United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 3, 2005

Decided October 20, 2005

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 04-2221

ALEKSANDER AGRAJA,

Petitioner,

v.

ALBERTO GONZALES, Attorney

General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A 78 927 570

O R D E R

Aleksander Agraja is an Albanian citizen who is seeking asylum in the United

States based on alleged political persecution he suffered at the hands of the Socialist

Party government, which held power at the time he left Albania in early 2001. The IJ

denied his application, and the BIA adopted that decision in a one-judge order that

supplied additional reasons for rejecting Agraja’s claim. Agraja’s petition for review in

this court presents two contentions that were exhausted before the BIA: first, that the

IJ erred by discounting a purported medical record intended to corroborate Agraja’s

claim that Albanian authorities broke his leg during a politically motivated beating,

and second, that the IJ erred by refusing to recognize his witness on Albanian political

affairs as an expert. Because both evidentiary decisions fell within the bounds of

discretion that the agency may exercise, and in any event neither one could have

prejudiced Agraja, we deny his petition for review.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-2221 Page 2

I

Agraja, who turned 24 just before departing Albania, waded across the

Rio Grande in February 2001 from Mexico to Texas, but he was immediately

intercepted on the Texas side by the U.S. Border Patrol. The former INS initiated

removal proceedings, and exactly one year after his entry, Agraja applied for asylum.

(He also sought withholding of removal and relief under the Convention Against

Torture, but we have no need to discuss those points separately.) Agraja claimed in his

application for asylum, which he completed with the assistance of counsel, that he

suffered repeated detentions and beatings bythe secret police after the Socialist Party

(which he equates with the “communists”) took power in early 1997 following the

collapse of the Democratic Party government of Sali Berisha. The reason for his

mistreatment, he asserted, was his political views. Agraja specifically recounted a

severe beating he received in July 2000 in response to his support for democratic

ideals, during which the police deliberately broke his right leg, which then became

infected. He also claimed that his family had suffered persecution on the basis of their

religion and social group for a lengthy period of time dating back to just after World

War II, but his application and later testimony make nothing ofthe latter two grounds

with respect to the time period after the 1997 change in governments.

At his removal hearing, Agraja testified that from 1997 through the incident in

July 2000, agents ofthe communist-controlled secret police repeatedlyimprisonedand

beat him for attending Democratic Party demonstrations. Occasionally, they held him

for periods ranging from two weeks to a month. During one especially harsh period of

imprisonment, the secret police broke his leg and then dumped him at his home ten

days later, after the untreated break had become infected. He reported that a doctor

operated on the leg and inserted a metal bar, but the bar was removed five months

later. To corroborate his story, Agraja presented a handwritten document that he

obtained through the mail from an uncle who still lives in Albania, which supposedly

was from the hospital where the procedure was performed. The unauthenticated

Englishtranslation reflects that Agraja entered the hospital on July 12, 2000, with the

Latin diagnosis “[c]ontusio tramatica geni dex. et fractura maleoli let” (which roughly

translates to a traumatic contusion to the right knee and a fractured ankle), and that

at some point was operated on with a “slab and screw.” The document adds, without

elaboration, that a “materials drawing” was made on December 7, 2000. But the

document offers no insightintohowAgraja injured his leg. After this procedure, Agraja

fled Albania because he feared being beaten again or killed.

Uponcross-examination, Agraja admittedthat he lacked corroborating evidence

of his involvement in the Democratic Party, and that neither his parents (both then in

the United States on visitor visas) nor any of his six siblings (one living in the United

States, two in Italy, one in England, and the other two still in Albania) had provided

an affidavit or even a letter to support his claim of persecution. Agraja admitted that

he did not even tell his parents about the asylum hearing, even though they were
No. 04-2221 Page 3

staying a few hours away in Michigan. He testified further that he departed Albania

with what he believed to be a valid visa to enter the United States, and that only after

traveling through several countries and entering by way of Mexico did he discover the

visa to be a fake.

In addition to Agraja,the IJ heard testimony from Prenk Camaj, whoAgraja was

trying to use as an expert on the history, political climate, and interactions of the

political parties in Albania. But the IJ concluded from studying Camaj’s curriculum

vitae that he lacked the “academic preparation” and “publications” to qualify as an

expert. This meant that the IJ gave Camaj’s testimony only the weight that would be

afforded to any lay witness.

In denying Agraja’s application, the IJ found that his claim was “completely

unsupported,” and that his “testimony alone” was “insufficient to establish the factual

proposition on which his case relies.” The IJ thoughtit suspicious that family members

living in the United States would not have attempted to support Agraja’s claim by

backing his account of his experiences or testifying about their own. The IJ also

characterized Agraja’s medical record as “unreliable and unauthenticated” because it

is not drafted on hospital stationery, because the authoring doctor’s signature is not

authenticated, and because it is “not fully translated” (only the parts written in

Albanian were translated; the Latin diagnosis was simply repeated verbatim in the

translated version – exactly as we have just used a Latin word here). 

