*4 in provision a new opportunity address GIBBONS, and MOORE Before: the law. EDMUNDS, District Judges; Circuit Judge.* I. BACKGROUND of the
MOORE, J., opinion wife, are delivered both of whom and his Liti J., EDMUNDS, joined. D. citi- court, old, and years in which are natives thirty-seven Sabina, is Albania; daughter, zens 642-43), a GIBBONS, (pp. delivered J. Germany but native of fourteen-year-old a concurring opinion. separate removal At their a of Albania. citizen beginning hearing, the testified OPINION in anti-com- they involved in became MOORE, Judge. Circuit they for which munist activities jailed. Liti and (“Liti”), repeatedly arrested his were Petitioners, Liti Ferdinand public participated explained he Liti, Sabi- daughter and their wife Marieta anti-com- distributed of the demonstrations Liti, final order review of a na seek At one demon- (“BIA”) such pamphlets. af- munist Appeals Immigration Board of participated stration, that he he claimed Immigration Judge’s decision firming tearing a statute down protestors in with- with asylum and request for deny their * Edmunds, sitting by designation. Michigan, Nancy United The Honorable G. Judge the Eastern District States District Stalin, Tirana, located the center of the communist regime Alba- capital country. of the nia fell and replaced by parliamenta- He also testi- was a ry republic. Accordingly, fied that he was detained 1988 for three government German days, during or four revoked the which his feet were hit with status all the Albanian protesters, in- repeatedly plastic stick and he cluding In April 1995, the Litis. Liti and placed in an during unhéated room wife, along his with their two daughters explained they winter. Liti that “because who were born in Germany, entered the knew that we didn’t like the commu- [sic] United States as non-immigrant visitors nism ... the communists would come and filed an asylum.1 pick up me would torture me ... Immigration and Naturalization Service I [of because did but because what] (“INS”) referred the application to suspicious ... were of me.” “Joint immigration court and issued Notice (“J.A.”) (Removal Appendix at 179 Hr’g to Appear charging the Litis with violation Tr. at Liti Mrs. testified at - 237(a)(1)(B) INA, §of 8 U.S.C. hearing spent year removal that she 1227(a)(1)(B). At their removal hearing, prison insulting Albania for a communist *5 status, conceded their unlawful official. The Litis also claimed that their requested asylum, but withholding of re- family members persecuted were as well. moval, and relief under In support CAT. Specifically, the Litis claimed that Liti’s request, their the Litis asserted that grandfather father and Mrs. Liti’s were they were to return to they would by executed the communists and that Liti’s be persecuted for their leadership role in spent brother eight years prison the toppling of regime. the communist attempting to country. leave the Liti .testified that he and his wife were the 2, 1990, July On fearing police crack- first ... up ones “that stood against the activities, down of Liti, anti-communist [sic], they communism will never ever for- others, along with his wife and five crashed that, get go now, and if I back to Albania through a truck the gate front of the Ger- they me, going are to kill I am going to be embassy man in Tirana. one, Because the Ger- they the first would kill me.” J.A. at (Removal mans did not hand protesters 144). the over to Hr’g Tr. at Liti fears authorities, the Albanian other anti-com- even after returning collapse the sought munist refuge activists within the regime, communist because he the believes embassy grounds. Liti currently Mrs. testified that party elected Socialist is com- 3,200 up people compound. entered the prised of people the same who were in days, For fourteen protestors the re- power during the regime communist mained within the German embassy their descendants. He stated that “[t]he grounds, government while the Albanian regime collapsed, they communism never attempted to force them out shutting pretended that the communist [sic] col- off the water electricity. Liti lapsed Mrs. ... collapse.” will never [it] (Removal 152). claimed that the government Albanian Hr’g J.A. at 193 Tr. at fear, even sent a truck with contaminated stating Mrs. Liti echoed this that “we water to harm protestors. Eventually the very are prominent peo- well