Bеhar SALIKO et al., Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.
No. 05-4454.
United States Court of Appeals, Sixth Circuit.
Nov. 29, 2006.
D. Broom‘s аssertion that the appellate waiver provision must be invalidated because it exceeds the “statutory maximum” is also without merit.
Finally, Broom argues that the appellate waiver provision in his plea agreement is invalid because the district court‘s sentence exceeds the “statutory maximum” provided by law. To support his argument, Broom argues that, under United States v. Calderon, 388 F.3d 197 (6th Cir. 2004), any sentence exceeding the “statutory maximum” provided by law invalidates an appellate waiver provision. However, Calderon does not stand for this proposition. In Calderon, we simply found that the particular appellate waiver provision provided in that case was conditioned on the defendants “not receiv[ing] a sentence greater than the agreed-upon maximum” between the Calderon defendants and the Government. Id. at 199. No where in Calderon did we even mention the phrase “statutory maximum“—much less hold that all waivers are conditioned on defendants receiving sentences within the statutory maximum. In fact, “[i]t is well settled that a defendant in a criminal case may waive ‘any right, even a constitutional right,’ by means of a plea agreement.” See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (citation omitted). Since Broom‘s appellate waiver is not conditioned upon an “agreed-upon maximum” between him and the Government, we reject Broom‘s analogy to Calderon.
2. Because there is a clearly valid appellate waiver, we decline to address Broom‘s constitutional claims.
Since we have concluded that Broom has validly waived his right to this appeal, we decline to address the merits of Broom‘s constitutional claims. See Wilson, 438 F.3d at 673-74.
III.
For the foregoing reasons, we GRANT the Government‘s motion to dismiss and AFFIRM the district court‘s sentence.
Michelle Gorden Latour, Shahira Tadross, Washington, DC, for Respondent.
Before: MOORE, ROGERS, and GIBSON,* Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Petitioners petition for review of the Board of Immigration Appeals’ (“BIA“) affirmance of an immigration judge‘s (“IJ“) determination that Petitioners are not entitled to asylum, withholding of removal, or humanitarian asylum. After considering each of Petitioners’ claims, we conclude that the BIA‘s opinion is supported by substantial evidence, and we therefore DENY the petition.
I. BACKGROUND
Petitioners are a family consisting of а mother, father, and two children (collectively, “the Salikos“), all of whom were born in and are citizens of Albania. In April 2001, Petitioner Indrita Saliko (“Indrita“) and her two children, Petitioners Kristina Saliko (“Kristina“) and Anxhis Saliko (“Anxhis“), left Albania and traveled illegally to Greece, where Petitioner Behar Saliko (“Behar“), Indrita‘s husband and the father of Kristina and Anxhis, joined them in July 2001. Nearly a month later, the family left Greece and traveled through Spain, Mexico, and Canada before entering the United States on September 1, 2001.
The Salikos filed applications for asylum with the Immigration and Naturalization Service (“INS“)1 on August 29, 2002.2
Behar testified that, from 1990 to 1993, he was an active member of the DP‘s district “running committee,” which was responsible for organizing the party and recruiting members. He left politics in 1994, upon becoming a police officer, but rejoined the DP in March 1998, after the SP came to power and fired him because of his past political associations. Behar stated that he was beaten by police at an October 1998 DP rally; while walking home from his father‘s ranch later that month; in November 1999, during a celebration of the anniversary of the DP‘s formation; in October 2000, after taking part in a DP demonstration; and in June 2001, as he attempted to ensure the accurate counting of votes cast in an election. He also testified that masked men came to his house looking for him in December 1999 but did not find him at home and that he was threatened by unknown persons in September 2000.
Indrita testified that she was present when Behar‘s father brought him home after the second assault by police in Oсtober 1998, whereupon she and her mother-in-law (not the village nurse, as Behar had claimed) treated his injuries. She also recalled the visit from the masked men who came looking for Behar when he was not at home, but she testified that the incident occurred in December 1998 (not a year later, as Behar had stated). Finally, Indrita stated that she had been present when Behar came home aftеr being beaten by police during the June 2001 election, but, when reminded of her previous testimony that she and the children had left Albania in April 2001 and never returned, she was unable to explain the inconsistency.
