that
fhe was] also fight{ing] for KLA,” (J.A. 400).
Petitioner alleges that during his last encounter with
the Serbian police, law enforcement officials “tore the
shirt of [his] spouse off’ and “told [him] that they
were going to do anything with [his] wife ... [and] kill
{his} wife,” unless Petitioner disclosed “which party
{he was] working for and who [he was] working with.”
(J.A. 383) During this encounter, Petitioner was
allegedly detained and taken to a police station.
While Petitioner was detained, Petitioner’s wife was
allegedly raped by five Serbian police officers in front
of her daughter, mother-in-law, sister-in-law, and
other family members. Petitioners fled Kosovo in
July 1998, a week after the alleged rape.
Petitioners traveled from Kosovo to Hungary.
Because they were “afraid that [Hungary] might turn
B-7
[them] back” to Kosovo, Petitioners traveled to
Austria. (J.A. 384) They remained in Austria for
“five, [or] six months,” (J.A. 392), living in a camp for
asylum applicants, “in a room where slept on 100- or
200 people,” (J.A.415). Petitioners maintain that they
applied for asylum, but Austria “denied [the]
application for asylum.” (J .A. 392) After the Austrian
asylum applications were denied, Petitioners traveled
“from Austria ...to Germany, and from Germany ... to
Holland” (J.A. 385) Finally, Petitioners entered the
United States on December 31, 1998, with false
“Slovenian passports” under the visa waiver program.
(J.A. 385; see also 8 U.S.C. § 1187(a)). Petitioner
maintains that “fijf [he] get[s] back to Kosovo, the
Serbs will get back, and the KLA is going after
everyone who has left Kosovo and didn't fight against
the Serbs.” (J.A. 389) Essentially, Petitioner argues
that he will be viewed as a traitor and Serb-
collaborator, and that the KLA will target him
because he refused to join the guerilla forces.
On December 30, 1999, Petitioners retained an
attorney, David Paruch (“Paruch”), and applied for
asylum.’ Since the first asylum applications were
“It is unclear whether Petitioners filed their first
asylum applications on December 30, 1999, or
B-8
rejected by the INS, Petitioners re-submitted the
applications on January 6, 2000. The second asylum
applications were also rejected. Petitioners did not
resubmit the applications until September 17, 2001.
See J.A. 294 (IJ indicates that the record contains “an
administratively filed application [ for asylum] that
was filed actually three times, or attempted to be
fiied three times.”).
On November 8, 2001, Petitioners were served
with a “Notice of Referral to Immigration Judge,”
(J.A. 509-14), pursuant to 8 C.F.R. § 208.2(b),
because as aliens admitted under the visa waiver
program, Petitioners waived the right “to contest,
other than on the basis of an application for asylum,
any action for removal of the alien.” 8 U.S.C. §
1187(b). Petitioners appeared before an IJ and
indicated that they were “seeking asylum and
withholding [of removal] under the statute and the
Torture Convention.” (J.A. 293) Since the IJ was “not
sure [he] even had a valid asylum application before
the Court,” Petitioners’ were directed to “[ffill out fa]
December 31, 1999. Since Petitioners filed their last
asylum application on September 17, 2001, the exact
date of the first filing is not relevant for purposes of
this appeal.
B-9
new form .... [aJnd attempt to explain in that new
form what happened” with their prior attempts to ale
the asylum application. (J.A.297)
The IJ held an evidentiary hearing on the
merits of Petitioners’ asylum applications on May 14,
2004. At the hearing, Petitioner, his wife and
brothers testified about their alleged persecution in
Kosovo. Compared to his brothers’ accounts of their
political activities and persecution, Petitioner’s
testimony was vague and conclusory. Petitioners also
proffered expert testimony on “Kosovar government
and politics or Balkan government and politics,” (J.A.
429), from Bernd J. Fischer, Ph.D., a professor at
Indiana University and Purdue University, (J.A.
457-64). Dr. Fischer testified that “the situation [in
Kosovo] is rater chaotic” because “there was
essentially [a] mini-civil war in Kosovo.” (J.A.431) He
explained that
not only are there l;hreats, there is’
actual retribution .. Kosovo has a fairly
high.crime rate, and much of this crime
is basically Albanian on Albanian
crime; in other words, individuals who
have taken it upon themselves to rid
the ethnic Albanian community of
individuals that they assume to be
traitors.
B-10
(J.A.435) Dr.-Fischer explained that the traitors are
people who cooperated with Serbs during the war,
those who were not sufficiently anti-Serb during the
war, those who refused to participate in the war,
those who left; and, on occasion. failed political
asylum seekers.” Jd. Dr. Fischer testified that
international and local law enforcement forces “are
not particularly effective” in protecting the targets of
these attacks. (J.A. 436)
At the hearing, Petitioners also submitted
country condition reports from the United States
Department of State indicating that “Serbian forces
killed up to 10,009 mostly male ethnic Albanians,
often in brutal fashion.” (J.A.482) The reports
indicate that in Kosovo “[v]irtually no town or
settlement escaped the effects of Miulosevic’s
campaign of ethnic cleaning, with reports of dozens,
if not hundreds of civilians being murdered tn each
town.” (J.A. 483)
At the conclusion of the evidentiary hearing,
the IJ denied Petitioners’ asylum applications,
finding that Petitioners were ineligible for asylum
because they “lived in Austria for five or six years,”
(J.A. 30), and “beclaJme permanently resettled in
B-11]
Austria,” (J.A. 31);° and that the applications were
untimely because they were “ultimately not filed
until September 17, 2001,” (J.A. 32). The IJ “also
reject[ed] the application on its merits,” finding that
Petitioners were not credible because they “cannot
tell a consistent or a straight story.” (J.A. 34)
Petitioners filed a timely notice of appeal to
the BIA. Paruch filed a motion for an extension of
time to “complete briefing of [the] issues” because
“the Easter Holiday and associated family issues[ ]
uiterfere[d] with timely submission ofthe brief.” (J.A.
276) Although the BIA granted the motion,
Petitioners failed to submit the brief by the April 20,
2005 deadline. On July 28, 2005, the BIA “summarily
dismissed” Petitioners’ appeai, for failure to file a
brief, pursuant to 8 C_F.R. § 1003.1 (d)(2)Q)(B). (J .A.
270) Petitioners did not file a petition for review from
the BIA’s dismissal. On August 31, 2005, Petitioners
filed a motion to reopen with the BIA, indicating that
“at about the time thfe] briefwas due; [Paruch]
underwent surgery for prostate cancer.” (J.A. 258)
> The IJ found that Petitioners lived in Austria for
five or six years. However, Petitioners’ testified that
they lived in Austria for five or six months. Compare
J.A. 30 with J.A. 392.
Indeed, the record indicates that Paruch had
“Laparascopic Prostatectomy with Robotic Assistance
for Prostate Ct [sic].” (J.A. 271) |
On November 22, 2005, the BIA denied the
motion to reopen. The BIA stated that -”[iJnasmuch
as it appears that the applicants are requesting that
[the BIA] reconsider [the] prior decision ... the
request for reconsideration was filed more than 30
days after [the] decision and, therefore, is untimely.”
(J.-A. 12) The BIA acknowledged that Petitioners
submitted “a hospital record showing that [Paruch]
was admitted to the hospital on April 5, 2005, and
discharged on April 7, 2005,” but noted that the brief
was due on April 20, 2005, and that Petitioners “dfid]
not. specify the length of the attorney’s recovery
period.” Jd. The BIA stated that “the motion does not
explain why the applicants waited more than 4
months after the briefwas due to file the request to
consider the late-filed brief.” Id.
After the BIA denied the first motion to
reopen, Petitioners retained new counsel, Hani Alex
Azzam‘ (“Azzam”), to file a second motion to reopen.
On December 20, 2005, Azzam filed a motion to
reopen Petitioners’ asylum case with the BIA raising
an ineffective assistance of counsel claim, and
petitioned this Court to review the BIA’s denial of the
first motion to reopen.°
The BIA denied Azzam’s motion on February
21, 2006, under 8 C.F.R. § 1003.2(c)(2), because “{t]he
motion to reopen exceeds the numerical limitations
for motions to reopen.” (J .A. 10) The BIA also found
that Petitioners “failed to meet the requirements for
making an ineffective assistance of counsel claim.”
‘The record shows that Azzam was “administratively
suspended from the practice of law” in Massachusetts
and with the BIA, from July 21, 2005, to October 26,
2005. (J.A. 164; see also J.A. 165) Petitioners concede
that they did not know about Azzam’s suspension.
Since Petitioners engaged Azzam to file a new motion
to reopen after the BIA denied the first motion to
reopen on November 22, 2005, it does not appear that
Azzam represented Petitioners while he was
suspended.
° Since Azzam failed to include Petitioner’s Wife in
the petition for review to the Sixth Circuit,
Petitioners filed a second petition for review.
B-14
Id. More specifically, Petitioners “failed to provide
either an affidavit in support of their motion or any
evidence that they have given former counsel an
opportunity to respond to their allegations” of
ineffective assistance of counsel. Id.
After the BIA denied Azzam’s motion to
reopen, Petitioners retained Marshal Hyman
(“Hyman”), the attorney currently litigating this case,
as counsel. Hyman filed a petition for review from the
BIA’s February 21, 2006 decision, and a motion to
reopen with the BIA alleging that Petitioners were
prejudiced by Paruch’s and Azzam’s ineffective
assistance of counsel. The BIA denied this third
motion to reopen on May 4, 2006, finding that it was
“barred by numerical limitations.” (J.A.8) The BIA
stated that it had already “considered the arguments
as to ineffective assistance of counsel ... regarding the
actions of [ ] former attorney, [ ] Paruch ... and
decline[d] to revisit” that issue. (J.A.7) The BIA also
found that it could not address the issue of Azzam’s
ineffective assistance because Petitioners “failed to
comply with [the] critical [ ] requirement” that
“before allegations of ineffective assistance of former
counsel are presented to the [BIA], former counsel
must be informed of the allegations and allowed the
opportunity to respond.” (J .A. 8) (internal quotation
B-15
marks and citation omitted). Petitioners filed a
timely petition of review with this Court.® On appeal,
Petitioners argue that the BIA erroneously denied
the three motions to reopen.
DISCUSSION
Standard of Review
This Court reviews the denial of a motion to
reopen for an abuse of discretion. See, e.g., INS uv.
Doherty, 502 U.S. 314, 323 (1992); see also INS uv.
Abudu, 485 U.S. 94, 107 (1988) (holding that BIA
reopening “decisions are subject to an abuse-of-
discretion standard of review.”). “The [BIA’s]
discretion is broad but it is not unlimited. It may not
exercise its discretion in a way that 1s arbitrary,
irrational or contrary to law.” Daneshvar v. Ashcroft,
355 F 3d 615, 625-26 (6 Cir. 2004) (citations
omitted). “Cursory, summary, or _ conclusory
statements are inadequate” in BIA decisions. Jd.
cu
(citations omitted). “In determining whether the
[BLA] abused its discretion, this Court must decide
whether the denial of [the] motion to reopen ... was
made without a rational explanation, inexplicably
© This Court has consolidated the three petitions for
review in this case .
departed from established policies, or rested on an
impermissible basis such as invidious discrimination
against a particularrace or group.” Sako v. Gonzales,
434 F.3d 857, 863 (6 Cir. 2006) (quoting Allabani v.
Gonzales, 402 F.3d 668, 675 (6 Cir. 2005)).
Il. The Motions to Reopen
A. Statutory and Legal Framework
“The granting of a motion to reopen is [ ]
discretionary, and the Attorney General has broad
discretion to grant or deny such motions.” Doherty,
502 U.S. at 323 (internal quotation marks and
citations omitted). Under 8 C.F.R. § 1003.2(a),
{t]he [BIA] may at any time reopen or
reconsider ... any case in which it has
rendered a decision. A request to reopen
. must be in the form of a written
motion to the [BIA]. The decision to
grant or deny a motion to reopen or
reconsider ts within the discretion of the
[BIA] .... The [BIA] has discretion to
deny a motion to reopen even if the party
mouing has made out a prima facie case
for relief.
