NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0741n.06

Filed: December 3, 2008

No. 07-3940

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANJEZA MYFTARI; SOKOL MYFTARI; BESA

MYFTARI,

Petitioners,

v.

MICHAEL B. MUKASEY, Attorney General,

Respondent.

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ON PETITION FOR REVIEW

OF A DECISION OF THE

BOARD OF IMMIGRATION

APPEALS

BEFORE: ROGERS, SUTTON, and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. Anjeza Myftari, on behalf of herself and her husband, Sokol

Myftari, and daughter, Besa Myftari, seeks review of an order of the Board of Immigration Appeals

(“BIA”) upholding the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding

and removal, and protection under the United Nations Convention Against Torture (“CAT”).

Because substantial evidence supports both the IJ’s and the BIA’s decision, we DENY the petition

for review.

I

The Myftaris are natives and citizens of Albania. Mrs. Myftari and her daughter entered the

United States without valid travel documents on October 29, 2001. Mr. Myftari entered the United

States pursuant to a nonimmigrant visitor visa on May 13, 2002.
The INS was the agency responsible for immigration matters at the time of Mrs. Myftari’s

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affirmative asylum application. On March 1, 2003, the functions of the formerINS were transferred

from the Department of Justice to the newly-established Department of Homeland Security. See

Homeland Security Act of 2002, Pub. L. No. 107-926, 116 Stat. 2135 (Nov. 25, 2002). 

Although the marriage ceremony occurred in January 1999, the marriage was not registered 2

until September 2000.

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In July 2002, Mrs. Myftari affirmatively sought asylum with the Immigration &

Naturalization Service, listing her husband and daughter as derivative beneficiaries. She alleged 1

that she was persecuted and would face future persecution on the basis of her husband’s affiliation

with the Democratic Party (“DP”) in Albania. Her application was denied, and the matter was

referred to an IJ for removal proceedings. Notices to Appear charged Mrs. Mfytari and her daughter

with removability for entry without valid travel documents, see 8 U.S.C. § 1182(a)(7)(A)(i), and Mr.

Myftari for overstaying his visa, see 8 U.S.C. § 1227(a)(1)(B). At the master calendar hearing in

December 2002, the Myftaris admitted the factual allegations contained in the Notices to Appear and

conceded removability. Mrs. Myftari renewed her application for asylum, and alternatively sought

withholding of removal and protection under the CAT.

A merits hearing was held on August 30, 2005, September 14, 2005, and November 15, 2005.

Mrs. Myftari testified that she and Sokol Myftari became engaged in June 1998 and were married

in January 1999. In August 1997, Mr. Myftari apparently took over his father’s business of running 2

a three-story hotel/restaurant located in Tirana, Albania. The Myftaris remodeled the business and

held a grand opening in January 1998. Mrs. Myftari worked alongside her husband at the restaurant.

Mrs. Myftari testified that her husband was an openly active member and financial supporter

of the DP in Albania. A membership card confirmed that he had been a member of the DP since
The SP evolved out of the former Communist Party in Albania in 1991. 3

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1992. Further, the DP’s headquarters was near Mr. Myftari’s restaurant, and members of the party

often patronized the restaurant and held meetings there.

According to Mrs. Myftari, her husband was home ill in June 1997, before the elections in

which the Socialist Party (“SP”) came to power in Albania in August 1997. At that time, the SP and 3

the DP were fighting for power. Mrs. Myftari testified that a family friend volunteered to obtain

some medication for Mr. Myftari, and that when the friend went to enter the Myftaris’ vehicle, an

explosive detonated. The friend was injured and the vehicle was destroyed. However, Mrs. Myftari

admitted that she did not attempt to obtain an affidavit confirming this incident from the injured

friend. The Myftaris also apparently reported the explosion to the police, but they did not know if

any investigation was conducted. The Myftaris testified that they believed members of the SP were

responsible for the bombing. Mrs. Myftari testified that the police told her that such things would

happen if she was going to support the DP. But Mr. Myftari ultimately admitted that he did not

know who had bombed his vehicle.

