Karaj v. Gonzales

• Citation: 462 F.3d 113
• Decision Date: 05 September 2006
• Docket Number: Docket No. 03-40537.,Docket No. 03-40535.
• Parties: Elida KARAJ, Avdyl Karaj, Abli Karaj, and Amir Karaj, Petitioners, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

462 F.3d 113

Elida KARAJ, Avdyl Karaj, Abli Karaj, and Amir Karaj, Petitioners, v. Alberto R. GONZALES,^* Respondent.

Docket No. 03-40535.

Docket No. 03-40537.

United States Court of Appeals, Second Circuit.

Argued: August 3, 2005.

Decided: September 5, 2006.

Maureen O'Sullivan, Kaplan, O'Sullivan & Friedman, Boston, MA, for Petitioners.

Lucinda S. Woolery, Assistant United States Attorney, Western District of Missouri (Todd P. Graves, United States Attorney, on the brief), Kansas City, MO, for Respondent.

Before POOLER and SOTOMAYOR, Circuit Judges, and KORMAN,^** District Judge.

POOLER, Circuit Judge.

Elida Karaj ("Elida"), her husband, Avdyl Karaj ("Avdyl"), and their two minor sons, Abli and Amir, petition for review of an order of the Board of Immigration Appeals ("BIA") that summarily affirmed an immigration judge's ("IJ") order directing the Karajs' removal and denying their requests for asylum pursuant to 8 U.S.C. § 1158(b)(1), withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), adopted by UN Gen. Assembly December 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T. S. 85. We dismiss petitioners' withholding-of-removal and CAT claims because petitioners failed to exhaust their administrative remedies. However, we hold that the Karajs did exhaust their administrative remedies with respect to their asylum claim, and we remand for further findings based on lack of clarity in the IJ's decision concerning the reasons why he denied the Karajs relief and a significant error in his statement of the standard the Karajs must satisfy to be entitled to asylum.

BACKGROUND

The Karajs, natives and citizens of Albania, claim past persecution based on Elida's membership in the Albanian Democratic party. They describe maltreatment of Elida and her family of origin by the former Communist regime and complain that the Socialists, after coming to power in 1996, also continually harassed Elida. In addition, Elida and Avdyl testified to three specific incidents of alleged persecution.

First, in December 1998, Avdyl was arrested during an anniversary celebration/demonstration for the Democratic party. He was kept for two or three hours, hit with a rubber club, and threatened with more severe treatment. Avdyl was also warned that it would be his wife's turn next. Second, on November 8, 1999, a bomb exploded in front of the Karajs' residence. The next day Elida went to the police station to report the occurrence. Instead of acting on her complaint, the police handcuffed her and put her in a cell. She recognized one of the policemen as a member of the Socialist party who "was always revenging against [her]." Elida was kept and threatened until she withdrew her complaint. During her detention, the officers "started grabbing [her] and laughing." Third, on May 5, 2000, Elida saw a van with police markings in front of a store. Three persons in civilian dress emerged from the van and tried to grab her. Two neighbors then came out and started fighting with Elida's attackers, who hit Elida with their fists. The attackers fled when one of the neighbors threatened them with a gun.

In his decision on the Karajs' application, IJ George T. Chew found it unnecessary to articulate the substantive law governing asylum, withholding of removal, and CAT relief because that law "is very well established." He held that "the respondent[s have] not met their burden of showing that they would be persecuted upon their return." He based this holding "largely on the implausibility of the respondent's story and her testimony." He noted specifically that Elida could not explain in her testimony why the Socialists would select her and her husband for persecution when she was only a member of the Democratic party, and Avdyl admittedly was not even a member of the party but only a sympathizer. In addition, because the IJ found that Elida was unable to articulate answers to simple questions on cross examination, he believed she had "memorized much of her testimony." Further, the IJ pointed out that Elida's documents were issued after she came to the United States and that a letter from the Democratic Party did not indicate when she joined the party. The IJ also cited the Country Report for the proposition that "Albania is a country in great flux." Finally, IJ Chew was "troubled by the fact that the respondent[ ]s conveniently lost all of the passports that they entered this country with" and that Avdyl had no identification documents.

