1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0326P (6th C ir.) File Name: 04a03 26p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
E LMA M ULLAI , Petitione r,

v.

J OHN A SHCROFT , Attorney Genera l; I MMIGRATI ON AND N ATURALI ZATI ON S ERVICE ,

Responde nts. X - - - -
> , - - - - - N No. 02-4313

On Appea

l from the Board o f Imm

igration Appeal s. No. A73 616 876.
Submitted: August 6, 2004
Decided and Filed: September 27, 2004

Befor e: KENNEDY, SUTTO

N, and COO K, Circui

t Judges.

_________________ COUNSEL

ON BRI EF: Robert M. Birach, Detroit, Michigan, for Petitioner. James A. Hunolt, Emily A. Radford, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respo ndent. 2 Mullai v. A shcroft No. 02-4313

_________________ OPINION

_________________ COOK, Circuit

Judge. Elma Mullai, a native and citizen of Al bania
, seeks review of a decision of the Boa rd of Immigration

Appeal s affi rming, without opinion, the order of

animmigration judge deny ing her request for asy

lum and wi thholding of removal. Because substantial evidenc e supportsthe IJ’s conclusion that Mullai nei

ther suf fered p ast persecution

nor has a well-founded

fear of futurepersecution in Albania, we deny

Mullai’s petition for review.

I Mullai, age fifty

-two, was born and raised in Albania, the daughter of a wea

lthy , Muslim fa

mily . After c oming to power during the 1940s, the C o mmunists confiscated her family’sproperty a

nd also arrested

one of he r uncles because of his religious activities, sentencing him to seven y ears of imprisonme

nt. Another of Mullai’s uncles escaped arrest by fleeing to the Unit

ed States

. According

to Mullai, the Communist government targeted her for persec ution on at

least five occasions. In April 1989, after she criti cize d the pre sident of Albania i

n a priva te conversation, the secr

et police detaine d her in ja

il fo r one week, forbidding any contac t with her family and repe atedly threatening

her. She reco

unted to the IJ tha

t on four s eparat

e occasions from December 1990 through December

1991, the Albanian police beat and kicked

her during her participation inprotests

against the government. She explained the lack of medical records of treatment for the injuries sustained during the beating s by

her dec ision not to s eek medi cal trea tment. Despite these experiences, Mullai received a co llege education under the Communist regime and held a chemical engineering position in a factory

.No. 02-4313 Mullai v. A shcroft 3

Mullai allege s th at after the Communist government collapsed in 1992, her persecution continued under the new Democra tic Party gover nment. I n Novembe

r 1994, a t a protest at which Mul l ai gave a speech, the police a gain beat and kicked her. Then again two y

ears later, after participating ina protest that she helped organize, the secr et police detained Mullai in jail for two days without food or water and thre a tened

her. Two day s after being released, she lost her job. These events prompted Mullai to se ek and ob tain a visa to visit the United States. But she did not

leave Albania un

til a few months later, after the government—without appare nt provoca tion—ag ain

took her into custody and depr ived her of food and water for two day s.
Mullai entered

the United States on October 2, 1996, with authorization to rem ain for six months. Because she remained bey ond the aut

horiz e d six m onths, the INS served her with a Notice to Appear in November 1997. Mullai then applied fo r asylum, withholding of r emoval, and protection under the United Nations ConventionAgains tTorture, on the basis of past persecution due to her religion, membe rship in

a particular social group, and po litica l opinion, a nd beca use she feared future persecution in Albania. After a hearing, the IJ found that Mu llai failed to demonstrate that she was entitled to asy lum on the b asis of he

r claimsof religious and gender persecution. With respect to her alleg at ions of polit ical persecution, the IJ concluded that Mullai had no t suffered past persecution and that even if she had, changed country conditions rebutted the presum p tion of a w ellfounded fear of future perse cution.

The BIA summar ily affirmed the I J’s denial of Mullai’s applicationfor asylum, withholding of rem oval, and protection

under the Conventi on

Against Torture, and grante d Mullai a thirty

-day period f or volunta

ry departu re ( ending November

25, 2002). Mullai now r equ ests review of the denial of her appl i cation for asy lum and withholding. She also fi le d a mo ti on fo r a st ay of removal on December 18, 4 Mullai v. A shcroft No. 02-4313

2002—twenty-four

days afte r the voluntary-depa

rture period expired. This court granted that motion.

