United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2503

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Artur Camishi, *

*

Petitioner, *

* Petition for Review of an Order of the

v. * Board of Immigration Appeals.

* 

Eric H. Holder, Jr., Attorney General * 

of the United States, *

*

Respondent. *

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Submitted: March 10, 2010

 Filed: August 17, 2010

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Before BYE, ARNOLD, and COLLOTON, Circuit Judges.

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BYE, Circuit Judge.

Artur Camishi, a citizen of Albania, petitions for review of a Board of

Immigration Appeals (BIA) decision dismissing Camishi’s appeal from the

Immigration Judge’s (IJ) order removing him from the United States to Albania.

Camishi argues the IJ and BIA violated his due process rights under the Fifth

Amendment. Camishi also argues the IJ and BIA improperly denied his request for

asylum under 8 U.S.C. § 1158, as well as his request for withholding of removal under

8 U.S.C. § 1231(b)(3), and for protection under Article III of the Convention Against

Torture (CAT). We deny the petition for review.
1

The parties dispute the date of the asylum application, but as the BIA’s

decision was based on merits, we need not determine the date of asylum application.

2

In 2003, INS ceased to exist as an agency within the Department of Justice and

its enforcement functions were transferred to the Department of Homeland Security

(DHS).

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I

Camishi was admitted to the United States on November 5, 2000, as a nonimmigrant visitor with authorization to remain in the United States until May 4, 2001.

Camishi remained in the United States after that time, without authorization, and he

filed an asylum application1

 with the Immigration and Naturalization Service (INS).2

The INS issued Camishi a Notice to Appear and charged him with removability under

8 U.S.C § 1227(a)(1)(B) as an alien who, after admission as a non-immigrant under

8 U.S.C. § 1101(a)(15), remained in the United State for a time longer than permitted.

Camishi appeared before an immigration judge and conceded removability, but

requested asylum, withholding of removal, and protection under CAT. Camishi

claimed he had experienced past persecution and feared future persecution in Albania

because of his political activity supporting the Democratic Party. Camishi claimed he

was beaten, imprisoned, and unable to work because of his affiliation with the

Democratic Party. Camishi left Albania after he was summoned to appear before a

court and the police confiscated information which Camishi had collected about

government officials involved in illegal activity.

In support of his claims, Camishi submitted four documents: (1) “Vertetim”

dated September 23, 2001 (a letter from Vili Minarolli, “Head of the Tirana Branch

of the Democratic Party of Albania,” confirming Camishi’s membership and political

activities); (2) “Flete-Thirje” dated August 26, 2000 (an “Appearance Order” from

Vice-Colonel Ilir Belivoda, the “Chief of Order of Police,” directing Camishi to

appear at the Commissariat of Police on August 27, 2000); (3)“Urdher” dated October
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14, 2000 (an “Order of Appearance of Citizen” from the “Officer of Court Police”

directing Camishi to appear in court on November 10, 2000); and (4) an Albanian

Democratic Party Membership Card issued May 5, 1993.

The documents were examined by a forensic document examiner at the Forensic

Document Laboratory (FDL) in DHS’s Immigration and Customs Enforcement (ICE)

section. The forensic examiner could not conclusively authenticate the “Vertetim,”

“Flete-Thirje,” and “Urdher” because the FDL did not have contemporaneous genuine

specimens for comparison. The forensic examiner concluded the “Vertetim” and the

“Flete-Thirje” were not what they purported to be because the documents share a

combination of mechanical markings which indicate they were prepared by a common

source, yet were ostensibly prepared by different agencies more than a year apart.

The forensic examiner also concluded the “Urdher” was suspicious because: (1) the

wet seal on it bore evidence it was produced by hand, which is not an accepted way

of preparing a wet seal, (2) the hand drawn seal covered a portion of the signature and

the date, and (3) the document was initially misdated as being issued in the year

“1000” then later changed to “2000.” Finally, the forensic examiner determined the

Democratic Party Membership card should not be accepted at face value, as it was

allegedly obtained eight years before the other documents, yet did not show any signs

of wear and showed signs of being made contemporaneously with the other

documents and then probably back-dated.