In addition to the testimony of Behar and Indrita, the Salikos offered documentary evidence to the effect that Behar was a member of the DP, that he was fired from his job as a police officer because of his political leanings, that his uncle was martyred for supporting the democratic movement, and that Behar was hospitalized after the June 2001 beating. The IJ noted, however, that none of these documents was authenticated and that many were handwritten and untranslated. Moreover, one of the documents purported to show that Behar had been in the hospital on June 25, 2001, a date on which, Behar insisted in his testimony, he was in police custody.
At the conclusion of the hearing, the IJ denied the Salikos’ applications for asylum, withholding of removal, and humanitarian asylum, finding that the inconsistencies among their written applications and oral testimony precluded a finding that they were credible and, further, that they had not shown any reason for their failure to apply for asylum in any of the three signatory countries to the United Nations Protocol on Refugees (Greece, Spain, and Canada) through which they traveled on their way to the United States. The IJ also found that the applications for asylum were frivolous, rendering the Salikos permanently ineligible for asylum in the United States. The Salikos timely appealed to the BIA, which reversed the IJ‘s finding of frivolousness and sеveral of her factual findings but sustained the denial of relief, is at issue in this case.
II. ANALYSIS
A. Standard of Review
We have recently observed that:
Two distinct standards govern our review of removal decisions by the BIA. We generally review questions of law de novo, but defer to the BIA‘s reasonable interpretations of the INA. On the other hand, the factual findings of the IJ are reviewed under the substantial-evidence standard, and we will not reverse those findings unless any reasonable adjudicator would be compelled to conclude to the contrary.
Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006) (internal quotation marks omitted).
B. The Denial of Asylum
The decision whether or not to grant asylum lies within the discretion of the Attorney General.
any person who is outside any country of such person‘s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable and unwilling to avail himself оr herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
“Under the INA, an applicant for asylum bears the burden of demonstrating that ‘persecution is a reasonable possibility should he bе returned to his country of origin.‘” Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005) (quoting Perkovic, 33 F.3d at 620 (internal quotation omitted)). The applicant must “present specific facts through objective evidence if possible, or through his or her own persuasive, credible testimony, showing actual persecution or detailing some other good reason to fear persecution on one of the specified grounds.” Youkhanna v. INS, 749 F.2d 360, 362 (6th Cir. 1984) (emphasis in original; internal quotation marks omitted).
In this case, the Salikos have attempted to demonstrate their refugee status—and thus their eligibility for asylum—by showing past perseсution. The BIA found, however, that the IJ‘s adverse credibility finding was properly based upon discrepancies among Behar‘s asylum application and Behar‘s and Indrita‘s testimony concerning three instances of alleged past persecution. First, Behar‘s application stated that he was beaten by police at a political protest on September 20, 1998, but Behar testified before the IJ that the beating occurred on October 20, 1998. Second, although Behar‘s application indicated that masked men visited his home and demanded to know his whereabouts sometime in December 2000, he testified on direct examination that this incident occurred in December 1999, then changed the date back to 2000 during cross-examination. Indrita later testified that the event occurred in December 1998. Finally, Behar testified on direct examination that he was detained by police after a demonstration on October 16, 2000 and
The Salikos argue in their brief that the discrepancies relied upon by the IJ and the BIA are “minor” and “insubstantial” and do not “go to the heart of” their claim of persecution, and they cite case law to the effect that an adverse credibility determination cannot be based solely upon an alien‘s failure to include in his asylum application each and every detail supporting his claim. None of the cases cited by the Salikos, however, supports their claim. In Liti, 411 F.3d at 638-39; Pergega v. Gonzales, 417 F.3d 623, 628-29 (6th Cir. 2005); Mece v. Gonzales, 415 F.3d 562, 572-75 (6th Cir. 2005); and Secaida-Rosales v. INS, 331 F.3d 297, 309-12 (2d Cir. 2003), thе BIA was incorrect in finding that the applicants’ evidence contained significant internal inconsistencies. In Vasha v. Gonzales, 410 F.3d 863, 870 (6th Cir. 2005), we actually rejected the petitioner‘s challenge to the BIA‘s finding that the applicant‘s testimony was inconsistent in ways that went to the heart of his claim.
