Gjonaj v. Holder
| Decision Date | 13 September 2010 |
| Docket Number | No. 08-4240 and 09-3663,08-4240 and 09-3663 |
| Parties | VILME GJONAJ, Petitioner. v. ERIC H. HOLDER, JR., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
Before: BOGGS and CLAY, Circuit Judges, and WISEMAN, District Judge.*
Petitioner Vilme Gjonaj is a thirty-five-year-old Albanian citizen who was admitted to the United States on December 23 or 24, 2002 on a fraudulent Italian passport. She filed a timely asylum application on December 15, 2003. Her asylum proceedings commenced on January 22, 2004, when the Department of Homeland Security referred her original application to the Immigration Court for asylum-only proceedings. The Immigration Court had jurisdiction because Gjonaj had entered the United States with a passport from Italy, a country that participates in the Visa Waiver Pilot Program ("VWP"). See 8 C.F.R. § 1208.2(b) (); 8 C.F.R. § 217.2(a) ().
Gjonaj renewed her asylum application before the Immigration Court and also applied for withholding of removal under the Immigration and Naturalization Act ("INA") and the Convention Against Torture ("CAT"). Following several hearings, the Immigration Judge ("IJ") denied her application, and the Board of Immigration Appeals ("BIA") dismissed her appeal on September 4, 2008. Gjonaj now appeals the BIA's dismissal of her appeal of the IJ's decision.
In a second appeal, which has been consolidated with the first, Gjonaj seeks review of the BIA's May 14, 2009 order denying her motion to reopen the asylum proceedings to apply for an adjustment of status based on her marriage to a United States citizen on December 27, 2007 and the birth of a child to the couple on October 5, 2007. She indicated her new husband, George Thomas, had filed a Petition for Alien Relative (Form I-130) on her behalf on October 2, 2008, and that petition remained pending. The Department of Homeland Security did not file a response to the motion. In its written decision denying the motion to reopen, the BIA noted that the United States Citizenship and Immigration Services ("USCIS"), rather than the BIA, was the agency with jurisdiction to adjudicate the adjustment application. The BIA declined to reopen given that it had "no jurisdiction over the underlying application for relief." (Case. No. 09-3663 App. 3.) The BIA added, (Id.).
For the reasons set forth herein, we affirm both decisions of the BIA.
I. APPEAL OF THE DENIAL OF ASYLUM AND WITHHOLDING OF REMOVAL
In her revised asylum application dated May 25, 2004, Gjonaj indicated she was seeking asylum based on religion and political opinion.1 (Case No. 08-4240 App. 130.2) She claimed she had been "mistreated on several occasions" and had received death threats from 1999 through 2002 as a result of her marriage to a Catholic and subsequent religious conversion from Islam to Catholicism, specifically by members of the "Islamic Albanian Group," an Islamic fundamentalist organization to which several members of her extended family belonged. She alleged that her parents had also been threatened and mistreated as a result of her marriage and conversion.
Gjonaj supplemented her asylum application with a written personal statement in which she admitted entering the United States on December 24, 2002 with a picture-altered Italian passport. She further elaborated on the statements made in her asylum application, asserting that she was seeking asylum based on the persecution she had suffered and was likely to suffer again if she returned to Albania because of her conversion to Catholicism3 and her marriage to a Catholic. She asserted that her entire extended family is made up of Islamic conservatives, with the exception of her father "who is slightly more moderate." (App. 135.)
She stated that she married Robert Gjonaj, an American Catholic, on September 8, 1999, despite initial opposition from her immediate family, and that Robert left for the United States shortly after the marriage to make preparations for her to join him. Ten days after the marriage, her uncle and his nephews came to her house to talk to her father about the "scandal," and told her father on that occasion that if the marriage was not "broken" within twenty-four hours, they would kill Gjonaj. (App. 136.) When her father ordered the uncle and nephews out of the house, they began beating her father, and continued beating and kicking him even after he had fallen unconscious. Her mother was supposedly also beaten. The two nephews then found Gjonaj in her room where she was hiding and beat her as well. The following day, her parents reported the incident to the local authorities, who declined to take any action, purportedly in part due to the fact that her father was an "opposition activist." (Id.) Gjonaj, after talking with her parents, went to hide at a friend's house the next night.
