Ramani v. Ashcroft, 02-4362.

Citation378 F.3d 554
Decision Date04 August 2004
Docket NumberNo. 02-4362.,02-4362.
PartiesSefit RAMANI; Lindita Ramani; and Ardit Ramani, Petitioners, v. John ASHCROFT, Attorney General of the United States; Immigration and Naturalization Service, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Richard A. Kulics (argued and briefed), Immigration Law Center, Birmingham, MI, for Petitioners.

Daniel E. Goldman (argued), Alison Marie Igoe (briefed), United States Department of Justice, Washington, DC. for Respondents.

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

OPINION

REEVES, District Judge.

Petitioners Sefit Ramani ("Ramani"), Lindita Ramani, and Ardit Ramani seek review of the Board of Immigration's ("BIA") decision affirming the denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture. For the reasons that follow, we AFFIRM the BIA's decision.

BACKGROUND

The Ramanis are ethnic Albanians and citizens of Macedonia who entered the United States without inspection on or about October 19, 1999. Subsequently, on October 21, 1999, the Immigration and Naturalization Service ("INS") charged Ramani with being an alien present in the United States without having been admitted or paroled into the country and instituted removal proceedings against him. At the initial removal hearing, Ramani requested permission to file a written application for asylum, which was submitted September 19, 2000. The court set a hearing date on the merits of Ramani's application for April 13, 2001.

Approximately two weeks before the merits hearing, Ramani sought to offer two documents for admission into evidence to support his request for asylum. The first document was represented to be a copy of a legal summons from a Macedonian court directing Ramani to appear on October 12, 1999. The second document was a purported copy of an extract from the Macedonian penal code. At the April 13, 2001 hearing, the INS objected to the introduction of these documents. After the Immigration Judge ("IJ") asked about the location of the originals of the documents, Ramani testified that he had given the summons to his attorney who claimed to have misplaced it. Ramani further testified that his uncle mailed a copy of the penal code extract to him after obtaining it from an attorney in Macedonia. He stated that he had torn off the portion of the document that he felt was irrelevant. Ramani's attorney admitted that he had made no attempt to obtain a copy of the Macedonian law from a source from which the IJ could have taken judicial notice.

During the hearing Ramani testified that he is a citizen of Macedonia but that he is an ethnic Albanian. He stated that prior to arriving in the United States he lived in Tateshposto, Struga, which is approximately twenty kilometers from the Albanian border. Ramani testified that his association with the police began in 1997 when he began to participate in demonstrations that promoted rights for ethnic Albanians. He indicated that the group that typically organized the demonstrations was "some kind of a party, VDSH, Democratic Party of Albania." Although Ramani testified that he was a member of this group, he claimed that he had left his membership card at his mother's house in Macedonia. He stated that the group conducted several additional gatherings in 1998. He further claimed that his problems with the police resurfaced in 1999 after a group of Albanian refugees arrived from Kosovo. Ramani stated that, in September 1999, following a demonstration in Valesht, he was stopped by the police as he was returning home. According to Ramani, the officers beat him several times over a thirty minute period. As a result of this incident, he stated that he was supposed to appear in court on October 12, 1999, but he was afraid to do so. Specifically, he testified that he was fearful of being "torture[d] while in the custody of the police."

Lindita Ramani testified that the police came to her house and arrested her husband on two occasions. While she could not remember the dates of those arrests, she estimated that it was from "1997 and on." She indicated that the last demonstration she recalled her husband attending was in 1999. However, she could not recall how long after this demonstration they came to the United States.

After evaluating the testimony presented at the hearing, the IJ denied Ramani's request for asylum, withholding of removal, and protection under the Convention Against Torture. Specifically, the IJ found that Ramani was not a credible witness. He noted that Ramani could not remember any of the organizers of the July 1997 demonstration other than Rufi Osmani. Also, he pointed out that Ramani's references to his arrests were very general and that his testimony was vague, in that he could not specifically remember the dates of his alleged arrests.

