Strato v. Ashcroft, 03-3421.

• Decision Date: 12 November 2004
• Docket Number: No. 03-3421.,03-3421.
• Citation: 388 F.3d 651
• Parties: Jani STRATO, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. Marjeta LLOLI, Petitioner, v. John Ashcroft, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

388 F.3d 651

Jani STRATO, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

Marjeta LLOLI, Petitioner, v. John Ashcroft, United States Attorney General, Respondent.

No. 03-3421.

United States Court of Appeals, Eighth Circuit.

Submitted: September 17, 2004.

Filed: November 12, 2004.

Petition for review of the Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED

Gene McNary, argued, St. Louis, MO, for petitioners.

Jeffrey M. Senger, argued, DOJ, Washington, DC, for respondent.

Before WOLLMAN, RICHARD S. ARNOLD,¹ and SMITH, Circuit Judges.

WOLLMAN, Circuit Judge.

Jani Strato and Marjeta Lloli petition for review of the Board of Immigration Appeals's (BIA) denial of their motion to reopen proceedings in relation to their applications for asylum, withholding of removal and protection under the Convention Against Torture. We affirm.

I.

Strato and Lloli were born in the same Albanian province and are part of the Greek minority in Albania. They came to the United States from Greece in December 1998 on visitor visas to attend a cousin's wedding, but remained beyond their authorized stay. They received notices to appear before immigration authorities in December 1999. They admitted deportability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture.

At a consolidated hearing, the immigration judge (IJ) heard testimony from Strato, Lloli, and Kosta Lalo, a man from the same village in Albania who had received withholding of removal in an immigration court in New York. Strato testified that he was born into an anti-communist, Orthodox Christian family that was forced to work on government farms. In 1988, Strato served in the Albanian army for two years. He testified that he was mistreated and imprisoned during and immediately following his army service. Strato soon escaped to Greece. Although the Communist government was overthrown in Albania in 1991, Strato stated that the power structure did not actually change. Strato married Lloli in Greece on January 26, 1993, where, unable to obtain lawful status, they both lived underground. During the years they lived in Greece, Strato and Lloli briefly returned to Albania in 1993 and 1997. In 1993, they had to return immediately to Greece because Albanian police recognized and chased Strato. In 1997, Strato returned to participate in elections as a supporter of the Human Rights Party, but fled once again because he did not feel safe.

Lalo then testified that he knew Strato. He stated that when the communists controlled the country, anti-communists and Orthodox Christians were mistreated, and that after communism, the government still mistreated the Greek minority. When Lalo began to testify about the details of his experience seeking asylum in the United States, however, the IJ questioned the relevance of the testimony and sustained an objection by the Agency. The IJ explained that Lalo's testimony was relevant only to show a pattern of mistreatment in Albania similar to that claimed by Strato; it was not relevant to show that the mistreatment warranted a grant of asylum for Strato merely because Lalo had been granted withholding of removal. App. 106-09. Strato's attorney objected to the IJ's reasoning, but questioned Lalo no further.

The IJ issued an oral decision denying Strato and Lloli asylum, withholding, and relief under the Convention Against Torture, and directing their removal to Albania. He found their testimony credible though poorly documented. He concluded, however, that the evidence is not sufficient to establish past persecution. He found the limited details of Strato's prison camp experience insufficient to establish persecution. He also found that Strato's extended stay in Greece resulted in de facto resettlement, even though Strato did not achieve legal status. He noted that the State Department Report indicated tolerance for religious freedom and that other reports described significant corruption, but overall found little corroborative evidence in support of Strato and Lloli's claim that they were persecuted because of their ethnicity and religion.

Strato appealed to the BIA, arguing, among other things, that the IJ violated Strato's due process rights when he barred further testimony from Lalo. The BIA affirmed without opinion in accordance with 8 C.F.R. § 1003.1(e)(4) (2003)² on April 2, 2003. Strato's counsel then filed a motion to reopen on June 30, 2003, contending that the BIA's decision to issue an affirmance without opinion indicated that it had failed to consider that Strato's constitutional rights were violated when the IJ excluded material testimony. The BIA denied the motion on September 2, 2003, concluding that:

The respondent has failed to present any new evidence and the evidence now presented regarding the witnesses testimony does not overcome the deficiencies in the respondent's original case or establish his prima facie eligibility for relief.

II.

We review the BIA's decision to deny the motion to reopen for abuse of discretion. Raffington v. INS, 340 F.3d 720, 722-23 (8th Cir.2003). Because Strato and Lloli failed to timely appeal the initial BIA decision, and because a motion to reopen or reconsider does not toll the time for appeal of the underlying order, we review only the order denying the subsequent motion to reopen. See Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004). Motions to reopen "are disfavored because of the strong public interest in bringing litigation to a close." Raffington, 340 F.3d at 722. The Attorney General has broad discretion in deciding whether to grant or deny the motion. Khalaj v. Cole, 46 F.3d 828, 834 (8th Cir.1995). The regulation governing motions to reopen states that:

A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.

8 C.F.R. § 1003.2(c)(1) (2003). The BIA may properly deny a motion to reopen if the movants have failed to establish a prima facie case for the substantive relief they seek or if the movants have failed to introduce material evidence that was previously unavailable. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

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