8 C.F.R. § 1003.2(a) (formatting and emphasis
added). Under 8 C.F.R. § 1003.2(c)(1),
B-17
motion to reopen proceedings shall not
be granted unless it appears to the
[BIA] that evidence sought to be offered
is material and was not available and
could not have been discovered or
presented at the former hearing; nor
shall any motion to reopen for the
purpose of affording the alien an
opportunity to apply for any form of
discretionary relief be granted if it
appears that the alien’s right to apply
for such relief was fully explained to
him or her and an upportunity to apply
therefore was afforded at the former
hearing.
8 C.F.R. § 1003.2/2)(1).”[T]he motion to reopen shall
be filed within 90 days ofthe date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a
(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2) (“[A] party
may file only one motion to reopen deportation or
exclusion proceedings (whether before the Board or
the Immigration Judge) and that motion must be
filed no later than 90 days after the date on which
the final administrative decision was rendered in the
proceeding sought to be reopened.”). “Motions for
reopening of immigration proceedings are [generally]
disfavored,” Doherty, 502 U.S. at 323, because
“[t]here is a strong public interest in bringing
B-18
litigation to a close [] promptly,” Abudu, 485 U.S. at
107.
B. The First Motion to Reopen
The BIA dismissed Petitioners’ appeal for
failure to file the brief on July 28, 2005. Under 8
U.S.C. § 1229a(c)(6)(C)(i),a “motion to reopen shall be
filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)
(6)(C)Gi). The record shows that the motion to reopen
was filed on August 31, 2005, approximately one
month after the BIA dismissed the case. Contrary to
the BIA’s finding, the record indicates that
Petitioners’ motion to reopen was filed within the
ninety-day statutory time period.
Nevertheless, in the motion to reopen,
Petitioners requested thatthe BIA accept a brief more
than four months after the April 20, 2005 filing
deadline. Petitioners’ explained that they waited four
months to file the brief because Paruch had surgery
for prostate cancer and could not prepare the brief.
The BIA found that the only document Petitioners
submitted in connection with Paruch’s surgery was a
hospital record which indicated that Paruch was
admitted to the hospital on April 5, 2005, and
discharged on April 7, 2005. Since the record did not
contain any information about the length of Paruch’s
B-19
recovery period or the extent of his incapacitation
after the surgery, the BIA found that Petitioners’
contention that Paruch could not file the brief was
unsubstantiated. Petitioners simply cannot show that
the BIA’ s decision was an abuse of discretion because
the brief was due on April 20, 2005, and Paruch may
have been able to submit the brief after his surgery.
Even if Paruch was incapacitated by the surgery,
Petitioners could have requested an extension of time
to file the brief. We find that the BIA did not abuse
its discretion in denying the first motion to reopen
because Petitioners failed to substantiate their claim
that the brief could not have been filed on a timely
basis.
C. The Second Motion to Reopen
The BIA denied the second motion to reopen
because “[an] alien may [only] file one motion to
reconsider a decision that the alien is removable from
the United States.” 8 U.S.C. § 1229a( c)( 6)(A). “The
[second] motion to reopen exceed[ed] the numerical
limitations for motions to reopen.” (J.A. 10)
Petitioners also “failed to meet the requirements for
making an ineffective assistance of counsel claim”
because they did not “provide either an affidavit in
support of their motion or any evidence that they
have given [Paruch] an opportunity to respond to
their allegations.”
Id.
In Matter of Lozada, the BIA set forth
procedures for asserting an ineffective assistance of
counsel claim, 19 I. & N. Dec. 637, 639 (BIA 1998). In
pertinent part, Lozada provides that:
A motion based upon a claim of
ineffective assistance of counsel should
be supported by an affidavit of the
allegedly aggrieved respondent
attesting to the relevant facts .. . that
affidavit should include a statement
that sets forth in detail the agreement
that was entered into with former
counsel with respect to the actions to be
taken on appeal and what counsel did
or did not represent to the respondent
in this regard. Furthermore, before
allegations of ineffective assistance of
former counsel are presented to the
[BIA], former counsel must be informed
of the allegations and allowed the
opportunity to respond. Any subsequent
response from counsel, or report of
counsel’s failure or refusal to respond,
should be submitted with the motion.
Finally, if it is asserted that prior
counsel's handling of the case involved
a violation of ethical or legal respon-
B-21
sibilities, the motion should reflect
whether acomplaint has been filed with
appropriate disciplinary authorities
regarding such representation, and if
not, why not.
The high standard announced here is
necessary if we are to have a basis for
assessing the substantial number of
claims of ineffective assistance of counsel
that come before the Board
Id. (emphasis added). This Court has found that
“[s]ound policy reasons support compliance with the
Lozada requirements.” Hamid v. Ashcroft, 336 F.3d
465, 469 (6 Cir. 2003). “The requirements facilitate
a more thorough evaluation by the BIA and
discourag{e] baseless allegations.” Jd. (internal
quotation marks and citation omitted) (alteration in
original). The “failure to comply” with the Lozada
requirements “results in a forfeiture of [the]
ineffective-assistance-of-counse] claim.” Jd.
Petitioners argue that Azzam complied with
Lozada, but concede that the secon~ motion to reopen
“failed to include proof that he complied with the
[Lozada] procedural requirements.” (J.A. 118)
Azzam’s actual compliance with Lozada does not cure
Petitioners’ failure to include proof of compliance.
B-22
Lozada expressly requires the submission of an
affidavit and supporting documentation. The BIA did
not abuse its discretion in denying the second motion
to reopen because no evidence of compliance with
Lozada was before the BIA when it denied the motion
to reopen.
D. The Third Motion to Reopen’
In the third motion to reopen, Petitioners
sought to introduce new evidence of compliance with
Lozada and raised new allegations of ineffective
assistance of counsel against Azzam. The BIA found
that the third motion was numerically barred, and
that Petitioners failed to show that they provided
Azzam with an opportunity to respond. to the
allegations of ineffective assistance.
Admittedly, the record indicates’ that
Petitioners notified Azzam of their allegations on
’ Petitioners’ third motion was a motion for
reconsideration. The BIA construed the motion as a
motion to reopen because Petitioners raised new
ineffective assistance of counsel claims against
Azzam. See, e.g., Matter of Cerna, 20 1.&N. Dec. 399,
400 (BIA 1991) (holding that if a motion for
reconsideration raises new arguments or evidence
that was not previously in the record, it should be
construed as a motion to reopen.).
B-23
*
a
Maes
Maech 15, 2006. However, the third motion to reopen,
whic? .ncluded allegations of Azzam’s ineffective
assistance, was filed on March 17, 2€96. “Even if
[Petitioners] [ ] presented evidence that [they]
notified” Paruch oftheir allegations, Petitioners have
“failed to meet Lozada’s requirement that counsel be
provided an opportunity to respond before filing the
motion to reopen.” Asaba v. Ashcroft, 377 F.3d 9, 12
(1* Cir. 2004 ) (citation omitted). Because Petitioners
filed the motion two days after notifying Azzam, they
“afford{[ed] [Azzam] no opportunity to furnish a
timely response and thus sidestepp[ed] Lozada’s
requirement to submit any subsequent response from
counsel! with the motion to reopen.” Reyes v. Ashcroft,
358 F.3d 592, 594 (9 Cir. 2004) (internal quotation
marks and citation omitted). Simply put, two days
were not sufficient to-provide Azzam with an
opportunity to respond to the ineffective assistance
allegations: See, e.g., Asaba, 377 F.3d at 12 (finding
that “three days does not provide [counsel] an
adequate opportunity to respond to the allegations.”)
(internal quotation marks and citation. omitted).
Therefore, we find that the BIA did not abuse its
discretion in denying the third motion to reopen.
B-24
III. Petitioners’ Ineffective Assistance of
Counsel Claims
Petitioners argue that the BIA erred in
denying the motions to reopen because their
ineffective assistance of counsel claims have merit.
Contrary to Petitioners’ averments, the ineffective
assistance of counsel claims are meritless.
A. The Legal Framework _ for
ineffective Assistance of Counsel
Claims in Immigration Cases
Since “[iJmmigration proceedings [ } are civil,
rather than criminal, in nature[,] [ ] the Sixth
Amendment guarantee of effective counsel does not
attach.” Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131
(3d Cir. 2001) (citing INS v. Lopez-Mendoza, 468 U.S.
1032, 1038 (1984)). “Nonetheless, petitioners in
deportation proceedings enjoy Fifth Amendment Due
Process protections.” Id; see also Dokic v. INS,
No.92-3592, 1993 WL265166, at *3 (6™ Cir. July 15,
1993) (unpublished case). Ineffective assistance of
counsel could constitute a denial of due process “if the
proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his
case.” Lozada v. INS, 857 F.2d 10, 13-14 (1* Cir.
1988) (nternal quotation marks. and citations
B-25
omitted); see, e.g., Hernandez v. Reno, 238 F.3d 50, 55
(i* Cir. 2001) (“[Wjhere counsel does appear for the
respondent, incompetence in some situations may
maké< the proceeding fundamentally unfair and give
rise to a Fifth Amendment due process objection.”)
(citation omitted); Castaneda-Suarez v. INS, 993 F.2d
142, 144 (7 Cir. 1993) (“[C]lounsel at a deportation
hearing may be so ineffective as to have impinged
upon the fundamental fairness of the hearing in
violation of the fifth amendment due process clause.”)
(internal quotation marks and citation omitted);
Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9"
Cir. 1986).
In the instant case, the record clearly shows
that Paruch missed the deadline for filing the appeal
brief with the BIA, and waited more than four
months - until the BIA dismissed Petitioners’ appeal-
to request that the BIA accept the untimely brief.
Admittedly; Paruch’s conduct strongly suggests that
Paruch’s representation failed to satisfy professional
standards. However, to establish ineffective
assistance of counse] Petitioners must have “a viable
claim for discretionary relief.” Cortez-Herrera uv.
Gonzales, No. 04-75735, 2007 WL 1482395, at *1 (9"
Cir. May 22, 2007) (unpublished case). Petitioners
must be prejudiced by counsel's ineffective assistance.
B-26
“The alien carries the burden of establishing that
ineffective assistance of counsel prejudiced him or
denied him fundamental fairness in order to prove
that he has suffered a denial of due process.”
Huicochea-Gomez v. INS, 237 F .3d 696, 699 (6" Cir.
2001) (citation omitted) (expressly holding that the
BIA’ s failure to accept an untimely brief does not
amount to a denial of due process because petitioners
were ineligible for cancellation of removal); see also
Sako, 434 F.3d at 865 (“[T]he loss of a right to appeal
the BIA’s decision to this court and the accrual of
unlawful presence do not constitute prejudice under
this circuit’s law.”) (citation and internal quotation
marks omitted) (alteration in original); Komi uv.
Gonzales, 186 F. App’x 597, 601 (6" Cir. 2006) (noting
that “even if Petitioners’ ineffective assistance of
counsel claim had met the Lozada requirements, they
would still be required to show prejudice. The loss of
the right to appeal is not sufficient prejudice;
Petitioners must show that, but for their counsel’s
ineffective assistance, they would have been allowed
to remain in the country.”) (citation omitted). In this
case, Petitioners cannot show that Paruch’s and
Azzam’s ineffective representation constitutes
prejudice because their asylum clatms are meritless.
The merits of Petitioners’ asylum claims will be
discussed below .
B. The Legal Framework for Asylum
Claims
To be eligible for asylum, an alien must
present evidence of actual past persecution, or have
a well-founded fear of future persecution on account
of race, religion, nationality, membership of a
particular social group or political opinion. INA §
101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Singh uv.
Ashcroft, 398 F.3d 396, 401 (6 Cir. 2005); INS uv.
Cardoza-Fonseca, 480 U.S. 421, 438 (1987). An alien
who satisfies the burden of showing past persecution
is presumed to have a wellfounded fear of future
persecution. 8 C.F_R. §§ 108.13(a) and 208.13(b)(1)(i);
see also Ouda v. INS, 324 F.3d 445, 455 (6" Cir.
2003). The fear of persecution must be both
subjectively genuine and objectively reasonable.
Mikhailevitch v. INS, 146 F.3d 384, 389 (6 Cir.