known and the arranged passage one, United Nations ple, we are the first we are the first 3,200 protestors the to Germany, destroyed where one that everything ... the they granted political asylum. there, people same are their children are child, Hilga, 1. The Litis' second proceedings. is not in- volved in the removal 24, 2003, BIA affirmed the never, On forget ever March could power total decision,,finding that “on the (Removal the IJ’s at J.A. happened.” what documentary testimony and oral record of 168). their To corroborate Hr’g Tr. in Alba- country conditions as to evidence anti-com- claims, that a former Liti stated the definition nia, do not meet [Litis] the demonstrator, participated who munist INA].” ... [the set forth in refugee of a as granted and was embassy the break-in (BIA Specifically, Decision at at 6 J.A. by the murdered Germany, adverse IJ’s agreed with the the BIA to Albania. his return upon communists dis- on the based determination hearing, the conclusion At hearing tes- the Litis’ between crepancies (“IJ”) Litis’ denied the judge immigration Fur- asylum application. their timony and withholding remov- asylum, requests thermore, background held IJ al, CAT. The found and relief under record contradicted in the several based on to be incredible fear of future Litis’ claim of well-founded testimony their between inconsistencies and also concluded application submitted. reasonably available corrobo- absence men- did not against Specifically, militated rating evidence participation this court the Litis’ Litis now tion either claims. The or their the statute Stalin for review. toppling of the German crashing leadership role II. ANALYSIS Therefore, charac-
embassy gate. IJ testimony as embellish- terized the Asylum A. Claim also noted than fact. The IJ ment rather *6 in their argue The Litis any present to addi- the Litis that failed their re denying BIA in that erred claims to corroborate their tional evidence INA, asylum. quest for Under persecution. of a fear of future Given may grant asylum to Attorney General brother, he with whom fact that Liti’s is “refugee,” qualifies who as alien contact, jour- frequent in is claims he is unwilling or one “who is unable as defined in covering injustices nalist Greece country] ... home to or her [his to return that IJ concluded documenta- or a well-founded of because newspaper articles tion in thé form race, account of persecution on fear of reasonably available to was affidavits membership par in a nationality, religion, failed importantly, them. Most opinion.” group, or political ticular social prove evidence to provide any 1101(a)(42)(A). 1158(b)(1), §§ We 8 U.S.C. demon- that a fellow anti-communist fact con findings of review “administrative strator, asylum Germany had whose qualifies as a [an] whether alien cerning revoked, his upon murdered had been been evidence test.” refugee under a substantial Furthermore, if even (6th return to Albania. 554, 558 Ashcroft, 378 F.3d v. Ramani credible, that the IJ held Cir.2004). the Litis were standard, findings that Under light entitled to relief they would not be unless are treated as “‘conclusive of fact Fi- changed conditions Albania. adjudicator would be com any reasonable ” Yu past contrary.’ that evidence nally, the IJ found pelled conclude (6th 700, war- Ashcroft, so severe 702 Cir. v. as 364 persecution was F.3d 1252(b)(4)(B)). 2004) asylum discretionary grant (quoting on 8 U.S.C. rant a that the evi petitioner filed a must show The Litis grounds. “[T]he humanitarian compelling that no was so dence appeal presented to the BIA. timely notice of
637
bility
factfinder could fail to find the
finding,
reasonable
which must instead be based
requisite persecution
persecu
or fear of
on substantial evidence.” Shire v. Ash-
(6th
INS,
445,
1288,
Cir.2004)
croft, 388 F.3d
tion.” Ouda v.
324 F.3d
(internal
Cir.2003).
omitted).
case,
quotation
Upon review
this
we
Where the
credibility
determination is
compel
conclude
the record does
based on incon-
record,
sistencies
contrary
unsupported
result.
have reversed the
Sylla,
determination.
INA,
applicant
Under the
930;
INS,
at
see also Ileana v.
asylum
demonstrating
bears the burden of
02-3972,
No.
2004 WL
*2
“persecution
is a reasonable possibili
2004) (“The
Aug.5,
Cir.
Court will not ac-
ty
his.country
should he be returned to
cept 'blindly an IJ’s
peti-
conclusion that a
origin.”
