Elvis Sinojmeri v. ALBERTO R. GONZALES, Attorney General of the United States

The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the*
Ninth Circuit, sitting by designation.
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File Name: 06a0732n.06
Filed: October 4, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-3895
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELVIS SINOJMERI,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
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ON PETITION FOR REVIEW OF A
DECISION OF THE BOARD OF
IMMIGRATION APPEALS
Before: GUY, SUTTON, and ALARCÓN , Circuit Judges.*
PER CURIAM. In this petition for review, Elvis Sinojmeri challenges the opinion of the
Board of Immigration Appeals (“BIA”). The BIA affirmed the decision of an immigration judge
(“IJ”) ordering his removal to Albania. It also affirmed the denial of Mr. Sinojmeri’s applications
for asylum and withholding of removal, as well as his request for protection under the Convention
Against Torture (“CAT”). We dismiss that portion of Mr. Sinojmeri’s application for asylum
because he failed to file his application for asylum within one year after the date he arrived in the

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United States as required by 8 U.S.C. § 1158(a)(2)(B) and 8 U.S.C. § 1158(a)(3). We deny his
petition for review of the rejection of his claim for withholding of removal because he failed to
present compelling evidence that there is a clear probability that he will be subject to persecution if
he is forced to return to Albania on account of his race, religion, nationality, membership in a
particular social groups, or political opinion. We also reject his claim for protection under CAT
because he failed to present any argument in support of this contention.
I
The facts presented by Mr. Sinojmeri at his evidentiary hearing are undisputed. He is a
native and citizen of Albania. He was born in Gjirokastra, Albania on July 2, 1977. He moved to
Tirania, Albania in 1999 because of economic hardships in his town. There, he obtained
employment in a body shop with the help of an uncle.
In June of the year 2000, Mr. Sinojmeri was handed a letter by a teenager. The messenger
informed him that it was from someone named “Al Capone.” The letter stated that Mr. Sinojmeri
would be killed unless he paid Al Capone $20,000. Because of the age of the person who handed
him the threatening letter, Mr. Sinojmeri at first thought it was “a kid’s play, kid’s game.”
Subsequently, after considering what was happening at the time in Albania including
kidnaping, killings, and robberies, however, Mr. Sinojmeri reported the receipt of the letter to the
police. At the police station, he was informed that it was probably a “kid’s game,” and they had

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“more important questions to deal with.” Mr. Sinojmeri turned over the threatening letter to the
police so that they could “find some fingerprints in that paper or something like that.”
After this incident, someone fired weapons outside of Mr. Sinojmeri’s house. He also
received anonymous telephone calls in which he was informed that “these shootings are for you, . . .
if you don’t get money, we’re going to deal with you.” Mr. Sinojmeri reported the fact that shots had
been fired outside of his home and the receipt of the anonymous phone call to the police on June 16,
2000. He was told to return the following day to inform the police official who investigated criminal
activities.
On June 17, 2000, Mr. Sinojmeri filed a police report. A police official commented that
“now is the time that lots of people carry illegal weapons, they shoot sometimes, we’re not sure if
[it has] to do directly with you.” The police official also noted that since there were no bullet holes
in his house, it may be possible that the firing of the weapons “has nothing to do with you.”
On June 18, 2000, Mr. Sinojmeri saw a very expensive car outside his building. He was
aware that it was the type of luxury automobiles owned by “mafia bosses.” As he climbed up the
stairs, two men stopped him and asked what he had done about procuring the money. Mr. Sinojmeri
told them that he had not had a chance to obtain $20,000, or to contact his parents, because of his
wife’s illness. The men told Mr. Sinojmeri they would show him how to find the money. They then
sprayed something on his face which caused him to lose consciousness. When he awakened, he was

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in a military bunker that had been constructed during the communist regime. Two women were also
in the bunker. They appeared to have been beaten and sexually assaulted.
Subsequently, three armed men entered the bunker. They were wearing “a kind of military
uniform.” They asked him why he didn’t bring the money. They then tortured him, tied him up, and
poured water on him. A man entered the room who called himself “Al Capone” (“the commander”).
He appeared to be the commander of his captors. Mr. Sinojmeri was untied by his captors and told
to kneel before their commander. The commander asked Mr. Sinojmeri if he had ever seen or heard
of him before. Mr. Sinojmeri replied that he had never seen the commander or heard of him. The
commander then drew a knife and cut Mr. Sinojmeri on his chest so “you will remember me.”
Mr. Sinojmeri’s captors permitted him to telephone his father-in-law for his assistance in
obtaining the $20,000 ransom. Mr. Sinojmeri remained in captivity for about two weeks while his
father-in-law borrowed money to pay the ransom. During that time, his captors continued to harm
him physically and psychologically. A red iron was used to burn his legs. His legs were also cut.
Mr. Sinojmeri’s father-in-law went to the police station to seek assistance in rescuing his son-in-law.
He was told that they did not know who had kidnaped Mr. Sinojmeri or where he was being held
captive.
On July 12, 2000, Mr. Sinojmeri’s father-in-law gave the captors $5,000. He told them they
would receive the rest of the ransom money after he saw that Mr. Sinojmeri was still alive. On July
18, 2000, the captors placed a hood over his head, transported him to a suburb of Tirana, and