1998). The fear of persecution may be established
either through the production of specific documentary
evidence or by credible and persuasive testimony. Id.
Past persecution does not require corroborative
evidence, Garrovillas v. INS, 156 F.3d 1010, 1016 (9%
Cir. 1998), because an applicant’s “testimony ... if
credible, may be sufficient to sustain the bandas of
B-28
proof without corroboration,” 8 C.F.R. § 1208.13(a);
see also Hassan v. Gonzales, 403 F.3d 429, 434 (6
Cir. 2005).
The IJ’s_ credibility determinations are
considered findings of fact, and are reviewable under
the substantial evidence standard and “are treated as
conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Hassan,
403 F.3d at 434 (quotation and citation omitted); see
also Abay v. Ashcroft, 368 F.3d 634, 637 (6" Cir.
200.4). Although the IJ’s credibility finding is
afforded substantial deference, the finding should be
supported by specific reasons. Daneshvar v. Ashcroft,
355 F.3d 615, 623 n.7 (6" Cir. 2004). “An adverse
credibility finding must be based on issues that £0 to
the heart of the applicant’s claim,” Sylla v. INS, 388
F.3d 924, 926 (6 Cir. 2004), and cannot be based on
irrelevant inconsistencies, Daneshvar, 355 F.3d at
623 n.7. The IJ’s determination with respect to the
availability of corroborating evidence cannot be
reversed unless the Court finds that a reasonable
trier of fact is compelled to conclude that such
corroborating evidence is unavailable. INA §
242(b)(4), 8 D.S.C. § I 252(b)(4).
B-29
c. The IJ’s Credibility Determination
Petitioners contend that they suffered past
persecution in Kosovo on the basis of their political
opinion and membership in the Democratic Party. In
pertinent part, Petitioner argues that he was
interrogated, detained, and beaten by Serbian police
officers on numerous occasions. He alleges that his
encounters with Serbian police resulted in injuries
and that his wife was raped by Serbian police.
Petitioners maintain that their testimony at the
evidentiary hearing and corroborating evidence
established their past persecution in Kosovo and
support a reversal of the BIA decision. We find that
Petitioners have failed to meet their burden of
showing that they endured past persecution because
their hearing testimony was vague and unsupported
with independent evidence.
1. The Nature and Quality of
Petitioners’ Testimony
The IJ identified specific inconsistencies in
Petitioner’s testimony that conflict with his asylum
application. For example, in the asylum application,
Petitioner indicated that he was “a member of the
LDK [political party].” (J.A. 45) However, during the
evidentiary hearing, Petitioner stated that “not only
he was a member, but he was the leader ... he got a
B-30
promotion when he got his membership for this
organization in his home village, and that he had
thousands of people that he led.” (J.A. 46) Petitioner
proffered only vague and conclusory statements in
support of this assertion, and failed to provide
specific facts and details concerning the nature of his
leadership role.
Although Petitioner claimed to have been
interrogated, arrested, detained, and beaten on
numerous occasions by Serbian police, he failed to
proffer specific or detailed testimony concerning his
alleged persecution in Kosovo; he was simply unable
to explain or describe the circumstances surrounding
his persecution. See, e.g., J.A. 62 (noting that when
Petitioner “was queried about his interrogations with
the police .... he could not estimate the number of
times; just many times.”); J.A. 63 (noting that
“{Petitioner] was asked [ ] how often fhe was]
questioned about the [political] party and [his]
brothers” and he responded that “[he] cannot
remember.”); J.A. 63 (“When asked how often” he was
beaten by the police, “[Petitioner] said, ‘very’ .... [and]
refused to even estimate the number of times.”).
Petitioner failed to articulate meaningful responses
to the questions he was asked at the hearing. Indeed,
the record shows that Petitioner’s testimony was
B-31
cursory and without meaningful elaboration, and did
not reveal details of, or insight into, why or how
Petitioner was detained; his treatment during his
detentions; the conditions of his detentions; and the
questions he was asked during his interrogations.
Petitioner's testimony is plainly vague and
ambiguous. As the IJ stated, Petitioner’s testimony
about his past experiences in Kosovo was “vague and
his memory [was] completely off base.” (J.A.63) We
find that the IJ properly denied the asylum
applications because Petitioner’s vague, conclusory
and inconsistent statements support a finding that
his testimony was not credible.
2. Independent Evidence
The IJ concluded that Petitioner failed to
corroborate his testimony with independent evidence.
The record indicates that Petitioner produced some
independent evidence, including the testimony of his
brothers and a statement, or letter, from his parents.
Although Petitioner’s brothers testified on
behalf of Petitioners, they offered only vague and
conclusory testimony about Petitioner being “almost
beat [] to death’ and Petitioner's wife being “sexually
abused.” (J.A. 57) The testimony did not provide
specific facts or details to corroborate Petitioner's
alleged persecution. Rather, the brothers’ testimony
K-32
raised facts not discussed in the asylum applications.
See, e.g., id. (noting that the asylum applications do
not “mention[ ] any discrete harm, injury, abuse to
the wife directly” and that the brothers’ testimony
was “the first mention of anything that would
indicate that [Petitioner's] wife ... had been sexually
abused in any manner.”). Since the testimony
proffered by Petitioner’s brothers does not support
the allegations set forth in the asylum applications,
the testim,ony cannot be given: great weight.
With respect to the statement from Petitioner's
parents, the IJ found that the letter “completely
torpedoes [Petitioner’s} credibility.” (J.A. 55) ThelJ
found that the statement was “fraudulent, false, and
the’ applicant should have known that if he had even
read the letter when it came in.” Jd. He indicated
that the provenance of the statement was suspect
and that Petitioners “could not tell the Court whether
th[e] [statement] ha[d] ever been mailed to the
United States.” (J.A. 54) Indeed, the record shows
that although Petitioner’s parents live in Kosovo,
“thi[e] document was faxed from Italy,” and that “[n]o
one could explain [ ] how [it] was faxed from Italy.”
Id. The contents of the statement also contradicted
Petitioner's testimony because-it indicated that
B-33
in the year of 1999 and in order to avoid
being conscripted by the KLA ...
(petitioner] has moved illegally to the
United States. It also says that during
and after the war {Petitioner] has been
chased by the KLA .. . in order to
become a member of [the KLA], whereas
after the war .. . [Petitioner has been
chased by the KLA] as a fugitive and
deserter.
(J .A. 55) Petitioner did not. leave Kosovo in 1999, he
left in 1998; and he is seeking asylum because of
alleged persecution perpetrated by the Serbian law
enforcement authorities in connection with his
political activities with the Democratic Party, not
because of KLA persecution. Petitioner failed to
reconcile these inconsistencies at the evidentiary
hearing.
The record shews that Petitioners failed to
adequately connect the corroborating evidence to
their testimony. Simply put, Petitioners failed to
proffer adequate independent evidence to corroborate
their allegations of past persecution. We find that
independent evidence fails to substantiate
Petitioners’ testimony. The IJ properly denied
Petitioners asylum applications because the
testimony lacked meaningful independent evidence.
B-34
D. Reasonable Fear of Future
Persecution
In this case, Petitioners are not entitled to a
rebuttable presumption that they have a well
founded fear of future persecution because Petitioner
failed to establish past persecution. 8 C.F.R. § 208.13
(b)()(); see also Ouda, 324 F.3d at 455. Since
Petitioner “did not sustain his burden of establishing
that he suffered past persecution, he [is] not entitled
to the presumption under 8 C.F.R. § 208. 13(b)(1)(Q)
ofa well-founded fear of suffering future persecution.”
Mikhailevitch, 146 F.3d at 389; see also Ouda, 324
F.3d at 455.
E. Application for Withholding of
Removal
To be eligible for withholding of removal,
Petitioners must show that it is more likely than not
that they will be persecuted on account of race,
religion, nationality, membership in a particular
social group or political opinion. See, e.g., 8 U.S.C.
§ 1231(b)(3); see also 8 C.F.R. § 1208.16(b). “[I]n order
to qualify for withholding of removal, the
petitioner[s] must establish that there is a clear
probability that [they] will be subject to persecution
if forced to return to [Kosovo].” Sarr v. Gonzales, 485
F.3d 354, 361-62 (6 Cir. 2007) (internal quotation
B-35
marks and citations omitted). Petitioners “must
demonstrate that it is more likely than not that he or
she will be persecuted upon return” to Kosovo. Id.
(internal quotation marks and citations omitted).
Petitioners have failed to set forth specific facts and
evidence that they have suffered past persecution.
The testimony does not support a finding that
Petitioners have a well-founded fear of future
persecution. Therefore, we find that any relief under
withholding of removal was properly denied.
F. Application for Protection Under
the Torture Convention
Under the Torture Convention, Petitioners
have the burden of showing that it is more likely
than not that they will be tortured. 8 C.F.R. § 1208.
16(c)(2); see also Ali v. Reno, 237 F.3d 591, 596 (6"
Cir. 2001). In pertinent part, torture is defined as:
any act by which severe pain or
suffering, whether physical or mental,
is intentionally inflicted on a person for
such purposes as obtaining from him or
her or a third person information or a
confession, punishing him or her for an
act he or she or a third person has
committed or is suspected of having
committed, or intimidating or coercing
him or her or a third person, or for any
B-36
reason based on discrimination of any
kind, when such pain or suffering is
inflicted by or at the instigation of or
with the consent or acquiescence of a
public official or other person acting in
an official capacity.
8 C.F.R. § 1208.18(a); see also Mostafa v. Ashcroft,
395 F.3d 622, 625 (6 Cir. 2005). The Torture
Convention prohibits the return “of an alien to a
country where it is more likely than not that he will
be subject to torture by a public official, or at the
instigation or with the acquiescence of such an
official.” In re G-A-, 23 I.&N. Dec. 366, 367 (BIA
2002) (citations omitted). Petitioner argues that he
was interrogated and beaten by Serbian police
officers on numerous occasions, and that his wife was
raped. Since the testimony concerning the detentions,
interrogations, beatings, and rape was vague and
unspecific, Petitioners have failed to meet their
burden of proof that they were tortured in Kosovo.
See, e.g., Neztraj v. Gonzales, 207 F. App’x 550, 559
(6" Cir. 2006) (unpublished case). We find that any
relief under the Torture Convention was properly
denied.
CONCLUSION
For the foregoing reasons, we AFFIRM the
BIA’s decision and DENY the petitions for review.
B-37
ALICE M. BATCHELDER, Circuit Judge,
concurring. I concur in full with Sections I and II of
the lead opinion, discussing the BIA’s denial of
Petitioners’ three motions to reopen. I agree with the
lead opinion’s conclusion that Petitioners did not
satisfy the procedural Lozada requirements for
bringing an ineffective assistance of counsel claim in
an immigration proceeding. Because it is clear that
Petitioners did not comply with the Lozada
requirements, I find it unnecessary to reach the
merits of Petitioners’ ineffective assistance claim and
do not join the lead opinion’s discussion of the merits,
found in Section ITI.
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A79 582 591 - Detroit Date: May 04, 2006
A79 582 592
A79 582 593
In re: KRJS'T NIKOLBIBAJ
DONIKA NIKOLBffiAJ
LINDITA NIKOLBIBAJ
IN ASYLUM PROCEEDINGS PURSUANT TO 8
C.F.R. § 1208.2(c)
MOTION
ON BEHALF OF RESPONDENTS:
Marshall E. Hyman, Esquire
ON BEHALF OF DHS:
Frank E. Ledda
Assistant District Counsel
APPLICATION: Reconsideration and reopening
ORDER:
PER CURIAM. This case was last before this
Board on February 21, 2006, when we denied the
respondents’ motion to reopen alleging ineffective
assistance of previous counsel as numerically “barred
and not meeting the criteria set out in Matter of
zada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d
10 (1* Cir. 1988), for establishing such a claim. The
record reflects that on November 22, 2005, the Board
had denied the respondents’ prior motion to reopen
dated August 31, 2005. On March 21, 2006, the
respondents filed what is termed a motion to
reconsider but 1s more accurately described as a
motion to reopen again alleging ineffective assistance
of counsel. The Department of Homeland Security
has filed an opposition to the respondents’ motion to
reopen. The motion will be denied.