On April 7, 1999, after the SP had won the elections and gained power, the Myftaris testified

that they received an anonymous letter under their door demanding payment of $150,000. One week

later, Mr. Myftari received an anonymous telephone call at their home regarding the letter. Mr.

Myftari told the caller he did not have the money. The caller apparently said that they had six

months to pay the money. Mrs. Myftari initially testified that they received only one telephone call
Mrs. Myftari first testified that the first caller had also threatened to destroy their business, 4

but she later testified that the threat came only in the second call. The first caller apparently only

demanded payment of the money.

At the hearing, there was some confusion as to some of the proof Mrs. Myftari offered of 5

the building’s destruction. She submitted a certificate from the Ministry of Public Works dated

“10.04.2001” stating that “The Construction Police, Branch of Tirana, under decision no. 4, dated

16.02.1999, destroyed a Building (Bar) . . . property of Mr. SOKOL MYFTARI.” J.A. at 636. Mrs.

Myftari testified that this certificate was the original document she had received in February 2000.

However, when the IJ asked her how she could have obtained the document in 2000 when it bore

a date from 2001, Mrs. Myftari stated that the original 2000 certificate was in Albania and that her

husband had brought the 2001 certificate when he came to the United States.

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after receiving the letter, but she later recalled that they received a second call in October 1999. She

testified that the second caller threatened that their business would be destroyed if they did not pay.4

In the meantime, in December 1999, the Myftaris received an order from the Albanian

government informing them that their business would be destroyed because they had remodeled it

without permission. The Myftaris testified that they did have permits to remodel the property. Mr.

Myftari explained that they had obtained these permits in 1997, when the DP was in power, but the

government apparently refused to recognize the previously issued permits. The Myftaris and Mrs.

Myftari’s father apparentlymade several efforts to prevent the destruction of the business. But it was

ultimately destroyed in January 2000—one month after they received the government order and three

months after the second telephone call requesting payment of $150,000. The Myftaris both testified 5

that they believed the destruction of the business was connected to the SP and the demands for

money.

On September 9, 2001, Mrs. Myftari testified that she and her then-two-year-old daughter

were kidnaped while returning from a friend’s nearby home. She testified that two men approached

her and her daughter, grabbed them, rendered them unconscious with some sort of chemical, and
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pushed them into the back seat of a vehicle. When Mrs. Myftari woke up, she testified that her hands

and feet were tied and she heard the men talking about selling her and her daughter for prostitution.

She and her daughter were eventually put on a boat with other women and children. The boat was

stopped by the Italian border patrol, and Mrs. Myftari told them that she had been kidnaped. She and

her daughter were then able to voluntarily return to Albania.

When asked about proof of the kidnaping, Mrs. Myftari testified that the Italian border patrol

agents wrote out a report, but she did not attempt to obtain a copy of it because she was in a state of

shock. She also testified that she reported the kidnaping to the authorities in Vlora, Albania, at

which point she was told that the incident had already been reported to them by the Italian

authorities. Mrs. Myftari admitted that a written report was produced by the Albanian authorities,

but she had not obtained orsubmitted it because she had to be physically present in Albania to obtain

it.

As to any connection between her kidnaping and the SP, Mrs. Myftari admitted that her

kidnapers did not identify themselves or say they were from the SP. She did testify that she heard

the two men discussing their boss, who had a lot of money and had connections with the police

department. The men apparently told Mrs. Myftari that the police would take care of them. Mrs.

Myftari admitted that the men did not mention the words “Socialist” or “Socialist Party,” but she

testified that she assumed they were connected to the SP because that was the party in power at the

time of the kidnaping.