The IJ ended his decision by saying: "In total the Court, in weighing the respondent's testimony, will conclude that she has not satisfied her burden and accordingly, will deny her application for asylum. Having denied her application for asylum, the Court will also deny her applications for withholding of removal and relief under the Convention Against Torture."

On appeal to the BIA, the Karajs asked in the prayer for relief in their brief for reversal of the IJ's determinations on asylum and withholding of removal but did not mention CAT relief. As to asylum, the Karajs said: "the United States Supreme Court [has] held that[,] in an application for asylum[,] a well-founded fear of persecution equals a less than fifty percent probability of persecution and that a small probability may suffice" and argued that they had met that standard. Pets.' BIA Mem. at 2 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Although petitioners also set forth the facts supporting their asylum application, they did not explicitly argue that the IJ applied an incorrect standard to that claim. Petitioners made no argument relevant to their withholding-of-removal or CAT claims and relied on no language from any case that might be construed as identifying an error on the IJ's part in denying these claims. The BIA affirmed without opinion.

On appeal, the Karajs contend that the IJ (1) applied a standard that was too rigorous when he denied their asylum claim; (2) erred by failing to determine whether Elida had suffered past persecution; and (3) used the wrong standard in evaluating the Karajs' withholding-of-removal and CAT claims. In addition to defending the IJ's decision on the merits, respondent contends that the Karajs are barred from raising the standard-of-review issues because they did not raise them before the BIA.

DISCUSSION

I. Standard of Review

We briefly summarize the well-known principles applicable to our review. First, because the BIA summarily affirmed the IJ's decision, we review the IJ's decision directly.¹ Zhi Wei Pang v. Bureau of Citizenship and Immigration Services, 448 F.3d 102, 107 (2d Cir.2006). Second, we confine our review to the reasons given by the IJ and will not search the record for alternative reasons to affirm. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Third, where the IJ makes factual findings, including credibility findings, we apply a substantial evidence standard of review. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004); see also 8 U.S.C. § 1252(b)(4)(B). In fact, the IJ's opportunity to judge demeanor causes us to grant "particular deference" to credibility findings based on demeanor. See Zhou Yun Zhang, 386 F.3d at 73. Finally, where the IJ makes an error of law, we normally will vacate his or her decision. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003).

II. Asylum

"To establish eligibility for asylum, a petitioner must show that . . . he has suffered past persecution on account of `race, religion, nationality, membership in a particular social group, or political opinion,' or that he has a well-founded fear of future persecution on these grounds." Id. at 148 (quoting 8 U.S.C. § 1101(a)(42)). Proof of past persecution creates a rebuttable presumption of a well-founded fear of future persecution. Id. Further, at least since 1987, it has been clear that an asylum applicant need not show that she "probably" will be persecuted if returned to her country of origin. See Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. 1207. Rather, as little as a 10% probability of persecution may suffice. See id. The Karajs' primary argument on appeal is that the IJ did not apply the Cardoza-Fonseca standard but instead (1) required them to prove that they "would be persecuted" on return, and (2) failed to evaluate their evidence of past persecution.

Respondent argues that the Karajs' asylum claim must be dismissed insofar as it relies on the IJ's imposition of an erroneously heightened burden because the Karajs failed to exhaust administrative remedies by alerting the BIA to the IJ's claimed error. The Karajs, however, contend that they sufficiently exhausted this argument by citing Cardoza-Fonseca and articulating the correct standard as the basis for their appeal.

Congress has limited this court's power to review a final order of removal to those removal orders for which "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). This provision is jurisdictional. See Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004). However, we continue to refine our view of the specificity with which issues and arguments must be raised to the IJ and BIA. Compare Drozd v. INS, 155 F.3d 81, 85, 90-91 (2d Cir. 1998) (holding that an argument that petitioner should be granted United States citizenship was waived by petitioner's failure to raise it to the BIA, although petitioner had argued that he was already a citizen) with Johnson v. Ashcroft, 378 F.3d 164, 170 n. 7 (2d Cir.2004) (holding that if a petitioner makes the substance of his argument known to the BIA, his failure to cite precise regulations and precedents is not fatal); see also Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005) (stating that while petitioner may not "rais[e] a whole new category of relief on...