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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0326P (6th Cir.)

File Name: 04a0326p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ELMA MULLAI,

Petitioner,

v.

JOHN ASHCROFT, Attorney

General; IMMIGRATION AND

NATURALIZATION SERVICE,

Respondents.

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No. 02-4313

On Appeal from the Board of Immigration Appeals.

No. A73 616 876.

Submitted: August 6, 2004

Decided and Filed: September 27, 2004 

Before: KENNEDY, SUTTON, and COOK, Circuit

Judges.

_________________

COUNSEL

ON BRIEF: Robert M. Birach, Detroit, Michigan, for

Petitioner. James A. Hunolt, Emily A. Radford, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent.

2 Mullai v. Ashcroft No. 02-4313

_________________

OPINION

_________________

COOK, Circuit Judge. Elma Mullai, a native and citizen of

Albania, seeks review of a decision of the Board of

Immigration Appeals affirming, without opinion, the order of

an immigration judge denying her request for asylum and

withholding of removal. Because substantial evidence

supports the IJ’s conclusion that Mullai neither suffered past

persecution nor has a well-founded fear of future persecution

in Albania, we deny Mullai’s petition for review. 

I

Mullai, age fifty-two, was born and raised in Albania, the

daughter of a wealthy, Muslim family. After coming to

power during the 1940s, the Communists confiscated her

family’s property and also arrested one of her uncles because

of his religious activities, sentencing him to seven years of

imprisonment. Another of Mullai’s uncles escaped arrest by

fleeing to the United States.

According to Mullai, the Communist government targeted

her for persecution on at least five occasions. In April 1989,

after she criticized the president of Albania in a private

conversation, the secret police detained her in jail for one

week, forbidding any contact with her family and repeatedly

threatening her. She recounted to the IJ that on four separate

occasions from December 1990 through December 1991, the

Albanian police beat and kicked her during her participation

in protests against the government. She explained the lack of

medical records of treatment for the injuries sustained during

the beatings by her decision not to seek medical treatment.

Despite these experiences, Mullai received a college

education under the Communist regime and held a chemical

engineering position in a factory. 
No. 02-4313 Mullai v. Ashcroft 3

Mullai alleges that after the Communist government

collapsed in 1992, her persecution continued under the new

Democratic Party government. In November 1994, at a

protest at which Mullai gave a speech, the police again beat

and kicked her. Then again two years later, after participating

in a protest that she helped organize, the secret police

detained Mullai in jail for two days without food or water and

threatened her. Two days after being released, she lost her

job. These events prompted Mullai to seek and obtain a visa

to visit the United States. But she did not leave Albania until

a few months later, after the government—without apparent

provocation—again took her into custody and deprived her of

food and water for two days. 

Mullai entered the United States on October 2, 1996, with

authorization to remain for six months. Because she

remained beyond the authorized six months, the INS served

her with a Notice to Appear in November 1997. Mullai then

applied for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture, on the

basis of past persecution due to her religion, membership in

a particular social group, and political opinion, and because

she feared future persecution in Albania. After a hearing, the

IJ found that Mullai failed to demonstrate that she was

entitled to asylum on the basis of her claims of religious and

gender persecution. With respect to her allegations of

political persecution, the IJ concluded that Mullai had not

suffered past persecution and that even if she had, changed

country conditions rebutted the presumption of a wellfounded fear of future persecution. 

The BIA summarily affirmed the IJ’s denial of Mullai’s

application for asylum, withholding of removal, and

protection under the Convention Against Torture, and granted

Mullai a thirty-day period for voluntary departure (ending

November 25, 2002). Mullai now requests review of the

denial of her application for asylum and withholding. She

also filed a motion for a stay of removal on December 18,

4 Mullai v. Ashcroft No. 02-4313

2002—twenty-four days after the voluntary-departure period

expired. This court granted that motion. 

II

Because the BIA affirmed the IJ’s decision without

opinion, we review the IJ’s decision as the final agency order,

Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003), under the

“substantial evidence” standard. Under this deferential

standard of review, we uphold the IJ’s decision if it is

“‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Koliada v.

INS, 259 F.3d 482, 486 (6th Cir. 2001) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). We are not entitled to

reverse “simply because [we are] convinced that [we] would

have decided the case differently.” Adhiyappa v. INS, 58 F.3d

261, 265 (6th Cir. 1995) (internal quotation marks omitted).

