Preçetaj v. Sessions

• Decision Date: 24 October 2018
• Docket Number: No. 18-3231,18-3231
• Citation: 907 F.3d 453
• Parties: Çile PREÇETAJ, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

907 F.3d 453

Çile PREÇETAJ, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 18-3231

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 24, 2018

ON BRIEF: Michael J. Lacey, Mt. Clemens, Michigan, for Petitioner. Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Çile Preçetaj petitions for our review of the order of the Board of Immigration Appeals ("Board" or "BIA") denying her motion to reopen her removal proceeding. At issue is whether the Board erred in denying Preçetaj’s motion based on the evidence she submitted regarding changed country conditions, and, if the Board erred, whether such error is harmless. We hold that the Board erred and such error is not harmless; thus, we REMAND the motion to the Board.

I.

Preçetaj is a native and a citizen of Albania. She entered the United States without admission in June 2000. Upon her arrival, Preçetaj filed her first asylum application in August 2000, averring that "criminal gangs constantly threaten [her] family," and, "though [her] father is not politically involved, he is a target because he is employed by the highway department ...." She also attested that she was afraid of being kidnapped and placed into forced prostitution. In July 2001, the Immigration and Nationality Service ("INS") served Preçetaj with a Notice to Appear, charging her with removability. Preçetaj conceded the charge of removability.

In June 2005, the Immigration Judge denied Preçetaj’s asylum application and ordered her removal to Albania. The Immigration Judge found Preçetaj incredible because her claim "devolved over a period of time." For instance, the Immigration Judge found that she added allegations to her petition, including that her son would be subject to kidnapping in Albania, that she had some difficulty practicing her religion in Albania, and that she would suffer shame as an unmarried mother. Moreover, the Immigration Judge found that there were several "red flags" regarding Preçetaj’s credibility. She was inconsistent about whether she returned to Albania or attempted to flee on prior occasions, whether her family experienced problems in Albania, and whether she and her family were subject to political-opinion persecution or otherwise politically involved in Albania. The Immigration Judge also found that Preçetaj did not provide corroborative documents and that she did not establish that those in her social group are subject to a pattern or practice of persecution.

Preçetaj appealed the decision to the Board, and the Board adopted and affirmed the Immigration Judge’s decision. In February 2007, Preçetaj filed a petition for review with this court, and we denied it. Preçetaj v. Mukasey , No. 7-3170 (6th Cir. Feb. 15, 2007) (order).

Over five years later, in October 2012, Preçetaj filed her first motion to reopen her removal proceedings. In January 2013, the Board denied the motion. In February 2013, Preçetaj filed a second review petition challenging the denial of her first reopening motion, and we again denied it. Preçetaj v. Mukasey , No. 13-3172 (6th Cir. Feb. 15, 2013) (order).

Nearly another four years later, in September 2017, Preçetaj filed the present motion to reopen her removal proceeding. In her motion, Preçetaj argued that "country conditions in Albania have changed ... since a recent Socialist Party victory at the polls," and thus, "conditions in Albania have deteriorated." Specifically, Preçetaj argued that recently, "her family has been threatened with government persecution" and that her family is a "distinct social group." The Board denied the motion, and it is the Board’s decision that is the subject of our review.

In support of her motion to reopen her removal proceeding, Preçetaj appended three documents: (1) a psychological report about her children; (2) Preçetaj’s original asylum application, including an updated I-589 Statement; and (3) an affidavit from her expert witness Prenk Camaj, who detailed Albania’s political history and internal violence.

The psychological report contained no information about Albania’s country conditions.

The first three paragraphs of Preçetaj’s Statement do not refer to country conditions, but rather, discuss her difficulties with Immigration and Customs Enforcement and how deportation will affect her three American-born children, because they do not speak Albanian and will face difficulties remaining in Albania. In the fourth and final paragraph, Preçetaj stated that since the recent elections in Albania, there have been crackdowns on Democratic Party activists, including her father, brother, and sister. She also explained that her "family were wealthy farmers, but their lands were confiscated and were never returned, to this day. Two of my uncles were killed on their farms in the past for their activities ...." Additionally, Socialist Party agents have gone to her home and threatened her parents.

