NOT RECOM MENDED F OR FULL-T EXT PUBL ICATION File Name: 04a0001n.06 Filed: September 30, 2004 Case No. 03-3688 UNITED STATES COURT OF APPEALS FOR THE SI

XTH CIRC UIT

T EREZA J UNCAJ , Petitioner,

v.
J OHN A SHCROFT , Attorney G eneralo f the Unite d States of A

merica, Responden

t. ) ) ) ) ) ) ) ) ) ) ) O N APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

Before: SI

LER, BAT CHELDER , and ROGE RS, Circuit Judges. SILER , Circuit Ju dge. P etitioner Tereza Juncaj appeals the decision of the Board of Immigration Appeals (“B IA”) denyin g her reques t for asylum . Juncaj argues that the Board de

nied her due process of

law, made

a determin ation contra

ry to substan

tial evidenc e, and abuse d its discretion i n denying th

e asylum p etition. W

e AFFIRM

. BACKGROUND Juncaj is a

62-year-old

native and c itizen of Y

ugoslavia o f Albanian

ethnicity. S he entered the Uni ted States on

Septembe

r 18, 1992 a s a non-im

migrant vi sitor but rem

ained longe

r than authorized. Juncaj’s cla

im for asy lum is base d on her Albanian ethnici ty. She cl aims persecution from 1948, when

her home w as destroyed by the Com

munist reg ime a

nd sh e was denied

an education. She a ll eges that her parents died

as a result of

persecution . She testif

ied that she h asbeendetained, q uestioned, and beaten b y membe rs of the Yugoslav army. During one interrogation, she said her hip w as broken, c ausing her to walk with a l

imp. In he

r testi mony b efore the Immigration Judge (“IJ”), she stated that she had been raped by a uniformed Serbian a rmy officer. The rape occurred while she was alone, walking her livestock near a forest

. The IJ found Ju

ncaj incredi

ble due to inconsistenci e s between her asylum application and her testimony , as well as her inability to recall the ti

me and dat

e of alleged

events. Furthermore, the IJ found that conditions had sufficiently changed to rebut any fear of future pers ecution. Th

e BIA issued a one-page o

pinion aff irming the

decision of t

he IJ. It did

not resolve the issue of credibility. Instead, it affirme d the decisio n because Ju ncaj did not

adequately

prove her pa st

persecution

was b ased on a protected characteristic rather than “unl ucky circumstance.” The BIA also no ted tha t the reco rd contai ned “othe r evidenc e” to affir m. DISCUSS ION We review claim s of due pro cess violati ons de novo

. Denko v. INS , 351 F.3d 7 17, 726 (6th Cir. 2003). Con

versely, de

terminatio ns of the BI

A “must be

upheld if s upported by

reasonable, substantial , and probative evidence on the record considered as a whole.” Yu v. Ashcroft , 364 F.3d 700, 702 (6th Cir . 2004). We can only reverse a decision of the BIA if the evidence “co mpels” su ch

areversal. Mikhailevitch v. INS , 146 F.3d 384, 38 8 (6 th Cir. 1998 ). Furtherm ore, the app

ropriate inquiryis whether th

e evidence “ was such tha

ta reasonable factfinder would have to conclude that the requisit

e fear of pe

rsecution ex

isted.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1 992). Due Proces s The BIA a ffirmed

the decision

below in a on

e-page opin

ion largely c oncurring w ith the IJ. Juncaj asser

ts that affirm

ing the decis ion in such a

summar y manner d

eprived her o f due proce ss of law. While she is entitled to due process protection, Reno v. Flores , 507 U.S. 292, 308 (1 993), her1 Summar y affirma nce is authorized u

nder 8 C.F.R. § 1 003.1(a)(7 ). Cases stre amlined under this procedure contain a two-sentence opinion reading, “Th is Boar d affirms, without opinion, the result of the decision b elow. The d ecision below

is, therefo

re, the fina

l agency det

erminatio n.” case comp orted with s uch requirem ents. We h ave held

that summary procedures do notviolate an alien’s right to due process, Denko , 351 F.3d at 730, but Juncaj did no t receive thistreatment . 1 Instead, the