After the kidnaping incident, Mrs. Myftari purchased fake passports for herself and her

daughter, and they left Albania for the United States in October 2001.
Both the IJ and the BIA referred to the Myftaris as “respondents” and discussed the 6

“respondents’”—plural—failure to establish eligibility for asylum. Because Mrs. Myftari was the

lead applicant and Mr. Myftari and their daughter were only listed as derivative beneficiaries of the

application, we will only refer to Mrs. Myftari’s—singular—eligibility for asylum.

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At the merits hearing, both Mr. and Mrs. Myftari testified that they feared returning to

Albania because of the unstable conditions there. Mrs. Myftari’s father also expressed this

sentiment. According to Mrs. Myftari, the kidnaping of women and children was still common. The

Myftaris also feared mistreatment on the basis of their political affiliations and opinions, despite the

fact that the DP had regained power in Albania in the summer of 2005.

The IJ found the Myftaris removable and denied Mrs. Myftari’s applications for asylum,

withholding of removal, and protection under the CAT. The IJ first found that the Myftaris were not

credible. In addition to detailing a number of specific inconsistencies and omissions in their

testimony, she noted the “lack of reasonably expected corroborating evidence.” J.A. at 85.

Moreover, the IJ found that the Myftaris failed to establish a nexus between their alleged past

persecution and their political opinion. The IJ also noted that there had been a change in country 6

conditions in Albania such that even if the Myftaris were found credible and established past

persecution, they would not be able to show a well-founded fear of future persecution. To the extent

that the Myftaris claimed they still feared persecution in Albania, the IJ found their testimony too

vague, speculative, and imprecise to establish a well-founded fear. The IJ specifically noted that Mr.

Myftari had a personal relationship with Sali Berisha, the leader of the DP in Albania.

Mrs. Myftari appealed the IJ’s decision to the BIA, and the BIA affirmed. It found “no clear

error in the Immigration Judge’s adverse credibility determination.” J.A. at 3. It then “affirm[ed]

the Immigration Judge’s alternative determination that the respondents failed to establish a nexus
In her petition for review, Mrs. Myftari does not explicitly challenge the denial of her 7

applications for withholding of removal or protection under the CAT. Even if she did, Mrs.

Myftari’s failure to show a well-founded fear of persecution based on political opinion—which

precludes her eligibility for asylum—would also preclude her eligibility for withholding of removal.

Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (noting that a “greater quantum of

proof is required as to the likelihood of persecution in the country of risk in order to establish

eligibility for withholding” as opposed to asylum). Mrs. Myftari’s failure to show a future threat in

Albania would also preclude her eligibility for protection under the CAT. Although an applicant for

CAT protection need not “link the harm faced with any of the five protected grounds enumerated in

relation to applications for asylum and withholding,” an applicant still must establish that she would

“more likely than not” be tortured if removed to her country of origin. Id. at 551. Mrs. Myftari

cannot satisfy this strict standard.

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between the harm they suffered or fear in Albania and a protected ground.” Id. Because the Myftaris

could not satisfy the lower burden of proof required for asylum, the BIA also concluded that they had

failed to satisfy the “clear probability” standard required for withholding of removal or the “more

likely than not” standard required for protection under the CAT. J.A. at 4. Finally, the BIA rejected

a due process challenge to the IJ’s conduct at the merits hearing, finding no evidence that the IJ was

biased or that the Myftaris had been denied a full and fair opportunity to present their claims for

relief from removal. Id. Mrs. Myftari filed a timely petition for review of the BIA’s decision with

this court.

II

Mrs. Myftari makes essentially two arguments in her petition for review. First, she argues

that she has established her eligibility for asylum. In support of this argument, she challenges the 7

IJ’s adverse credibility determination and also argues that she demonstrated past persecution in

Albania as a result of her husband’s association with the DP. Second, Mrs. Myftari contends that

the IJ’s failure to take the oath of the Albanian interpreter at the second merits hearing and the

interpreter’s indiscernible and incoherent translations denied her due process of law.
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A. Standard of Review

Where, as here, the BIA has adopted the IJ’s decision with additional commentary, “we

review the decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj

v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). We review questions of law de novo. Id. But we

review factual findings under the deferential “substantial evidence” standard. Id.; see also Zoarab

v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008). Under this standard, the administrative findings of

fact are “conclusive” unless “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.