If the respondents’ motion were treated as‘one
to reconsider, denial would be appropriate. When
deciding a motion to reconsider, the Board considers
the case as though the decision in the case on the
record before us had never been entered. If the
respondent was eligible for relief at the time of the
original decision, then in reconsidering the decision,
we treat. his status as that which it had been at the
time of the initial decision. “The very nature of a
C-2
motion to reconsider is that the original decision was
defective in some regard.” Matter of Cerna, 20 I&N
Dec. 399, 402 (BIA 1991). We have reviewed the
record, as well as both the Immigration Judge’s and
this Board’s prior decisions. The respondents have
failed to show any particular errors of fact or law in
our decision that would warrant reversal. See 8
C.F.R. § 1003.2(b)(1). We considered the arguments
as to ineffective assistance of counsel included in this
motion regarding the actions of their former attorney,
David Paruch, before rendering a decision in this case
and decline to revisit them. Therefore, we find
reconsideration is not warranted on that basis.
The respondents’ motion can be more
accurately described as a motion to reopen because it
seeks to introduce new previously unavailable
evidence, and raises new allegations of ineffective
assistance of counsel.
At the outset, we note the motion to reopen
exceeds the numerical limitations for motions to
reopen. The regulations provide that motions to
reopen shall be limited to one motion to reopen, with
certain exceptions not pertinent here. See 8 C.F.R. §
1003.2(c)(2). The respondents third motion to reopen
would therefore appear to be barred by numerical
limitations.
We observe, however, in the motion now before
us, the respondents raise an ineffective assistance of
counsel claim with reference to the actions of Hani
Alex Azzam, the attorney who had filed their
previous motion to reopen alleging ineffective
assistance of counsel. As we stated in Matter of
Lozada, supra, when allegations of a denial of due
process are premised on a claim of ineffective
assistance of counsel, especially in light of tne fact
that the Board receives many such claims, the alien
must meet the three specified criteria in order to
assist the Board in assessing the validity of the
claim. The second of those criteria is that “before
allegations of ineffective assistance of former counsel
are presented to the Board, former counsel must be
informed of the allegations and allowed the
opportunity to respond.” Jd (emphasis added). We
observed that this requirement exists to provide
attorneys “whose integrity or competence is being
impugned, {the opportunity] to present [their] version
of events,” if they choose to do so, and serves to
discourage baseless allegations. Jd. The lead:
respondent has failed to comply with this critical
Lozada requirement.
While the lead respondent indicates that he
submitted evidence that he filed a complaint with the
C-4
Office of the Bar Counsel of the State of
Massachusetts concerning his former counsel's
performance, on March 15, 2006, he has provided no
evidence that he informed former counsel of the
allegations against him with sufficient time to allow
him the opportunity to timely respond before filing
his motion with the Board on March 21, 2006. See
Matter of Lozada, supra at 639. Notice to the attorney
whose actions are being challenged, with sufficient
time to respond, is a central element in this Board’s
capacity to adjudicate “ineffective assistance ‘of
counsel” claims. Consequently, as the lead
respendent has not complied with this critical
requirement for reopening based on a claim of
ineffective assistance of counsel, he has _ not
established that reopening is warranted on that
basis, and the motion will be denied.
Accordingly, whether treated as a motion to
reconsider or as a motion to reopen, the motion is
denied. Further, in view of our disposition fo the
respondents’ motion, the request for a stay of removal]
will also be denied.
FURTHER ORDER: The request for a stay of
removal is denied.
/S/_ Roger Pauley Cee
FOR THE BOARD
C-5
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A79 582 591 - Detroit Date: Feb. 21, 2006
A79 582 592
A79 582 593
In re: KRIST NIKOLBIBAJ
DONIKA NIKOLBIBAJ
LINDITA NIKOLBIBAJ
IN ASYLUM PROCEEDINGS PURSUANT TO 8
C.F.R. § 1208.2(c) MOTION
ON BEHALF OF RESPONDENTS:
H..Alexander Azzam, Esquire
ON BEHALF OF DHS:
Frank E. Ledda
Assistant District Counsel
APPLICATION: Reopening
ORDER:
PER CURIAM. This case was last before this
Board on November 22, 2005, when we denied the
respondents’ motion to reopen dated August 31, 2005.
On December 20, 2005, the respondents filed a
D-1
second motion to reopen before the Board of
Immigration Appeals. The Department of Homeland
Security has filed an opposition to the respondents’
motion to reopen. The motion will be denied.
The motion to reopen exceeds the numerical
limitations for motions to reopen and will be denied.
The regulations provide that motions to reopen shall
be limited to one motion to reopen, with certain
exceptions not pertinent here. See 8 C.F.R. §
1003.2(c)(2). The respondent's second motion to
reopen is therefore barred by numerical limitations
Next, the respondents raise an ineffective
assistance of counsel claim on appeal. However, the
respondents have failed to meet the requirements for
making an ineffective assistance of counsel claim as
set forth in Matter of Lozada, 19 1&N Dec. 637 (BIA
1988), affd, 857 F.2d 10 (1% Cir. 1988), which
requires that the alien must layout, in a detailed
affidavit, the agreement between the alien and the
representative; the alien must’ give the
representative the opportunity to respond to the
allegation of ineffectiveness, and the alien must file
a complaint with the appropriate disciplinary
authority or adequately explain why no filing was
made. See also Huicochea-Gomez v. INS, 237 F.3d
696, 699 (6"" Cir. 2001). In this case, the respondents
D-2
have failed to provide either an affidavit in support of
their motion or any evidence that they have given
former counsel an opportunity to respond to their
allegations. Accordingly, the motion is denied. The
request for a stay 1s also dented.
/s/ Anthony C. Moscato _
FOR THE BOARD
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
File: A79 582 591 - Detroit 5
A79 582 592
A79 582 593
KRIST NIKOLBIBAJ
DONIKA NIKOLBIBAJ
IN ASYLUM PROCEEDINGS PURSUANT TO 8
C.F.R. § 1208.2(c) MOTION
ON BEHALF OF RESPONDENTS:
David H. Paruch, Esquire
ON BEHALF OF DHS:
Frank E. Ledda
Assistant Chief Counsel.
APPLICATION: Reopening; reconsideration
ORDER:
PER CURIAM. This case was last before us on
July 28, 2005, when we summarily dismissed the
applicants’ appeal for failure to file a brief. On
August 31, 2005, the applicants filed a motion to
reopen requesting that we consider their late-filed
brief. The Department of Homeland Security (the
“DHS,” formerly the Immigration and Naturalization
Service) opposes the motion. The applicants’ brief
was originally due March 30, 2005. However, rwpon
their request, we extended the filing deadline to April
20, 2005. The applicants' attorney contends that he
underwent prostate surgery around the time the brief
was due and that he was notable to complete the
brief while recuperating from his surgery. Inasmuch
as it appears that the applicants are requesting that
we reconsider our prior decision, we find that the
request for reconsid: ‘ation was filed more than 30
days after our decision and, therefore, is untimely.
See 8 C.F.R. § 1003.2(b)(2). Moreover, inasmuch as
the applicants' brief was not timely filed, we find no
error off act or law in our prior decision. See 8 C.F.R.
§ 1003.2(b)(1). To the extent that the applicants'
attorney now contends that he was unable to timely
file the brief and that we should accept the late-filed
E-2
brief, we find that reopening is not warranted. The
motion includes a copy of a hospital record showing
that the applicants’ attorney was admitted to the
hospital on April 5, 2005, and discharged on April 7,
2005. The motion does not specify the length of the
attorney's recovery period. Lastly, the motion does
not explain why the applicants waited more than 4
months after the brief was due to flle the request to
consider the late-filed brief. Accordingly, the motion
is denied.
/s/_ Roger Pauley
FOR THE BOARD
E-3
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 22041
ee ee ee ee ee ee
File: A79 582 591 - Detroit Date: July 28, 2005
In re: NIKOLBIDAJ, KRISTIN
ASYLUM PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
PARUCH, DAVID H.
ORDER:
PER CURIAM. The appeal is summarily
dismissed under the provisions of 8 C.F.R. § 1003.1
(d)(2)G)(E). The appellant checked the block on the
Notice of Appeal (Form EOIR-26) indicating that a
separate written brief or statement would be filed in
support of the appeal. This block is immediately
followed by a clear warning that the appeal may be
subject to summary dismissal if the appellant
indicates that such a brief or statement will be filed
F-]
and, within the time set for filing, fails to file the
brief or statement. The appellant was granted the
opportunity to submit a brief or statement in support
of the appeal. However, the record indicates that the
appellant did not file such brief or statement, or
reasonably explain the failure to do so, within the
time set for filing. Accordingly the appeal is
summarily dismissed under the provisions of 8 C.F.R.
§ 1003.1 (d)(2)G)(E).
/s/_ _ Fred Hess
FOR THE BOARD
F-2
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
} Detroit, Michigan
File Nos.: A 79 582 591
A 79 582 592 May 14, 2004
A 79 582 593
In the Matters of )
)
KRIST NIKOLLBIBAJ ) IN ASYLUM
DONIKA NIKOLLBIBAJ ) ONLY
LINDITA NIKOLLBIBAJ ) PROCEEDINGS
Applicants
CHARGE: N/A
APPLICATIONS: Asylum and withholding of
removal.
ON BEHALF OF APPLICANTS:
David H. Paruch, Esquire
ON BEHALF OF DHS:
Thomas O. Martin
Associate Chief Counsel
ORAL DECISION AND ORDERS OF THE
IMMIGRATION JUDGE
Background
The three applicants are ethnic Albanians who
are also Catholic. Their background will be addressed
in the evidentiary portions of the decision below.
They all entered the United States, or were admitted
to the united States, with fraudulent Slovenian
passports at New York City on December 30, 1998.
They were also placed into this asylum only hearing
with the publication and concomitant service of a
referral to the Immigration Judge. The referral
notices have been marked as Exhibits 1, 1-A and 1-B,
respectively, in the order in which they appear in the
heading of this decision, above. They were placed into
this asylum only proceediffg because they were visa
waiver pilot program participants, and they were
placed in these proceedings after the filing of an
asylum application.
The asylum application in question is Exhibit
2. It reflects that applicant initially attempted to file
his application exactly one year after his arrival, and
is the lead applicant, Krist, and that was on
December 30, 1999. It was unsuccessful. The record
apparently was returned to applicant or applicant’s
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counsel. It was re-returned to the Service on January
6, 2000, and apparently again was returned, and
ultimately was not filed until September 17, 2001.
Before this Court, the lead applicant is seeking
asylum and withholding of removal: asylum,
pursuant to Section 208 of the Act; withholding,
pursuant to Section 241(b) (3) of the Act; and, third
and lastly, withholding pursuant to the United
Nations Convention against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or
Punishment (hereinafter, Torture Convention),
pursuant to 8 C.F.R. 1208.16. of course, this
application includes all of the named applicants as a
spouse or child of an applicant who has been granted
asylum may, if not otherwise eligible, be granted the
same status as the principal alien.
Now, inasmuch as this application primarily
focuses upon the male adult applicant, this decision
will primarily focus upon him with references to
other family members as well as his wife and child
where necessary and/or appropriate. |
Applicant, with the assistance of his current
counsel, filed a supplementary application for asylum
with the Court. This is at Exhibit No.3. After this
had been filed with the Court, applicant appeared
before the Court, was fully apprised of the
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consequences of knowingly filing a_ frivolous
application for asylum, made many changes to the
asylum application supplement as found at Exhibit
No.3, and then signed his application under oath, and
then the hearing on the merits commenced.
Firm Resettlement
It is the Government’s position that the lead
s
applicant is ineligible to apply for asylum, as he had
been firmly resettled in Austria.
An applicant cannot apply for asylum if he
“was firmly resettled in another country prior to
arriving in the United States.” INA Section 208 (b)
(2)(A)(v1). Applicant would be firmly resettled if prior
to arrival in the United States, he entered another
country, with or while in that country received an
offer of permanent resident status, citizenship or
other type of permanent settlement. 8 C.F.R.