The Salikos next cite various cases involving claims of persecution specifically involving the Albanian government, but eaсh of these cases is also distinguishable. See Gilaj v. Gonzales, 408 F.3d 275, 285-86 (6th Cir. 2005) (involving an appeal of the IJ‘s finding that undisputed events did not rise to the level of persecution); Gjerazi v. Gonzales, 435 F.3d 800, 809-13 (7th Cir. 2006) (reversing an IJ‘s adverse credibility determination based upon an applicant‘s failure to provide corroborating documents, where “[t]he IJ agreed that Gjerazi‘s account of his alleged political persecution was plausible and supported by independent state department reports” and that “[Gjerazi] and his family [had] testified consistently with their written applications for Asylum“); Shtaro v. Gonzales, 435 F.3d 711, 715-17 (7th Cir. 2006) (holding that the IJ erred in finding that the applicant‘s testimony was undermined by a non-contradictory State Department country profile, by the applicant‘s failure to tell her employer that she had been raped, and by documents the contents of which the IJ found, for unspecified reasons, to be implausible); Caushi v. Attorney General, 436 F.3d 220, 226-30 (3d Cir. 2006) (holding that the IJ erred in finding the applicant‘s evidence incredible without considering the applicant‘s explanations for omissions and without specifying which answers given by the applicant‘s sister undermined her credibility); Halo v. Gonzales, 419 F.3d 15, 18 (1st Cir. 2005) (reversing a decision in which the BIA assumed that the applicant was credible but then “wrote, without explanation, that he had not mаde a showing of persecution sufficient to justify relief“); Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005) (“The BIA accepted Voci‘s testimony as credible, and yet determined that Voci had not shown that he experienced past persecution in Albania. The BIA‘s opinion does not explain how the BIA reached this result.“). The instant case differs from those cited above in that (1) the IJ in this case specified which inconsistencies underlay hеr adverse credibility finding; (2) the Salikos do not dispute the existence of those inconsistencies; and (3) the inconsistencies concern the very events alleged to constitute past persecution.
The Salikos also argue that, “in the context of the rampant score-settling, police
The Salikos’ testimony is internally contradictory and inconsistent with their applications for asylum with respect to allegations that are central to their claims of persecution. While it is possible that an applicant for asylum might forget or misremember the dаtes of a few incidents among many, the BIA correctly concluded that, in this case, “the discrepancies are too pervasive to ignore.” BIA Decision at 2. Moreover, Petitioners’ willingness to offer specific dates, both in their written applications and at the hearing, itself casts doubt on their credibility in light of their obvious uncertainty about those dates. Accordingly, we conclude that the BIA‘s denial of asylum is supported by substantial evidence.
C. The Denial of Withholding of Removal
In Almuhtaseb, we held that:
There are two provisions under which an alien can request withholding of removal:
§ 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3) , or the CAT [Convention Against Torture]. The INA withholding of removal provision ... prohibit[s] the deportation or removal of anyone whose life or freedom would be threatened in his or her home country on account of one of the same five grounds necessary for asylum (race, religion, nationality, membership in a particular social group, or political opinion). To prevail on a petition for withholding of removal under the INA, an alien must show that there is a clear probability, that is, that it is more likely than not, that she would be subject to persecution on the basis of one of these five grounds were she removed from this country.
453 F.3d at 749 (internal quotation marks and citations omitted). When “substantial evidence supports the Board‘s determination that [an alien] is ineligible for asylum, it therefore follows that he cannot satisfy the more stringent standard for withholding of deportation [under the INA].” Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001), quoted in Selami v. Gonzales, 423 F.3d 621, 627 n. 2 (6th Cir. 2005).
Similarly, “[t]he burden of proof is on the applicant for withholding of removal under [the CAT] to establish that it is more likely than not that he or she would be tortured if removed to the prоposed country of removal.”
D. The Denial of Humanitarian Asylum
Petitioners also request humanitarian asylum, which may be granted ..., in the exercise of the decision-maker‘s discretion, if:
(A) The аpplicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of ... past persecution; or
(B) The applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.
Section 1208.13(b)(1) requires that an applicant “establish that he or she has suffered persecution in the past in the applicant‘s country of nationality.” At oral argument, the Salikos conceded that past persecution is a precondition of a grant of humanitarian asylum under
III. CONCLUSION
For the foregoing reasons, we DENY review of the BIA‘s order.
ROGERS, J., concurring.
I concur in the result and in the majority opinion except for Part D.
No. 05-5156.
United States Court of Appeals, Sixth Circuit.
Nov. 30, 2006.