Perkovic
credible.”).
case,
tioner is not
In this
(6th Cir.1994) (internal
omitted).
quotation
support
record does not
the BIA’s credibil-
The
need not demonstrate that
ity
therefore,
finding, and
we are com-
probably
he will
persecuted
returned
pelled
contrary
to a
result.
certainly
because
can
have a well-
“[o]ne
decision,
In its
deferred
founded fear of an event happening when
the IJ’s adverse
determina
there is
than a
less
50% chance of the
tion because “there were
con
important
taking place.”
occurrence
INS v. Cardo
testimony
flicts between the
of the lead
za-Fonseca,
421, 431,
480 U.S.
107 S.Ct.
respondent
asylum appli
and the written
(1987).
case,
ing.
anti-
democratic
the
at 309.
family was involved
movement,
they attended
that
communist
Furthermore,
reject
BIA’s un-
we
the
demonstrat-
meetings, and
secret
Litis are re-
rationale that
the
derlying
bring
democ-
against the communists
ed
exhaustive, detailed
quired
provide
supplemental
In his
country.
racy to the
activities
their anti-communist
list of
anti-
was an
that he
he wrote
application,
asylum application. As
Second
their
from Alba-
escaped
activist
communist
stated,
circumstances
sur-
“the
Circuit
asylum
granted
Germany and
nia to
do not
application process
rounding the
asylum applica-
Liti attached
there.
perfectly
com-
themselves to
often lend
govern-
from the German
tion the letter
of an
comprehensive recitation
plete and
sought
ment,
that the Litis
stated
which
withholding,
asylum
applicant’s claim
in Tira-
embassy
in the German
protection
a stan-
holding applicants
...
to such
asylum.
granted
na in 1990 and were
un-
only unrealistic but also
dard is not
application
correct that the
the IJ is
While
noted that:
Id. at 308. The court
fair.”
specific details
provide
did not
itself
testified,
which the Litis
about
two events
applica-
utilized
the INS for
the form
any spe-
not contain
does
withholding pro-
tions for
incidents,
gen-
consists of
but rather
cific
page
applicant
half a
for the
vides
anti-com-
of the Litis’
eralized statements
seeking asylum,
why he or she is
explain
activities
Albania.2 Under
munist
inches to recount
and no more than two
any incident to which
reasoning,
IJ’s
against
ap-
or threats
mistreatment
hearing could
at the removal
Litis testified
applicant’s family by
plicant or the
inconsistency sup-
justify an
used to
be
Although
groups.
or other
government
credibility determina-
porting an adverse
applicant to
application invites the
specific
incidents
tion. The absence
pages,
think the
attach additional
however,
give
rise
does
application,
form itself would
space
small
on the
that the Litis are incredi-
to the inference
hardly
applicant
to an
indicate
ble,
claim of a
rather reinforces their
every
regarding
include
detail
failure to
which can-
history
political protest
long
asylum could later lead to
the basis for
specific
instances.
limited to
few
credibility finding when the
an adverse
on a
The Litis’
is based
elaborates on them
years,
dem-
of events over six
series
hearing.
deportation
of a
course
activity as well as
political
onstrate
Ileana,
Id.;
see also
2004 WL
by the Albanian
resulting persecution
*8
spe-
that several omissions of
(holding
*3
against
measured
government. When
asylum application
do
cific incidents
of
years
protest,
the omission
their six
credibility determi-
support
an adverse
incident,
tearing
as the
specific
one
such
INS,
nation);
527,
statue,
531-32
Pop
and
is insubstantial
down of Stalin’s
forgot
prior attorney
to attach
asylum application that
brief that their
appears from the
2.
It
specif-
provide details on
without the
the Litis intended to
the additional statement. Even
activity.
incidents,
political
Liti stat-
ic incidents of their
detailing specific
there is
statement
family partici-
application
ed
that his
in his
nothing
application which is inconsis-
pated
and "some
in anti-communist activities
testimony
subsequent
tent with the Litis'
in the state-
of these incidents are enumerated
thereby support an adverse
can
(AsylumApplica-
J.A. at 365
ment attached.”
determination.
5).
appellate
at
claim in
tion
The Litis
Cir.2001) (“We
(7th
applicant
hesitate to find that
lum
past per-
has demonstrated
seeking asylum must state in his or
applicant’s
one
secution based on the
anti-
every
persecu
activities,
incident of
application
her
communist
collapse
the
of the
tion lest
the
have his or her
regime may
communist
be a sufficient
if
credibility questioned
the incident is la
change
country conditions to rebut that
Aguil
See,
testimony.”);
ter elicited
direct
e.g., Delaj v.
presumption.