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released him. He was told that if he did not produce the balance by July 23, 2000, he would be
killed. Mr. Sinojmeri’s father-in-law and his cousin obtained fraudulent passports for him and his
wife. On July 20, 2000, he and his wife were taken in a police car by a friend of his father-in-law
to an airport so that they could enter it without being seen. Mr. and Mrs. Sinojmeri arrived in
Chicago via Zurich on July 20, 2000. They were detained by immigration officers at Chicago
O’Hare Airport.
Mr. Sinojmeri was interviewed by an immigration inspector on July 21, 2000. He admitted
that at the time of his entry into the United States he presented an Albanian passport issued to Didani
Mirgen, who was born on September 21, 1972. Mr. Sinojmeri paid $8,000 for the passports. He
admitted he was not Mr. Mirgen. When asked by the immigration inspector the purpose of his trip
to the United States, Mr. Sinojmeri replied: “Because my family is here and someone wants to kill
me for money.” He also stated that he feared that if he was removed to Albania he would be harmed.
Mr. Sinojmeri signed a sworn statement setting forth the facts he disclosed to the immigration
inspector.
On August 23, 2000, Asylum Officer William Tomyanovich interviewed Mr. Sinojmeri to
determine whether he might be eligible for asylum or protection from removal to a country where
he feared persecution or torture. Mr. Sinojmeri responded that he was mistreated by a mafia group
headed by a man who said his name was Al Capone. He also stated this mafia group threatened to
kill him unless he paid them $20,000. They shot into the air with their guns. They kidnaped him
and tortured him for sixteen days. Mr. Sinojmeri stated that if he returned to Albania, the mafia

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would torture or kill him. The police would not protect him because they are corrupt and allied with
the mafia. The Asylum Officer found that Mr. Sinojmeri had alleged facts that supported the
possibility that he could establish eligibility for asylum.
II
A
Removal proceedings were commenced on August 4, 2000, with the filing of a notice to
appear (“NTA”). The NTA charged Mr. Sinojmeri with being subject to removal as an arriving alien
who is not in possession of a valid passport. The NTA was served on Mr. Sinojmeri on August 20,
2000.
B
Mr. Sinojmeri appeared before an IJ on January 19, 2001, for a determination whether he
should be removed from the United States because his entry was illegal. He testified under oath that
he was properly served with the NTA. His attorney stated that “[t]he allegations are admitted and
the grounds for removability are conceded.” Based on this concession, the IJ ordered that Mr.
Sinojmeri be removed from the United States to Albania. Mr. Sinojmeri’s counsel orally informed
the IJ that his client was seeking relief from removal based upon a request for asylum, withholding
of removal, and protection under CAT.

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The IJ then inquired whether it was necessary “to provide you with an application” for
asylum. The IJ stated: “There’s an asylum application right there. Is there one already in the file?”
Mr. Sinojmeri’s counsel replied that he did not believe that an application for asylum had been filed.
The IJ ordered that the hearing in Mr. Sinojmeri’s application for relief from removal be heard on
May 4, 2001.
C
The May 4, 2001, hearing was rescheduled to be heard on November 2, 2001. Mr. Sinojmeri
submitted his application for asylum, withholding of removal, and protection under CAT at the
beginning of the November 2, 2001, proceeding.
The IJ denied the application for asylum as untimely because it was filed more than one year
after his entry into the United States on July 21, 2000. The IJ then ordered that an evidentiary
hearing on the merits of Mr. Sinojmeri’s application for withholding of removal and protection under
CAT be held on February 14, 2002. The hearing was subsequently continued until February 11,
2004.
The IJ found that Mr. Sinojmeri’s testimony that he was persecuted by a lawless criminal
element in Albania was credible. The IJ found, however, that Mr. Sinojmeri failed to demonstrate
that he was “targeted for discrimination in accordance with the Immigration and Nationality Act
based on any of the five protected grounds.” The IJ concluded that Mr. Sinojmeri was the victim of
criminal extortion efforts, but this conduct does “not constitute persecution motivated by political

