1

Mr. Sterkaj is the principal asylum applicant, and his wife is a derivative applicant relying on his application.

See 8 U.S.C. § 1158(b)(3)(A).

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0084p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

FATJON STERKAJ; AMEMONA SOKOLI-STERKAJ,

Petitioners,

v.

ALBERTO R. GONZALES, Attorney General,

Respondent.

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No. 04-4232

On Petition for Review of an Order of the

Board of Immigration Appeals.

Nos. A75 459 910; A75 459 911.

Argued: January 24, 2006

Decided and Filed: March 3, 2006 

Before: SILER, SUTTON, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Russell R. Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, Troy, Michigan, for

Petitioner. Keith I. Bernstein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: Russell R. Abrutyn, Marshal E. Hyman, MARSHAL E. HYMAN

& ASSOCIATES, Troy, Michigan, for Petitioner. Keith I. Bernstein, Emily Anne Radford,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION _________________

COOK, Circuit Judge. Fatjon Sterkaj and his wife Amemona Sokoli-Sterkaj1

 seek review

of a final order of the Board of Immigration Appeals (BIA) summarily affirming the Immigration

Judge’s (IJ) decision to deny their application for asylum and withholding of removal under the

Immigration and Nationality Act (INA). Mr. Sterkaj challenges the IJ’s adverse-credibility and

frivolous-application findings and asserts that the BIA denied him due process by relying on an

inaccurate transcript to review his case and by affirming the IJ’s decision without opinion.

Concluding that substantial evidence supports the IJ’s findings and discerning no due process

violation, we deny the petition for review.

1
No. 04-4232 Sterkaj, et al. v. Gonzales Page 2

I. Background

Fatjon Sterkaj and his wife Amemona Sokoli-Sterkaj, Albanian citizens, fled Albania in

September 1998 and entered the United States without valid entry documents. The Immigration and

Nationalization Service (INS) sought their removal on two grounds: (1) they attempted to procure

admission by fraud or willful misrepresentation of a material fact under 8 U.S.C. § 1182(a)(6)(C)(i)

and (2) they did not have valid entry documents as required by 8 U.S.C. § 1182(a)(7)(A)(i)(I). The

Sterkajs admitted that they entered the United States without valid entry documents, but denied that

they sought to procure admission by fraud or willful misrepresentation of a material fact. They

applied for asylum and withholding of removal on the grounds that Mr. Sterkaj suffered past

political persecution in Albania and had a well-founded fear of future persecution should he return.

At the removal hearing, Mr. Sterkaj described the following events to support his claim. 

Mr. Sterkaj attended the Democratic Party (DP) rallies in Albania but was not a member.

During a February 1998 rally, “special forces” police interrupted the rally, hitting and arresting DP

supporters, including Mr. Sterkaj. The police detained him at the police station for three days,

beating him repeatedly and denying him food and water. After the three days, they released Mr.

Sterkaj, and he sought medical treatment at a hospital.

A month later police went to his parents’ house late at night looking for him, but Mr. Sterkaj

was at his wife’s house. The police broke down the door to his parents’ home and hit his father’s

head with a gun butt. Upon learning what happened to his father, Mr. Sterkaj fled to his uncle’s

house.

As Mr. Sterkaj drove to his uncle’s house, police pursued him and shot at his car, injuring

him and forcing him off the road. He then ran from his car to a nearby forest where he hid from

police and eventually arrived at his uncle’s house. Soon thereafter, Mr. Sterkaj and his wife fled to

the United States.

The IJ conducted a hearing on the merits of Mr. Sterkaj’s application. Mr. Sterkaj testified

about two documents he submitted to support his claim—a summons from the Shkodra, Albania

district attorney’s office (summons) and a document declaring that Albanian authorities “wanted”

Mrs. Sterkaj (“wanted” document). Mr. Sterkaj initially testified that his troubles with the Albanian

authorities began on February 20, 1998. But on cross-examination, the government pointed out to

Mr. Sterkaj that the “wanted” document was dated February 10, 1998, and proclaimed that Albanian

authorities had pursued Mrs. Sterkaj since September 20, 1997. In light of this discrepancy, the

government questioned both documents’ authenticity, and the IJ agreed to adjourn the hearing so

that the government could verify the documents. 

Three years later, the IJ reconvened the hearing and reported that an investigation by Mr.

Ceci of the U.S. Embassy in Tirana, Albania revealed that the summons was invalid. (The

government apparently did not submit the “wanted” document for verification.) The IJ concluded

that Mr. Sterkaj failed to establish a credible claim for relief, citing the Embassy’s report, Mr.

Sterkaj’s discrepant testimony regarding the “wanted” document, his claim’s general implausibility,

and his claim’s inconsistency with U.S. State Department reports on conditions in Albania. The IJ

also concluded that Mr. Sterkaj’s application was frivolous. 

