Vasha v. Gonzales
| Decision Date | 14 June 2005 |
| Docket Number | No. 03-3592.,03-3592. |
| Citation | 410 F.3d 863 |
| Parties | Fatos VASHA, Petitioner, v. Alberto GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Marisa Petrella, Petrella & Associates, P.C., Southfield, Michigan, for Petitioner. Thankful T. Vanderstar, United States Department of Justice, Washington, D.C., for Respondent.
Marisa Petrella, Petrella & Associates, P.C., Southfield, Michigan, for Petitioner. Thankful T. Vanderstar, United States Department of Justice, Washington, D.C., for Respondent.
Before: MOORE and SUTTON, Circuit Judges; ADAMS, District Judge.*
SUTTON, J. (pp. 876-77), joined the opinion of the court but delivered a separate opinion with respect to Part II-B.
Petitioner, Fatos Vasha ("Vasha"), seeks review of a final order of the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ") denying his request for asylum and withholding of removal under the Immigration and Nationality Act ("INA"). The BIA affirmed the IJ's finding that Vasha was incredible and that he had failed to demonstrate a well-founded fear of future persecution. In his petition for review, Vasha argues that (1) the BIA's opinion upholding the IJ's decision was not supported by the evidence; (2) his due process rights were violated by the manner in which the IJ conducted the removal hearing; and (3) the BIA improperly applied its streamlining regulation to the case. Upon review, we conclude that the decision to deny Vasha's asylum claim was supported by substantial evidence and that the BIA did not err in designating this case for review by a single BIA member. Furthermore, though we find the IJ's actions in this case particularly troubling, the procedural errors ultimately did not prejudice Vasha's case. Therefore, Vasha's petition for review is DENIED.
Vasha is a thirty-three-year-old native and citizen of Albania. He was born and raised in Mamurras, Albania, which is located in the northern part of the country. Vasha testified that his family has a long history of political persecution under the former communist regime. Several members of his family, including his grandfather, fled from Albania to the United States in 1947. As a result, the family members who remained in Albania were branded as traitors and forced to live in an internment camp. Vasha testified that once he became older, he joined the anti-communist movement and participated in protests against the communist regime. Vasha continued his protests against the socialist government, which was elected in 1997 and which he claims is comprised of the same people who were in power in the communist government. At his removal hearing, Vasha testified to five specific incidents which occurred during either the communist or socialist eras, in support of his asylum and withholding of removal claims.
On July 9, 1990, at the age of eighteen, Vasha, along with a large group of anti-communist protestors, tried to flee Albania by traveling to Tirana, the capital of the country, to seek asylum at the various foreign embassies located there. Vasha testified that the police stopped the large crowd of people at the entrance to Tirana, and arrested him. At his removal hearing, he testified that the police grabbed him by the hair, shouted profanities at him, and threw him in a police car, which transported him back to Mamurras. Vasha claimed that the Mamurras police held him for seventy-two hours, during which he was interrogated and tortured. Specifically, Vasha testified that the police Joint Appendix ("J.A.") at 322 (Removal Hr'g Tr. at 29). According to Vasha, he was released after seventy-two hours, because the police did not have any evidence to charge him with a crime. He explained that following his release, his mother attempted to treat his wounds with homeopathic drugs, aspirin, and tea, but eventually he was taken to the medical center for treatment of his injuries.
On December 10, 1990, Vasha traveled with his cousins and friends to Tirana to support a hunger strike by pro-democracy students protesting the communist government. Vasha testified that he participated in the demonstration by shouting anti-communist slogans. On December 13, 1990, Vasha returned to Mamurras, where he was arrested by the police, taken to the police station, and placed in a very small room. He testified that the police kicked, punched, and beat him for thirty minutes with plastic rods and wet rope. He claimed that the police told him that "[w]e have had [communism] for 45 years and we are not going to let it go." J.A. at 317 (Removal Hr'g Tr. at 24). According to Vasha, his relatives had discovered he was being held at the police station and protested outside of it demanding his release. The police decided to release him after forty-eight hours, but to "discredit [him] in the eyes of the Mammuras [sic] people." J.A. at 318 (Removal Hr'g Tr. at 25). He testified that he was taken to the medical center for treatment of his injuries.