2008).

B. Eligibility for Asylum

Mrs. Myftarifirst challenges the administrative decision that she did not adequately establish

her eligibility for asylum. The Attorney General has discretion to grant asylum to a “refugee.” 8

U.S.C. § 1158(b)(1)(B)(i). A refugee is a person who is outside her country of nationality and who

is unable or unwilling to return to 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).

To establish past persecution, an applicant must show that she “was specifically targeted by

the government for abuse based on one of the statutorily protected grounds.” Gilaj v. Gonzales, 408

F.3d 275, 285 (6th Cir. 2005). An applicant’s demonstration of past persecution creates a rebuttable

presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); Ceraj, 511 F.3d

at 592. This presumption can be rebutted—and asylum denied—only if the government establishes

“by a preponderance of the evidence that since the persecution occurred, conditions in the applicant’s
In certain circumstances, an applicant for asylum who “has demonstrated compelling reasons 8

for being unwilling or unable to return to the country arising out of the severity of the past

persecution” may be granted asylum in the absence of a well-founded fear of future persecution. 8

C.F.R. § 208.13(b)(1)(iii)(A). Mrs. Myftari does not contend that this provision applies in her case.

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country have changed to such an extent that the applicant no longer has a well-founded fear of being

persecuted if he were to return.” Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (internal

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quotation marks omitted); see also 8 C.F.R. § 208.13(b)(1)(i)(A) (providing that asylum shall be

denied if “[t]here has been a fundamental change in circumstances such that the applicant no longer

has a well-founded fear of persecution in the applicant’s country of nationality”). Alternatively, an

applicant can obtain asylum based on a well-founded fear of future persecution “by showing that the

fear is subjectively genuine and objectively reasonable.” Zoarab, 524 F.3d at 780.

1. Adverse Credibility Determination

The testimony of an asylum applicant may be sufficient to establish past persecution or a

well-founded fear of future persecution, but only if the trier of fact finds that testimony credible. 8

U.S.C. § 1158(b)(1)(B)(ii); Ndrecaj v. Mukasey, 522 F.3d 667, 674 (6th Cir. 2008). We review an

adverse credibility determination, as a factual finding, for substantial evidence. Ceraj, 511 F.3d at

591; Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). An IJ may base a credibility

determination on the totality of circumstances and “all relevant factors,” including the applicant’s

demeanor, candor, the consistency and plausibility of her account, and the consistency between

written and oral statements. 8 U.S.C. § 1158(b)(1)(B)(iii). However, a credibility determination

“must be supported by specific reasons and must be based upon issues that go to the heart of the

applicant’s claim.” Ramaj, 466 F.3d at 527; see also Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004).
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in scattered sections 9

of 8 U.S.C.), provides that credibility determinations may be made “without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. §

1158(b)(1)(B)(iii). However, this provision applies only to applications filed on or after May 11,

2005, Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006), and accordingly does not apply in

this case.

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Discrepancies that cannot be viewed as “attempts by the applicant to enhance his claims of

persecution” have no bearing on credibility. Sylla, 388 F.3d at 926. 9

Here, substantial evidence supports the adverse credibility determination. The IJ cited

specific reasons for its determination that the Myftaris were not credible, and these reasons went to

the heart of Mrs. Myftari’s claim for asylum. For example, the IJ noted that Mrs. Myftari’s original

asylum application never mentioned her husband’s participation in a political demonstration in

Albania in 1991, during which Mr. Myftari was apparently injured and almost killed. This incident

was raised for the first time at the beginning of Mr. Myftari’s testimony at the merits hearing. The

IJ stressed the importance of this inconsistency, given the fact that the entire basis of Mrs. Myftari’s

claims was her husband’s activities with the DP. Moreover, the written asylum application did not

state that a prominent member of the SP offered to buy Mr. Myftari’s business for an extremely low

sum of money approximately one month before the business was destroyed. This event, too, was

not raised until Mr. Myftari testified at the merits hearing. And even when Mr. Myftari did testify,

the IJ noted that Mr. Myftari’s various explanations for neglecting to include the incident in the

written asylum application were unpersuasive.