This petition for review followed the decision by a single member of the BIA summarily

affirming the IJ’s decision. Thus we review the IJ’s decision as the final agency decision. Denko

v. INS, 351 F.3d 717, 726 (6th Cir. 2003). 
No. 04-4232 Sterkaj, et al. v. Gonzales Page 3

II. Discussion

A. Adverse Credibility Determination

Mr. Sterkaj challenges the IJ’s finding that his testimony of past persecution lacked

credibility. We apply the usual substantial evidence standard to the IJ’s credibility determination,

ensuring that specific reasons going “to the heart of the applicant’s claim” support an adverse

credibility finding. Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004). Applying this standard to the

Sterkajs’ case, we conclude that substantial evidence supports the IJ’s adverse credibility

determination.

First, the IJ found it implausible that the police detained Mr. Sterkaj, attacked his father, and

destroyed his home when he was a mere DP supporter. Second, the IJ noted that Mr. Sterkaj’s

testimony conflicted with U.S. State Department Profiles of Asylum Claims and Country Conditions

for Albania, which indicated that “there is no post[-]communist tradition of retribution against

opposition party members,” and that “[i]individuals are rarely targeted on political grounds.” Third,

the IJ found the summons and “wanted” document submitted by Mr. Sterkaj unreliable. We discuss

Mr. Sterkaj’s arguments as to each of these three findings.

1. Implausibility of Sterkaj’s Claim 

First, the IJ found it implausible that Albanian law enforcement authorities would detain and

beat Mr. Sterkaj for merely supporting (as opposed to being a member of) the DP. Although the

country-conditions reports do not contradict Mr. Sterkaj’s claim of political persecution, they

“expressly state[] that there has been little to no political persecution in Albania since the collapse

of the communist regime in 1990 . . . and note[] that even ‘during the dark days of 1997’ all parties

were able to participate in politics without mistreatment.” Sulollari v. Gonzales, No. 04-4237, 2005

WL 3275500, at *3 (6th Cir. Dec. 5, 2005). Viewing Mr. Sterkaj’s claim in light of these reports,

we find the IJ’s skepticism about the arrest and beatings reasonable; the record evidence does not

compel a contrary conclusion. 

2. U.S. State Department Reports

Mr. Sterkaj also challenges the IJ’s finding that his claim of political persecution conflicts

with Albania’s country conditions as described in the 1998 and 2001 U.S. State Department Profiles

of Asylum Claims and Country Conditions for Albania. He first contends that the IJ erred in relying

on the 2001 report, because he testified to, and based his claim on, events that occurred in 1998.

Assuming the IJ erred in relying on the 2001 report, the 1998 Country Report on Human Rights

Practices for Albania, upon which the IJ also relied, nonetheless provides substantial evidence to

support the IJ’s finding. 

That report relayed that although “opposition political leaders frequently charged that the

Government arbitrarily arrested and detained its supporters on political grounds[,] [t]here is little

solid evidence to back up these claims, and most international observers believe they are baseless.”

It adds that despite a November 10 incident when police arrested three DP supporters, “[t]here were

no clear cases of detainees being held for strictly political reasons.” U.S. State Department reports,

which “are generally the best source of information on conditions in foreign nations,” Mullai v.

Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (quotation omitted), provide context about Albania so

that the fact finder may assess Mr. Sterkaj’s credibility. See Duarte de Guinac v. INS, 179 F.3d

1156, 1162 (9th Cir. 1999). Though, as Mr. Sterkaj points out, the reports do not rule out the

existence of political persecution in Albania, we do not quarrel with the IJ’s assessment that they

are inconsistent with, and thus undermine, Mr. Sterkaj’s claim. No evidence compels us to reach

a factual conclusion contrary to that reached by the IJ.
No. 04-4232 Sterkaj, et al. v. Gonzales Page 4

3. Fraudulent Documents

Mr. Sterkaj next protests the IJ’s finding that his submission of the summons and “wanted”

document impaired his credibility. An applicant’s presentation of “a fraudulent document ‘to prove

a central element of the claim in an asylum adjudication . . . in the absence of an explanation

regarding such presentation[ ] creates serious doubts regarding the [applicant’s] overall credibility.’”

