Mullai v. Ashcroft

• Decision Date: 27 September 2004
• Docket Number: No. 02-4313.,02-4313.
• Citation: 385 F.3d 635
• Parties: Elma MULLAI, Petitioner, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 635

385 F.3d 635

Elma MULLAI, Petitioner, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service, Respondents.

No. 02-4313.

United States Court of Appeals, Sixth Circuit.

Submitted: August 6, 2004.

Decided and Filed: September 27, 2004.

Petition for review from the Board of Immigration Appeals.

Robert M. Birach (briefed), Detroit, MI, for Petitioner.

James A. Hunolt (briefed), Emily A. Radford (briefed), United States Department of Justice, Office of Litigation, Washington, DC, for Respondents.

Before: KENNEDY, SUTTON, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

Elma Mullai, a native and citizen of Albania, seeks review of a decision of the Board of Immigration Appeals affirming, without opinion, the order of an immigration judge denying her request for asylum and withholding of removal. Because substantial evidence supports the IJ's conclusion that Mullai neither suffered past persecution nor has a well-founded fear of future persecution in Albania, we deny Mullai's petition for review.

I

Mullai, age fifty-two, was born and raised in Albania, the daughter of a wealthy, Muslim family. After coming to power during the 1940s, the Communists confiscated her family's property and also arrested one of her uncles because of his religious activities, sentencing him to seven years of imprisonment. Another of Mullai's uncles escaped arrest by fleeing to the United States.

According to Mullai, the Communist government targeted her for persecution on at least five occasions. In April 1989, after she criticized the president of Albania in a private conversation, the secret police detained her in jail for one week, forbidding any contact with her family and repeatedly threatening her. She recounted to the IJ that on four separate occasions from December 1990 through December 1991, the Albanian police beat and kicked her during her participation in protests against the government. She explained the lack of medical records of treatment for the injuries sustained during the beatings by her decision not to seek medical treatment. Despite these experiences, Mullai received a college education under the Communist regime and held a chemical engineering position in a factory.

Mullai alleges that after the Communist government collapsed in 1992, her persecution continued under the new Democratic Party government. In November 1994, at a protest at which Mullai gave a speech, the police again beat and kicked her. Then again two years later, after participating in a protest that she helped organize, the secret police detained Mullai in jail for two days without food or water and threatened her. Two days after being released, she lost her job. These events prompted Mullai to seek and obtain a visa to visit the United States. But she did not leave Albania until a few months later, after the government — without apparent provocation — again took her into custody and deprived her of food and water for two days.

Mullai entered the United States on October 2, 1996, with authorization to remain for six months. Because she remained beyond the authorized six months, the INS served her with a Notice to Appear in November 1997. Mullai then applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture, on the basis of past persecution due to her religion, membership in a particular social group, and political opinion, and because she feared future persecution in Albania. After a hearing, the IJ found that Mullai failed to demonstrate that she was entitled to asylum on the basis of her claims of religious and gender persecution. With respect to her allegations of political persecution, the IJ concluded that Mullai had not suffered past persecution and that even if she had, changed country conditions rebutted the presumption of a well-founded fear of future persecution.

The BIA summarily affirmed the IJ's denial of Mullai's application for asylum, withholding of removal, and protection under the Convention Against Torture, and granted Mullai a thirty-day period for voluntary departure (ending November 25, 2002). Mullai now requests review of the denial of her application for asylum and withholding. She also filed a motion for a stay of removal on December 18, 2002 — twenty-four days after the voluntary-departure period expired. This court granted that motion.

II

Because the BIA affirmed the IJ's decision without opinion, we review the IJ's decision as the final agency order, Denko v. INS, 351 F.3d 717, 730 (6th Cir.2003), under the "substantial evidence" standard. Under this deferential standard of review, we uphold the IJ's decision if it is "`supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We are not entitled to reverse "simply because [we are] convinced that [we] would have decided the case differently." Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir.1995) (internal quotation marks omitted). "Rather, in order to reverse the BIA's factual determinations, the reviewing court must find that the evidence not only supports a contrary conclusion, but indeed compels it." Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.1992) (citing Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812).

A. Asylum

Mullai bears the burden of establishing that she is a "refugee" eligible for asylum either because she has suffered actual past persecution or because she has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a); Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. If she demonstrates past persecution, she is entitled to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). The government may overcome this presumption by establishing by a preponderance of the evidence that there is "a fundamental change in circumstances such that [Mullai] no longer has a well-founded fear of persecution in [her] country of nationality." 8 C.F.R. § 208.13(b)(1)(i)(A).

Substantial evidence supports the IJ's determination that Mullai did not experience past persecution. For one thing, her ability to obtain an advanced degree under the Communist regime does not reconcile easily with her claim that the Communist government targeted her for persecution. For another, her treatment by the Communist government could be reasonably viewed as motivated by her status as a protester rather than religious persecution. With respect to the Albanian Democratic Party's treatment of Mullai, the incidents Mullai alleges do not meet this circuit's definition of "persecution" — "more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty." Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998). And although Mullai obtained a visa soon after her detainment in May 1996, she waited over three months (until after she was again detained in September 1996) to leave Albania. Because we find no evidence in the record compelling us to reverse the IJ's conclusion that Mullai did not suffer past persecution, we uphold the IJ's decision that Mullai failed to demonstrate past persecution severe enough to merit a grant of asylum on humanitarian grounds. See In re Chen, 20 I. & N. Dec. 16, 1989 WL 331860 (BIA 1989) (holding that petitioner, who with his family members suffered persistent and severe persecution throughout the Cultural Revolution as a result of their religious beliefs, was entitled to asylum on humanitarian grounds).

Substantial evidence also supports the IJ's determination that even if Mullai suffered past persecution, changed country conditions rebut the presumption of a well-founded fear of future persecution in Albania. Although Mullai alleged persecution by the Communist and Democratic Party governments, she has not demonstrated that the current government controlled by the Socialist Party would target her for persecution. See Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir.1996); Yousif v. INS, 794 F.2d 236, 244 (6th Cir.1986). As the IJ noted, both the United States Department of State reports (the Country Reports on Human Rights for Albania and the Profile of Asylum Claims) and Mullai's evidence describe the type of general civil disorder and lawlessness to which anyone living in Albania would be exposed. At worst, the record contains allegations of the Socialist government's persecution of Democratic Party members — the party that previously persecuted Mullai.

As to our review of the IJ's conclusion that changes in country conditions trump any presumed well-founded fear, Mullai urges us to assess as unwarranted the weight the IJ gave to United States Department of State reports in evaluating her fear of future persecution. But Mullai herself provided a number of the State Department reports on which the IJ relied (including the Country Reports on Human Rights for 1997 and 1999). Although this circuit acknowledges that State Department reports may be problematic sources on which to rely, Koliada, 259 F.3d at 487 (citing cases from the First, Fourth, and Seventh Circuits), in other cases we...