Manjola Lumaj v. Alberto Gonzales, Attorney General

*The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0647n.06
Filed: August 25, 2006
No. 06-3041
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MANJOLA LUMAJ,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
__________________________________________
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ON PETITION FOR REVIEW
OF A DECISION OF THE
BOARD OF IMMIGRATION
APPEALS
BEFORE: MOORE and SUTTON, Circuit Judges; and KATZ, District Judge. *
PER CURIAM. Petitioner Manjola Lumaj is a native and citizen of Albania. She seeks
review of a Board of Immigration Appeals (“the BIA” or “the Board”) decision dismissing her
appeal of an order in which the Immigration Judge (“IJ”) denied her application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). The BIA found
that Petitioner’s asylum application was untimely and, though she testified credibly, she was not
entitled to withholding of removal and CAT protection. For the following reasons, this Court denies
the petition for review.

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I. Factual Background
Petitioner claims she left Albania on October 10, 2002, and traveled to Greece, where she
obtained a Greek passport and flew to Toronto, Canada, arriving on October 12. She claims she
entered the United States late on October 15, 2002, crossing from Windsor, Canada, into Detroit,
Michigan, in the back of a minivan driven by two men she did not know. At a gas station in Detroit,
Petitioner returned the Greek passport to the drivers and met up with her aunt, a political asylee
living in Michigan. Once in the United States, she lived with her aunt, who testified that she picked
Petitioner up from a gas station in Detroit on October 15, 2002, following instructions from an
anonymous caller. Petitioner’s aunt did not see Petitioner actually cross the border. Petitioner did
not request asylum in Greece, though she has other relatives living there, nor in Canada.
Petitioner requested asylum in this country on September 18, 2003. A month later, the
Immigration and Naturalization Service (since renamed, but referred to herein as “the INS”) began
removal proceedings by issuing a notice to appear. Petitioner conceded her removability at a
December 12, 2003, hearing, with counsel present. She requested asylum and withholding of
removal under the Immigration and Nationality Act (“INA”) and the United Nations Convention
Against Torture (“CAT”).
On August 23, 2004, the IJ conducted a merits hearing. Petitioner presented a copy of her
Albanian Democratic Party membership card, along with two birth certificates showing her date of
birth as October 12, 1982, and a Michigan marriage license showing her birth date as October 14,
1982. She also told her story of persecution in Albania.
Petitioner was a member of the Youth Forum of the Democratic Party. Part of her role was

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to recruit new members into the organization; she also participated in protests against the Socialist
government. On September 1, 2000, Petitioner was returning from a political meeting of local
women and girls when she was taken to jail and questioned about her involvement with the
Democratic Party. Her interrogators slapped her on the face, pulled her hair, beat her, and grabbed
her. They detained her overnight, and told her before releasing her in the morning that they would
jail her for several years if she did not stop working for the Democratic Party.
Then, on June 22, 2001, two days before an election, Petitioner related that she was again
arrested and detained for one day at the Lezha police station, where she was again beaten and told
to stop protesting. She was brought back to the police station for more questioning several times
during July and August of that year, each session lasting two or three hours. In May of 2002,
Petitioner was taken in again for questioning about her activities with the Democratic Party, and told
the police she would not stop fighting for her rights. In June, the police called her in and told her
they would kill her and her family if she did not stop her activities.
On September 5, 2002, the police came to Petitioner’s house, allegedly looking for illegal
firearms. She claims the police mistreated her and her family, and tried to take Petitioner to the
police station, but neighbors intervened, and the police left without her. Five days later, while
Petitioner was away at a relative’s house, three masked men tied up her family around a bed and
pointed guns at them. This last incident terrified petitioner and she decided to leave Albania.
Petitioner said she is scared of the police and believes they will harm her if she returns.
The IJ pretermitted Petitioner’s asylum application for failure to prove she filed it within one
year after entering the country, and denied her request for withholding of removal and CAT

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protection. The IJ found that, though Petitioner testified credibly and her claim fell under a
protected ground – political opinion – she failed to show entitlement to relief. Petitioner timely
appealed to the BIA, which dismissed the appeal on December 15, 2005, in a short opinion that
adopted the IJ’s reasoning. Petitioner now seeks review of the BIA’s order. However, Petitioner
does not argue her CAT claim on appeal, and therefore waives it. Shkabari v. Gonzales, 427 F.3d
324, 327 n.1 (6th Cir. 2005).
II. Asylum
An applicant must request asylum within one year after entering the United States, unless
she can demonstrate changed or extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). This
Court may review the denial of an asylum application for untimeliness where the appeal seeks
review of constitutional claims or matters of statutory construction, but it lacks jurisdiction to do so
where the appeal seeks review of discretionary or factual questions. Almuhtaseb v. Gonzales, No.
04-3984, 2006 U.S. App. LEXIS 17687, at *11-12 (6th Cir. July 14, 2006). Petitioner’s case falls
into the latter category: the IJ and the BIA found Petitioner’s asylum application untimely because
she failed to establish the date of her arrival in the United States by clear and convincing evidence,
see 8 U.S.C. § 1158(a)(2)(D), and therefore could not show that she filed within one year. Petitioner
did not allege changed or extraordinary circumstances. Therefore, this Court may not review the
denial of Petitioner’s asylum application.
III. Withholding of Removal
This Court reviews the denial of withholding of removal under the substantial evidence test.
See Allabani v. Gonzales, 402 F.3d 668, 674 (6th Cir. 2005). The Court may not reverse the BIA’s