Selami v. Gonzales, 423 F.3d 621, 625 (6th Cir. 2005) (quoting In re O-D-, 21 I. & N. Dec. 1079,

1083 (BIA 1998)). “‘[S]uch fraud tarnishes [the applicant’s] veracity and diminishes the reliability

of his other evidence.’” Id.

a. Summons

 Mr. Sterkaj first urges the court to disregard as unreliable the investigation that reported the

summons to be fraudulent because Mr. Ceci, the U.S. Embassy’s investigator in Albania: (1) “was

reporting what was told to him by an employee of the Shkoder District Attorney’s office”; (2) did

not sign the telegram forwarding his findings to the INS; and (3) graduated from an Albanian police

academy that produces corrupt and “untrained” police officers. Mr. Sterkaj, however, fails to back

up these allegations with supporting evidence. See Shllaku v. Gonzales, 139 Fed. Appx. 700, 702

(6th Cir. 2005) (rejecting petitioner’s claim that the Embassy investigator was untruthful where the

claim was “unsupported”). We therefore reject his unreliable-investigator argument. 

Second, Mr. Sterkaj insists (on appeal but not at the reconvened hearing) that he did not

know, and had no reason to know, that the document was fraudulent because his cousin obtained it

for him. In Selami, the petitioner submitted a fraudulent newspaper article in support of his

application. 423 F.3d at 623. On appeal he argued that the IJ erred in relying upon the article

because his father sent it to him and he was unaware that it was fraudulent. Id. at 626. This court

rejected the petitioner’s argument, reasoning that the obvious nature of the forgery precluded any

finding that the petitioner had no reason to know that the article was fraudulent. 

Mr. Sterkaj contends on appeal that he had no reason to know that the summons was

fraudulent because his cousin obtained it. But like Selami, the IJ here adjourned the hearing for

three years in order to investigate the authenticity of Mr. Sterkaj’s submission—and during that time

Mr. Sterkaj failed to question his cousin about its bona fides. See id. That factor bore on the

credibility assessment by the IJ in Selami and this court sustained that reliance. As in Selami, Mr.

Sterkaj had this opportunity to verify that the copy of the summons was legitimate. And again

mirroring Selami, when asked at the reconvened hearing to rebut the charge that the summons was

fraudulent, petitioner did not claim that he had been duped. See id. He instead claimed the district

attorney’s office in Shkodra, Albania could not authenticate the summons because many records

housed in that office were destroyed in 1997 and 1998. That response did not account for the forged

stamp. The INS Forensic Document Laboratory determined that the stamp impression at the bottom

of the summons was hand drawn and not produced with a stamp. Thus the district attorney’s office

was unable to authenticate the summons, not because many of its documents had been destroyed,

but because it was a forgery. In light of Mr. Sterkaj’s failure to explain the fraud, we conclude that

submitting the spurious summons supports the adverse credibility finding. And though the forgery

here required microscopic examination to confirm the fraud (the amateurish Selami forgery was

obvious), we think that factor matters not. An applicant must take reasonable measures to verify the

authenticity of any documents accompanying an application. From fraudulent submissions, triers

of fact may presume a purpose to defraud in the absence of a persuasive explanation. 

b. “Wanted” Document

Mr. Sterkaj submitted another document in which the Albanian Ministry of Public Order

declared his wife a “wanted person” for “[d]enying knowledge of the whereabouts of her husband.”
No. 04-4232 Sterkaj, et al. v. Gonzales Page 5

He claims on appeal that “it is not known why the document was filed with the IJ or how it was

obtained.”

We are unpersuaded. The record evidences that Mr. Sterkaj submitted the document in

support of his application, swore that all the documents attached to the application were true to the

best of his knowledge, and then neglected to repudiate or otherwise acknowledge that the document

was flawed until questioned on cross-examination. 

Mr. Sterkaj initially testified that his troubles in Albania began on February 20, 1998. The

document, however, dated ten days earlier (February 10, 1998), says that Mrs. Sterkaj has been

wanted since September 20, 1997, more than five months before Mr. Sterkaj testified that his

troubles began. When asked about the discrepancy on cross-examination, Mr. Sterkaj replied, “My

wife never had any problem, maybe it’s a typing mistake or something like that. Because my wife

never had any problem.” And on appeal, Mr. Sterkaj contends for the first time that he does not

know “why the document was filed with the IJ or how it was obtained.” Mr. Sterkaj’s implicit

suggestion that some other party submitted the document, without more, is unconvincing. Because

Mr. Sterkaj cannot reconcile the inconsistency, we concur with the IJ’s view that Mr. Sterkaj’s

argument lacks merit.

In sum, the INA requires us to accord the IJ’s credibility determinations a high degree of

deference. Mullai, 385 F.3d at 638. Viewing the record as a whole, we conclude that substantial

evidence supports the IJ’s adverse credibility determination. Because nothing in the record compels

us to disturb that determination, we affirm. 