II

Becau se the BIA aff

irmed the IJ’s decision without opinion, we review

the IJ’s decision as the final age ncy order, Denko v. INS

, 351 F.3d

717, 730 ( 6th

Cir. 2003), under the “substantial evidence” standard. Under this deferential standard of revie w, we uphold

th e IJ ’s decis ion if it is “‘supported

by reasona

ble, substantial, and pro ba tive

ev ide nce on the record considered as a whole.’ ” Koliada v. INS
, 259 F.3d 482, 486 (6 th Ci r. 200 1) (qu otin g INS v. EliasZacarias , 502 U.S. 478, 481 ( 1992)). We are not e ntitled to

revers e “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 theBIA’sfactua l determi nations, the reviewing court must find that the evi den ce not onl y supportsa contrary

conclusion, but

indee d compels

it.” Klawitter v. INS , 970 F.2d

149, 152 (6th Cir. 1992) (citing Elias-Zacarias , 502 U.S. at 481).

A. Asy lum

Mull ai bears the burden of estab lishing that she is a “refugee” eligible for asy lum 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 4 81. If she demonstr ates pas tpersecution, she is entitled to a rebutta ble presumptionof a well-fou n ded fear of future persec ution. 8 C.F.R. § 208.13(b)(1). The gov ernment may overcome this presumptionby es tablishing by a pre ponderance of the evidence that there is “a fundamental ch a nge in circumstances suchthat [Mullai] no longer has a well-founded fear of persecution

in [her] count ry

of nationality .” 8 C.F. R. § 208.13(b)(1)(i)(A).No. 02-4313 Mullai v. A shcroft 5

Substantial evidence sup ports the IJ’s determination that Mullai did not experience past persecution. For one thing, her ability to obtain a n ad vanced

degre e under t

he Communis t regime d oes n ot reconcile easily with her claim that the Communist

govern ment t arge ted her for persecution. For another, her tr eatme nt by the C ommu nist go vernm ent could be reasonably

viewed as motivated by

her status as a protester rather than rel igious pe

rsecution. With resp ect to th e Albanian Democratic Party ’s treatment of Mullai, t he incident s Mullai allege s do not meet this circuit’s definition of “persecution”—“more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical puni shment, infliction of harm, or significant deprivation

of liberty.” Mik

hai levitch v

. INS , 146 F.3d 384, 390 (6th C ir. 1998) . And although Mul lai obtained a visa

soon after her detainment in May 1996, she waited over three months (until after she was again detained in Septembe r 1996) to leave Albania. Because we find no evidence in the record comp ell ing us to reverse the I J’s conclusion that Mull ai did not suffer past persecution, we uphold the I J’s decisionthat Mullai failed to demonstrate past per secut ion

severe enough to merit a grant of asylu m on humanitarian ground s. See In re Chen , 20 I. & N. D ec. 16 (BIA 1989) (holding that petitioner, who with his family members suffered persi stent and se vere pe rsecut ion t hrough out the Cultural Revolution

as a res ult of thei r religious beliefs, was entitled to asylum on humanitarian g rounds).

Substantial evidenc e also sup ports the IJ’s determination that even if Mullai suffered past persecution, changed country
co ndit ions rebut the presumption of a well-founded fear of future persecution in Albania. Although Mullaia lleged persecution

by t he Communis tandDemocra tic Party gov ern ments, 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, b oth the United Sta tes Depa rtment of State repo rts ( the Countr

y Re ports on H

uman Rig hts for Al bania 6 Mullai v. A shcroft No. 02-4313

and the Profil e of Asylum Claims) and Mullai’s evidenc e describe the typ e of ge

neral c ivil disord

er and la wlessnes s to whichany

one living in Albania

would be e

xposed. At worst, the record contains allegations of the Socialist gove rnment’s persecu tion of Democratic Party members—the party

that previously perse cuted Mullai.

As to our review of the IJ’s conclusion tha t chan ge s in country conditions trump any presumed we ll-founded fea r, Mullai urg es u s t o as ses s as unw arr ant ed t he w eig ht th e IJ gave to United Sta

tes Depa rtment of

State re

ports in evaluatingher fea

r of futu re pers ecution. But Mulla i herself provided a number of the State Department reports on which the IJ relied (including the Country Reports on

Human Rig

hts for 1997 a nd 199 9). Al thou gh this circ uit acknowledges that State Department reports ma y be problematic sources on whichto 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 repor

ts “ar e generally

the best source of informationon conditi ons in for eign na ti ons. ” Kokaj v. Ashcroft, 100 F ed. A

ppx. 506, 508 (6th Cir. 2004). And we have relied on State Department reports when reviewing an IJ’s decision. See, e.g.
, Abay v. A shcroft
, 368 F.3d 634, 639 (6th Cir. 2004) . Thus, the

IJ’s r eliance on these r

eports is supportable. B. Withholding of Removal

Mulla i a lso seeks review of the IJ’s denial of withholding of removal. To obtain such relief, she must show by

a “clear pr ob ab il it y” th at her life or freedom would be threatene d on

accou n tof her race, religion, nationality , membership in a particular social group, or p olitica l opinion. INS v. Ste vic , 467 U.S. 407, 4 29-30 (19 87); Mikhailevitch , 146 F.3d at 391. Becau se the lesser

standard for

establish ing asy lum eligi bility eludes Mulla i , we conclude that she cannot meet the more

s tring ent 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. A shcroft 7

greater quantum o f pro of is required as to the likelihood of persecution

in the country of ris k in order to establi sh eligibility for withholding.” ).