Camishi offered testimony from an expert on the government, politics, and

history of Albania. The historical expert explained there are serious economic

difficulties which affect documentation because of the political transitions in Albania.

There is no pattern for official documentation in Albania. Government offices often

use regular paper, sometimes use typewriters, and other times use letterhead paper.

In this context, the historical expert concluded the documents seemed genuine, but

indicated there is a great deal of opportunity for document fraud in Albania because

of frequent inconsistencies in government documents.
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The IJ denied Camishi’s applications for asylum, withholding of removal, and

CAT protection. The IJ concluded Camishi lacked credibility because Camishi

submitted fraudulent documents. The IJ further found Camishi failed to meet the

requisite burden of proof to establish an asylum claim as he failed to demonstrate the

isolated incidents he suffered in Albania were because of his political affiliation.

Since Camishi failed to establish eligibility for asylum, the IJ found he necessarily

failed to satisfy the more stringent standard for withholding of removal, and denied

Camishi’s CAT claim because he was generally not credible and failed to meet his

burden of proof in demonstrating he was more likely than not to be tortured upon

return to Albania. See 8 C.F.R. § 208.16(c)(2). The BIA affirmed the IJ’s decision

and dismissed Camishi’s appeal.

II

Camishi argues his due process rights under the Fifth Amendment were violated

when the BIA failed to address the timeliness of his asylum application. The IJ found

Camishi was ineligible for asylum because he could not demonstrate by clear and

convincing evidence his application was filed within one year after arriving in the

United States. See 8 U.S.C. § 1158(a)(2)(B). Also, Camishi was not able to

demonstrate either the existence of changed circumstances which materially affect his

eligibility for asylum or extraordinary circumstances relating to the delay in filing an

application within one year after arriving in the United States. See 8 U.S.C.

§ 1158(a)(2)(D). Nonetheless, the IJ also denied Camishi’s claim for asylum on the

merits, independent of the time bar. Without reaching the timeliness issue, the BIA

affirmed the judgment of the IJ on the merits, because Camishi lacked credibility as

he submitted fraudulent documents in support of his claim.

To establish a Fifth Amendment due process violation, Camishi must

demonstrate both a fundamental procedural error and prejudice as a result of the error.

Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003). Prejudice requires “a showing
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that the outcome of the proceedings may well have been different had there not been

any procedural irregularities.” Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007).

Camishi must demonstrate an error which potentially affects the outcome. Id. Since

the IJ denied the petition on an adverse credibility finding independent of the time bar,

and the BIA affirmed the credibility finding, we conclude there is no prejudice and

Camishi’s due process rights under the Fifth Amendment were not violated.

On appeal to the BIA, Camishi did not discuss his claim of withholding from

removal pursuant to 8 U.S.C. § 1231(b)(3) or his claim for relief under CAT. In order

to seek judicial review, Camishi must exhaust all administrative remedies available

to him as of right. 8 U.S.C. § 1252(d)(1). In Etchu-Njang v. Gonzales, 403 F.3d 577,

581-83 (8th Cir. 2005), we concluded Congress likely intended to require an alien not

only pursue all stages of administrative review, but also raise all issues before the

agency (BIA). As Camishi did not raise any issues related to withholding of removal

pursuant to 8 U.S.C. § 1231(b)(3) and relief under CAT before the BIA, our court

cannot give consideration to those claims.

Camishi argues there was insufficient evidence on the record to support the

adverse credibility finding of the IJ because the government failed to definitively

determine the documents he submitted were fraudulent, and the IJ failed to give

proper weight to the evidence of conditions in Albania attested to by the historical

expert.

This court defers to the discretionary judgment of the IJ with respect to relief

under 8 U.S.C. § 1158 (asylum relief) unless the decision is “manifestly contrary to

the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).

The Secretary of Homeland Security or the Attorney General may grant

asylum to an alien who has applied for asylum in accordance with the

requirements and procedures established . . . if the Secretary of
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Homeland Security or the Attorney General determines that such alien

is a refugee within the meaning of section 1101(a)(42)(A) of this title.

8 U.S.C. § 1158(b)(1)(A). To establish refugee status, Camishi is required to

demonstrate he has a well-founded fear of persecution because of race, religion,

nationality, membership in a particular social group, or political opinion. 8 U.S.C.