B. The Frivolous-Application Finding

The court reviews an IJ’s frivolous-application finding for substantial evidence. See Selami, 423 F.3d at 626. “[A]n asylum application is frivolous if any of its material elements is deliberately

fabricated.” 8 C.F.R. § 1208.20. A finding that an alien filed a frivolous asylum application “shall

only be made if the immigration judge or the Board is satisfied that the applicant, during the course

of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible

aspects of the claim.” Id.

Mr. Sterkaj challenges the IJ’s finding that his application was frivolous on three bases.

First, he argues that the IJ erred in relying on the Profile of Asylum Claims and Country Conditions

for Albania from May 2001 because the persecution he complains about occurred in 1998. Second,

he argues that the summons (with its hand drawn stamp) should not be held against him because he

was unaware the document was fraudulent. Finally, he argues that the IJ erred in relying upon the

“wanted” document, as it was immaterial to his claim for asylum and withholding of removal.

We dispose of the first argument quickly. The IJ relied on Mr. Sterkaj’s submission of

fraudulent documents, not the country report, to conclude that the application was frivolous. The

next—ignorance of the fraud—is the same argument we rejected in upholding the IJ’s credibility

determination. Third, the “wanted” document is material, rather than irrelevant, as it goes to the

heart of Mr. Sterkaj’s asylum claim that the Albanian police were targeting him. The document

declares his wife “wanted” by the Ministry of Public Order for “‘[d]enying knowledge of the

whereabouts of her husband’ when he was wanted by these forces.” Although on appeal he

disavows all knowledge of how the document landed in his file, the record establishes that Mr.

Sterkaj himself submitted the document to support his asylum application, suggesting that at least

he thought it material to his claim. Because we conclude that substantial evidence supports the IJ’s

finding that Mr. Sterkaj filed a frivolous application, we affirm.
No. 04-4232 Sterkaj, et al. v. Gonzales Page 6

2

An error in the record or transcript does not by itself present a due process violation. “To prevail on a due

process challenge to deportation proceedings, [an alien] must show error and substantial prejudice.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005) (quotation omitted).

C. The BIA’s Summary Affirmance Procedure

1. Inaccurate Record

Mr. Sterkaj asserts that the BIA denied him due process by relying upon an “incomplete and

inaccurate” transcript to review his case. The transcript of the removal proceedings is indisputably

inaccurate, as it contains several pages of testimony from an unrelated immigration proceeding. We

note with concern that the government failed to meet its obligation to prepare a reasonably accurate

and complete record of the removal hearing upon Mr. Sterkaj’s appeal from the IJ’s order. See 8

U.S.C. § 1229a(b)(4)(C), amended by PL 109-162; 8 C.F.R. § 1003.5; 8 C.F.R. § 1240.9. Due

process demands a reasonably accurate and complete transcript to allow for meaningful appellate

review and to allow the alien to mount a challenge to the proceedings conducted before the IJ.2

This court, however, lacks jurisdiction to consider Mr. Sterkaj’s due process claim because

he did not first present it to the BIA so that it could have corrected the error. Although an alien’s

due process challenge generally does not require exhaustion (the BIA lacks authority to review

constitutional challenges), the alien must raise correctable procedural errors to the BIA. “[O]nly

claims properly presented to the BIA and considered on their merits can be reviewed by this court

in an immigration appeal.” Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004); accord 8 U.S.C.

§ 1252(d)(1) (providing that federal courts cannot exercise jurisdiction over an alien removal appeal

where the alien has failed to exhaust all administrative remedies). Because Mr. Sterkaj failed to

exhaust administrative remedies for his due process claim, we are precluded from reviewing it. 

2. Criteria for Invoking the Summary Affirmance Procedure

Mr. Sterkaj contends that the BIA violated 8 C.F.R. § 1003.1(e)(4) by streamlining his case

when the case did not meet a key criterion for summary affirmance—specifically, Mr. Sterkaj reads

8 C.F.R. § 1003.1(e)(4)(i)(A) as requiring that BIA precedent squarely control, in this case, the IJ’s

frivolous-application finding. As in Denko v. INS, 351 F.3d 717, 732 (6th Cir. 2003), we “assum[e]

without deciding” that we can review the streamlining decision given the absence of substantial

factual or legal questions warranting three-member review. 

By its plain language, the regulation does not limit summary affirmance to cases where BIA

precedent squarely controls the issue. It requires either that the issue is squarely controlled by

precedent or that the factual and legal issues raised on appeal are insufficiently substantial to warrant

three-member review. Denko, 351 F.3d at 727. As we have determined here, Mr. Sterkaj’s

challenges as to credibility, frivolousness, and due process are not so substantial as to warrant

three-member review. This case satisfies the 8 C.F.R. § 1003.1(e)(4) criteria. Accordingly, we

uphold the BIA’s exercise of its summary-affirmance procedure here. 

III. Conclusion

For these reasons, we deny the petition for review.