Mehilli v. Gonzales

• Decision Date: 22 December 2005
• Docket Number: No. 05-1412.,05-1412.
• Citation: 433 F.3d 86
• Parties: Agron MEHILLI; Sonila Mehilli; Xhesika Mehilli; Xhonathan Mehilli; Serxhi Mehilli; Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

433 F.3d 86

Agron MEHILLI; Sonila Mehilli; Xhesika Mehilli; Xhonathan Mehilli; Serxhi Mehilli; Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-1412.

United States Court of Appeals, First Circuit.

Submitted November 8, 2005.

Decided December 22, 2005.

Walter J. Gleason on brief for petitioners.

John M. Lynch, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Peter D Keisler, Assistant Attorney General, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Petitioners in this immigration case sought asylum relief, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge and Board of Immigration Appeals denied relief, finding the asylum application time-barred and the other claims meritless. Petitioners did not timely seek judicial review of that decision; instead, they moved for reconsideration before the BIA, were denied, and then sought judicial review of that latter denial.

Their petition presents a question of first impression in this circuit as to limits on jurisdiction: whether 8 U.S.C. § 1158(a), which forbids direct review of the decision that an asylum application is time-barred, applies equally to review of the BIA's denial of reconsideration on the same issue. We hold that it does, and therefore that we have no jurisdiction as to denial of asylum to the petitioners.

We do have jurisdiction over the denial of reconsideration as to withholding of removal and CAT protection. Since we find that the BIA did not abuse its discretion in denying reconsideration of these claims, we deny the petition for review.

I.

Petitioners are a married couple, Agron and Sonila Mehilli, and their three children, Xhesika, Xhonathan, and Serxhi Mehilli. All rely on the application for relief of the father, Agron Mehilli ("Mehilli").

A. Mehilli's Application and Testimony

Mehilli, a native of Albania, arrived in the United States on a date which is the subject of some dispute. Mehilli applied for asylum, withholding of removal, and CAT relief on June 23, 2001; in that application, he stated that he entered the United States on December 5, 2000. He later changed that date of entry, as we explain below. On January 14, 2002, the former Immigration and Naturalization Service (INS)¹ instituted removal proceedings against him.

On May 9, 2003, Mehilli appeared before an initial Immigration Judge. He testified that he left Albania in late November of 2000 and traveled to Athens, then Milan, and finally Los Angeles, arriving on December 5, 2000. Mehilli told the initial IJ that he entered the United States using a false passport bearing the name Fatmir Gjata. The initial IJ immediately asked the government to check whether a Fatmir Gjata entered the country on that date; the government ran a computer check and found no matches. When this was relayed to Mehilli, he said, "I don't believe it, because I came, that's the way I came from Albania . . . that's the name." He added: "I cannot lie."

Mehilli later appeared before a second IJ on three different dates in 2003 to offer further testimony. At the first of these hearings, the IJ said he would "start the case de novo" and would take testimony even on issues covered by the initial IJ because he needed to make credibility determinations himself.

Mehilli then testified to a version of events that differed substantially from both his earlier testimony and his asylum application: he stated that he had traveled from Athens to Milan using the name Fatmir Gjata, but that he had then traveled from Milan to Los Angeles with a Slovenian passport bearing the name Marko Brezar. He also stated that he arrived on May 4, 2001, not December 5, 2000. Mehilli submitted as evidence a passport bearing the name Marko Brezar; he also submitted a plane ticket bearing the same name, which he said he had used to fly to Los Angeles. Asked why he was changing his testimony, he testified that "the person that gave me these passports and tickets" told him "not to show the name and date that I arrived here."

During the same hearing, the second IJ addressed Mehilli's motion for a new trial, in which he argued that the initial IJ had behaved improperly by discounting Mehilli's credibility and trying to impeach his testimony on peripheral issues. The second IJ denied this motion, stating:

Your client has admitted to us that he was lying to the Immigration Judge at the last hearing. So I'm finding your motion here less than convincing where . . . you seem to be complaining that the Judge was impugning your client's credibility at the last hearing unfairly, when, in fact, it turns out that your client was lying to the Judge.