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opinion.” The IJ denied Mr. Sinojmeri’s application for withholding of removal and protection
under CAT on the merits and ordered his removal to Albania.
III
On March 11, 2004, Mr. Sinojmeri filed a timely notice of appeal before the BIA. In his brief
in support of his appeal, he contended that the IJ erred in concluding that his application for asylum
was not timely filed. He also argued that he was entitled to a reversal of the IJ’s decision because
he presented sufficient evidence to demonstrate past persecution, and the presumption of future
persecution was not rebutted by the Government.
Mr. Sinojmeri’s appeal to the BIA was dismissed in a “per curiam” opinion signed by a single
BIA member. The BIA adopted and affirmed the IJ’s decision on June 13, 2005. Mr. Sinojmeri
filed a timely petition for review.
IV
A
In his brief in support of his petition for review, Mr. Sinojmeri first contends that he was
denied his due process right to receive a fair review of his appeal to the BIA because it was
considered by a single BIA member under the Attorney General’s “streamlining” procedures. In
footnote 20 of its Respondent’s brief, the Government maintains that this Court does not have the
jurisdiction to consider whether the streamlining procedures violated his constitutional right to due

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process because this issue was not presented in the administrative record of the IJ’s proceeding. The
Government cited 8 U.S.C. § 1252(b)(4)(A) for this proposition. Section 1252(b)(4)(A) provides
that “the court of appeals shall decide the petition only on the administrative record on which the
order of removal is based[.]”
The Government failed to cite or attempt to distinguish this Court’s opinion in Bangura v.
Hansen, 434 F.3d 487 (6th Cir. 2006). In Bangura, this Court concluded as follows:
Exhaustion of administrative remedies may not be required in cases
of non-frivolous constitutional challenges to an agency’s procedures.
Southern Ohio Coal Co. v. Office of Surface, Mining, Reclamation
and Enforcement, 20 F.3d 1418, 1425 (6th Cir. 1994). In the
immigration context, several circuits have indicated that
“constitutional challenges to the INA and INS procedures and some
due process claims do not require exhaustion because the BIA does
not have the power to adjudicate those claims.”
Id. at 494.
This court held in Bangura that “[a]lthough the BIA undoubtedly could grant Plaintiffs some
relief and possibly render Plaintiffs’ procedural due process claim moot, it does not have the
authority to adjudicate Plaintiffs’ substantive due process claim.” Id. This Court concluded that “the
district court abused its discretion in dismissing Plaintiffs’ procedural due process claim for failure
to exhaust administrative remedies.” Id. Thus, contrary to the Government’s assertion, this Court
has the jurisdiction to determine whether the Attorney General’s streamlining procedures violate due
process.

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In Denko v. INS, 351 F.3d 717 (6th Cir. 2003), this Court held that the BIA’s streamlined
proceedings do not violate an alien’s rights to due process. Id at 729-730. Therefore, we reject Mr.
Sinojmeri’s contention that he was denied due process by the BIA’s adherence to the streamlining
procedures. Denko was decided and filed on December 8, 2003. Terrence G. Hoerman, Mr.
Sinojmeri’s counsel, filed the petitioner’s brief in this matter on May 9, 2006. Mr. Hoerman failed
to cite the Denko decision, notwithstanding the fact it had been the law of this circuit for more than
two years before he filed the brief.
Because Denko is a published opinion of this Court that is directly contrary to the position
Mr. Hoerman has presented in this appeal, it was his professional responsibility to disclose it to this
Court. See Lumaj v. Gonzales, No. 05-3350, 2006 U.S. App. LEXIS 22640 at *3 n.1 (6th Cir. Sept.
6, 2006). In Lumaj, this Court warned Mr. Hoerman that his failure to comply with his duty to
disclose dispositive legal authority in this circuit someday might warrant monetary sanctions and
disbarment. Id. Because Lumaj was decided after Mr. Hoerman filed his brief in this matter, we will
not impose any sanctions against him at this time. See Lumaj, 2006 U.S. App. LEXIS 22640. He
is now on notice, however, that he faces serious consequences if he does not comply with the rules
of professional conduct in future cases. Id. at *3 n.1.
B

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Mr. Sinojmeri also asserts that the IJ erred in concluding that his application for asylum was
pretermitted on procedural grounds because he failed to file it within one year of entering the United
States. We disagree.
An application for asylum may be filed by an alien who arrives in the United States
“irrespective of such alien’s status[.]” 8 U.S.C. § 1158(a)(1). Section 1158(a) (1) does not apply
“unless the alien demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C.§ 1158(a)(2)(B).
An application for asylum may be considered, even if filed more than one year after the
alien’s entry into the United States, if the alien demonstrates “the existence of . . . extraordinary
circumstances relating to the delay in filing an application within the period specified in
subparagraph (B).” 8 U.S.C. § 1158(a)(2)(D). The record shows that Mr. Sinojmeri entered the
United States on July 21, 2000. He did not submit his application for asylum until November 2,
2001, more than a year after he entered the United States. Further removal proceedings in this matter
were held on November 2, 2001. On that date, the IJ inquired of counsel why the application for
asylum was submitted more than one year after Mr. Sinojmeri entered the United States. His counsel
informed the IJ that it was the first opportunity he had to file it before the court. The IJ informed
counsel that “if you have a year deadline coming, you have to file a motion to accelerate the time to
come in and file an application.” In response, counsel stated: “I’ve had a great difficulty getting an