“Rather, in order to reverse the BIA’s factual determinations,

the reviewing court must find that the evidence not only

supports a contrary conclusion, but indeed compels it.”

Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992) (citing

Elias-Zacarias, 502 U.S. at 481). 

A. Asylum 

Mullai bears the burden of establishing that she is a

“refugee” eligible for asylum either because she has suffered

actual past persecution or because she has a well-founded fear

of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.

§ 208.13(a); Elias-Zacarias, 502 U.S. at 481. If she

demonstrates past persecution, she is entitled to a rebuttable

presumption of a well-founded fear of future persecution.

8 C.F.R. § 208.13(b)(1). The government may overcome this

presumption by establishing by a preponderance of the

evidence that there is “a fundamental change in circumstances

such that [Mullai] no longer has a well-founded fear of

persecution in [her] country of nationality.” 8 C.F.R.

§ 208.13(b)(1)(i)(A). 
No. 02-4313 Mullai v. Ashcroft 5

Substantial evidence supports the IJ’s determination that

Mullai did not experience past persecution. For one thing, her

ability to obtain an advanced degree under the Communist

regime does not reconcile easily with her claim that the

Communist government targeted her for persecution. For

another, her treatment by the Communist government could

be reasonably viewed as motivated by her status as a protester

rather than religious persecution. With respect to the

Albanian Democratic Party’s treatment of Mullai, the

incidents Mullai alleges do not meet this circuit’s definition

of “persecution”—“more than a few isolated incidents of

verbal harassment or intimidation, unaccompanied by any

physical punishment, infliction of harm, or significant

deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384,

390 (6th Cir. 1998). And although Mullai obtained a visa

soon after her detainment in May 1996, she waited over three

months (until after she was again detained in September

1996) to leave Albania. Because we find no evidence in the

record compelling us to reverse the IJ’s conclusion that

Mullai did not suffer past persecution, we uphold the IJ’s

decision that Mullai failed to demonstrate past persecution

severe enough to merit a grant of asylum on humanitarian

grounds. See In re Chen, 20 I. & N. Dec. 16 (BIA 1989)

(holding that petitioner, who with his family members

suffered persistent and severe persecution throughout the

Cultural Revolution as a result of their religious beliefs, was

entitled to asylum on humanitarian grounds). 

Substantial evidence also supports the IJ’s determination

that even if Mullai suffered past persecution, changed country

conditions rebut the presumption of a well-founded fear of

future persecution in Albania. Although Mullai alleged

persecution by the Communist and Democratic Party

governments, she has not demonstrated that the current

government controlled by the Socialist Party would target her

for persecution. See Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir.

1996); Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986). As

the IJ noted, both the United States Department of State

reports (the Country Reports on Human Rights for Albania

6 Mullai v. Ashcroft No. 02-4313

and the Profile of Asylum Claims) and Mullai’s evidence

describe the type of general civil disorder and lawlessness to

which anyone living in Albania would be exposed. At worst,

the record contains allegations of the Socialist government’s

persecution of Democratic Party members—the party that

previously persecuted Mullai. 

As to our review of the IJ’s conclusion that changes in

country conditions trump any presumed well-founded fear,

Mullai urges us to assess as unwarranted the weight the IJ

gave to United States Department of State reports in

evaluating her fear of future persecution. But Mullai herself

provided a number of the State Department reports on which

the IJ relied (including the Country Reports on Human Rights

for 1997 and 1999). Although this circuit acknowledges that

State Department reports may be problematic sources on

which to rely, Koliada, 259 F.3d at 487 (citing cases from the

First, Fourth, and Seventh Circuits), in other cases we adopt

the view that such reports “are generally the best source of

information on conditions in foreign nations.” Kokaj v.

Ashcroft, 100 Fed. Appx. 506, 508 (6th Cir. 2004). And we

have relied on State Department reports when reviewing an

IJ’s decision. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 639

(6th Cir. 2004). Thus, the IJ’s reliance on these reports is

supportable. 

