Shehu v. Gonzales, No. 04-3882 (Fed. 6th Cir. 10/12/2005), 04-3882
| Decision Date | 12 October 2005 |
| Docket Number | No. 04-3882,04-3882 |
| Parties | DRITAN SHEHU, PETITIONER, v. ALBERTO GONZALES, ATTORNEY GENERAL, RESPONDENT. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.
Dritan Shehu, a native and citizen of Albania, illegally entered the United States on January 12, 1999. On September 28, 1999, he was apprehended in Texas by the Immigration and Naturalization Service ("INS")1 and charged with being present in the United States without being admitted or paroled, in violation of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(I). Shehu conceded removability, but applied for asylum, the withholding of removal, and protection under the Convention Against Torture ("CAT"). His application was denied by an immigration judge ("IJ"), who determined that Shehu was ineligible for asylum because he failed to file his application within the statutory one-year deadline and otherwise failed to demonstrate extraordinary circumstances that excused the untimely filing. The IJ further found that Shehu did not qualify for withholding of removal or protection under the CAT. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision in all respects and dismissed Shehu's appeal. For the reasons set forth below, we deny Shehu's petition for review of the decision by the BIA.
Shehu, who was born in 1974, is a member of a once prominent and wealthy landowning family who resided in Buz, a village in southern Albania. Following the Communist takeover of Albania in 1944, the family's land was confiscated under Albania's land redistribution policy, and petitioner's grandfather and other family members were imprisoned and mistreated by the Communist regime for protesting the expropriation of their land. After the fall of the Communist regime in 1990, Shehu's family sought the return of their property and, in 1991, joined the Republican Party, which was formed by other former landowners.2 The Socialist government that assumed power, however, redistributed the land to political allies instead of the original owners, and most of his family's land went to members of the local commission. The Shehu family thus received only a small portion of land that had previously belonged to another family.
Shehu claimed that, as a result of their continued protestations, his family was threatened. Shehu testified that he and his younger brother became Republican Party "activists" (a status short of membership). Shehu stated in his affidavit that, in retaliation for his family's opposition to the land redistribution, his house was ransacked and he and his brothers were "routinely and savagely beaten." At the hearing, however, he made no mention and gave no further explanation of these incidents. Instead, Shehu's testimony focused on four matters involving other family members that allegedly occurred in the late 1990's: the alleged kidnaping and beating of his uncle in 1994 by a high ranking government official; the 1995 kidnaping of his brother Irfan, a Republican Party organizer in Buz, who was threatened and told to stop his opposition to the land distribution; the subsequent kidnaping and disappearance of Irfan in 1997; and the robbery and beating of another brother in 2003 while visiting the family in Tirana. Shehu claimed that all of these incidents were retaliatory responses by local government officials to his family's attempts to secure their former properties.
Significantly however, Shehu had no first-hand knowledge of these alleged incidents, having left Albania for Greece in September 1992, when he was seventeen years old. Shehu lived and worked in Greece for the next six years. He occasionally visited his family in Albania, but returned for the last time in November 1997.3 On his final visit to Albania, Shehu secured a passport and visa and then traveled to Mexico via Greece and Cuba. After arriving in Mexico, Shehu illegally crossed the Mexican border into Texas and stayed with a family until he was found and detained by INS officials in September 1999.
We review issues of law de novo, subject to principles of deference with regard to an agency's construction of a statute that it administers.. Csekinek v. I.N.S., 391 F.3d 819, 822, 829 (6th Cir. 2004). The factual findings of the BIA, including credibility determinations, are reviewed under the substantial evidence standard. Sylla v. I.N.S., 388 F.3d 924, 925 (6th Cir. 2004); Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005); Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005). Under this highly deferential standard, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Sylla v. I.N.S., 388 F.3d at 925; Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). Reversal of a factual determination by the BIA is warranted only when we find that the evidence not only supports a contrary conclusion, but compels it. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).
Shehu first challenges the BIA's affirmation of the IJ's determination that his failure to timely file his asylum application was not excused by "extraordinary circumstances." An asylum application must be filed within one year after the applicant enters the United States, 8 U.S.C. § 1158(a)(2)(B), unless the applicant demonstrates either that a later application is justified by changed circumstances that materially affected the applicant's eligibility for asylum, or extraordinary circumstances prevented the applicant from meeting the deadline. 8 U.S.C. § 1158(a)(2)(D). Although Shehu entered the United States on January 12, 1999, and did not file his asylum application until March 3, 2000, more than one year after the date of entry, he maintains that the immigration court's delay in processing his motion for a change of venue prevented him from complying with the filing deadline.
Notwithstanding Shehu's contentions, we have no discretion to determine whether the immigration court delayed his compliance with the filing deadline. The INA expressly provides that "[n]o court shall have jurisdiction to review any determination" regarding the existence of extraordinary circumstances that would excuse a failure to timely file an asylum application. 8 U.S.C. §1158(a)(3). Consequently, we are barred from reviewing the BIA's determination that Shehu failed to demonstrate extraordinary circumstances. See, e.g., Csekinek, 391 F.3d at 824; Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004); Castellano-Chacon v. I.N.S., 341 F.3d 533, 544 (6th Cir. 2003).
Shehu next challenges the IJ's exclusion of purportedly official documents from Albania pertaining to his family history, land ownership, verification as to membership in political parties, and a certificate from the Association of Formerly Politically Persecuted from the hearing because they were not authenticated in conformance with 8 C.F.R. § 287.6(b) (). Shehu claims that the INS agreed to authenticate the documents pursuant to his request but failed to do so. Alternatively, Shehu argues that submitting the documents to the INS was "the only way to obtain proper authentication" and that "the burden was on the Service" to authenticate the documents.
A review of the record reveals that these documents did not conform to the requisite certification requirements and were therefore properly excluded as evidence. Although Shehu correctly argues that alternative means of authenticating records are allowed if it is not possible to secure authentication from the proper authorities, Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004), Shehu never raised the possibility of authentication by alternative means before either the IJ or the BIA. Thus, this issue is not properly before this Court. 8 U.S.C. § 1252(d)(1) (); Csekinek, 391 F.3d at 822. Moreover, Shehu cites no legal authority in support of his argument that the burden was on the INS to obtain proper authentication of the documents. In any event, his claim is belied by the rule itself, which specifies that copies of official publications are to be attested to by an officer of the foreign country authorized to do so, and his position is to be certified, where necessary, by a United States Foreign Service officer. 8 C.F.R. § 287.6. No intervention on the part of the INS was necessary or required under the circumstances, and, although Shehu's counsel sent the documents to government counsel prior to the hearing with a request for authentication, the record reflects, as the BIA found, that government counsel had not agreed to do so.
In a related argument, Shehu maintains that the IJ erred by refusing to consider documentary evidence written in Albanian and submitted with purported translations on the ground that the certificate of translation was inadequate. Pursuant to 8 C.F.R. § 1003.33, any foreign language document offered at an immigration hearing "shall be accompanied by an English language translation and a certification signed by the translator that must be printed legibly or typed." The "certification must include a statement that the translator is competent to translate the document, and that the translation is true and accurate to the best of the translator's abilities." Id.
At the hearing, the IJ correctly noted that only one of the documents submitted by Shehu complied with the regulation. Most of the proffered documents were simply stamped with the translator's name and title "Translator," and the translator's initials or signature. A few...
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