Agraja appealed to the BIA, claiming that his due process rights were violated

when the IJ rejected Camaj as an expert witness and refused to credit the medical

document. In adopting the IJ’s decision, the BIA pointed out that “[e]ven if the

respondent’s witness was recognized as an expert and even if his medical certificate

had been fully credited, the respondent would still have failed to meet his burden of

proof.”The BIA reasoned that neither Camaj nor the purportedmedical record lent any

support to Agraja’s testimony that he actually was a member of the Democratic Party

or that the broken leg came at the hands of the secret police.

II

In this court, Agraja focuses entirely on political persecution. The overlapping

contentions in his brief are difficult to parse; three of the four “issues” he identifies

speak in terms of denials of “due process” and “fundamental fairness,” but in essence

the argument section of the brief makes four conventional arguments: (1)the IJ never

made an explicit credibility finding; (2)the IJ erroneouslydiscountedthe corroborative

value ofthe medical record; (3)the IJ wrongly refused to recognize Camaj as an expert;

and (4) the BIA, by issuing a one-judge order adopting the IJ’s decision, did not engage

in meaningful review. Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003),

resolved the last point against Agraja, and we have no inclination to revisit that

decision. As we regularly do, we will review the IJ’s decision here, as supplemented by
No. 04-2221 Page 4

the BIA. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). We therefore turn to his

other three points.

A. Credibility

The problem with Agraja’s complaint that the IJ failed to make an explicit

credibility determination is that he has raised this point for the first time in his

petition for review. Agraja’s failure to present the issue to the BIA means, as the

government has argued in this court, that Agraja has waived this argument. See 8

U.S.C. § 1252(d)(1); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998). We therefore

have no further comment on the adequacy ofthe IJ’s treatment ofthe credibility issue.

B. Medical Record and Expert Testimony

What remains are Agraja’s exhausted arguments that he was denied due process

when the IJ failed to give any weight to the medical record he proffered and refused to

recognize Camaj as an expert witness. The IJ’s concern about the medical record’s lack

of authentication was valid, see Georgis, 328 F.3d at 969 (requiring authentication of

documents introduced in immigration proceedings through any recognized procedure),

and was enough in itself to support the judge’s decision to exclude it. (Our view might

have been different if the exclusion had rested only on the fact that the Latin diagnosis

was not translated. Does this mean that the Supreme Court needs to provide

interpreters when it refers to writs of certiorari? Would this also necessitate an

officially certified Latin interpreter, if there are any left outside of the Vatican, to

interpret a phrase like res ipsa loquitur or expresio unius est exclusio alterius if it

shows up in a French-language legal document? Fortunately, the IJ’s aversion toLatin

had no practical effect on the present case, given the serious problem with

authentication.)

The IJ mayhave imposed an unduly high standard on Camaj, given the fact that

there is no hard-and-fast rule that a witness must write books or publish academic

articles on the subject matter of his or her testimony in order to qualify as an expert,

Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004), and the fact that Camaj had

testified as an expert in other immigration cases, see Hysi v. Gonzales, 411 F.3d 847,

850 (7th Cir. 2005). On the other hand, it is not necessarily a compliment to be known

as a professional witness (if indeed one could say this of Camaj), and an asylum

applicant recently accused Camaj of unethical conduct in another circuit, though that

court never decided whether the accusation was well founded. See Sinistaj v. Ashcroft,

376 F.3d 516, 517-18 (6th Cir. 2004) (noting that petitioner accused Camaj of

fraudulently holding himself out as qualified to represent aliens before the INS and

erroneouslyadvising aliento submitfalse and inconsistent information to the Service).

In the end, even if both evidentiary rulings can be faulted, the BIA reasonably

concluded that Agraja could not have been prejudiced by either one. See Podio v. INS,
No. 04-2221 Page 5

153 F.3d 506, 511 (7th Cir. 1998) (observing that petitioner complaining about IJ’s

refusal to entertain witness testimony must show that excluded testimony had

potential to affect outcome). The BIA correctly pointed out that, even taking Agraja’s

medical document at face value, it does nothing to link his injury to the Albanian

authorities or the claimed persecution. At best the document shows that his leg was

in fact broken and operated on. Likewise, not affording Camaj the status of expert did

not prejudice Agraja. The IJ heard everything Camaj had to say, albeit as a lay

witness. Camaj’s testimony related to the political climate in Albania, specifically the

relations among the political parties. Even without deeming Camaj an expert, the IJ

accepted the fact that the police in Albania often abuse detainees. Nonetheless,

because the IJ rejected Agraja’s claim that he was a member ofthe Democratic Party,

nothing Camaj said and nothing about his status could have salvaged Agraja’s case.

For these reasons, we DENY the petition for review.