Elma Mullai v. JOHN ASHCROFT, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0326P (6th Cir.)
File Name: 04a0326p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ELMA MULLAI,
Petitioner,
v.
JOHN ASHCROFT, Attorney
General; IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents.
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No. 02-4313
On Appeal from the Board of Immigration Appeals.
No. A73 616 876.
Submitted: August 6, 2004
Decided and Filed: September 27, 2004
Before: KENNEDY, SUTTON, and COOK, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Robert M. Birach, Detroit, Michigan, for
Petitioner. James A. Hunolt, Emily A. Radford, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
2 Mullai v. Ashcroft No. 02-4313
_________________
OPINION
_________________
COOK, Circuit Judge. Elma Mullai, a native and citizen of
Albania, seeks review of a decision of the Board of
Immigration Appeals affirming, without opinion, the order of
an immigration judge denying her request for asylum and
withholding of removal. Because substantial evidence
supports the IJ’s conclusion that Mullai neither suffered past
persecution nor has a well-founded fear of future persecution
in Albania, we deny Mullai’s petition for review.
I
Mullai, age fifty-two, was born and raised in Albania, the
daughter of a wealthy, Muslim family. After coming to
power during the 1940s, the Communists confiscated her
family’s property and also arrested one of her uncles because
of his religious activities, sentencing him to seven years of
imprisonment. Another of Mullai’s uncles escaped arrest by
fleeing to the United States.
According to Mullai, the Communist government targeted
her for persecution on at least five occasions. In April 1989,
after she criticized the president of Albania in a private
conversation, the secret police detained her in jail for one
week, forbidding any contact with her family and repeatedly
threatening her. She recounted to the IJ that on four separate
occasions from December 1990 through December 1991, the
Albanian police beat and kicked her during her participation
in protests against the government. She explained the lack of
medical records of treatment for the injuries sustained during
the beatings by her decision not to seek medical treatment.
Despite these experiences, Mullai received a college
education under the Communist regime and held a chemical
engineering position in a factory.

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No. 02-4313 Mullai v. Ashcroft 3
Mullai alleges that after the Communist government
collapsed in 1992, her persecution continued under the new
Democratic Party government. In November 1994, at a
protest at which Mullai gave a speech, the police again beat
and kicked her. Then again two years later, after participating
in a protest that she helped organize, the secret police
detained Mullai in jail for two days without food or water and
threatened her. Two days after being released, she lost her
job. These events prompted Mullai to seek and obtain a visa
to visit the United States. But she did not leave Albania until
a few months later, after the government—without apparent
provocation—again took her into custody and deprived her of
food and water for two days.
Mullai entered the United States on October 2, 1996, with
authorization to remain for six months. Because she
remained beyond the authorized six months, the INS served
her with a Notice to Appear in November 1997. Mullai then
applied for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture, on the
basis of past persecution due to her religion, membership in
a particular social group, and political opinion, and because
she feared future persecution in Albania. After a hearing, the
IJ found that Mullai failed to demonstrate that she was
entitled to asylum on the basis of her claims of religious and
gender persecution. With respect to her allegations of
political persecution, the IJ concluded that Mullai had not
suffered past persecution and that even if she had, changed
country conditions rebutted the presumption of a well-
founded fear of future persecution.
The BIA summarily affirmed the IJ’s denial of Mullai’s
application for asylum, withholding of removal, and
protection under the Convention Against Torture, and granted
Mullai a thirty-day period for voluntary departure (ending
November 25, 2002). Mullai now requests review of the
denial of her application for asylum and withholding. She
also filed a motion for a stay of removal on December 18,
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2002—twenty-four days after the voluntary-departure period
expired. This court granted that motion.
II
Because the BIA affirmed the IJ’s decision without
opinion, we review the IJ’s decision as the final agency order,
Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003), under the
“substantial evidence” standard. Under this deferential
standard of review, we uphold the IJ’s decision if it is
“‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Koliada v.
INS, 259 F.3d 482, 486 (6th Cir. 2001) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). We are not entitled to
reverse “simply because [we are] convinced that [we] would
have decided the case differently.” Adhiyappa v. INS, 58 F.3d
261, 265 (6th Cir. 1995) (internal quotation marks omitted).
“Rather, in order to reverse the BIA’s factual determinations,
the reviewing court must find that the evidence not only
supports a contrary conclusion, but indeed compels it.”
Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992) (citing
Elias-Zacarias, 502 U.S. at 481).
A. Asylum
Mullai bears the burden of establishing that she is a
“refugee” eligible for asylum either because she has suffered
actual past persecution or because she has a well-founded fear
of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.
§ 208.13(a); Elias-Zacarias, 502 U.S. at 481. If she
demonstrates past persecution, she is entitled to a rebuttable
presumption of a well-founded fear of future persecution.
8 C.F.R. § 208.13(b)(1). The government may overcome this
presumption by establishing by a preponderance of the
evidence that there is “a fundamental change in circumstances
such that [Mullai] no longer has a well-founded fear of
persecution in [her] country of nationality.” 8 C.F.R.
§ 208.13(b)(1)(i)(A).