1208.15. Ali v. Reno, 237 F.3d 591 (6" Cir. 2001).
Once the issue of firm resettlement has been raised,
applicant has the burden of demonstrating he has not
been resettled. See, for example, Abdalla v. INS, 43
F.3d 1397, 1400 (10 Cir. 1994); see also 8 C.F-.R.
1240.8(d).
The Court notes that in applicant’s initial
asylum application that was filed administratively,
albeit somewhat late, with the assistance of Mr.
G-4
Paruch, applicant said that he had applied for
asylum in Austria, and in his testimony at least said
that they had lived in Austria five or six years along
with many other asylees. In an application filed at
Exhibit No.2, applicant swore to or said that they left
while this application was pending.
At the application as found at Exhibit No.3,
the applicant deleted the reference to the application
being pending; but he did not give the Court the
outcome of the application. So, the negative
implication was, is that they left before it was
adjudicated. The Court notes that one of the matters
that applicant clarified was in that same paragraph
that talked about filing the application and not
listing an outcome. The word surreptitiously was
deleted. So, applicant's attention had _ been
specifically drawn to that area of that application,
and he elected not to make it more specific.
In applicant’s testimony, he said that not only
did they apply for asylum, but the asylum was denied
them and that’s when they came on to the United
States. Applicant also averred that he got a
statement, or a document or a letter, reflecting that
the application had been denied. He also indicated
that he had gotten an ID card from the Austrian
government, and yet he left all of those documents in
Austria.
The Court finds that applicant’s vacillating
story with respect to getting asylum or not getting
asylum or h ving it denied in Austria raised the
possibility that applicant had become permanently
resettled in Austria; and as applicant has not
demonstrated he was not firmly resettled - the Court
notes that applicant hasn’t proven much of anything,
given the completely changing nature of his
testimony - the Court is obligated to find that he has
not met his burden of proof. And, accordingly he is
not eligible to apply for asylum because of this firm
resettlement issue.
Nevertheless, the Court will assume,
arguendo, that applicant is eligible to apply for
asylum and will reject the application on two other
bases.
The Timeliness of Applicant’s Asylum Application
An asylum application must be filed within one
year of the applicant's last entry or arrival in the
United States. See INA Section 208(a) (2).
For the purposes of Section 208(a) (2) of the
INA, the applicant has the burden of proving either
by clear and convincing evidence that his application
has been filed within one year of the date of alien’s
G-6
last arrival in the United States, or to the
satisfaction of the Immigration Judge that he
qualifies for an exception to the one-year
requirement.
As mentioned in the background section, this
application was originally attempted to be filed on
the last possible date. The Court notes that this was
date-stamped in the INS Service Center exactly one
year and one day after the applicant arrived in the
United States. Obviously it was mailed prior to that
time. When one can prove a mailing, which the Court
is convinced here, it would be deemed filed the date
it was mailed. Unfortunately, the applicant’s
application was returned to him and was ultimately
not filed until September 17, 2001, after again
rejection on January 6, 2000.
The Court notes that what applicant said in
Exhibit No. 3 was, is that he did file within one year,
but explained why it was late. This Court reads this
as basically a confession that it was filed belatedly.
In any event, whether or not applicant concedes that
or not, the Court still must address whether the
ultimate filing on September 17, 2001 is a timely
filing; 1.e., whether he qualifies for any of the
exceptions.
In the statute and in the implementing
regulation promulgated by the Attorney General
pursuant to the powers delegated to him by Congress,
there are two series of exceptions. One is called
changed circumstances, something that is not
appropriate here. The other line of exceptions is
extraordinary circumstances. Now, the Attorney
General in his implementing regulation, 8 C.F-.R.
1208.4, talks about extraordinary circumstances. He
says that extraordinary circumstances shal! refer to
events or factors directly relating to the failure to file
within the one year. Such circumstances may excuse
the failure to file as long as the alien filed the
application within a reasonable period given those
‘circumstances. The burden of proof is on the
applicant to establish to the satisfaction of the
Immigration Judge that the circumstances were not
intentionally created by the alien through his or her
action or inaction, that those circumstances were
directly related to the alien’s failure to file the action
within the one-year period, and that the delay was
reasonable under all the circumstances.
Now, then the regulation also talks about a
series of exceptions that might flow, but they are not
all inclusive. One of them, of course, would be
ineffective assistance of counsel. Applicant has never
G-8
made that allegation, nor has he attempted to comply
with the affidavit portions of the regulation to raise
that issue. The Court notes that in this particular
case, the only explanation given in Exhibit No. 3 is
the fact that they were required to submit additional
copies.
The Court notes that for some reason those
additional copies, or whatever the defect was, was not
cured until September 17, 2001. Thus, while the
applicant initially filed the application or attempted
to file, the Court should say, the application at the
one-year deadline, and a delay until January 6, 2001
would have been eminently reasonable, the
subsequent delay of one and three-quarters years,
which is totally unexplained, is per se unreasonable.
The Court notes that one is supposed to file the
application within one year of arrival, or entry, and
the applicant did not file it until one and three-
quarters years after it was rejected for the second
time. And, accordingly, the Court finds that applicant
has not demonstrated his delay was reasonable, and
accordingly the application will be denied as
untimely as well.
The Court will, however, for the rest of this
decision, assume, arguendo, the applicant has
proffered an asylum application in a timely fashion,
G-9
and the Court will also reject -the application on its
merits.
The Applicant’s Claims
The applicant's claims for asylum and
withholding of removal pursuant to the statute and
treaty are identical. Unfortunately for the applicant,
they have changed over a period of time, and they
include in fact matters not specifically listed even in
his asylum application. ‘he bottom line is applicant
cannot tell a consistent or a straight story. The Court
will only note that, inter alia, those factors ultimately
relied upon are that applicant has been in the United
states for a period of time; that he was a member of
a political organization; he might not have served
with the military wing of another political
organization; that he was Catholic and he did not
fight against the Serbs.
Asylum and Withholding of Removal Evidentiary
Standards
An applicant for asylum o. withholding of
removal bears the evidentiary burdens of proof and
persuasion. Matter of Acosta, 19 I&N Dec. 211 (BIA
1985, modified, Matter of Mogharrabi, 19 I&N Dec.
439 (BIA 1987).
An applicant for asylum must demonstrate
that he is a refugee within the meaning of Section
G-10
101 (a) (42) of the INA. This requires him to show
that he is unwilling or unable to return to his country
of nationality because of past persecution, coupled
with either a showing of the likelihood of present or
future persecution or for humanitarian reasons as a
matter of discretion, or because he has a well-founded
fear of future persecution on account of his race,
religion, nationality, membership in a particular
social group, or political opinion. See Mogharrabi,
supra. See also 8 C.F.R. 1208.13.
On the other hand, an applicant for
withholding of removal pursuant to the statute must
demonstrate a clear probability of persecution on
account of the statutorily enumerated grounds listed
above. INS v. Stevic, 467 U.S. 407 (1984). In Stevic
the Supreme Court held that the terms well-founded
fear and clear probability are significantly different,
and the burden of proof required to establish
eligibility for asylum is lower than that required for
withholding of removal.
The Supreme Court has also held in LNS v.
Cardoza-Fonseca, 480 U.S. 421 (1987), that the terms
well-founded fear and clear probability § are
significantly different and that the burden of proof
required to establish eligibility for asylum is lower
than that required for withholding of removal.
G-11
The Attorney General has codified regulations
with respect to those seeking asylum. The asylum
regulation is codified at 8 C.F_R. 1208.13. lt provides,
in part, that if an applicant has demonstrated that he
has suffered past persecution, it shall be presumed
that he has a well-founded fear of future persecution
on the basis of his original claim. This is a rebuttable
presumption, and may be_ rebutted by the
Government demonstrating by a preponderance of
the evidence either a fundamental change in
circumstance such that the applicant no longer has a
well-founded fear of persecution in applicant’s
country of nationality based upon one or more of the
five statutorily enumerated grounds, or the applicant
could avoid future persecution by locating to a part of
the country where under all the circumstances it
would be reasonable to expect the applicant to so do.
With respect to this regulatory proviso, the
Court first notes that. apphcant is not credible. He
has not demonstrated anything other than he comes
from Kosovo, and he is ethnically Albanian. The
Court: notes that he has not demonstrated that has
suffered or his family has suffered, as what he
claims; that even if-he has suffered what he claims
happened to him, it does not rise to the level of past
persecution. But even if it did, there has been a
G-12
fundamental change. Dr. Fischer’s testimony
notwithstanding, such that applicant no longer would
have a well-founded fear of future persecution if he
were to return to Kosovo.
Now, the Attorney General has also noted that
there are other ways other than the rebuttable
presumption proviso to show that applicant might
have a well-founded fear of future persecution
objectively and subjectively; and the Attorney
General has further said in the same regulation that
in evaluating wether the applicant has sustained his
burden, the Immigration Judge shall not require the
applicant to provide evidence that there is a
reasonable possibility he would be singled out
individually for persecution if he establishes that
there is a pattern or practice of persecution of a group
of persons similarly situated to him on account of
race, religion, nationality, membership in a
particular social group, and he establishes his own
inclusion in identification which such of persons such
that his fear of persecution upon his return is
reasonable.
The Court notes that, of course, the applicant
has not demonstrated he is a member of any such
group. Again, in the Court’s view, all he has
demonstrated is that he is an ethnic Albanian from
G-13
Kosovo. In any event, even if one were to assume
arguendo, all of the things that he tries to pigeonhole
himself in, he has not demonstrated there is a
pattern or practice of persecution of a group of
persons similarly situated to him. Thus, he fails in
this burden as well.
The Attorney General has promulgated a
similar regulation with respect to those seeking
withholding pursuant to the statute. It is codified at
8 C.F.R. 1208.16. It also provides in part that if an
applicant has demonstrated he has suffered past
persecution, it shall be presumed that his life or
freedom would be threatened in the future upon his
return to his home country on the basis of his original
claim. Again, this is a rebuttable presumption. It
may be rebutted by the Government demonstrating
that there has been a fundamental change in
circumstance such that the applicant’s life or freedom
would not be threatened on account of any of the five
grounds, or that the applicant could avoid future
threat to his life or freedom by locating to another
part of the country where under all the circumstances
it would be reasonable to expect the applicant to so
do. Of course, what the Court said about this parallel
provision in the asylum regulation applies equally
here.
G-14
Again, this does not end the inquiry, as the
applicant still can demonstrate in other fashions it is
more likely than not his life or freedom would be
threatened in Kosovo. And again the Attorney
General has said that in evaluating whether or not
applicant has sustained his burden, the Immigration
Judge shall not require him to demonstrate that he
would be singled out individually for persecution if he
establishes that in his country of nationality there is
a pattern or practice of persecution of a group of
persons similarly situated to him on account of one or
more of the five statutorily enumerated grounds, and
he establishes his own inclusion in and identification
with such group of persons, such that it is more likely
than not his life or freedom would be threatened upon
return to that country.
Again, what the Court said about the similar
proviso in the asylum regulation applies equally here.
Before turning the Court’s attention to the
withholding application pursuant to the Torture
Convention, the Court will note that if the Court
were in a position to grant the applicant some
discretionary asylum relief, the Court would not do
so, because the applicant, after doing whatever he did
in Austria, whether it be leaving when his
application was still pending or it having been
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denied, applicant was in the Federal Republic of
Germany and elected not to apply for asylum.
Applicant was in IIolland and did not apply for
asylum. And, furthermore, applicant did not even put
in his application that he was in those countries. Why
didn’t he? Well, it was not because he was deceitful,
of course; it was because I did not apply for asyium in
those countries, or words to that effect. Again, the
Court will deny his application as a matter of
discretion because he should have applied there or
any other country that he might have gone through
and did not apply.
The applicant has also applied for withholding
pursuant to the Torture Convention. An applicant for
withholding of removal pursuant to the Torture
Convention bears the burden of demonstrating it is
more likely than not he would be tortured by
someone who would be covered by the treaty and the
implementing regulations.
In assessing whether the applicant has
satisfied his burden, the Court must consider all
evidence relevant to the possibility of future torture
including, but not limited to, evidence of past torture
inflicted; evidence that the applicant could relocate to
part of the country where he would not likely be
tortured; evidence of gross, flagrant, or mass
G-16
violations of human rights within the country of
removal, and other relevant information about
conditions in the country of removal. See, generally,
8 C.P.R. 120B.16(c).
Now, the Court is not going to define torture,
primarily because the applicant is just an inherently
incredible person.