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In subsequent proceedings held on February 11, 2004, Mr. Sinojmeri’s counsel informed1
the IJ that he could not comply with the one-year time limitation because “in Detroit, the filing
through the window is not permitted, it has to be in court, your Honor.” No evidence was offered
to support this contention.
Section 1158(a)(3) provides as follows: “No court shall have jurisdiction to review any2
determination of the Attorney General under paragraph (2).”
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earlier hearing here in Detroit.” The record shows that an application for asylum could have been1
timely filed on January 19, 2001, when Mr. Sinojmeri appeared in court for his removal proceedings.
In fact, on that date, the IJ inquired of Mr. Sinojmeri’s counsel whether an application was on file,
and offered to provide him one. The IJ concluded in the proceedings held on November 2, 2001 that,
while the application for asylum was untimely, it would be treated as “an application for withholding
of removal and relief under the Convention Against Torture, and I will give you a hearing date for
that.” Because Mr. Sinojmeri’s application for asylum was filed more than one year after he entered
into the United States, we have no jurisdiction to review the merits or the timeliness of this claim
pursuant to 8 U.S.C. § 1158(a)(3) .2
C
On February 11, 2004, an IJ conducted an evidentiary hearing to determine whether Mr.
Sinojmeri could demonstrate that he was entitled to withholding of removal or protection under the
CAT. After considering Mr. Sinojmeri’s testimony regarding the kidnaping and extortion, the IJ
found that Mr. Sinojmeri “was a victim of lawlessness and a criminal element in Albania.” The IJ
also noted that:

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It is well recognized that even criminal extortion efforts do not
constitute persecution on account of political opinion, when its
reasonable to conclude that those who threaten or harm are not
motivated by political opinion. Here the evidence supports the
conclusion that extortion related to the respondent’s ability to pay or
his family’s ability to pay and nothing more.
The IJ also found that Mr. Sinojmeri had failed to “set forth any facts or circumstances to
show that it is more likely than not that he would be tortured if forced to return to Albania.” The IJ
denied Mr. Sinojmeri’s application for withholding of removal and for protection under the CAT.
Mr. Sinojmeri maintains that the IJ erred in finding that the criminals who kidnaped him and
extorted money from his father-in-law did not do so to persecute him on account of his race, religion,
nationality, membership in a particular social group, or political opinion. Withholding of removal
is mandatory if an alien establishes that his “life” or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality, membership in a particular social group,
or political opinion. 8 U.S.C. § 1231(b)(3)(A).
Mr. Sinojmeri argues that he “established through his credible testimony, that he was
persecuted in the past by a group, that the Albanian government was unwilling or unable to control.”
He has failed to cite any portion of the record that demonstrates that he was persecuted because of
his race, religion, nationality, membership in a social group, or political opinion. We have reviewed
his testimony in the record. It supports the IJ’s finding that “the extortion related to [Mr.
Sinojmeri’s] ability to pay, or his family’s ability to pay and nothing more.” Mr. Sinojmeri has failed
to demonstrate that there is a clear probability that he will be subject to persecution in any of the

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enumerated grounds if he is forced to return to Albania as required under INS v. Stevic, 467 U.S. 407,
413 (1984).
We may not disturb the findings of the BIA or an IJ unless a petitioner shows that “the
evidence not only supports [a contrary finding], but compels it[.]” INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992) (emphasis in original); see 8 U.S.C. § 1252(b)(4) (“the administrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary[.]”). Mr. Sinojmeri has not met that burden.
D
Mr. Sinojmeri asserts that he is entitled to the protection of the CAT. His brief, however,
does not present any argument that supports this contention. His reference to the CAT is contained
in the following sentence: “The lower court erred in finding Petitioner’s application for asylum as
untimely, and denying withholding of removal under the Act and CAT, and dismissing the appeal.”
Mr. Sinojmeri has forfeited his right to have this Court address his CAT claim because he
failed to present an argument in support of it with relevant citations to the record and dispositive
authority. “[A]rguments not raised in the proponent’s opening brief on appeal are generally
considered abandoned.” Youghiogheny and Ohio Coal Co. v. Milliken, 200 F.3d 942, 955 (6th Cir.
1999) (citing Robinson v. Jones, 142 F. 3d 905, 906 (6th Cir. 1998)); Enertech Elec., Inc. v.
Mahoning County Com’rs, 85 F. 3d 257, 259 (6th Cir. 1996).

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The petition for review is denied.

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