1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General

Eric H. Holder, Jr., is automatically substituted for Michael B. Mukasey as

Respondent. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2025

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Spiro Lybesha; Erilda Demo; Ersa *

Lybesha, *

*

 Petitioners, *

* On Petition for Review of an 

v. * Order of the Board of 

* Immigration Appeals.

Eric H. Holder, Jr.,1

 Attorney General *

of the United States, * 

* 

Respondent. *

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Submitted: May 12, 2009

Filed: June 26, 2009

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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Petitioners Spiro Lybesha, his wife Erilda Demo, and their daughter Ersa

Lybesha, natives and citizens of Albania, sought asylum, withholding of removal and

protection under the Convention against Torture (CAT). The Immigration Judge (IJ)
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denied all three claims and was affirmed by the Board of Immigration Appeals (BIA).

Petitioners seek review, arguing that the IJ and the BIA erred in denying the relief

they seek. We deny the petition.

Petitioners entered the United States from Albania on April 17, 2000 as

nonimmigrant visitors authorized to stay until October 16, 2000. On September 4,

2001 petitioners filed an application for asylum, withholding of removal and

protection under CAT. The Department of Homeland Security (DHS) charged

petitioners as removable under 8 U.S.C. § 1227(a)(1)(B) for staying in the country

beyond the time allowed. Petitioners conceded removability. 

Petitioners sought relief from removal based on Spiro Lybesha's membership

and past participation in the Democratic Party of Albania. Before the IJ, Lybesha

asserted that between May 1996 and April 1997 he was beaten for taking part in a

Democratic Party demonstration, he was stabbed and hospitalized for promoting a

Democratic Party candidate, and his home and vehicle were bombed. Lybesha further

testified that in April 2000 his wife's grandfather was shot and killed. Lybesha

believed the murder to be related to his political activities, prompting petitioners to

leave Albania for the United States. Lybesha testified that if he returned to Albania,

he and his family would be persecuted for his involvement in the Democratic Party.

The IJ also heard testimony from Lybesha's wife and brother in law. 

The IJ found petitioners statutorily ineligible for asylum because they had not

applied within one year of arrival in the United States and failed to demonstrate

changed or extraordinary circumstances sufficient to excuse the untimely application.

The IJ further determined that even had petitioners timely filed their application, they

failed to meet their burden of proof on the merits because of a lack of credibility. The

IJ also noted that country conditions in Albania had changed such that petitioners' fear

of future persecution was not well founded. The adverse credibility findings coupled

with the changed country conditions formed the basis of the IJ's denial of petitioners'
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claims for withholding of removal and protection under CAT. On appeal, the BIA

affirmed the IJ's decision in its entirety. Petitioners filed a timely petition for review

arguing that the denial of their application for asylum, withholding of removal, and

protection under CAT was flawed in several respects. 

Petitioners argue that the IJ and the BIA erred in finding them ineligible for

asylum. The IJ and the BIA determined petitioners had failed to request asylum

within the one year time limit and had not demonstrated changed or extraordinary

circumstances sufficient to excuse the untimely application. See 8 U.S.C. §

1158(a)(2). As petitioners recognize, 8 U.S.C. § 1158(a)(3) precludes judicial review

of these determinations. Bejet-Viali Al-Jojo v. Gonzales, 424 F.3d 823, 826-27 (8th

Cir. 2005). This jurisdictional bar does not preclude judicial review of constitutional

claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Manani v. Filip, 552 F.3d 894,

900 (8th Cir. 2009). Petitioners assert that this exception applies here. 

To determine whether an alien has raised a constitutional claim or question of

law, we look to the nature of the argument advanced in the petition. Purwantono v.

Gonzales, 498 F.3d 822, 824 (8th Cir. 2007). Petitioners argue that a combination of

several circumstances—including their inability to speak English, lack of knowledge

as to the asylum process, and fear of leaving their home—are sufficient to excuse the

failure to timely request asylum. This argument does not present a constitutional

claim or question of law, but rather a dispute with the BIA's factual determination that

petitioners have not demonstrated sufficient changed or extraordinary circumstances.