No.
era-Cota,
(holding that
(6th
to elaborate on the claims claim, support of their the Litis intro- made in the application itself. 8 U.S.C. duced newspaper several articles and re- 1229a(b)(4)(B). Therefore, because the ports detailing the conditions in Albania. in statements were not Though the documents by submitted with the subsequent consistent testi Litis detail a number of instances of vio- mony specific of the events at their remov lence, within corruption, protest hearing, al we conclude the BIA’s adverse country, nothing specifically supports then- credibility finding unsupported by is return, claim that they were would evidence, compelled and therefore we are persecuted for their anti-communist contrary. to conclude to the Instead, opinions. the Litis’ evidence “de- Changed Country 2. Conditions type general scribefs] civil disorder the Absence of Corroboration anyone living and lawlessness to The second raised in peti issue Mullai v. exposed.” Albania would be by tion is that the BIA concluding erred (6th Cir.2004). Ashcroft, 385 credible, that even the Litis were country reports by The submitted in light were entitled to relief Government reinforce conclusion. fundamentally changed conditions in Alba Department’s country The State re- reasonably nia and the absence of available port states that were no con- “[t]here corroborating Upon evidence. review of political killings by firmed cases record, we hold that the BIA’s decision Government, despite repeated claims supported by is substantial evidence. the main opposition party that its mem- harassed, beaten, bers granted asylum Because the Litis were and some- Germany stip- by government agents.” the Government times murdered (1999 Country Reports ulated the fact that the Litis suffered J.A. at 252 Hu- on past persecution statutorily based on a man Rights report Practices *9 “[tjhere protected ground, which entitles them to a that also notes were no confirmed presumption reports of a well-founded fear of fu- of politically disappear- motivated ture persecution. any 8 C.F.R. ances” nor “clear eases of detainees 1208.13(b)(1). § asy- being strictly political Where an Albanian held for reasons.” 640 Litis, yet provided. not (1999 the Country Reports on available to 253, 255
J.A. at family have though they Specifically, In a Practices at Rights Human Albania, Litis living in the members still ex- Department the State report, in any support to affidavits provide failed asylum] fre- “Applicants [for that plains anti-com- of of their of claim portray incorrectly seek and quently gov- current by members of the munists as ‘Communist’ government the socialist Moreover, Liti is fre- though in ernment. the supporters of actively targeting brother, lives his who quent with contact (Albania at 268 J.A. opposition.” —Profile journalist docu- as a and works Greece Country & Conditions Asylum Claims of Albania, Litis injustices in menting the however, Addendum). notes, report The newspa- provide affidavit or failed in- Party were members that “Democratic bol- by written the brother to per article of numerous attacks the victims deed of of a well-founded fear ster their claims murders, general atmo- in Albania’s Furthermore, political persecution. and lax law enforce- sphere of lawlessness provide not hearing, the Litis did removal ment, culprits nor motives neither explanation for ab- any reasonable for most of these found or confirmed ever corroborating any of evidence. sence (Albania of at 268 crimes.” J.A. —Profile evidence, agree with the Without such Country Conditions Ad- Asylum Claims & fundamentally light BIA that dendum). the Litis changed conditions compelling The most evidence of satisfy their burden demon- failed support of well-found presented per- of future strating a fear well-founded was political persecution future ed of fear if were to return. There- secution a fellow anti testimony that them own fore, that the BIA’s we conclude decision participated who protester, communist sup- claim was denying granted embassy break-in evidence. ported substantial by the asylum Germany, was murdered Withholding Removal and Relief B. of return to Albania. upon his
communists under CAT however, testimony, discounted the IJ any failed to present because the Litis In addition to their murder corroborating either the evidence claim, the Litis also for review brief, it. In their or the motive behind request of their for with the BIA’s denial written argue the Litis that corroboration 241(b)(3), § holding of under INA removal testimony of required “[t]he is since 1231(b)(3). Withholding § re U.S.C. credible, applicant, may sufficient required if the alien can demon moval is cor proof sustain burden without strate that “his or her life or freedom 1208.13(a). § roboration.” 8 C.F.R. proposed coun would be threatened is recognizing race, that While corroboration religion, account of try of removal on that required, we have also stated nationality, membership particular so credible, applicant “[t]he if the is even group, political opinion.” cial 8 C.F.R. [reasonably 1208.16(b). corrobo available] absence of applicant seeking “An with finding can to a rating holding stringent lead faces a more of removal to meet her burden required has failed than what is on a burden Ashcroft, Ashcroft, proof.” asylum.” Dorosh Pilica v. (6th Cir.2004) (internal (6th Cir.2004). quotation In order to quali omitted). case, removal, fy withholding this IJ found reasonably proba- that there is a clear “must corroborating evidence was establish
641
-1208.13(b)(l)(iii)(A).