§ 1158(b)(1)(B)(i). A claim for asylum may be rejected solely on the ground that the

applicant’s claim is not credible. Falaja v. Gonzales, 418 F.3d 889, 897 n.4 (8th Cir.

2005). An adverse credibility determination is conclusive “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Mamana v. Gonzales,

436 F.3d 966, 968 (8th Cir. 2006) (quoting Turay v. Ashcroft, 405 F.3d 663, 668 (8th

Cir. 2005); see 8 U.S.C. § 1252(b)(4)(B). The IJ or BIA may reach an adverse

credibility determination based on the applicant’s submission of fraudulent

documents, if the petitioner fails to offer a legitimate explanation for the suspected

fraud. Onsongo v. Gonzales, 457 F.3d 849, 854 (8th Cir. 2006).

The IJ found Camishi generally not credible because he submitted fraudulent

documents. The forensic examiner testified the “Vertetim” dated September 23, 2001,

bore a combination of mechanical marks indicating it was prepared by the same

source as the “Flete-Thirje” dated August 26, 2000. This is suspicious because the

two documents purport to have been issued by different entities more than one year

apart. The authenticating wet seal stamp impression appearing on the “Urdher” bore

evidence of hand-drawing, which is not an accepted method for wet seals.

Instrumental examination determined the wet seal impressions on the Democratic

Party Membership Card are same-source associated with the wet seal stamp

impressions appearing on the “Vertetim.” The Democratic Party Membership card

and the “Vertetim” were supposedly issued more than eight years apart, but the wet

seal impression from 2001 shows none of the expected marks of wear and tear which

would be expected over such a period of time.
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Camishi offered testimony of frequent document fraud in government offices

of Albania and of the poor conditions or lack of equipment which causes an absence

of official indicia, but he presented no explanation for the temporal discrepancies.

The testimony of the historical expert does not address the forensic examiner’s finding

of several documents with the same mechanical markings indicating the documents

were prepared at the same time, with the same source, and with the absence of

expected wear of older documents. Camishi has not alleged they were obtained from

a single source after their original date of issue. In Kourski v. Ashcroft, 355 F.3d

1038, 1039 (7th Cir. 2004), the petitioner presented a fraudulent birth certificate, but

testified his mother procured the forged birth certificate. The IJ in Kourski did not

find the petitioner knew or suspected the birth certificate was a forgery, and the court

concluded the fact of forgery, under those circumstances, did not undermine the

petitioner’s credibility. The credibility finding in the instant case is more akin to that

in Averianova v. Mukasey, 509 F.3d 890, 896 (8th Cir. 2007), where the IJ rejected

the petitioners’ asylum and withholding of removal claims because the documents

submitted were fraudulent. In Averianova, the IJ weighed the evidence and found the

Averianovas’ proffered explanation for the fraud not credible. Id. In the instant case,

Camishi failed to offer any explanation for the discrepancies in the submitted

documents, and the IJ’s credibility finding is equally supported.

Camishi asserts the decision of the IJ is inconsistent with Wang v. INS, 352

F.3d 1250 (9th Cir. 2003). In Wang, the court found “mere failure to authenticate

documents, at least in the absence of evidence undermining their reliability, does not

constitute a sufficient foundation for an adverse credibility finding.” Id. at 1254. The

forensic examiners in Wang could not determine the documents were authentic, but

also did not find the documents were forgeries either. Id. In the instant case, the

forensic examiner made no affirmative finding the documents were fraudulent, but she

testified about discrepancies which support the IJ's finding of fraud on the part of

Camishi or some other person. This, coupled with the fact Camishi provided no

explanation for the temporal discrepancies, is distinguishable from Wang where there
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were no indicia of fraud and where the forensic examiners were merely unable to

authenticate the submitted documents.

The evidence in the record does not compel reversal of the IJ’s credibility

determination. Since Camishi’s asylum claim was based on his testimony, in

combination with documents the IJ found unreliable because of fraud in connection

with other submissions, Camishi's claim for asylum fails.

III

For the reasons stated above, we deny the petition for review.

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