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determination simply because it would have ruled differently. Klawitter v. INS, 970 F.2d 149, 151-
52 (6th Cir. 1992). Rather, the BIA’s decision that Petitioner “is not eligible for admission to the
United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). To
reverse the decision that Petitioner failed to meet her burden regarding withholding of removal, this
Court must find that the evidence “not only supports a contrary conclusion, but indeed compels it.”
Almuhtaseb v. Gonzales, 2006 U.S. App. LEXIS 17687, at *17 (6th Cir. 2006) (quoting Yu v.
Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (omitting internal quotation)). Where, as here, the
BIA adopts the IJ’s reasoning, this Court reviews the IJ’s decision. Denko v. INS, 351 F.3d 717, 723
(6th Cir. 2003).
The INA forbids removal to a country “if the Attorney General decides that the alien’s life
or freedom would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To be
eligible for withholding of removal under the INA, Petitioner must show there is a “clear
probability,” i.e., that it is “more likely than not,” that she will be persecuted on account of her
political opinion if she is returned to Albania. Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.
2005). “Persecution is an extreme concept that does not include every sort of treatment our society
regards as offensive. [Rather, it] entails punishment or the infliction of suffering or harm, but
harassment or discrimination without more does not rise to the level of persecution.” Ali v. Ashcroft,
366 F.3d 407, 410 (6th Cir. 2004) (internal quotations and citations omitted).
While credible testimony from an applicant for withholding of removal may be sufficient to
sustain her burden of proof without corroboration, 8 C.F.R. § 208.16(b), “where it is reasonable to

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expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s
claim, such evidence should be provided . . . . The absence of such corroborating evidence can lead
to a finding that an applicant has failed to meet her burden of proof,” Dorosh v. Ashcroft, 398 F.3d
379, 382 (6th Cir. 2004) (internal quotation omitted). However, “supporting documentation must
be provided only if it is of the type that would normally be created or available in the particular
country and is accessible to the alien, such as through friends, relatives, or co-workers.” Id. at 382-
83 (internal quotation omitted). In a recent case, this Court found that the Albanian petitioners failed
to meet their burden of proof where they failed to provide affidavits from relatives still living in
Albania documenting their claims of persecution, and did not provide a reasonable explanation for
that failure. Liti, 411 F.3d at 640.
After finding that her claim stated one of persecution on the basis of political opinion, a
protected ground, the IJ concluded Petitioner had not met her burden to show it is more likely than
not that she would be persecuted if returned to Albania. Noting that, where available, corroborative
evidence should be presented, the IJ said Petitioner presented “extremely limited
documentation, . . . none of it . . . authenticated according to the Code of Federal Regulations.” (JA
175). Additionally, the IJ saw no nexus between the masked men who tied up Petitioner’s family
and her political activity, because there was no indication the men were politically, as opposed to
criminally, motivated. Petitioner had presented no evidence that her family or any other social group
to which she belonged was politically persecuted. She did not explain why she did not seek asylum
in Greece, where she had relatives, or in Canada, a country typically receptive to refugees.
Nevertheless, the IJ concluded Petitioner testified credibly. However, even assuming Petitioner had

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1 It should be noted that Petitioner’s party is now in power in Albania. U.S. Dep’t of
(continued...)
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told the truth, the IJ stated, her past experiences did not amount to “persecution as contemplated by
such cases as” In re Chen, 20 I. & N. Dec. 16 (BIA 1989), and did not indicate she would be subject
to future persecution if she returned to Albania. The BIA in Petitioner’s case found no error in the
IJ’s opinion, and affirmed.
As an initial point, the Court notes that the IJ and the BIA erred in concluding that Petitioner
had not suffered “persecution” because her ordeal was not as severe as the petitioner’s in Chen. Mr.
Chen was locked in a room with his grandmother for six months, where he was interrogated, kicked,
and bitten by guards; was stoned at school and severely wounded; and was exiled to the country
many times for “reeducation,” where he was denied medical care for other serious injuries. 20 I. &
N. Dec. at 20. The BIA in that case called Mr. Chen “severely persecuted.” Certainly Chen does
not set forth a minimum standard of abuse required for a finding of “persecution.”
However, even assuming without deciding that Petitioner did suffer past persecution in
Albania, the Court nevertheless finds that substantial evidence supports the Board’s decision, and
that the record does not compel a contrary conclusion, considering Petitioner’s failure to provide any
corroborative evidence, and the changed circumstances in Albania. As the IJ noted, Petitioner
provided “extremely limited documentation” and what she did provide was not properly
authenticated. As in Liti, Petitioner has not explained her failure to supplement her own testimony
about her past persecution with the affidavits of relatives still in Albania, or even with properly
authenticated documents demonstrating her political affiliation. 1

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1(...continued)
State, Background Note: Albania, http://www.state.gov/r/pa/ei/bgn/3235.htm (Sept. 2005) (“The
July 3, 2005 general elections were considered a step in the right direction in terms of Albania’s
consolidation of democracy. The Democratic Party and its allies returned to power in a decisive
victory, pledging to fight crime and corruption, decrease the size and scope of government, and
promote economic growth. Their leader, Sali Berisha, was sworn in as Prime Minister on
September 11, 2005.”)
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Petitioner’s argument on appeal that she should be entitled to withholding of removal
because she suffered more severe persecution than the petitioner in In re Mogharrabi, 19 I. & N.
Dec. 439 (BIA 1987), whose request for asylum was granted, is incorrect. Applicants for asylum
face a “lower burden of proof” than those seeking withholding of removal, id. at 447, and the BIA
in Mogharrabi saw no need to decide whether the petitioner in that case met the higher standard for
withholding of removal, once it had granted him asylum. Id. at 449. Mogharrabi therefore sheds
no light on Petitioner’s claim.
IV. Conclusion
For the reasons stated above, this Court finds the Board’s decision is supported by substantial
evidence and DENIES the petition for review.

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