Liti v. Gonzales, 03-3570.

• Citation: 411 F.3d 631
• Decision Date: 03 June 2005
• Docket Number: No. 03-3570.,03-3570.
• Parties: Ferdinand LITI et al., Petitioners, v. Alberto GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

411 F.3d 631

Ferdinand LITI et al., Petitioners, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-3570.

United States Court of Appeals, Sixth Circuit.

Argued: November 2, 2004.

Decided and Filed: June 3, 2005.

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ARGUED: Marshal E. Hyman, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. Elizabeth J. Stevens, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Marshal E. Hyman, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. Elizabeth J. Stevens, Linda S. Wendtland, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.^*

MOORE, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined.

GIBBONS, J. (pp. 642-43), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

Petitioners, Ferdinand Liti ("Liti"), his wife Marieta Liti, and their daughter Sabina Liti, seek review of a final order of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's decision to deny their request for asylum and withholding of removal under the Immigration and Nationality Act ("INA") and relief under the Convention Against Torture ("CAT"). The BIA found that the Litis were incredible and that their fear of future persecution was contradicted by the background evidence in the record. Moreover, the BIA concluded that the absence of reasonably available corroborating evidence militated against their claims. In their petition, the Litis argue that the BIA decision was not supported by the evidence, and in the alternative, that they are entitled to asylum based on humanitarian grounds. Though it erred in its credibility determination, we conclude that the BIA's decision denying the Litis' claims was supported by substantial evidence. Furthermore, we hold that the Litis failed to exhaust their administrative remedies with regard to their claim for asylum on humanitarian grounds. Therefore their petition for review is DENIED in part and DISMISSED in part, but we STAY our order for 120 days to allow the BIA the opportunity to address a new provision in the law.

I. BACKGROUND

Liti and his wife, both of whom are thirty-seven years old, are natives and citizens of Albania; their daughter, Sabina, is a fourteen-year-old native of Germany but a citizen of Albania. At their removal hearing, the Litis testified that beginning in 1984 they became involved in anti-communist activities in Albania, for which they were repeatedly arrested and jailed. Liti explained that he participated in public demonstrations and distributed anti-communist pamphlets. At one such demonstration, he claimed that he participated with protestors in tearing down a statute of Stalin, located in the center of Tirana, the capital of the country. He also testified that he was detained in 1988 for three or four days, during which his feet were repeatedly hit with a plastic stick and he was placed in an unheated room during winter. Liti explained that "because they knew that we didn't like the [sic] communism... the communists would come and pick me up and they would torture me ... not because [of what] I did but because they... were suspicious of me." Joint Appendix ("J.A.") at 179 (Removal Hr'g Tr. at 138). Mrs. Liti testified at the removal hearing that she spent a year in prison in Albania for insulting a communist official. The Litis also claimed that their family members were persecuted as well. Specifically, the Litis claimed that Liti's father and Mrs. Liti's grandfather were executed by the communists and that Liti's brother spent eight years in prison for attempting to leave the country.

On July 2, 1990, fearing a police crackdown of anti-communist activities, Liti, along with his wife and five others, crashed a truck through the front gate of the German embassy in Tirana. Because the Germans did not hand the protesters over to the Albanian authorities, other anti-communist activists sought refuge within the embassy grounds. Mrs. Liti testified that up to 3,200 people entered the compound. For fourteen days, the protestors remained within the German embassy grounds, while the Albanian government attempted to force them out by shutting off the water and electricity. Mrs. Liti claimed that the Albanian government even sent in a truck with contaminated water to harm the protestors. Eventually the United Nations arranged passage for the 3,200 protestors to Germany, where they were granted political asylum.

In 1991, the communist regime in Albania fell and was replaced by a parliamentary republic. Accordingly, in 1995, the German government revoked the asylum status of all the Albanian protesters, including the Litis. In April 1995, Liti and his wife, along with their two daughters who were born in Germany, entered the United States as non-immigrant visitors and filed an application for asylum.¹ The Immigration and Naturalization Service ("INS") referred the asylum application to the immigration court and issued a Notice to Appear charging the Litis with violation of § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). At their removal hearing, the Litis conceded their unlawful status, but requested asylum, withholding of removal, and relief under CAT. In support of their request, the Litis asserted that if they were to return to Albania, they would be persecuted for their leadership role in the toppling of the communist regime. Liti testified that he and his wife were the first ones "that ... stood up against the communism [sic], they will never ever forget that, and if I go back to Albania now, they are going to kill me, I am going to be the first one, they would kill me." J.A. at 185 (Removal Hr'g Tr. at 144). Liti fears returning even after the collapse of the communist regime, because he believes the currently elected Socialist party is comprised of the same people who were in power during the communist regime or their descendants. He stated that "[t]he communism regime never collapsed, they pretended that the communist [sic] collapsed but ... [it] will never collapse." J.A. at 193 (Removal Hr'g Tr. at 152). Mrs. Liti echoed this fear, stating that "we are very well known and prominent people, we are the first one, we are the first one that destroyed everything ... the same people are there, their children are in power and they could never, ever forget what happened." J.A. at 209 (Removal Hr'g Tr. at 168). To corroborate their claims, Liti stated that a former anti-communist demonstrator, who participated in the embassy break-in and was granted asylum in Germany, was murdered by the communists upon his return to Albania.

At the conclusion of the hearing, the immigration judge ("IJ") denied the Litis' requests for asylum, withholding of removal, and relief under CAT. The IJ found the Litis to be incredible based on several inconsistencies between their testimony and the asylum application they submitted. Specifically, the application did not mention either the Litis' participation in the toppling of the statute of Stalin or their leadership role in crashing the German embassy gate. Therefore, the IJ characterized the Litis' testimony as embellishment rather than fact. The IJ also noted that the Litis failed to present any additional evidence to corroborate their claims of a fear of future persecution. Given the fact that Liti's brother, with whom he claims he is in frequent contact, is a journalist in Greece covering the injustices in Albania, the IJ concluded that documentation in the form of newspaper articles or affidavits was reasonably available to them. Most importantly, the Litis failed to provide any evidence to prove their claim that a fellow anti-communist demonstrator, whose asylum in Germany had been revoked, had been murdered upon his return to Albania. Furthermore, even if the Litis were credible, the IJ held that they would not be entitled to relief in light of the changed conditions in Albania. Finally, the IJ found that evidence of past persecution was not so severe as to warrant a discretionary grant of asylum on humanitarian grounds. The Litis filed a timely notice of appeal to the BIA.

On March 24, 2003, the BIA affirmed the IJ's decision, finding that "on the total record of oral testimony and documentary evidence as to country conditions in Albania, the [Litis] do not meet the definition of a refugee as set forth in ... [the INA]." J.A. at 6 (BIA Decision at 2). Specifically, the BIA agreed with the IJ's adverse credibility determination based on the discrepancies between the Litis' hearing testimony and their asylum application. Furthermore, the BIA held the background evidence in the record contradicted the Litis' claim of a well-founded fear of future persecution and also concluded that the absence of reasonably available corroborating evidence militated against their claims. The Litis now petition this court for review.

II. ANALYSIS

A. Asylum Claim

The Litis argue in their petition that the BIA erred in denying their request for asylum. Under the INA, the Attorney General may grant asylum to an alien who qualifies as a "refugee," which is defined as one "who is unable or unwilling to return to ... [his or her home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). We review "administrative findings of fact concerning whether [an] alien qualifies as a refugee under a substantial evidence test." Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir.2004). Under that standard, findings of fact are treated as "`conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). "[T]he petitioner must show that the...