Next, of course, the Court’ should
parenthetically observe that there is no rebuttable
presumption proviso for Torture Convention claims
as there as for an asylum claim and as there is for
withholding claims. Nevertheless, the applicant has
not demonstrated, as he said, let alone been tortured
in the past in Kosovo.
Credibility and Corroboration
Credibility is usually a crucial aspect of most
asylum cases. In some instances, in fact, an asylum
seeker does not have to have corroborating evidence
to win. Mogharrabi, supra. Nonetheless, the
provision of credible evidence is not optional, and
applicants must satisfy their affirmative duty to
corroborate their claim to the degree they can or
otherwise reasonably explain their failure to do so.
See, for example, Matter of B-B-, Int. Dec. 3367 (BIA
1998); Matter of S-M-J-, 21 I&N Dec. 772 (BIA 1997);
G-17
Matter of Dass, 20 I&N Dec. 120 (BIA 1989). See also
Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998) .
Plus, of course, in the case, sub judice, the
“weaker the applicant’s testimony, the greater the
need for credible corroborative evidence. See, for
example, Matter of Y-B-, 21 I&N Dec. 1136 (BIA
1998).
The rules on corroboration are the same for
those seeking asylum and _ those _ requesting
withholding under the statute and treaty. Compare
8 C.F.R. 1208.13(a) with 8 C_F.R. 1208.16(b) and 8
C.F.R. 1208.16(c) (2).
This cases cries out for corroboration. The
Court notes that Mr. Paruch helped the applicant
with his first asylum application as found at Exhibit
No.2. It contains no discrete incidents with respect to
him or his wife. It was then supplemented by this
Court at a Master Calendar. No discrete incidents
were listed. In fact, it is basically the same
application verbatim. Applicant was then given the
opportunity at the commencement of today’s merits
hearing, a long time in the future. Applicant made
several changes, important changes, but he did not
list any discrete events. His testimony was almost as
ambiguous as his applications, and the corroboration
he proffered was on at least one incident fraudulent,
G-18
because he presented a statement allegedly from his
parents that had two blatant mis-statements, false
statements on it; and even though his parents were
in a position to corroborate much of his claim, they
did not add anything other than the two false
statements.
Next, applicant called two brothers. These
brothers, unfortunately, came to the United States
before the applicant had most of his difficulties at
least the difficulties that caused him to come to the
United States. Even their testimonies raised more
concern about applicant’s credibility than the solved
in his favor. The bottom line is applicant’s case cries
out for corroboration and he has zero, zip, not a
credible corroboration. Even the testimony of his wife
raises serious concerns about her testimony, not to
mention his testimony.
Evidence Discussion & Findings
The Court will first trace the history of
applicant’s asylum applications, intertwining from
time to time comments about some of the testimonial
evidence. The Court will then go through the
documentary evidence of record, talking about
current and past country conditions and _ the
documentary evidence submitted in court, and
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intertwining again from time to time the testimonial
evidence.
At the conclusion of the discussion of all of
these matters, the Court will then turn its attention
more directly to the testimony of the five witnesses.
As mentioned above, Exhibit No. 2 is the
asylum application attempted to be filed on
December 30, 1999, January 6, 2000, and then
ultimately on September 17, 2001. See page 1 of
Exhibit No. 2. Now, this application at page 1 says
that applicant last entered the United States on
December 31, 1998. Now, the Court notes of course
that this same date was listed in the biological
information for his wife and his child found at page 3
of Exhibit No.2. This matter was, however, changed
to a different date, December 30, 1998, when
amending the written version, or preprinted version
that was filed with the Court at a Master Calendar
on July 30, 2000.
In the first application, applicant indicated
that he had no status when he came to the United
States; in Exhibit No. 3 as originally proffered and
sworn to, it says his status was unknown.
Both of the applications, Exhibit 2 and 3, say
that he is a Roman Catholic.
G-20
Next at page 2 of Exhibit No.2, applicant
indicates that he went to high school in a discrete
location from September of 1985 to June of 1988.
Exhibit No.2 modified that, and he further modified
that before signing it under oath. What he did not
modify with respect to his employment history or
residences in either of the applications that call for
this, at Exhibit 2, page 2 or Exhibit 3, page 4, was
the fact that applicant claimed that he had been in
the military for one year immediately after him being
in high school.
In fact the applicant, when given the
opportunity in both applications pursuant to a
question, were you ever in a military or paramilitary
organization, did not reveal his membership in the
army of, apparently, Yugoslavia, for a period of one
year. The Court notes that applicant cannot even
ultimately keep the dates of his enlistment and
service in the army straight, and that will be
addressed below.
The Court notes that each question asks for an
explanation in detail. The applicant proffered no
detail about just about anything. No discrete events.
In applicant's first application, Exhibit 2,
pursuant to the question, Why are you seeking
asylum, he said: I was arrested several times,
G-21
interrogated several more times for antigovernment
activities. Notice it does not say for activities on
behalf of the LDK, which he says in this application
he was a member of. In any event, he then said that
he was accused of being a terrorist with the KLA and
of holding weapons for that group. In this testimony,
basically he said, They questioned me at the police
station after my arrest and during my interrogations
about whether I was a member of any organization.
They never came out and flat accused him of his, but
this is how he explains why in his application they
claimed, or someone accused him of being a terrorist.
That is perhaps a reasonable explanation, and the
Court’s first reaction, that when he said that nobody
accused him of that, probably was a little bit
misleading. The Court will find that that does not
really present an issue, except the applicant never
testified about anybody accusing him of holding
weapons for the KLA.
With respect to this political organization that
he claims he was a member of, at page 5 he says: I
have been a member of the LDK, as have both of my
brothers who are in the United States. It is a political
and peaceful organization seeking rights for ethnic
Albanians. .
G-22
Now, in his testimony, applicant said not only
he was a member, but he was the leader of this; he
got a promotion when he got his membership for this
organization in his home village, and that he had
thousands of people that he led. ‘Vell, if he had been
a leader, one would think that information would be
provided in his application. The Court views this as
being a major inconsistency.
Now, the Court does note, however, that
applicant was informed that Exhibit No. 2 and
Exhibit No. 3 was one long continuous application;
that if there were differences, the Court would go
with the most recent version. Ofcourse, the applicant
obviously would have to explain any differences.
Nevertheless, in his most recent application he uses
the same term, member of the ILLDK, it says. See page
6 of Exhibit No.3. And that was never changed
during the initial signing of the application
immediately before the taking of the evidence.
At page 7, he talks about filing an asylum
application in Austria in order to obtain food and
shelter: We were briefly interviewed, and with the
application “still pending when we came to the
United States.” Of course in applicant’s second
application, he does not say what happened to it. In
G-23
his testimony, he said it was denied. Again, he just
cannot keep his story straight.
With respect to his route to the United States,
at the last page of his application he said: We fled
from Kosovo to Hungary, where we éntered
surreptitiously. The word surreptitiously with respect
to that entry was changed at the beginning of the
hearing, because that same surreptitiously appeared
also in Exhibit No.3.
In any event, he then said that his family
stayed there about two weeks, when they then
surreptitiously entered Austria, and then we came on
to the United States. What he did not say in this
application was the trip to Holland and to Germany.
Turning the Court’s attention now to Exhibit
No.3. This is the application of course the applicant
swore to as true after the applicant made a series of
changes. The first change was at page 1, where he
indicated he has moved since the last address in his
application. In fact, all of the brothers now live in the
same house that they purchased.
At page 4, the applicant said that yes, he did
go to a trade school, but it was in fact a part of the
high school, and therefore the Court merged those
two schoolings at page 4 and then changed the date
of the education in all of these schools from
G-24
September of 1985 to some time in 1990, to
September of 1985 to June of 1989. In his application
at this juncture, he did not change, however, the fact
that he worked “odd jobs” from September of 1989 to
July of 1998. Now, the Court notes that for a year
during that period of time applicant was in the
Yugoslav military, stationed in Yugoslavia for three
months, and in Macedonia, I think it was, for nine
months. Again, applicant has not revealed his
military service.
Next, at page 5 of the application, there is a
place for applicant to say why he is seeking asylum
and withholding of removal. Despite the fact that his
expert, Dr. Fischer, relied upon his religion, applicant
did not say anything more about his religion other
than he is a Roman Catholic, because at page 5 he
did not even check the block off that he is seeking
asylum or withholding based upon religion. Of
course, on this same page applicant had changed in
great detail other matters on that page, to include
the fact that his brother Vitor had been granted a
NACARA rather than an asylum application, and
that this applicant feared retribution from the KLA.
Next, at page 5, applicant also changed the
fact that his brother Vitor got an approval under
NACARA. He also again added that he feared
G-25
retribution from the KLA. However, on this same
page, like Exhibit No.2, he says: “I have been a
member of the LDK.” Of course in his testimony he
said, I was the leader of the village and I led 10,000
members. If the applicant led 10,000 members, the
Court believes it would be here. The Court does not
believe it, however, because it is not here; plus, the
applicant when asked to delineate his duties, could
not delineate his duties with any specificity.
Next, at page 7, applicant changed the fact
that he entered Hungary: illegally and stayed there
for two weeks. Again, however, it says: We entered
Austria surreptitiously and requested asylum to
obtain emergency food and shelter. And despite the
fact that he changed that paragraph, he did not say
here that his application was denied; he still has it
up in the air. Again, he just cannot quite keep his
story straight.
On page 5, even though he did apparently file
his application untimely and gave the explanation for
it at question 5 at page 8, he checked the block no;
and when invited to change that, he declined to do so.
Lastly, at the last page of his application, there
is a continuation of his siblings that was continued
from page 4. Originally his application hsted three
brothers: two here in the United States that
G-26
applicant currently lives with in a house that they
purchased; the other is Luk, who lived in the home
community in Yugoslavia.
Apparently he forgot about a sister named
Florina Marku, who was also now here in the United
States. So, the Court was interested in why the
applicant did not list his sister, and the Court asked
him some preliminary questions not under oath
before he signed his application. He said, Well, she
came here, I am not sure, probably three or four
years ago. I do not know where she lives; it is some
place in Michigan. And then he left the Court with
the impression that he had not seen her, basically, for
at least probably three or four years, shortly after she
got here; or maybe it was shortly after he got here.
But it certainly was over one year.
Ofcourse both of his brothers testified that she
lives here in the Detroit area. One of them gave the
Court basically a street location where she lives.
Another brother gave the Court - well, he could not
give the phone number; but the phone number is at
the home he shares with the other two brothers, and
they both indicated that they have seén, and
circumstantially, indirectly, led the Court to believe
that the applicant has also seen his sister within the
last two or three months.
G-27
Again, the applicant cannot quite get his story
straight, and the Court gets the idea that applicant
was trying to hide his sister from the Court, for
whatever reason.
At Exhibit No.4, we have a series of documents
tabbed A through I, talking about current country
conditions through the end of 2003. The first at Tab
Ais the Serbia-Montenegro Country Report for 2003.
The Kosovo section begins at page 18. At page 18 the
State Department-notes that Kosovo is administered
under the United Nations Interim Administrative
Mission of Kosovo, the UNMIK; that UNMIK
promulgated a _ constitutional framework for
provisional self-government in Kosovo which is called
the PISG. It also notes that UNMIK and PISG
generally respected human rights for Kosovo's
residents. It also talks of course about how KOFOR,
the Kosovo Force of U.N. and NATO troops,
continued to carry out its mandate to maintain_
internal security, which is listed first, and defend
against external threats. His expert, Dr. Fischer, said
that basically, initially at least, that KOFOR did not
have the internal security measure, but then had
since subsumed that, but does not believe that
KOFOR can protect this applicant; or, at least, that
is a possibility.
G-28
The second page relating to Kosovo, 19 of this
report, reflects that for the year of 2003, there were
no politically motivated disappearances. Page 27:
Most of Kosovo’s Serbs in Roma fled when Yugoslav
forces withdrew had not returned by year’s end.