On February 13, 1991, Vasha and his friends participated in another student protest against the communist government in Tirana. The protestors pulled down a statue of Enver Hoxha, the communist ruler of Albania. Vasha participated in the protest by shouting anti-communist slogans four to five hours a day for seven consecutive days. Vasha testified that as the demonstrators marched to the city center, fire trucks sprayed them with a solution which stained their clothes a specific color. Vasha claimed that after the demonstration, he and his friends were stopped by the police outside of Tirana. Recognizing that they were protestors by their stained clothing, the police handcuffed them and dragged them by their hair to the police station. At the station, Vasha was kicked, punched, and beaten with a plastic rod for more than six hours. Vasha testified that he was beaten to the point of unconsciousness, but the police poured cold water on him to revive him. He explained that the police eventually released him to make room for additional protestors in the police station, and that he walked home.
After the collapse of the communist government and the election of the Democratic Party in 1992, Vasha experienced a "quiet period" where he was able to attend college. J.A. at 342 (Removal Hr'g Tr. at 49). He became a member of the Association of Formerly Politically Persecuted Persons as well as a political party known as Balli Kombetar. His duties in the latter included recruiting new members and working with party candidates in the 1996 and 1997 elections. Vasha claimed that following the election of the Socialist Party in June 1997, he was fired from his job for political reasons. On October 15, 1997, Vasha participated in a protest against the socialist government's practice of firing governmental employees because of their political affiliation. Vasha attended the demonstration as a representative of Balli Kombetar and spoke at the event. The following morning police officers arrested Vasha at his home, handcuffed him, and took him to the police station. After Vasha admitted that he had participated in the demonstration, the police beat him with plastic rods and a wooden chair leg. He claimed he was beaten approximately six times over a two-day period.
On September 15, 1998, Vasha participated in an anti-government demonstration to protest the assassination of Azem Harjdari, a Democratic Party leader. Vasha testified that he held up a sign during the demonstration which stated "Az[e]m, You Are Alive," a reference to protestors' claim that their cause would continue despite Harjdari's death. J.A. at 351 (Removal Hr'g Tr. at 58). Vasha testified that at the demonstration, sharpshooters shot and killed a member of Balli Kombetar, who was standing a few feet away from Vasha. A few days later, a friend came to Vasha's home and told him that the police had placed his name on a "blacklist." J.A. at 353 (Removal Hr'g Tr. at 60). The friend advised Vasha to leave the country immediately or else risk being arrested or killed. On September 18, 1998, two officers from the investigative division arrived at Vasha's home looking for him, but he was in hiding.
Vasha testified that soon afterwards he sold one of his houses and used the proceeds to pay smugglers to bring him to the United States. On October 10, 1998, he and his cousin entered the United States in Chicago using false documents and traveled to Michigan. Later, his wife entered the United States illegally and joined him. Vasha and his wife have a daughter, who was born in Royal Oak, Michigan, and is a United States citizen. Though he does not have a job, Vasha supports his family by performing household chores for his U.S. relatives, who in turn permit the family to live with them.
On March 1, 1999, the Immigration and Naturalization Service ("INS") served Vasha with a Notice to Appear, charging him with being present in the United States without being admitted or paroled, in violation of § 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i). On April 5, 1999, Vasha filed an application for asylum and withholding of removal. At the removal hearing, Vasha conceded his unlawful status, but asserted he was eligible for asylum and withholding of removal because he would be imprisoned or killed if he were ever to return to Albania. Dr. Darren Fischer ("Dr.Fischer"), an associate professor at Indiana University, testified as an expert witness on Vasha's behalf, and stated that Mamurras is "something of a wild west region" where "the government has very little control," "[t]he police tend to be...
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