The IJ also recognized the discrepancy between Mrs. Myftari’s testimony that the friend who

was injured in the vehicle bombing was going to obtain medicine, and statements in the written

asylum application that the friend was going to pick up a doctor. Although the IJ acknowledged that
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this itself was not a critical inconsistency, the IJ stated that she had “carefully observed” Mr.

Myftari’s demeanor when questioned about it, and that Mr. Myftari appeared to make up an

explanation after several leading questions by his attorney. Further, the IJ noted Mrs. Myftari’s

inconsistent testimony as to the number of threatening telephone calls they received after the letter

demanding $150,000 had been slipped under their door. At first, Mrs. Myftari stated they had only

received one call, but she later changed her testimony and stated that they had received two calls.

In addition, the IJ noted the lack of corroborating evidence offered by Mrs. Myftari, including

her failure to obtain any affidavit from the injured friend confirming the explosion and her failure

to obtain police reports related to her alleged kidnaping. Given that the lack of corroborating

evidence to support an asylum applicant’s statements is a factor that can be taken into account in a

credibility determination, see Berri v. Gonzales, 468 F.3d 390, 395-96 (6th Cir. 2006), these facts,

too, support the IJ’s determination that Mrs. Myftari’s story was not credible.

Even assuming that some of the other more minor inconsistencies identified by the IJ—such

as discrepancies regarding dates—did not go to the heart of Mrs. Myftari’s claim for asylum, the IJ

identified enough serious inconsistencies in the testimony of both Mr. and Mrs. Myftari. Even if

there may have been other explanations for these inconsistencies, we cannot say that any reasonable

adjudicator would have been compelled to conclude that the Myftaris were credible. Accordingly,

we affirm the IJ’s adverse credibility determination.

2. Past Persecution and Well-Founded Fear of Future Persecution

Although the IJ’s adverse credibility finding itself would have precluded a finding of past

persecution or a well-founded fear of future persecution, the IJ offered two alternative bases for its

denial of asylum: 1) Mrs. Myftari failed to show a nexus between any past persecution and political
We also recognize that political opinions for which Mrs. Myftari claims to have been

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punished are in fact her husband’s; as a result, her claim could be characterized as one based on

imputed political opinion. Indeed, it is curious that Mrs. Myftari, and not her husband, was the lead

applicant for asylum. Neither this court nor the Supreme Court has decided whether imputed

political opinions may form the basis of an asylum claim. See Pascual v. Mukasey, 514 F.3d 483,

486 (6th Cir. 2007). We need not resolve that question today, however, because Mrs. Myftari has

not established that any alleged persecution was on account of her political opinion, “imputed or

otherwise.” Id. at 487.

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opinion, and 2) even if she could show such a nexus, there had been such a change in the conditions

in Albania that she could not establish a well-founded fear of future persecution. We review an

administrative determination that the petitioner failed to establish eligibility for asylum for

substantial evidence. Ceraj, 511 F.3d at 588.

First, we note briefly that Mrs. Myftari did not present enough evidence to compel the

conclusion that she suffered past persecution on account of political opinion. Both she and Mr. 10

Myftari admitted that they did not know who placed a bomb in their vehicle. They also both

admitted that the letter demanding payment of $150,000 was anonymous. Further, there was an

alternative explanation for the destruction of their business: failure to obtain the proper permits for

remodeling. Mrs. Myftari also admitted that neither of her kidnapers mentioned the word

“Socialist,” nor did they give her any reason to believe that they were members of the SP or that they

were kidnaping her because of her or her husband’s association with the DP. And as the BIA

concluded, a reasonable adjudicator could have concluded that much of the alleged persecution was

motivated more by the Myftaris’ perceived wealth and ability to pay, not their political opinion.