However, on July lst, leaders of major Kosovo
Albanian and non-Serb minority political parties
published an open letter to internally displaced
persons in Serbia, Montenegro and Macedonia urging
them to return to Kosovo.
Next, at page 28: There were a number of
attacks and threats against Kosovo, Albanian
political leaders. Some of it by unidentified gangs
appeared in certain locations. Not locations
apparently that the applicant had lived in, however.
Next, at page 32, they talk about ethnic
minorities. Basically what it says is that most of the
violence is perpetrated by Albanian ethnics against
the Serbs, and not vice versa, although there is some
inter-ethnic Albanian violence.
Next, at Tab B, we have the 1999 Country
Reports. The Kosovo section starts at page 21, but on
page 1 of this report it notes that on March 24th,
NATO forces began its air campaign against the
Serbian forces, and the campaign succeeded, forcing
Milosevic to withdraw his troops from Kosovo in early
G-29
June, “allowing refugees and displaced persons to
return to Kosovo.”
In fact, at Tab G, we have a Kwusovo crisis
update, which reflects that on September 1, 1999,
about nine months after applicant entered the United
States, of the 850,000 people, ethnic Albanians who
had fled Kosovo, 772,300, or over 90 percent, had
already returned. The Court does not believe that
there is any reason why applicant could not have
returned earlier.
The applicant proffered a series of documents
at Exhibit No. 5. The first is a resume of Dr. Fischer,
who is a professor of Balkan history at Indiana
University and a recognized expert in Balkan politics
and history.
Next we have a ,udgment for Xhevalin, the
applicant's brother who testified. This judgment
reveals that Xhevalin was convicted of some
anti-government activities and was sentenced to five
years imprisonment. Curiously, Xhevalin during the
course of his testimony indicated he was subject to
charge, but seemed to be completely and totally
unaware that he had been sentenced to five years;
again, raising a rec flag with respect to his verity.
Speaking of verity, the applicant also provided
a declaration of his parents at Tab 9. The Court notes
G-30
that there was no translation provided until
immediately at the commencement of today’s merits
hearing. This translation completely torpedoes the
applicar.t’s credibility, and when combined with all
other factors in his case, demonstrates to the Court
that applicant has filed a frivolous application for
asylum and the Court would urge the Board of
Immigration Appeals if an appeal is taken, to find the
application frivolous. The only reason this Court is
not doing this is that the Court has found the
applicant ineligible for asylum because of firm
resettlement as well as a failure to file a timely
application for asylum. But again, the statement
from the parents will be addressed below.
Also attached, of course, is an article, the only
article that applicant proffered with respect to recent
country conditions, post-dating the 2003 report. This
article is from the New York Times at Tab 2. Now,
Dr. Fischer testified that things have gotten worse
since the publication of the report, yet he did not offer
any discrete examples. He gave some generalized
examples, but did not give concrete examples. He did
say that one ought to read something, but it was not
this New York Times article, and that article as far
as the Court knows was never proffered in this
particular case.
G-31
This article by and large has nothing at all to
do with the recent violence in Kosovo as described by
Dr. Fischer. It talks about two American women
working as prison guards for the United Nations in
Kosovo being killed by an attacking prison officer
who they served with, a Jordanian. So, this document
is of limited help. What it does say, however, about
other issues show that perhaps things are not as bad
in Kosovo as painted by Dr. Fischer.
For instance, at the bottom of page 1 of this
exhibit, it says there are about 3,500 United Nations
police officers in Kosovo. Even Dr. Fischer said there
are several police forces, but he says that perhaps
they cannot function as well as they should, or words
to that effect. Then they talk about at page 2 of this
article that there has been violence in Mitrovika, an
occasion that apparently is not related to the
applicant, where ethnic Albanians attacked a Serb
community. Now, note this was Albanians against
Serbs, not Albanians on Albanians, and this resulted
in 4,000 people being displaced and 500 homes being
damaged or destroyed. So, this just shows that the
State Department is right, that most of the violence
is Albanian to Serbian; and, a lot of the Serbs have
fled and have not returned.
G-32
Concerning now the statement from the
parents. The translated version of this is found at
Exhibit No.5. Now, Exhibit No. 5 is the translation
plus a copy of the declaration. This copy of the
declaration seems to cut off the fax transmission. The
Court has not seen and, in fact, the applicant could
not tell the Court whether this has ever been mailed
to the United States, but what does appear, however,
on the fax transmission found within Exhibit No. 5
itself as originally proffered, shows that this
document was faxed from Italy. Noone could explain,
really, how this was faxed from Italy.
In any event, this statement signed by his
parents say that the applicant, Krist, in the year of
1S99 and in order to avoid being conscripted by the
KLA, consequently the war in Kosovo, has moved
illegally to the United. States. It also says that
during and after the war, this same person has been
chased by the KLA during the war in order to become
a member of that institution, whereas after the war,
in the year 2000 as a fugitive and deserter.
Well, some of his brothers testified that, no,
they had been rather recently to the home looking for
him and to threaten him as well as the other
brothers. Of course this does not say that. The last
approach was in the year 2000. But more
G-33
importantly, the applicant said, No, in 1999 I was
here; I have never been back to Kosovo; and besides,
I did not flee because I feared being conscripted by
the KLA. So, the two discrete incidents that they
mention did not correspond with the applicant’s
current story or any story as found within Exhibit 2
or 3. In fact, this document completely torpedoes the
applicant’s credibility. This document, the Court
finds, is actually fraudulent, false, and the applicant
should have known that if he had even read the letter
when it came in. Apparently he did not; or, if he did,
he ignored its obvious deficiencies.
Next, at Exhibit No. 5-B, we have the
applicant’s wife’s Yugoslavian passport, which
indicates that yes, she, at least, went to Hungary, not
surreptitiously, but legally.
Turning the Court’s attention now to the
testimony of the several witnesses, the first was the
brother Vitor Nikollbibaj. He again ig an ethnic
Albanian and Roman Catholic, born in Kosovo
December 29, 1964. Note he is six years different in
age than this applicant, who is six years younger. He
then said that he came here, and that he got his
green card through an asylum office under NACARA.
But he cannot remember when he came to the United
States. It was either August of September of 1985. He
G-34
then related that while he was in high school, he was
in the LDK, and that the Serbian police harassed us.
After so many arrests and beatings, he says, and
after they threatened to kill him, he left his work as
an LDK foot soldier. Now, by foot soldier, he just
meant an activist and not a militant, apparently.
He then said that he has four brothers. Luk is
in Kosovo, and the three others are here. Apparently
they all live together.
He also averred he had not been back to
Kosovo, but he had been in contact with people after
he left Kosovo, and basically his parents have told
him it is not safe to return; they are still under
Serbian control and there ts nothing going on. There
is no work to be had. The United Nations will not
stay forever, and the KLA is punishing people who
did not join it.
Who told you this? My parents. When did you
talk to them? Oh, just a few days ago. He said that,
yes, my dad had told me about these threats over the
phone. And the threats were of course because we,
none of us, fought against the Serbs.
He also testified of course that Luk cannot get
a job and that he has been physically harmed, but not
recently. Now, the Court notes that applicant in his
testimony indicated that Luk became handicapped
G-35
after this applicant came to the United States; that
is, the applicant in this case. Whereas, his wife could
not keep the story straight and said, no, Luk was
handicapped before we came to the United States.
In any event, this brother, Vitor, said that, yes,
I talked to my brother - that is, the applicant in this
case - about why the family came to the United
States. He said first, they almost beat me to death,
something that is not in the application; and, they
sexually abused his wife, something that is not in
either application. In fact, neither application
mentions any discrete harm, injury, abuse to the wife
directly. This is the first mention of anything that
would indicate that his wife, that is, the co-applicant
in this case, had been sexually abused in any
manner.
And apparently these matters were told to me
shortly after they arrived in the United States. In
fact, they gave an emotional accounting of the wife
sitting down and then saying all of this in front of the
brother or brothers.
He also testified that the sister, who the
applicant did not know basically where she was or
how she could be contacted, lives in Sterling Heights.
He gave the Court two different roads that she lives
near, which are frequent mile markers here in the
area.
The next witness to testify was brother
Xhevalin. He was born in May of 1969, and
apparently was issued his asylum by a Judge Walsh
in this court on October 29, 1997. He talked about
Luk being the oldest and being in Kosovo, and how
he left Kosovo, that is, this witness, in August of
1992. He then said after Vitor left, police interrogated
us, and they would abuse us, they would dehumanize
us and they would beat us, he says.
He then said that he belonged to an
organization called WEDI Kosovo. He did not
initially talk about what exactly this organization
was, other than they spread mail. As it turns out, he
said, well, my dad was a mailman and we used to put
political things - we did not know what the political
things were - in the mail and mail them certified
mail, and my dad delivered them. Of course the dad's
affidavit says nothing about being a mailman or
having anything to do with WEDI Kosovo. Ultimately
this witness testified that WEDI Kosovo had a grand
total of seven members, and even though the
applicant in the case, sub iudice, helped them, he was
not one of the seven members. He was in fact
basically too young, or words to that effect.
G-37
He then talked about how he, that is, this
witness was arrested at 2:00 a.m., interrogated for
over 12 hours in August of 1992, apparently, and
they said, The next time we come upon you, we are
going to kill you; so, that is when I decided to flee.
He then says, well, you know, they charged
me, but who knows what they will do if they capture
me. I think they might kill me. Of course he had
every opportunity in the world to say, you know, they
took me to court and I was sentenced, either directly
or in absentia, to five years incarceration. See
Exhibit 5, Tab 7. But he seemingly did not know a
word about Exhibit 5, Tab 7. Again, this witness’s
credibility is completely shot.
Like his other brother, he says, I have recently
talked to my parents and they have told me, I do not
think it is safe for you to return. He then said that
religion is a very important aspect of this formula,
even though the applicant did not list religion on his
application, and even though in his testimony he
neglected to talk about how important religion was.
Then he of course says that the LDK - or was it the
KLA? He could not keep that straight. He did not
know the difference between the LDK and KLA, and
in fact his brother Vitor piped up at this particular
juncture of his testimony and corrected him and said,
G-38
youve got it all wrong, or words to that effect. Then,
of course, despite the fact that he could not get it
right and did not know the difference between the
LDK and the KLA, he then suddenly says, Oh, yeah,
by the way, I was a member of the LDK. Again, this
person just could not keep his story straight, within
just seconds, gave the Court twocompletely different,
inconsistent applications, completely destroying his
credibility to the extent he ever had any.
This witness did testify, however, that, yeah,
the sister, we saw her about a month or two ago, and
I have her phone number at phone. But, you know,
you could call her, except I left it at home.
He then indicated that, yes, he had talked to
the applicant and his wife about why they came. The
lead applicant said that he was abused, but gave no
details other than to say, I was beaten up and, you
know, I was beat up so bad | cannot remember;
hardly adding to anybody’s credibility. And then he
said, well, you know, the wife claimed that she was
raped by the Serbian police. Yeah, she told us in 1998
and she directly told me. Yet, of course, the lead
applicant’s position was he could not list it in either
application after given the opportunity of doing so,
knowing it was an important matter, to bother listing
G-39
even the fact that his wife had been abused at all,
physically or else. Again, this just does not ring true.
The next witness to testify was the lead
applicant. He said that when he completed high
school, he was not required to perform military
service. So, that question was asked again. Then he
said, well, you know, I was in the military. I was a
foot soldier. I was stationed in Serbia for three
months and then I went to Macedonia. [ was givena
weapon but no ammo, and I was there for nine
months and then I came home. Then he said, at that
particular time I became involved with the
Democratic League, and tt was for peace, not war and
not care. The goal was to show the world the
massacres of the Albanian people at the hands of the
Serbs.
He then said that he lived with his dad, his
mother and his brother, apparently Luk. He was
married to Lindita, the co-applicant, in 1995, and
how they have two children; a daughter born in the
old country, and Daniel born here. Then he was
asked, Well, what did you do for the LDK? Well, with
my brothers, I spread papers. Of course, he was not
one of .the seven. And after my brother left in 1992,
I got a membership card in the LDK.
