The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the *

Eighth Circuit, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 06a0866n.06

Filed: November 29, 2006

No. 05-4454

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BEHAR SALIKO et al.,

Petitioners,

v.

ALBERTO GONZALES, Attorney

General of the United States,

Respondent.

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ON PETITION FOR REVIEW

OF AN ORDER OF THE

BOARD OF IMMIGRATION

APPEALS

O P I N I O N

Before: MOORE, ROGERS, and GIBSON, Circuit Judges. *

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 a 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
The INS was abolished effective March 2003 by the Homeland Security Act, Pub. L. No. 1

107-296, 116 Stat. 2135 (codified at 6 U.S.C. §§ 101 et seq.), and its responsibilities were assigned

to the Department of Homeland Security (“DHS”), 6 U.S.C. § 251.

2Petitioners initially applied for asylum on August 20, 2002, but — for reasons unknown —

their petitions were returned to them unadjudicated. They reapplied on August 29, 2002, and it is

this second group of applications that is at issue in this case.

2

(“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”) on August 29, 2002. The INS requested a hearing before an IJ, alleging that the Salikos 1 2

were removable because they had entered the United States without being admitted by the Attorney

General, in violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i).

Behar was the lead respondent in the IJ proceeding, at which Behar and Indrita testified about

Behar’s membership in Albania’s Democratic Party (“DP”) and the resulting persecution of the

family by agents of the Socialist Party (“SP”) government.

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
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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 October 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 after 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 afterthe 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
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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 several of

her factual findings but sustained the denial of relief, finding that the IJ’s adverse credibility finding

was supported by substantial evidence in the record. The Salikos then petitioned this court for

review.

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. 8 U.S.C. § 1158(b)(1)(A). “Disposition of an application for asylum requires a two-step

inquiry: first whether the petitioner is a ‘refugee’ within the meaning of the statute, and second,

whether the petitioner merits a favorable exercise of discretion by the Attorney General.” Perkovic

v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5

(1987)).
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A refugee is

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 or 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.

8 U.S.C. § 1101(a)(42)(A).

“Under the INA, an applicant for asylum bears the burden of demonstrating that ‘persecution

is a reasonable possibility should he be 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— byshowing past persecution. TheBIA 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
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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 taken to

a police station where he was once again beaten. On cross-examination, however, he stated that this

beating did not take place at the police station but was instead administered on the way there. This

internally contradictory testimony further conflicts with Behar’s written asylum application, which

states that he was arrested not on October 16, 2000 but rather on October 24, 2000. Moreover,

contrary to his statement during cross-examination that the detention lasted only about one hour, his

application asserts that he was held for forty-eight hours.

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), the 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 each 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
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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 Gen., 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 made 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 her 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.
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The Salikos also argue that, “in the context of the rampant score-settling, police corruption

and abuse, and the lack of legal redress in Albania, it is clear that the Salikos have a reasonable fear

of future persecution because of Mr. Saliko’s political opinion and activities.” Pet’rs Br. at 21.

“[T]he existence of a generalized or random possibility of persecution in [an applicant’s] native

country” is, however, “generally insufficient to establish persecution.” Almuhtaseb v. Gonzales, 453

F.3d 743, 750 (6th Cir. 2006) (internal quotation marks omitted). That is precisely why an

applicant’s credibility matters: because his or her testimony is often the only link between such

generalized information and the likelihood of individual persecution.

The Salikos’ testimony is internally contradictory and inconsistent with their applications for

asylum with respect to allegationsthat are central to their claims of persecution. While it is possible

that an applicant for asylum might forget or misremember the dates 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
Both parties to this case have treated Petitioners’ claims for asylum and for humanitarian 3

asylum as discrete from one another. That approach is consistent with our opinion in Liti, 411 F.3d

at 636-39, 641-42, and we adopt it here.

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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

proposed country of removal.” 8 C.F.R. § 208.16(c)(2). An applicant who cannot establish

eligibility for asylum “also cannot meet the heightened requirements for relief under [the] CAT,”

Liti, 411 F.3d at 641. We therefore reject the Salikos’ request for relief from the BIA’s denial of

withholding of removal under the INA and/or the CAT.

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 applicant 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.

8 C.F.R. § 1208.13(b)(1)(iii).3
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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

§ 1208.13(b)(1)(iii). See also In re Chen, 20 I. & N. Dec. 16, 19 (BIA 1989) (internal citation

omitted) (“[T]he favorable exercise of discretion is warranted for humanitarian reasons even if there

is little likelihood of future persecution. . . . Victims of past persecution should in some cases be

treated as refugees or asylees even when the likelihood of future persecution may not be great . . . .”).

Because they have not established past persecution, therefore, the Salikos are plainly not entitled to

the extraordinary relief contemplated by § 1208.13(b)(1)(iii).

III. CONCLUSION

For the foregoing reasons, we DENY review of the BIA’s order.
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ROGERS, J., concurring. I concur in the result and in the majority opinion except for Part

D. 8 C.F.R. § 1208.13(b)(1)(iii) does not create a separate claim for relief from removal called

“humanitarian asylum” that is distinct from “asylum.” Rather, this provision constitutes part of the

regulatory scheme for determining whether an alien should be granted asylum. The regulations

provide generally that someone claiming refugee status based on past persecution can nevertheless

be denied asylum either because of changed country conditions eliminating a well-founded fear of

future persecution or the possibility of internal relocation within the country allowing the applicant

to avoid future persecution. 8 C.F.R. § 1208.13(b)(1)(i)(A). Section 1208.13(b)(1)(iii) provides that

in cases of particularly severe prior persecution, or where the applicant would face “other serious

harm” if he were forced to return to his country, changed country conditions or the possibility of

relocation may not preclude a grant of asylum. 8 C.F.R. § 1208.13(b)(1)(iii); see also Liti v.

Gonzales, 411 F.3d 631, 641-42 (6th Cir. 2005); Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir.

2005). Because 8 C.F.R. § 1208.13(b)(1)(iii) does not even come into play where there is not

sufficient evidence of prior persecution in the first place, it was not incumbent on the BIA to address

the applicability of the regulation.