Camaj, who attested that he has testified or provided expert reports in over 25 immigration proceedings, submitted a 14-page affidavit. The affidavit began by detailing the personal account included in Preçetaj’s Statement. Camaj concluded that, in his expert opinion, "Preçetaj’s family was targeted, labeled, and singled out for the severest persecution" and as a result, "[t]heir choices are to be killed, remain in strict hiding or to flee Albania."

Camaj also detailed his concern with the State Department Report on Country Conditions in Albania, stating that State Department reports of Albania "fall very short of the facts and reality." In support, he submitted the following facts:

• The Albanian National Records from 1990 to the present show that Albania has had the highest per capital emigration rate in the world, "mainly because of the ongoing variety of persecution."

• There are three to four killings in Albania every day, and "it is common knowledge that half are political killings[, though] the government labels them otherwise."

• As a result of meeting with various presidents and prime ministers of Albania, and from going on fact-finding missions to Albania, Camaj was "disappointed to see the continuing downward spiral of country conditions, because of the head on collision of the Socialist and Democratic Parties."

• From mid-2005 through mid-2009, "killings and disappearances skyrocketed out of control ...." For instance, the chief editors of two newspapers were severely beaten, as reported in the reputed Albanian newspaper Our Time . Moreover, "[t]he Democratic Party Chairman of Has-Kukes, a medical doctor and a Parliamentary candidate disappeared during the summer elections of 2005 and was found dead weeks later, handcuffed and tied to a bridge." "Thousands of people considered less significant continued to be killed until today."

• In July 2006, infighting in the Albanian Parliament caused its shutdown as well as threats against the lives of its members, and members of the Democratic Party went into seclusion for an emergency meeting.

• "[T]he local and regional elections originally scheduled for October 2006 were postponed and held hostage by the Socialist Party until February 18, 2007," and the elections were violent and fraudulent. Furthermore, the Socialists continue to maintain power locally and regionally, which proves a threat to Preçetaj.

• In June of 2013, the Prime Minister and Democratic Party were overthrown by the Socialist Party.

• During the last 27 years, there have been more Albanians killed than during the Communist period in Albania (from 1945 to 1990).

The Government opposed Preçetaj’s motion and argued that she asserted a change in personal circumstances and not a material change in country conditions. The Government further argued that her affidavit did not provide any dates or details regarding when her family lands were confiscated or when her uncles were killed; moreover, Preçetaj offered "no evidence to corroborate her factual assertions about her family’s newfound political involvement." The Government appended the State Department’s 2016 Human Rights Report, which concluded that there were no reports of either politically motivated disappearances or of arbitrary arrests and detentions. The report found that protests have generally been peaceful and that the Albanian Democratic Party continues to hold a significant number of seats in the legislature. In fact, the Government contended that although Camaj’s characterizations of Albania between 2005 and 2009 as "chaotic and abysmal" may be accurate, current conditions have vastly improved since that time.

On February 14, 2018, the Board, acting through a single member, denied Preçetaj’s motion to reopen in a three-paragraph order. After recounting Preçetaj’s prior proceedings and quoting the regulations setting forth the time and numerical limits on motions to reopen, the BIA ruled as follows:

The respondent, a native and citizen of Albania, seeks to have her removal proceedings reopened on the basis of her fear of persecution in Albania. In support, the respondent has submitted an affidavit prepared by an individual knowledgeable about Albania; the respondent’s own affidavit; and, a psychological report relating to the respondent’s United States citizen children. However, the evidence submitted by the respondent does not reflect materially changed country conditions in Albania or show overall changed circumstances bearing on the respondent’s claim. Further, the evidence fails to establish the respondent’s prima facie eligibility for the relief that she is seeking. See 8 C.F.R. § 1003.2(c)(1) ; see also Matter of Coelho , 20 I&N Dec. 464 (BIA 1992). Accordingly the motion to reopen is denied.

Preçetaj’s timely petition to this court followed.

II.

A. Standard of Review

We review the Board’s denial of a motion to reopen immigration proceedings for abuse of discretion. Trujillo Diaz v. Sessions , 880 F.3d...