BIA issued

a short decis ion agreeing with the IJ and adding oth er reasons. The BIA need not “write an ex egesis on ev ery contenti on.” Scorteanu v. INS , 339 F.3d 407, 412 (6th Cir. 20 03). It is req uired, how ever, to “consider the issues raised, and announce its decision in t erms suff

icient to ena

ble a review ing court to p erceive that it has heard a

nd thought and no t merely that it has rea

cted.” Id. The BIA considered the issues and arrived at the same conclusion as the IJ. It stated t

hat there wa s not enough

evidence to

determine

that Juncaj was persecuted b ased

on her ethnicity. Furthermore, any fear of future persecution had been successfully rebutted by the governme nt. Juncaj did n ot meet her burden of p roof and her claim was dismissed. She was not deprived of due process because the BIA made a reasoned c onclusion a

fter review ing the evid

ence. Eligibility for Asylum The IJ h a s discretion to grant asylum to any alien who qualifies as a “refugee.” 8 U.S.C. § 1158(a) & (b) . A refugee i s someone u

nable or unwilling to retu rn to her hom

e country be cause of “persecution or a well-founded fear of persecution on account of race, religion, nationality, member ship in

a particular group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A). The alien ha s the burden of p

roof and is presumed

to have a well-founded

fear if she

suffered p as t perse cution based on one of the protected categories. Ouda v. INS , 324 F.3d 4 45, 452-53 (6th Cir. 2003). Thi s presumption is rebuttabl e if the INS proves by a preponderance that conditions in the home coun try have changed “to such a n extent that the applicant no longer has a well-founded fear of being persecuted u

pon return. ” Id. (citing Mikhailevitc h , 146 F.3d at 390).Juncaj challenges the IJ’s finding that she was not credible. However, this issue is not

properly befor e us. We on ly have juris diction to he ar issues the BIA actuall

y addresses or adopts. INS v. Ventura , 537 U.S. 12, 17-18 (2 002) (becau se BIA state d that it had “not yet considered” the issue of changed

country circumstanc es, circuit c ourt could n ot entertain it). As the B IA only assumed credibility, rather than determined it, we cannot review the IJ’s credibility determination.

The BIA determine d that Junca j did not adequat

ely prove th at the misf

ortunes she

suffered occurred due to her Albanian ethnicity. Although Juncaj testified that she had been raped and pushed by members of the army, she did not prove that it was due to her ethnicity. When aske d why she ha d beenmistreated, she replied, “I don’t know . I do believe b ecause I wasAlbanian, t hat’s why th

ey

were threatening me.” Because eve n Juncaj cannot say for sure why she was victimized, the decision of the BIA is supported by the record. The BIA f

urt her held that

the governm

ent suffic iently rebut

ted any poss ibility of f

uture persecution. To rebu t this presu mption, t he governm

ent may of

fer proof e

ither of a f

undament al change in circumstances or that the applicant could rel ocate to another part of the country to a void persecu tion. 8 C.F.R. § § 1208.13( b)(1)(i)(A) &

(B). The IJ a

nd BIA relie d on country reports t o make this determination, and although Ju ncaj argues t

o the contrar

y, reliance o n these docu

ments is notimproper. See Mersinaj v. Ashcroft, No. 03-30 56, 2004 W L 1859356, at *2 (6th Ci r. 2004). Slobodan Milosevic’s removal from office was a changed circumstance, and the coun try report no tes that “Montenegro is now a multi-par ty, multie thnic, parli amentary d

emocracy under the leadersh

ip of President Milo Djukanovic.” This evidence is sufficient. Juncaj also argues that the country reports were unreliabl e and that the IJ did not perf orm an in dividualize d analysis of the changed

country conditions. Th ese two issu es, howeve

r, were no traised

before the BIA. An

alien must

exhaust all a

dministra tive remed

ies before w e can proper

ly hear her claims. Ramani v. A shcroft , 378 F.3d. 554, 557 (6th Cir. 2004). Each individual claim must be submitted to the BIA before we have jurisdiction to hear it. Perkovic v. INS , 33 F.3d 615, 6 19 (6th Cir. 1994); Dokic v. INS , 899 F.2d 530, 532 (6th Cir. 1990). Because these two claims could have been appe aled to t he BIA but w ere not, w e do not ha ve juris diction to decide them. Abuse of D iscretion in

Denying P

etitioner’s

Claims Finally, Ju

ncaj argues t

hat the IJ and the BIA

abused thei

r discretion

in denying h

er claims for relief. Although the BIA has broad discretion, it is not unli mited, an d it cannot b e exercised in

away that

is “arbitrary , irrational o

r contrary to law.” Daneshvar

v. Ashcroft, 355 F.3d 615, 625-26 (6thCir. 2004). The BIA abuses its discretion if it decides a case “without a rational explanation, inexplicabl

y departed fr

om establi shed

policies or rested on an impermissible basis, such as invidious discrimination.” Hazime v. INS , 17 F.3d 136, 140 (6th Cir. 1994). Juncaj large ly raises the same argument s as above, and they should be denied f or the s ame reasons. Because the decision by the BIA is supported by substantial evidence, it is not “ar bitrary, irrational, or contrary to law.” AFFIRMED

.