G-40
What did you do, then, after you got this
membership card? Did you do more work, he was
asked? He said, Well, I was promoted; I was
promoted to leader. At this juncture the Court asked
the applicant to give the title, and he ultimately said,
well, my title was leader of the village. Well, how big
is your village? Well, it has 5,000 houses and 10,000
people, and my village were members and I was
leading them. Of course if he had this preeminent
and high exalted role, one would believe he would
have said it in his application, and he did not. When
asked how often they had meetings; Oh, two or three
days a week we had secret meetings, but later on it
became more than that. Well, how many people were
at your secret meetings? Well, 500 to 2,000. It is hard
to see how there could be a secret meeting of 2,000
people, but in any event he said, we had secret
meetings.
Well, where did you hold secret meetings? He
was asked the discrete location several times, and the
best he could do was say, well, you know, we held it
in mountains and sometimes we held it in a school.
He never gave the Court any discrete location even
though his own counsel and this Court asked him for
a specific place; again, raising a red flag with respect
to applicant’s verity.
G-41
Then applicant was queried about his
interrogations with the police. And he could not
estimate the number of times; just many times, I was
taken to the police station, they asked about what
party I was involved in. Notice he did not say they
accused him of being a member of any party; they
just asked him what he was a member of. And then
they questioned him about who the leaders were and
other things about his family. Of course, he always
refused to give up information, apparently.
He then was asked, Well, when did your
interrogation begin, since you cannot give us any
estimate of the number of times? Well, right after I
was let out of the military service in September of
1989. Of course this was the date that he changed to
being graduating from high school. So, the Court
reminded him that that cannot be the date; that’s
when you graduated from high school. He said, Oh,
you know, it was then either November or December
of 1990. Of course applicant never in any application
ever claimed to belong to any military organization;
again, raising a red flag with respect to applicant's
credibility.
Then he was asked about being approached
again by police, and rather than addressing currently
things that. were being talked about, he started:
G-42
SNe
Well, you know, from the 1980s we were confronted
by the police. And then he was asked, Well, how often
were you questioned about the party and the brothers
and so on: I cannot remember, he says. Again, hke
much of the rest of his testimony, it is vague and his
memory is just completely off base.
When he was asked after his release, What
happened to you on those occasions: Well, they beat
me, they took me to the police station. Anyway, he
said that after his brother left he was interrogated
and arrested apparently often. When asked how
often, he said, “very”. Again, he refused to even
estimate the number of times.
Then when he was asked when, he said, Many
times. I was sometimes asleep 12 midnight and they
would come into the house at those times. And there
were some other times. Again, he would not even try
to estimate a discrete month, let alone a discrete
year, really, with any specificity.
He then said he would be taken to the police
station, they would beat him with batons and kick
him with feet, they would take off his shoes, beai: his
feet, and they would hit his hands with sticks. But
other than that, he did not go into any great detail.
Again, vagueness just permeates this whole case.
G-43
They asked about the party; who I worked for,
who the party’s leaders were, about my brothers. And
then they told me they would kill my wife if I kept up
working for this group, but I did not tell; and soI felt
in danger, and so we then left, my wife and my
daughter, to go to Hungary, Austria, et cetera.
Of course this for the first time is the place
where he says, Yes, in Austria we applied for asylum,
but it was denied.
This is also the first place where he told the
Court that he had been in Germany or Holland.
Then he said that they KLA requested that I
join them the month before I left. This of course is
where the applicant further testified that nobody
ever accused him of being a member of the KLA,
although later he explained, well, because the police
asked me about the organizations I might have
belonged to, that was an accusation.
Then applicant was asked whether the Serbian
police arrested or maltreated any of the other
members of the family, that thy carried out this
threat to basically harm your family if you continued
working. And this of course was an open invitation
for him to say that his wife had been beaten or
sexually abused or raped. He did not take the bite,
however, and he basically said, well, you know, my
G-44
mom, my dad; my brother, they have been beaten.
But he did not saying anything about his wife, really,
at this particular point that had anything to do with
sexual abuse.
Applicant then at the end of his direct exam
was asked, What would happen if you would return?
Of course, he did not want to return. But then he
said, Well, the KLA will go after me and the Serbs
will go after me.
Then oncross-examination, he was asked since
he left in 1998, has the brother Luk been physically
harmed. Yes, he was turned into a handicapped
person. Of course this is inconsistent with other
evidence.
Then he was asked why he did not apply for
asylum in Hungary. Well, that is too close, basically,
to Kosovo; but apparently Austria was okay, because
it was. a little farther away. And they denied me and
they gave me some documents, but I left all those
documents including the identity card there.
Then he was asked, Well, why did you not
apply for asylum in Germany? Well, I was not there
that long; I had to drive through it. It took most of a
day, apparently. The only thing we did was stop for
gas.
G-45
Then why didn't you’ apply for asylum in
Holland? Well, I know it was a secure country, but
nevertheless I was scared and I wanted to get farther
away. And so, he thought that he would come to the
United States. Of course he disavows the fact that he
had two brothers here as any role in his deciding to
come to the United States.
He then averred that he had been in Austria
for five or six months, but yet he cannot remember
the date of -his first arrest. The last arrest was when
they left in July of 1998. Of course his wife, when
asked about the last arrest, also said July of 1998,
but then said it was a month or six weeks before she
was raped, which would place it in June; so, she could
not even exactly get the date right, either. And even
though the last arrest apparently resulted in the
applicant being beaten so that he could not move for
two or three weeks, he still managed to walk the 20
minutes or so from the police station in another
village all the way home. Again, she could not keep
her story straight about that. And the applicant’s
story, of course, did not corroborat.e his wife’s
testimony to the extent it is even believable.
Of course the applicant was asked why he did
not get an affidavit from Luk. The answer was, Well,
he 1s not in the party anymore. And when he was
G-46
asked why he could not put in his application
anything about his wife’s rape, he said, Well, it was
“very hard for me to write it.” Of course he did not
write it; his lawyer or his lawyer’s secretary typed it.
He did not have any trouble ultimately talking about
it, and she did not have any trouble talking about it,
and they disclosed it to the brothers immediately
upon coming to the United States. They did not have
any difficulty talking about it. And he knew and he
confessed that it was an important part of his
application. So, the fact that he did not list it when
he was given the opportunity of changing it again at
the commencement of today’s merits hearing, several
years after he initially filed the application, just
makes absolutely no sense, and, again, destroys his
credibility.
Then he was queried about what his duties
were asa leader. You mean, a leader, he says? What,
responsibilities? Well, I had representatives to tell
everybody about what the Serbs are doing. And the
Court then asked him, Well, did not everybody
already know what the Serbs were doing? He said,
Well, then I had to educate the world. When he was
given the opportunity of explaining how he was going
about educating the world, the Court quite frankly
&
G-47
2
did not underst.and his answer. Again, he could not
give the Court the discrete details of being a leader.
The next to the last witness to testify was the
wife. She said that she was born in 1974, married in
1995, lived with a husband whose mother died and
the husband’s brother. She was not politically active,
however. And even though she averred that applicant
was politically active, would often leave the house for
several hours at a time, sometimes would not even
come home, she does not know what he did or how he
was politically active.
This is true even after he filed the two asylum
applications. Apparently they just do not talk.
She said that when he would come, he would
be beaten, and that she would have to treat him with
ice and water. In fact, apparently the last time, or
one of the last times, he could not move for two or
three weeks, and yet her testimony was he was able
to walk the 20 minutes from the police station from
another village, because there was no police station
in their village. Again, her testimony was
inconsistent within just seconds.
She then talked about how about a week before
or during the week before they fled, but she again
could not mention the date, how the police came to
her house when her husband was at the police station
G-48
along with Luk and maybe some other people. The
Court initially thought that she said that the
mother-in-law was there, but then she said, well, the
mother-in-law was at home. In any event, Three or
four people then jumped me and raped me. Now, who
was present during the rape? Well, my mother-in-law
saw it, Luk saw it, and a couple of other people. Of
course, did she get any affidavits? No. Even though
the mother along with the father proffered an
affidavit, it does not mention any maltreatment
against her. Perhaps this is because it was sent by
somebody from Italy and maybe not the people that
it purportedly was from.
The next witness to testify was Dr. Barent
Fischer, a professor from the University of Indiana.
Now, the Court notes that Dr. Fischer certainly has
eminent credentials. However, he has not been in
Kosovo in recent time, and most of his information
comes, as he said, from reading as well as to talking
to people who make certain allegations that are from
Kosovo. This raises some concern about his
conclusions, especially since Dr. Fischer did not give
any discrete examples. He just said, I know of such
instances and you ought to read this article, but he
did not proffer the article, and he did not even talk
about the discrete incidents. -
G-49
And, his testimony was replete - and I started
to count and then I Jost track of the times that he
said - I would suggest that, or words to that effect.
The “I would suggest” language hardly indicates that
he has a strong belief about any of this, and leaves
the Court to believe that even what he claimed might
really be true was subject to some debate.
Dr. Fischer also testified that he assumed that
everything that applicant and the witnesses testified
to was true; if there were certain things that were not
true, they would detract from the risk involved. And
he testified that for a number of reasons applicant
would be at risk, but did not give the Court any sort
of a proportion here as to how at. risk the applicant
would be. We already know that some of the things
applicant testified to are absolutely not true, or at
least not as important as the applicant claims them
to be. And, accordingly, Dr. Fischer’s testimony, even
if one were to take it at face value, is of marginal
relevancy given the applicant’s lack of credibility.
Then Dr. Fischer talked, of course, and the
Court is going to address some of his concerns. He
said, I would suggest that there was a chaotic
situation, and sort of a mini-civil war from the 14th
and 16th of March. Of course the newspaper article
as proffered by the applicant, Exhibit No. 5, dealt
G-50
with an incident that happened in April, and not
March.
He then said there was considerable violence.
Less than 20 people died and 4,500 were driven from
their homes.
He then described this as being a spontaneous
uprising. Somehow the Serbs were thought to have
drowned or caused the drowning, directly or
indirectly, of some Albanian children, and then there
was a “spontaneous uprising” and that the Albanians
used this as an excuse to attack Serbian enclaves;
again, not Albanian on Albanian as the applicant
fears, and certainly not Serbian versus Albanian as
applicant seems to fear as well.
He then of.course talked about how the KLA
has been officially disbanded and they are now a
protection agency dealing mostly in things that are
not police work.
He then says that the policy of the United
States as well as the European Union is to officially
recognize that Kosovo is part of Serbia-Montenegro,
and assuming arguendo that these countries ever
bifurcate themselves, Kosovo probably would be
placed under Serbia. But of course as he said, there
is no end game, so you cannot predict what is going to
happen or what it is going to happen, really.
G-51
He then talked about, yes, there was
retribution by KLA people who did not help them or
whomight be perceived as enemies. Enemies would
be people who did not corroborate with the, who were
believed to be anti-Serbian, or sufficiently anti-
Serbian, those who left the country, and those who
failed to seek political asylum. Of course, for none of
these discrete types, he gave the Court no examples,
lessening the verity of the impact of his testimony.
Even though he said that some people have killed, he
gave the Court, again, no discrete answers.
He said that the Kofor is hopefully a success,
but they are not as successful as they should be. He
said that there are several police forces, and he weuld
“suggest” that they are not as effective as they should
be.
He then talked about things that might impact
er add to the applicant being at risk. One ef them, ef
ceurse, is Roman Catholicism. But ofcourse apphcant
never talked about him actually: practicing Roman
Catholicism; in fact, he did not even check it on his
apphcation. Of course he also. talked about how
Roman Catholicism is 7 or 8 percent of the
that there is any problem vis-a-vis Moslems and
Roman Catholic basically in Kosovo.
G-52
In any event, he then said people who left and
came to the United States, they might be perceived
as wealthy or well connected. Of course, this has
again got nothing at all todo with the asylum laws of
this country even if it were to be true.
The bottom line is that, for a number of
reasons, Dr. Fischer believed that he did not think
that applicant could be protected, but again he did
not say what the likelihood was that applicant would
be at risk for any of these reasons, either alone or in
conjunction with any other reasons, and of course he
assumed all of them were true, in which of course we
know is not true.
Conclusion
For the reasons discussed above, the Court
notes first applicant does not have a via
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