The IJ went on to find that, since Mehilli offered little proof other than his own testimony as to his arrival date, and since he was not credible given his false testimony under oath, he had not proved that he arrived in the United States within a year before filing his asylum application; this failure rendered him ineligible for asylum.

The IJ stated that despite this ruling, he would hear Mehilli's testimony as to the merits of all three claims for relief.² Mehilli testified as follows: He became a member of Albania's Democratic Party in 1992 and played an active role in the party. Beginning in 1993, he owned a bakery in Tirana, the Albanian capital. In 1997, the rival Socialist Party came to power, and Mehilli began to feel pressure from government officials. In February 1997, members of the Socialist Party came to Mehilli's bakery and told him to close it down; they told him they were closing bakeries like his because they wanted to "take the Democratic Party off the power." Mehilli refused. When Socialist officials started paying return visits to bakeries, asking them why they had not closed as ordered, Mehilli moved to a new space elsewhere in Tirana; the bakery occupied the first floor, while Mehilli and his family lived upstairs. The bakery kept running even after Mehilli left Albania, and Mehilli was still receiving money from its operation, even up to the time of the hearing.

In the summer of 2000, Mehilli testified, he received a letter purporting to levy a $20,000 fine against his bakery; the letter stated that if Mehilli did not pay, he would be killed. He offered no evidence as to who might have sent the letter. However, he testified that several days later, he went to pick up his voting card and discovered that his and his wife's names were misspelled on their cards; at this point, he testified, he realized the incidents were connected — Socialists had altered his card so he could not vote, and the fine was being levied for political reasons. He admitted on cross-examination, however, that many voters experienced problems with the voter registration lists.

Several days after the voting card incident, Mehilli testified, police officers came to his home at 5 a.m. and searched it. He testified that the officers pushed him against a wall and said, "we came to pick up the guns that you have illegally, because you're a member of the Democratic Party, you have guns." Finally, Mehilli testified that in November 2000, unknown assailants tried to kidnap his younger son. He stated that one day, as his wife, her brother, and his son were leaving the brother's home, three people "tried to grab" his wife and take her son from her arms. He could not identify the assailants; he said they must have been Socialists because the kidnapping attempt "was a continuance . . . of their actions" against him.

Mehilli's wife, Sonila, also testified. As to the attempted kidnapping, she testified that an armed man tried to grab her son and she pushed him away; as she did so, her brother opened fire, frightening the man off. She stated that she did not fall to the ground at any time during the incident. As to the search, Sonila Mehilli said she saw an officer push her husband, and that no one else was pushed.

B. The IJ's Decision and Subsequent Appeals

The second IJ's oral decision of September 5, 2003 rejected Mehilli's application on numerous grounds. The IJ reaffirmed his finding that Mehilli was time-barred from seeking asylum. He noted that Mehilli's application was dated June 23, 2001, and that on the application Mehilli wrote that he had entered the United States on December 5, 2000. However, he also noted that Mehilli admitted testifying falsely under oath to the initial IJ. The IJ found, based on these facts and his observations of Mehilli's demeanor, that Mehilli was not credible. Since Mehilli had relied largely³ on his own testimony to prove his date of entry, the IJ found that Mehilli had not established an arrival date and thus had not established that his application was filed within one year of arrival.⁴ The IJ also rejected Mehilli's claim that he should be exempted from the deadline due to extraordinary circumstances — specifically, ineffective assistance of counsel — because Mehilli had not complied with the regulatory requirements for making such a claim.

Nonetheless, the IJ proceeded, in the alternative, to consider Mehilli's asylum claim, and other claims for relief, on their merits.⁵ The IJ pointed to a number of inconsistencies in Mehilli's story. These included, inter alia, (1) that Mehilli's testimony as to the search was at sharp variance with affidavits in which he said twenty soldiers tore his house apart and pushed him, his wife, and his children; and (2) that his wife's testimony that she never fell during the kidnapping attempt contradicted Mehilli's statement in an affidavit that she was pushed to the ground. Based on the inconsistencies and on Mehilli's initial false testimony, the IJ again found Mehilli not credible.

Further, the IJ found that even assuming...