But even were we to conclude that Mrs. Myftari could establish past persecution on account

of political opinion, substantial evidence supports the conclusion that changed conditions in Albania

rebutted any presumption of a well-founded fear of future persecution. As both the IJ and the BIA
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noted, the record evidence of country conditions in Albania indicated that the DP returned to power

after the general elections in 2005, and the Myftaris admitted this fact. We have “repeatedly

concluded that the conditions in Albania have improved to such an extent that there is no objective

basis for a well-founded fear of future persecution based on political . . . beliefs.” Ceraj, 511 F.3d

at 593; see also Ndrecaj, 522 F.3d at 676 (“[O]n the basis of published reports of Albania’s political

development, we have previously stated that the conditions in Albania are ‘fundamentally

changed.’”); Ramaj, 466 F.3d at 531 (“[C]ountry conditions in Albania have improved to the point

that any presumption of a well-founded fear of future persecution is rebutted.”). 

As a result of these changed conditions, Mrs. Myftari’s subjective fears of returning to

Albania were insufficient to support an objectively reasonable fear of future persecution, let alone

to compel such a finding. An applicant “cannot rely on speculative conclusions or mere assertions

of fear of possible persecution, but instead must offer reasonably specific information showing a real

threat of individual persecution.” Ndrecaj, 522 F.3d at 676 (quoting Mapouya v. Gonzales, 487 F.3d

396, 412 (6th Cir. 2007)). And the possibility that the SP may return to power at some unspecified

time in the future was much too speculative. See id. (noting that applicant who feared that Socialists

would return to power in Albania in the future lacked a well-founded fear of persecution). 

Because the IJ’s and the BIA’s alternative conclusions each provide an independent basis for

the denial of asylum, we affirm the administrative decision on those grounds as well.

C. Due Process Claim

Finally, Mrs. Myftari argues that she was deprived of a full and fair hearing because the IJ

did not put the Albanian language interpreter under oath at the second merits hearing and because

several of the interpreter’s translations appeared as incoherent, incomplete, and indiscernible in the
In one sentence of her brief, Mrs. Myftari also asserts that the IJ chilled the witnesses’ right 11

to testify by questioning them at the hearing. Pet’r Br. at 13. Because she does not develop this

argument any further, she has waived it. United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir.

2004) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.”).

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transcript. However, we lack jurisdiction to consider Mrs. Myftari’s due process claim because she 11

did not raise it before the BIA. 

We only have the authority to review claims properly presented to the BIA and considered

on the merits. Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006); see 8 U.S.C. § 1252(d)(1)

(providing that federal courts cannot exercise jurisdiction over an appeal of a final order of removal

where the alien has failed to exhaust all administrative remedies). “Although an alien’s due process

challenge generally does not require exhaustion . . . , the alien must raise correctable procedural

errors to the BIA.” Sterkaj, 439 F.3d at 279. All of Mrs. Myftari’s claims involving the interpreter’s

oath and the quality of the interpretation and transcription could have been raised before, and

corrected by, the BIA. See Sedrakyan v. Gonzales, 237 Fed. Appx. 76, 79-80 (6th Cir. 2007)

(refusing to address petitioner’s due process argument regarding translation problems because

petitioner failed to raise it with the BIA); Cela v. Gonzales, 205 Fed. Appx. 376, 384-85 (noting that

the court lacked jurisdiction to review petitioner’s due process claims involving inadequate

interpretation because of petitioner’s failure to exhaust administrative remedies). Accordingly, Mrs.

Myftari’s failure to exhaust her administrative remedies keeps us from reviewing the merits of her

due process claims.

III

For the foregoing reasons, we DENY the petition for review.