Spaqi v. Holder, 09-4442
| Decision Date | 21 December 2011 |
| Docket Number | No. 09-4442,No. 09-4444,09-4442,09-4444 |
| Parties | ALEKSANDER SPAQI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0864n.06
ON PETITION FOR REVIEW OF A FINAL ORDER FROM THE
BOARD OF IMMIGRATION
BEFORE: SUHRHEINRICH, MOORE, and COOK, Circuit Judges.
RICHARD F. SUHRHEINRICH, Circuit Judge. Aleksander, Preke, Prene, Bernardina, and Andrian Spaqi petition this court for review of the Board of Immigration Appeals's ("BIA") decisions denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In Case No. 09-4442, Aleksander ("Aleksander") petitions for review of the BIA's denial of asylum on the grounds that the BIA violated his constitutional right to procedural due process. He also claims that he established past persecution and a well-founded fear of future persecution, and that it is more likely than not that he will be persecuted or tortured if returned to his country of origin. In Case No. 09-4444, Prek, Prene, Bernardina, and Andrian (collectively "Petitioners") claim that the Immigration Judge ("IJ") abused her discretion when she denied their motion to sever their derivative applications after the principal applicant, Prek Spaqi, was determined to be statutorily barred from asylum and withholding. They also contend that theBIA abused its discretion when it denied their motion to remand, and that they qualify for protection under the CAT.
Because we conclude that Aleksander's claim fails on the merits, we do not address his due process claim. We DENY Aleksander's requests for asylum and withholding of removal. Because he waived his challenge to the BIA's denial of his CAT claims, we DENY review of Aleksander's request for protection under the CAT.
We also DENY the Spaqi family's petition for review in Case No. 09-4444, because the BIA did not abuse its discretion in denying the motion to sever. The Spaqis failed to challenge the IJ's denial of their CAT claim, and it is therefore beyond the scope of this court's review.
Petitioners in these consolidated cases belong to the same immediate family. They are all natives of the former Yugoslavia who were all born in the village of Djakvoica near the Albanian border in what is now Kosovo. The parties to the petition for review in Case No. 09-4444 are Prek Spaqi ("Prek"), his wife Prene, their daughter Bernardina, and son Andrian. Their son Aleksander Spaki ("Aleksander") is a party to a separate but consolidated petition for review in Case No. 09-4442.
The Spaqis entered the United States without permission near Laredo, Texas on September 4, 2004. On the same day, the Department of Homeland Security ("DHS") filed Notices to Appear ("NTA") against Prek, Prene, Bernardina, and Andrian, charging them with being subject to removal for entering the United States without having been admitted or paroled. DHS filed an NTA againstAleksander on November 2, 2004. Each of the petitioners admitted the factual allegations in the NTAs and conceded removability. An IJ granted their motions to change venue to Detroit, Michigan.
On August 24, 2005, Prek filed applications for asylum, withholding of removal, and protection under the CAT, listing other family members as derivative beneficiaries.1 Aleksander was included on his father's application as a derivative beneficiary. Aleksander was twenty years old at the time of entry and turned twenty-one shortly thereafter.2 The IJ "separated out" Aleksander's claim because he was twenty-one years old, and could not longer qualify as a derivative beneficiary of his father. Aleksander appeared before an IJ the same day in a preliminary master calender hearing. On October 5, 2005, Aleksander filed a separate application for asylum, withholding of removal, and protection.
On November 6, 2006, Prek Spaqi testified before the IJ in support of his applications for relief. Administrative Record ("A.R."), 09-44423, at 634-91. Prek testified that his family was involved in a land dispute with their neighbors, the Romojas. Prek stated that sometime around 1984, the Serbian government "created a law to fix . . . the parts of land in Kosovo," and acommission from Gjakova seized a portion of Prek's land and opened a road behind his house. A.R. 637-38. Prek told the IJ that he filed a complaint with the Directory in Pristina, that "experts" were sent to the site, and that the Directory ruled that "the Commission from Gjakova" had to return the land to Prek. A.R. 641. The Gjakova Commission appealed that decision to the Supreme Court, which ruled that the Gjakova Commission had to return the land to the Spaqis and close the road it was constructing behind Prek's house. A.R. 642.