The IJ also concluded that Ramani's story was not corroborated by the Country Report for Macedonia, which was offered into evidence by the INS. Although the IJ acknowledged that this report related to incidents occurring in 2000, not 1999 (the general period when Ramani claimed his problems arose), he found that the report did not corroborate Ramani's claim that ethnic Albanian minorities were tortured by police for participating in demonstrations. The IJ noted that the Country Report indicated that the Macedonian government generally respected its citizens' right to freedom of assembly and that demonstrations regularly occurred there without incident.

The IJ declined to admit into evidence the purported copy of the legal summons and the alleged extract of the Macedonian penal code because the translation of these documents did not comply with 8 C.F.R. § 3.33. In addition, the IJ found that the document purporting to be a copy of a legal summons was not the original and had not been properly authenticated. The IJ also refused to take judicial notice of the document purported to be an extract from the Macedonian penal code. He noted that Ramani's attorney had made no attempt to produce the law from available, admissible sources.

Ramani filed a notice of appeal of the IJ's decision with the BIA and objected on two grounds. Specifically, he stated that

[t]he Immigration Judge erred in finding that Respondent did not qualify as a refugee and that [he] did not show that he had a well founded fear of persecution, despite the fact that Respondent presented substantial testimony that [he] did qualify as a refugee and had a well founded fear of persecution.

The Immigration Judge erred in finding that Respondent's testimony, and demeanor was of questionable credibility even though at trial Respondent's testimony, and demeanor was credibile [sic], and that it was believable, consistant [sic] and sufficiently detailed to be found credible.

In his BIA brief, however, Ramani simply alleged that the IJ was biased. Notably, Ramani did not object in his BIA appeal brief to the IJ's refusal to admit the two documents that were at issue at the merits hearing. In addition, Ramani did not challenge the IJ's finding that he was not a credible witness in his brief to the BIA.

Ultimately, the BIA rejected Ramani's claim of prejudice stating that

any opinion formed by the Immigration Judge on the basis of facts introduced or events occurring in the course of the current proceedings may not constitute a basis for a finding of bias in the absence of a display of a deep-seated favoritism or antagonism that would make fair judgment impossible.

The Board further concluded that Ramani received a full and fair hearing and agreed with the IJ that he had not met his burden of proving eligibility for asylum, withholding of removal, or relief under the Convention Against Torture.

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction over Ramani's request for asylum pursuant to the Immigration and Nationality Act § 242(a)(1). See 8 U.S.C. § 1252(a)(1). However, to the extent that Ramani has failed to exhaust his administrative remedies with respect to certain claims, this court does not have jurisdiction to address those claims, as discussed infra. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994); Dokic v. INS, 899 F.2d 530, 532 (6th Cir.1990). Upon review of the claims that are properly before the court, the panel must consider whether the BIA correctly determined that Ramani failed to sustain his burden of establishing eligibility for asylum. See 8 C.F.R. § 208.13(a) (an alien applying for asylum bears the burden of demonstrating that he or she is a refugee). In reviewing decisions rendered by the BIA that an alien is not eligible for asylum, this court reviews administrative findings of fact concerning whether the alien qualifies as a refugee under a substantial evidence test. Yu v. Ashcroft, 364 F.3d 700, 702-703 (6th Cir.2004) ("findings of fact are [reviewed under 8 U.S.C. § 1252(b)(4)(B), which] basically codifies the Supreme Court's substantial evidence standard"). Thus, an IJ's factual determinations will be reversed only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

THE USE OF A SUMMARY AFFIRMANCE

Ramani argues that the BIA's brief dismissal of his appeal constituted a violation of due process. He concedes, however, that the BIA "certainly has the authority to affirm, without opinion, or issue a brief opinion, in any case in which the Board member concludes that there is no legal or factual basis for reversal of the decision by the Service or the [IJ]," citing 8 C.F.R. § 1003.1, which provides for summary affirmance. This provision permits the BIA to issue summary affirmances, with little or no discussion, as well as decisions without opinion in immigration appeal cases meeting certain criteria. Ramani suggests that the use of these affirmances can violate due...

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