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No. 02-4313 Mullai v. Ashcroft 5
Substantial evidence supports the IJ’s determination that
Mullai did not experience past persecution. For one thing, her
ability to obtain an advanced degree under the Communist
regime does not reconcile easily with her claim that the
Communist government targeted her for persecution. For
another, her treatment by the Communist government could
be reasonably viewed as motivated by her status as a protester
rather than religious persecution. With respect to the
Albanian Democratic Party’s treatment of Mullai, the
incidents Mullai alleges do not meet this circuit’s definition
of “persecution”—“more than a few isolated incidents of
verbal harassment or intimidation, unaccompanied by any
physical punishment, infliction of harm, or significant
deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384,
390 (6th Cir. 1998). And although Mullai obtained a visa
soon after her detainment in May 1996, she waited over three
months (until after she was again detained in September
1996) to leave Albania. Because we find no evidence in the
record compelling us to reverse the IJ’s conclusion that
Mullai did not suffer past persecution, we uphold the IJ’s
decision that Mullai failed to demonstrate past persecution
severe enough to merit a grant of asylum on humanitarian
grounds. See In re Chen, 20 I. & N. Dec. 16 (BIA 1989)
(holding that petitioner, who with his family members
suffered persistent and severe persecution throughout the
Cultural Revolution as a result of their religious beliefs, was
entitled to asylum on humanitarian grounds).
Substantial evidence also supports the IJ’s determination
that even if Mullai suffered past persecution, changed country
conditions rebut the presumption of a well-founded fear of
future persecution in Albania. Although Mullai alleged
persecution by the Communist and Democratic Party
governments, she has not demonstrated that the current
government controlled by the Socialist Party would target her
for persecution. See Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir.
1996); Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986). As
the IJ noted, both the United States Department of State
reports (the Country Reports on Human Rights for Albania
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and the Profile of Asylum Claims) and Mullai’s evidence
describe the type of general civil disorder and lawlessness to
which anyone living in Albania would be exposed. At worst,
the record contains allegations of the Socialist government’s
persecution of Democratic Party members—the party that
previously persecuted Mullai.
As to our review of the IJ’s conclusion that changes in
country conditions trump any presumed well-founded fear,
Mullai urges us to assess as unwarranted the weight the IJ
gave to United States Department of State reports in
evaluating her fear of future persecution. But Mullai herself
provided a number of the State Department reports on which
the IJ relied (including the Country Reports on Human Rights
for 1997 and 1999). Although this circuit acknowledges that
State Department reports may be problematic sources on
which to rely, Koliada, 259 F.3d at 487 (citing cases from the
First, Fourth, and Seventh Circuits), in other cases we adopt
the view that such reports “are generally the best source of
information on conditions in foreign nations.” Kokaj v.
Ashcroft, 100 Fed. Appx. 506, 508 (6th Cir. 2004). And we
have relied on State Department reports when reviewing an
IJ’s decision. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 639
(6th Cir. 2004). Thus, the IJ’s reliance on these reports is
supportable.
B. Withholding of Removal
Mullai also seeks review of the IJ’s denial of withholding
of removal. To obtain such relief, she must show by a “clear
probability” that her life or freedom would be threatened on
account of her race, religion, nationality, membership in a
particular social group, or political opinion. INS v. Stevic,
467 U.S. 407, 429-30 (1987); Mikhailevitch, 146 F.3d at 391.
Because the lesser standard for establishing asylum eligibility
eludes Mullai, we conclude that she cannot meet the more
stringent requirements for withholding of removal. INS v.
Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); Castellano-
Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (“[A]