B. Withholding of Removal

Mullai also seeks review of the IJ’s denial of withholding

of removal. To obtain such relief, she must show by a “clear

probability” that her life or freedom would be threatened on

account of her race, religion, nationality, membership in a

particular social group, or political opinion. INS v. Stevic,

467 U.S. 407, 429-30 (1987); Mikhailevitch, 146 F.3d at 391.

Because the lesser standard for establishing asylum eligibility

eludes Mullai, we conclude that she cannot meet the more

stringent requirements for withholding of removal. INS v.

Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); CastellanoChacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (“[A]
No. 02-4313 Mullai v. Ashcroft 7

greater quantum of proof is required as to the likelihood of

persecution in the country of risk in order to establish

eligibility for withholding.”). 

C. Voluntary Departure

Having concluded that substantial evidence supports the

IJ’s denial of asylum, we next address Mullai’s alternative

request that the court reinstate the BIA’s grant of a thirty-day

period for voluntary departure. Because we lack the authority

to grant Mullia’s request, we deny it. 

 The relief of voluntary departure is governed by § 240B of

the Immigration and Nationality Act, 8 U.S.C. § 1229c,

providing that “[t]he Attorney General may permit an alien

voluntarily to depart the United States at the alien’s own

expense” (thereby avoiding the usual consequences of

deportation) if the alien is not otherwise disqualified.

Voluntary departure thus is typically granted by the

immigration judge to qualifying aliens in tandem with the

denial of the more favorable relief of asylum, withholding of

departure, or the like. If the alien appeals a decision of the

immigration judge to the Board of Immigration Appeals and

the Board affirms, it too may grant a period of voluntary

departure. 

The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) includes provisions that

preclude judicial review of the grant or denial of voluntary

departure. The statute provides: “No court shall have

jurisdiction over an appeal from denial of a request for an

order of voluntary departure under subsection (b) of this

section, nor shall any court order a stay of an alien’s removal

pending consideration of any claim with respect to voluntary

departure.” 8 U.S.C. § 1229c(f). Additionally, 8 U.S.C.

§ 1252(a)(2)(B)(i) provides that “no court shall have

jurisdiction to review . . . any judgment regarding the granting

of relief under . . . [8 U.S.C.] section 1229c [voluntary

departure] . . . .” 

8 Mullai v. Ashcroft No. 02-4313

Though jurisdictional questions abound among the circuit

courts concerning voluntary- departure decisions, we answer

here only the question of whether a court may reinstate

voluntary departure where the voluntary-departure period

granted by the BIA expires before petitioner seeks either a

stay of removal or a stay of voluntary departure. 

Mullai never moved to stay the time for voluntary

departure, and she only moved to stay removal after the

expiration of the voluntary-departure period. As a result, the

period for voluntary departure authorized by the Attorney

General expired. Any judicial order to “reinstate” at this time

would necessarily authorize a new opportunity to voluntarily

depart, a function assigned to the Attorney General’s office

by 8 U.S.C. § 1229c and denied to the courts by 8 U.S.C.

§ 1229c(f) and § 1252(a)(2)(B)(i). Our application of the

statutes today is consistent with the development of this issue

in the majority of circuit courts that have considered it after

the passage of the IIRIRA. See, e.g., Reynoso-Lopez v.

Ashcroft, 369 F.3d 275, 282 (3d Cir. 2004) (collecting

authorities that hold that courts do not have jurisdiction to

reinstate or extend a voluntary-departure order).

This lack of a pre-expiration motion to stay disqualifies

Mullai from benefitting from our decision in Nwakanma v.

Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003). Nwakanma

relied on a court’s injunctive power to stay pending matters

and thereby avoided colliding with the IIRIRA constraints on

courts’ jurisdiction: “[I]n granting a stay of voluntary

departure, we do not pass on the substance of the decision to

grant voluntary departure; we only stay the immediate

effectiveness of the relief already granted by respondent in his

discretion, to allow the petitioner to receive appellate review.”

Id.

In Mullai’s case, due to the absence of a stay, the

discretionary relief granted by respondent Ashcroft expired by

its own terms. Thus a decision at this time to reinstate would
No. 02-4313 Mullai v. Ashcroft 9

pass on the substance of the decision to grant voluntary

departure rather than staying its effectiveness. 

III

We accordingly deny Mullai’s petition for review and deny

her request to reinstate the expired voluntary-departure

period.