Marku v. Ashcroft

• Citation: 380 F.3d 982
• Decision Date: 20 August 2004
• Docket Number: No. 02-4366.,02-4366.
• Parties: Liri Norek MARKU, Petitioner, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 982

380 F.3d 982

Liri Norek MARKU, Petitioner, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service, Respondents.

No. 02-4366.

United States Court of Appeals, Sixth Circuit.

Submitted March 12, 2004.

Decided and Filed August 20, 2004.

Petition for review from the Board of Immigration Appeals.

Ira J. Kurzban (briefed), Kurzban, Kurzban, Weinger & Tetzeli, Miami, FL, for Petitioner.

Lyle D. Jentzer (briefed), Daniel E. Goldman, Linda S. Wernery (briefed), United States Department of Justice, Washington, DC, for Respondents.

Before MOORE, CLAY, and CUDAHY, Circuit Judges.^*

OPINION

CUDAHY, Circuit Judge.

In this appeal, Petitioner Liri Norek Marku seeks review of a Board of Immigration Appeals (BIA) order denying her application for asylum and withholding of deportation under sections 208 and 241(b)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3). Because the BIA properly found that Marku failed to demonstrate past persecution or the likelihood of future persecution on account of a political opinion or membership in a particular social group, we AFFIRM.

I. BACKGROUND

Marku, a citizen of Albania had lived in Fier, Albania, all of her life, before fleeing to the United States in 1995. App. at 86-87.¹ While in Albania, Marku was the Chief Finance Officer (also called the top economist) of the government-owned National Government Tobacco Company of Albania (NGTCA) from 1975 until 1994. Id. at 59, 108. In 1994, part of NGTCA merged with a private Greek tobacco company known as Costa. Id. at 58, 93. After the merger, the NGTCA continued to exist as a separate entity but the newly-formed joint venture became known as National United Kavax Industry (KAVAX).² Technically, after the merger, Marku worked for both KAVAX and the NGTCA. Id. at 93. One of her responsibilities was to prepare and file KAVAX's public financial disclosures. Id. at 108-09.

KAVAX ended its first fiscal year with a deficit of approximately $280,000.³ Id. at 11, 17, 94. Marku blamed these losses, in part, on Spiro Sota, Marku's direct supervisor, who was in charge of KAVAX and was also a Vice Minister in the Ministry of Agriculture, appointed by the Prime Minister of Albania. Id. at 17-18, 113, 116, 128. Albanian law HR 83 requires the dissolution of companies with annual losses exceeding certain thresholds.⁴ Id. at 94, 103, 118-119. Apparently, if Marku were to file accurate public financial disclosures, correctly reflecting the company's significant losses, KAVAX would have to be dissolved under the Albanian law. Id.

Therefore, in January of 1995, Sota called Marku into the director's office and tried to persuade her to manipulate KAVAX's balance sheet in order to disguise the company's losses. Id. at 59-60, 117. Specifically, Sota asked Marku to shift the loss from KAVAX to NGTCA. Id. at 17, 60, 95, 117. He promised Marku that he would protect her from the law in case the auditors discovered the manipulation. Id. at 117. Despite Sota's promise, Marku feared that she would be sent to jail and refused to comply. Id. at 95, 117. In response to her refusal, Sota placed a revolver on the desk, presumably as a not-so-veiled threat. Id. When Marku again refused to doctor the books, Sota raised his voice, hit his hand on the desk and then placed it on the revolver. Id. at 117. The meeting was interrupted by the unannounced arrival of Sota's secretary. Id.

A week after the meeting, Sota, giving no advance notice, sent Marku on a business trip with a colleague to the city of Vlore. Id. at 12, 60, 117. On their way back, a car drove straight at them, causing their car to veer off the road and flip over three or four times. Id. at 60, 118. Both Marku and her colleague suffered injuries. Id. Marku's colleague reported the incident to the police, and the police revealed, after an investigation, that the driver who caused the accident was a former chauffeur of Sota. Id. at 98, 118, 124. Marku did not know whether the government ever pressed criminal charges against the driver. Id. at 124.