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No. 02-4313 Mullai v. Ashcroft 7
greater quantum of proof is required as to the likelihood of
persecution in the country of risk in order to establish
eligibility for withholding.”).
C. Voluntary Departure
Having concluded that substantial evidence supports the
IJ’s denial of asylum, we next address Mullai’s alternative
request that the court reinstate the BIA’s grant of a thirty-day
period for voluntary departure. Because we lack the authority
to grant Mullia’s request, we deny it.
The relief of voluntary departure is governed by § 240B of
the Immigration and Nationality Act, 8 U.S.C. § 1229c,
providing that “[t]he Attorney General may permit an alien
voluntarily to depart the United States at the alien’s own
expense” (thereby avoiding the usual consequences of
deportation) if the alien is not otherwise disqualified.
Voluntary departure thus is typically granted by the
immigration judge to qualifying aliens in tandem with the
denial of the more favorable relief of asylum, withholding of
departure, or the like. If the alien appeals a decision of the
immigration judge to the Board of Immigration Appeals and
the Board affirms, it too may grant a period of voluntary
departure.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) includes provisions that
preclude judicial review of the grant or denial of voluntary
departure. The statute provides: “No court shall have
jurisdiction over an appeal from denial of a request for an
order of voluntary departure under subsection (b) of this
section, nor shall any court order a stay of an alien’s removal
pending consideration of any claim with respect to voluntary
departure.” 8 U.S.C. § 1229c(f). Additionally, 8 U.S.C.
§ 1252(a)(2)(B)(i) provides that “no court shall have
jurisdiction to review . . . any judgment regarding the granting
of relief under . . . [8 U.S.C.] section 1229c [voluntary
departure] . . . .”
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Though jurisdictional questions abound among the circuit
courts concerning voluntary- departure decisions, we answer
here only the question of whether a court may reinstate
voluntary departure where the voluntary-departure period
granted by the BIA expires before petitioner seeks either a
stay of removal or a stay of voluntary departure.
Mullai never moved to stay the time for voluntary
departure, and she only moved to stay removal after the
expiration of the voluntary-departure period. As a result, the
period for voluntary departure authorized by the Attorney
General expired. Any judicial order to “reinstate” at this time
would necessarily authorize a new opportunity to voluntarily
depart, a function assigned to the Attorney General’s office
by 8 U.S.C. § 1229c and denied to the courts by 8 U.S.C.
§ 1229c(f) and § 1252(a)(2)(B)(i). Our application of the
statutes today is consistent with the development of this issue
in the majority of circuit courts that have considered it after
the passage of the IIRIRA. See, e.g., Reynoso-Lopez v.
Ashcroft, 369 F.3d 275, 282 (3d Cir. 2004) (collecting
authorities that hold that courts do not have jurisdiction to
reinstate or extend a voluntary-departure order).
This lack of a pre-expiration motion to stay disqualifies
Mullai from benefitting from our decision in Nwakanma v.
Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003). Nwakanma
relied on a court’s injunctive power to stay pending matters
and thereby avoided colliding with the IIRIRA constraints on
courts’ jurisdiction: “[I]n granting a stay of voluntary
departure, we do not pass on the substance of the decision to
grant voluntary departure; we only stay the immediate
effectiveness of the relief already granted by respondent in his
discretion, to allow the petitioner to receive appellate review.”
Id.
In Mullai’s case, due to the absence of a stay, the
discretionary relief granted by respondent Ashcroft expired by
its own terms. Thus a decision at this time to reinstate would

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No. 02-4313 Mullai v. Ashcroft 9
pass on the substance of the decision to grant voluntary
departure rather than staying its effectiveness.
III
We accordingly deny Mullai’s petition for review and deny
her request to reinstate the expired voluntary-departure
period.

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