C. Voluntary Depa

rture Havingconcluded that substantial evidence sup ports the IJ’s denial of asylum, we next address Mullai’s alternative request that the c ourt rein state the BIA’s g rant of a thirty-day period for voluntary de

parture. Because we

lack the authority to grant Mullia’s request, we deny it. The relief of voluntary

departure is governed

by § 240B of the Immig

ratio n and Nationality Act, 8 U.S.C. § 1229c, providing that “[t]he Attorney Genera l may perm

it an alien voluntar ily to depart the United

St ates at the alien’s own expense” (thereby

avoiding the usual conseque nc es of deportation) if the alien is not otherwise disqualified. Voluntary

de pa rt ur e t hu s i s t ypi ca ll y g ra nted by the immigration

judge to quali fying a liens in tandem with the denial of the more favorable relief of asy lum, withholding of departure, or the like . If t h e alien ap peals a decision of the immigration

judge to the Boa rd of I mmigrat ion Appea

ls and the Bo ar d a ff

ir ms , i t t oo ma y g ran t a period of voluntary departure.

The Ille gal I

mmig rat ion Reform and Immigrant Responsib ility

Act of 1996 (II

RIRA) includes provisions that preclude judicial review of the grant or de nial of voluntary departure. The statu

te provid

es: “No court shall have jurisdiction over an appeal from denial of a re quest for an order of voluntary depa

rture un der su

bsection (b) of th

is section, nor shall any cour t order a stay

of an alien’s removal pending consideration of any claim with respect to voluntary departure.” 8 U.S.C. § 12 29c(f) . Additiona lly, 8 U.S.C. § 1252(a)(2)(B)(i) provides that “no c ourt sha ll have jurisdiction to review

. . . any judg

ment regarding the g

ranting of relief under . . . [8 U.S.C.] section 1229c [voluntary departure] . . . .” 8 Mullai v. A shcroft No. 02-4313

Though jurisdictional questions abound among the circuit courts concer

ning volu ntary - depar ture dec isions, we answer here only the quest

ion of whe

ther a c ourt ma

y reinstat e voluntary departure where the voluntary -departure period granted by t he BI A expir es b efore petitioner seeks either a stay of remova

l or a stay of voluntar

y departur

e.
Mullai never moved to sta y the time for voluntary departure, and she only moved to s tay removal after the expiration of the voluntary-de parture period. As a result, the period fo r v ol un ta ry d ep ar tu re au th or iz ed by the Attorney General expired. A ny judicial order to “reinstate” at this time would necessarily

authorize a newopportuni ty to voluntar

ily de part, a functi on assig

ned to the

Attorney Genera l’s offic e by 8 U.S.C. § 1229c and denied to the co urts by 8 U.S.C. § 1229c(f) and § 1252(a)(2)(B )(i). Our applica tion of the statutes today

is consistent

with the development of this issue inthe major

ity o f circu

it courts t hat have consi dere d it after the p assage of the IIRI

RA. See, e. g., Reyn oso-Lope z v

. Ash croft
, 369 F.3d 2 75, 282 (3 d Cir. 2004 ) (colle ctin g authorities that hold that court s do not have jurisdic tion to reinstate or extend a voluntary-departure order).

This lack of a pre-expiration motion to stay disqualifies Mullai from benefitting from our d ecision in Nwakanma v. A shcroft
, 352 F.3d 325, 327 (6th Cir. 2003). Nwakanma relied on a court’s injunctive power to stay pending matters and thereby a voided colliding with the I IRI RA constr

aints on courts’ juris dicti on: “ [I]n g ranting a stay

of voluntary departure, we do not pass on the substance of the de cision to grant voluntar

y de parture ; we only

stay the immedi ate effectiveness

of the relief already

grante d by

responde nt in his dis cretion, to allow the petitioner to receive appellate r eview. ” Id

. InMullai’s c ase , due to the absence of a stay, the discretiona

ry relief granted by

respondent Ashcroft expired b y its own terms. Thus a

decision at this time

to reinsta te wouldNo. 02-4313 Mullai v. A shcroft 9

pass on the substance of the decision to gran t voluntary departure rather than stay ing its effectiveness.

III

We accordingly

deny Mullai’spetition for review and deny her reques t to reinstate the expired voluntary -departure period.