When the Romoja family refused to close the road, Preq's brother proceeded to do so himself one day while Prek was hunting. A.R. 643. Upon his return home, Prek observed the Romojas get "real angry" at his brother, and that "12 people came . . . and started shooting." Prek shot his pistol "three times in the air[,] . . . two killings happened," and two members of the Romoja family were killed. A.R. 643-45. About an hour later, the police arrested Spaqi, his father and brother, and took them to jail in Pia, Kosovo. A.R. 645. Following a hearing, Prek was sentenced to twelve years for murder and attempted murder, and his brother was sentenced to death. A.R. 646. Prek appealed to the Pristina Supreme Court, and on November 23, 1989, that court reduced his sentence to three years, because of "mistakes" made by the trial court. A.R. 647, 652. According to Prek, the Pristina Supreme Court determined that the Romoja family "did shoot on us," and that he was "sentenced before that I did kill somebody but that was not true." A.R. 648.
Prek told the IJ that he did not go back to his village upon his release from prison, because he feared retribution. He explained that "right away when . . . a member of [a] family there is killed they are in a blood feud." A.R. 653-54. Prek lived six or seven kilometers outside of his village until 1996, when he left for Croatia. A.R. 655-57. He visited his village in Kosovo seven times,without incident. A.R.657-58. In 1998, he moved his entire family to Albania. A.R. 658-59. At this time he learned from his wife that the Romoja family was "beating a lot their kids [and] their men," and that a priest had attempted a reconciliation, but that the Romoja family had refused. A.R. 659-60.
Nicole Pepa, a national of Kosovo, a legal permanent resident of the United States, and a relative of the Spaqi family, also testified. A.R. 612-32. Pepa told the IJ that he has known the Spaqi family since he was two years old, and that the Spaqis are "one of the most well known families in Kosovo, and the most patriotic family in Kosovo." A.R. 616. He explained that he was "a chief for reconciliation of the blood-feud," which he characterized as a non-governmental reconciliation commission. A.R. 617, 632. Pepa stated that the blood feud between the Spaqis and the Romojas began when the government seized the Romojas's land and redistributed it to the Spaqi family. Pepa indicated that he was unable to resolve the dispute between the two families. A.R. 621-25.
The IJ found Prek ineligible for asylum and withholding as a matter of law as a result of his conviction and sentence for attempted murder. Counsel subsequently moved to sever the cases of Prene, Bernardina, and Andrian, the three family members who remained as derivative beneficiaries. The IJ denied the motion. After testimony was complete, the IJ issued an oral decision determining that Prek was statutorily barred from asylum and withholding of removal as a result of his commission of a particularly serious crime. The IJ also denied Prek's application for protection under the CAT. She then ordered Prek, Prene, Bernardina, and Andrian deported to Serbia.
The Spaqi family appealed the decision. The BIA affirmed the IJ's decision and dismissed the appeal. The Spaqi family timely petitioned this court for review of the BIA's decision.
On September 22, 2008, Aleksander testified at a hearing before the same IJ in support of his application for relief. Aleksander also testified that his family was engaged in a blood feud with the Romoja family in Kosovo, concerning "the land," and that his life would be in danger if he returned to Kosovo. Aleksander stated that he suffered many beatings from the older Romoja boys. He stated that when he was about thirteen years old, he went to live with his aunt in a village approximately ten kilometers away from Qerim, because his mother told him his life was in danger. Aleksander reported that during his second year of high school, friends of the Romoja family beat him on one occasion, pushing him to the ground and warning "that one day [they] are going to kill the entire family." Aleksander stated that he was afraid to report the incident to the police and that when he told his parents, they said to be careful. Aleksander claimed that he wanted to go to college but the Romoja family prevented it "[b]ecause they have many people that work for these things with money." Aleksander stated that he came to the United States with his family "to get out of danger."
The IJ allowed Aleksander to introduce the transcript of his father's proceeding. The IJ and BIA therefore considered the testimony of Prek and Pepa in deciding Aleksander's case.
On December 1, 2008, the IJ issued a written decision determining that Aleksander failed to file within one year of entry and was therefore ineligible for asylum, denying his applications for withholding of removal and protection under the CAT, and ordering him removed to Kosovo. The IJ determined that Aleksander failed to show past persecution or a well-founded fear of future persecution on account of a protected ground, and had not demonstrated a...
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