Marku testified that she did not report Sota's conduct and threats to anyone because she believed it would be futile, as the entire government was corrupt. Id. at 132 ("I had no place to go and complain because corruption was everywhere.... I was aware that there was no constitution in place where I could ... have my own rights protected by law."). Fearing for her life, Marku made an early and accurate submission of the corporate filings report. Id. at 13, 61, 120, 123. After obtaining a visa in someone else's name, she immediately fled to the United States, leaving her daughters behind because she could not get a visa for them.⁵ Id. at 13, 61, 88, 120, 125. It appears that Marku left without alerting anyone in the government about Sota's attempts at corruption or threats of violence. At some point after she fled the country, Marku's friends back in Albania told her that KAVAX had been dissolved and Sota fired. Id. at 13, 61, 142. However, according to these unidentified friends, after a new government came to power in 1997, he was appointed `Primary Expert' at the Ministry of Finance or the Ministry of Agriculture, a position similar to the one he had previously held. Id. at 13, 61, 97, 120-21, 125, 142.⁶

Meanwhile, Marku continues to fear persecution were she to return to Albania. She writes, "It can be eas[ily] understood that many persons, [A]lbanian and Greeks, whose interests were hurt, can not forgive me." Id. at 80. She testified that there was extensive corruption in Albania, and that she saw Sota's corrupt activities as part of a general trend. Id. at 119-20, 123. However, other than the incidents described supra, Marku does not detail any specific instances of corruption. To support her contentions, she cites to a State Department report, which indicates that the judicial system in Albania is inefficient, corrupt, and subject to executive pressure even when the political situation is stable. Id. at 32-33. The State Department report states further that "[a]ccusations of corruption among public officials have been raised during each of the three governments." Id. at 33. Marku also cites to an Amnesty International report which mentions that a journalist had been detained after he wrote that "corruption [and] `degraded politics' might `explode' in Albania." Id. at 71.

Marku arrived in the United States on or about February 28, 1995, filed a timely application for asylum on November 6, 1995, and a renewed application for asylum and withholding of removal on August 13, 1998. Pet. Br. at 3; App. at 50, 73, 81. Marku was issued a Notice to Appear before an Immigration Judge (IJ) on December 11, 1997, and was charged with failure to possess a "valid nonimmigrant visa or border crossing identification card at the time of application for admission." App. at 81. On August 14, 1998, Marku appeared telephonically before an IJ in Detroit. Id. at 83. She requested asylum, withholding of removal, or in the alternative, voluntary departure. Pet. Br. at 9. On September 14, 1998 and November 16, 1998, Marku appeared before the IJ to present evidence and testimony in support of her asylum application. Pet. Br. at 9; App. at 85, 102.

In an oral opinion on November 16, 1998, the IJ found Marku credible but concluded:

[T]here is insufficient evidence to establish that the persecutor imputed any political claim whatsoever to the respondent. Rather, the individual directly responsible for taking action against this respondent did so as a result of his fear that she would expose his criminal and corrupt activities.

App. at 14, 18, 19. Accordingly, the IJ denied Marku's application for asylum and withholding of removal, but did grant her the privilege of voluntary departure. Id. at 21. The BIA dismissed the appeal on October 9, 2002, agreeing that there was "no nexus between the harm directed towards the respondent and a protected ground." Id. at 2. The BIA found that Sota's attempts to harm Marku were motivated by his fear that she would disclose his illegal activities and not by any of the statutorily protected grounds. Id. Marku appeals the BIA's decision, arguing that the BIA erred as a matter of law in holding that she was not persecuted on account of her political opinion or membership in a particular social group.

II. DISCUSSION

We must determine whether the BIA erred in holding that Marku is not eligible for asylum because she did not prove she fears persecution on account of a ground protected by the INA. We review the BIA's factual determinations using the substantial evidence standard, in which we uphold a BIA determination as long as it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir.1992). Reversal of a factual determination of the BIA is only warranted when the reviewing court finds that the evidence not only supports a contrary conclusion, but compels it. See Klawitter, 970 F.2d at 152. We review the BIA's conclusions of law de novo. See Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.2004); Amadou v. INS, 226 F.3d 724, 726 (6th Cir.2000); Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir.1995).

An applicant for asylum must demonstrate that she is a refugee as defined by the INA. See 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(a); see also Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994). To establish refugee status, an alien has the burden of proving that she is unable or unwilling to return to 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. § 1101(a)(42)(A) (emphasis added); see also Koliada v. INS, 259 F.3d 482, 487 (6th Cir.2001).

Marku argues that she was and will be persecuted...