case,
§
[they]
subject
persecu
In this
bility that
will be
the IJ
return to
Id.
denied the Litis’ claim
this provi
[Albania].”
tion if forced to
under
sion,
probability,
appli
finding
a clear
there was no
To establish
“past
that “it is more
that the
persecution
must demonstrate
so
[was]
cant
severe
compel” asylum
or
will be
as to
likely than not” that he
she
on humanitarian
(IJ
grounds.
8
at
upon
return.
J.A.
20
Decision &
persecuted
C.F.R.
Order
10).
1208.16(b)(2).
§
the Litis
Because the
Because
have
Litis failed to raise
below,
eligibility
asy
this issue before the BIA
failed to establish
we are
lum,
[they]
jurisdiction
can
peti
“it therefore follows
without
to consider their
satisfy
stringent
ground.
standard for
tion for review on this
more
8 U.S.C.
1252(d)(1); Perkovic,
619;
§
withholding of
as well. Kolia
F.3d at
see
[removal]”
33
INS,
482,
Ramani,
489
(holding
da v.
259 F.3d
Cir. also
378
at 560
F.3d
only
properly presented
“that
claims
BIA and considered on their merits can be
Similarly,
for re
petition
the Litis
reviewed
this court in an immigration
of relief under
view of the BIA’s denial
Thus,
appeal”).
the Litis’
under
“Protection under the Convention
CAT.
1208.13(b)(1)(iii)(A)
§
is dismissed.
withholding
form of
of remov
exists
court,
In their brief before this
Reno,
country
al to the
of torture.” Ali v.
a
also assert
claim for
under 8
(6th Cir.2001).
To ob
1208.13(b)(l)(iii)(B),
§
C.F.R.
which allows
CAT,
tain relief under
bears
discretionary grant
for a
to an
establishing
“it is more like
the burden
alien who can
“a
pos
establish
reasonable
ly than not that he or
would be tor
she
sibility that
may
he or she
suffer other
country
proposed
tured
removed to the
upon
serious harm
removal to that coun
1208.16(c)(2).
§
of removal.”
8 C.F.R.
1208.13(b)(l)(iii)(B).
§
try.”
8 C.F.R.
again, because the Litis failed to
Once
“
Other serious harm is
‘harm that is not
eligibility
asylum, they
establish
also
race, religion,
inflicted on account of
na
heightened requirements
cannot meet the
tionality,
membership
particular
social
Pilica,
for relief under CAT.
388 F.3d at
group,
political opinion,
or
but is so serious
Yu,
955;
plausible explanations major Plaintiff-Appellee, of two events absence [the] Based his claim for relief. supporting omissions, re- the Court finds on these credibility questionable and spondent’s Phillip SLONE, Defendant-Appellant. being testimonial claims
believes his collapse singly responsible for No. 03-6427. [which he] communist rule Appeals, United States Court of during point hearing,
made one Sixth Circuit. of embellishment rather be the result any fact. than Argued: April 2004. not “irrelevant inconsis- These were (citation omitted); tencies],” id. at 926 3, 2005. Decided and Filed: June cf. rather, significant omissions skepticism reasonably that could create the truth. telling whether Liti was
about
Surely, justified finding the was Liti’s IJ for the fall singly responsible
claim to be to be “embellish-
of Albanian communism majority points out that the
ment.” The evidently spe- enumerate intended to activity political
cific incidents of their including monument-top-
(presumably, incidents) embassy-crashing as
pling asylum, application of their 1997
part
but, Litis, attorney according including to attach a statement
neglected attorney
such details. Even neglect to attach the statement
did
statements, however, the Litis could have at the removal
introduced such statements
hearing prior as statements. consistent suggests .to do
The failure so helpful
would not have been corroborat- Moreover, testimony. Liti’s the Litis’
ing contains de- major
tailed narrative that fails to include by Liti
events such as the ones discussed hearing.
at the sum, striking these omissions are
provide adequate basis for adverse
credibility determination.