Palushaj v. I.N.S., 93-3196

• Decision Date: 17 May 1994
• Docket Number: No. 93-3196,93-3196
• Citation: 25 F.3d 1049,1994 WL 198169
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lon PALUSHAJ; Rusha Palushaj, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1049

25 F.3d 1049

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Lon PALUSHAJ; Rusha Palushaj, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee

No. 93-3196.

United States Court of Appeals, Sixth Circuit.

May 17, 1994.

Before: MERRITT, Chief Judge; GUY and BOGGS, Circuit Judges.

MERRITT, Chief Judge.

Lon and Rusha Palushaj, ethnic Albanian citizens of Yugoslavia, contest the denial of their applications for asylum in the United States. We find that the Board of Immigration Appeals (the "Board") did not err in its decision to deny asylum to the Palushajs a year and a half ago. However, we also find that the Palushajs have alleged the existence of new conditions in Yugoslavia and of new evidence relating to Lon Palushaj sufficient to warrant that they be allowed to petition the Board to reopen their applications for asylum. We therefore remand this case to the Board to consider the Palushajs' motion to reopen, should they file one, and to assess the effect of the new conditions and evidence on their applications for asylum.

Lon and Rusha Palushaj, husband and wife, are illegal aliens. They entered the United States without inspection in January 1987 after being denied a visa by a United States Consulate in Yugoslavia. The Palushajs come from the Kosovo region, the majority of whose inhabitants are of Albanian ethnicity. Kosovo was and is part of Serbia and thus still remains within the Serb-dominated state of Yugoslavia. The Palushajs have three children, all born in the United States and therefore U.S. citizens.

On January 8 and 12, 1988, the Immigration and Naturalization Service issued Orders to Show Cause to the Palushajs, charging them with deportability as illegal aliens under Sec. 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2). The Palushajs conceded deportability but received additional time to file applications for asylum. After an asylum hearing on June 10, 1988, an Immigration Judge denied those applications on June 23, 1988. On November 30, 1992, the Board of Immigration Appeals affirmed that decision. On appeal, the Palushajs seek review of the Board's final order of deportation.

In their asylum requests, the Palushajs alleged that Lon Palushaj ¹ had been involved, in both Yugoslavia and Switzerland, in demonstrations and other activities against the Yugoslav government and in favor of the civil rights and cultural autonomy of ethnic Albanians within Yugoslavia and related goals. Palushaj testified to several instances of questioning by the Yugoslav Secret Police, which he argued demonstrated that the Police knew of his activities. He alleged that the last time he entered Yugoslavia, in December 1986, his brother informed him that the Police were looking for him. As a result, he fled to the United States by way of Macedonia and then Canada.

The Immigration Judge denied the request for asylum essentially for two reasons. First, he found that Palushaj had not demonstrated that the Police knew about his activities specifically, and that he had therefore not demonstrated, as required by 8 U.S.C. Sec. 1101(a)(42), that he held a well-founded fear of persecution on account of his nationality or political beliefs.

Second, that finding was heavily influenced by the judge's determination that Palushaj was not a credible witness. In his asylum application, Palushaj stated that when he last entered Yugoslavia he was immediately detained by the Police and questioned repeatedly about his pro-Albanian activities. At his hearing, however, Palushaj testified that on that visit he was not questioned but was told by his brother that the Police were looking for him. Palushaj testified that the inconsistency was the result of his poor grasp of English and subsequent difficulty working with the translator who helped him prepare the written application, but the Immigration Judge found no real evidence that there had been a language problem. In the absence of documentary evidence that Palushaj was an individualized target of persecution, Palushaj's own description of his circumstances weighed heavily, and the finding that he was not credible weighed heavily against him.

The Board affirmed the Immigration Judge's decision on the same grounds. Based on the record before us, we cannot say that the Board was clearly erroneous in either of these findings. Absent the circumstances discussed below, therefore, we would be...