Her parents later told her that the uncle and his nephews came back again that next evening. In her personal statement, Gjonaj asserted that on this occasion, they had firearms and were accompanied by four more men with long beards and scarves on their heads, also members of the Islamic Albanian organization. Gjonaj's parents told the men the marriage had been "broken" and that Gjonaj had left in the middle of the night without telling them. The men told her parents that they would find her and kill her. (App. 137.)
After that night, Gjonaj went to stay with her aunt in Pogradec, a town approximately two or three hundred kilometers from her family's home in Shkoder, where she believed she would be safe until Robert sent for her to join him in the United States. Apparently not trusting in Robert completely, Gjonaj's aunt and uncle also began to look for ways to get her into the United States.
To that end, Gjonaj went to Greece several times but, according to her personal statement, she was "caught by the Greek border patrols and deported back to Albania." (App. 137.) She claims that in March 2002 she was held in a Greek jail for two days and then, after being deported back to Albania, held in police detention in Albania for another two days where she was "severely beaten and interrogated for [her] father's political activity." (App. 137-38.)
Gjonaj stayed in Pogradec until June 2002, when her uncle and his nephews again showed up and asked for her, this time accompanied by two other men. They found her hiding, pulled her hair and kicked her and threatened to kill her. Her uncle stated "your end has come you evil whore," and instructed one of the nephews to kill her. At that point her aunt's husband came in with a gun and told the nephew to let her go. Some other neighbors came to help by this time, and the uncle, nephews, and two men left. After this incident, Gjonaj went to stay with another aunt in Durres. From there, she was able to arrange to get out of the country, traveling through Budapest to Paris using her own Albanian passport, and then from Paris to Los Angeles on an altered Italian passport, for which her father had paid $50,000. She arrived in Los Angeles on December 23 or 24, 2002, and went from there to Michigan. Soon after her arrival in the United States, she called her aunt in Durres and learned that her uncle and his nephews and five other men, all armed, had come to that aunt's house looking for Gjonaj three days after she had left.
Finally, in her written statement, Gjonaj proclaimed she was lucky to have gotten out of Albania alive, but was "heartbroken" because "the love of [her] life" was not with her. She claimed that Robert had gone through "all the procedures to have her join him in the US," but that she had not received any letters from the United States Embassy because she had been in hiding most of the time after Robert left. (App. 138.) She speculated that Robert or the Embassy might have sent otherletters that were intercepted by her uncle. (App. 139.) She also hypothesized that Robert probably thought she had betrayed him or was dead since she never responded to his purported attempts to contact her. (App. 139.)
Gjonaj's asylum application materials include a letter, in Albanian, written by her sister, Gentiana Shema, 4 and signed by her father and brother as well as her sister. (App. 119-21.) The letter is translated into English (which version is also signed by the same family members) and similarly recounts that the family is Muslim, and that Gjonaj's decision to marry a Catholic caused a conflict between Gjonaj's family and an uncle who is a fanatical Muslim. The letter corroborates Gjonaj's claim that the uncle and two nephews came to the house after learning about the marriage but differs from Gjonaj's account in a number of ways, including that the letter states the men "menaced" their parents but does not indicate that they actually harmed them physically, and adds that their father had a heart attack after the men left. (App. 122.) The letter also omits any mention of the visit on the second night, when Gjonaj was with her friend.
At the hearing conducted before Immigration Judge Robert Newberry on August 31, 2005, Gjonaj testified regarding the same events addressed in her written application, personal statement, and her sister's letter, but her live testimony differed in several significant aspects from her written statements. In her written materials, Gjonaj had indicated she came from a "traditionally Muslim family." (App. 135.) When asked at the hearing what religion her family practiced, Gjonaj stated "[f]rom my father...
To continue reading
Request your trial