 Id.; Yakovenko v. Gonzales, 477 F.3d 631, 635-36 (8th Cir. 2007). Accordingly, we

dismiss petitioners' asylum claim for lack of jurisdiction. 

Petitioners appeal the denial of their claims for withholding of removal and

protection under CAT first on the ground that the IJ erred in its adverse credibility

findings. An IJ's findings of fact, including findings on credibility, are "conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary."
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Rafiyev v. Mukasey, 536 F.3d 853, 856 (8th Cir. 2008). Credibility findings are

specifically entitled to great weight because the IJ sees the witnesses testify and is in

the best position to assess credibility. Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th

Cir. 2006). We defer to an IJ's credibility finding if the finding is supported by "a

specific, cogent reason for disbelief." Al Milaji v. Mukasey, 551 F.3d 768, 772 (8th

Cir. 2008). 

The IJ's adverse credibility determinations were supported by several

inconsistencies related to: Lybesha's May 1996 beating, his June 1996 stabbing, the

bombing of his home and car, and his family's departure from Albania. Petitioners'

statements in support of asylum, witness testimony, and the statements of other family

members differed as to the dates, circumstances, and extent of those events. The

inconsistencies involve key issues of petitioners' claims for relief, and provide

substantial evidence to support the adverse credibility findings by the IJ and the

affirmance by the BIA. Guled v. Mukasey, 515 F.3d 872, 880-81 (8th Cir. 2008).

While petitioners attempted to reconcile those inconsistencies, the IJ was permitted

to and indeed did reject their explanations. Onsongo v. Gonzales, 457 F.3d 849, 853

(8th Cir. 2006). Because petitioners' withholding of removal and CAT claims are

based on the same inconsistent testimony, the adverse credibility findings are fatal to

both claims. Zine v. Mukasey, 517 F.3d 535, 541 (8th Cir. 2008). 

Even if petitioners had been deemed credible, they would not be entitled to

relief. The IJ and the BIA determined that country conditions in Albania have

changed such that petitioners would no longer have a well founded fear of persecution

upon return to the country. Petitioners' claims for relief were based upon past

persecution by Socialist Party members provoked by Lybesha's membership and

participation in the Democratic Party of Albania. On appeal, the BIA recognized that

the Democratic Party now controls the Presidency, the Prime Ministership, and the

Parliament. As the Democratic Party is in control of the Albanian government,
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petitioners were unable to meet their burden of establishing the well founded fear of

persecution required for withholding of removal and CAT claims. 

Petitioners also assert a due process claim based on the IJ's acceptance of a

DHS Forensic Document Laboratory report following the deadline for submission of

all evidence and following the conclusion of the merits hearing. The traditional rules

of evidence do not apply in immigration proceedings, except to the extent that due

process is implicated. Tun v. Gonzales, 485 F.3d 1014, 1025-26 (8th Cir. 2007). To

comport with the requirements of due process in the context of immigration

proceedings, evidence must be probative and its admission must be fundamentally

fair. Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004). Petitioners were

provided an opportunity to respond to the DHS's submission of the report, and indeed

submitted a written objection to the admission of the evidence. Following admission

of the report, there is no indication that petitioners were prevented from submitting

evidence to refute the report. 

To prevail on a claim alleging a violation of due process, petitioners must make

a showing of prejudice. Shoaira v. Ashcroft, 377 F.3d 837, 843 (8th Cir. 2004). This

requires petitioners to demonstrate that the complained of defects in the proceedings

may well have resulted in removal that would not otherwise have occurred. Tun, 485

F.3d at 1026. As the BIA correctly observed, petitioners have not made any showing

that the DHS report was relied on by the IJ in deciding their case let alone that its

admission affected the outcome of their application for relief. The DHS report was

probative, its admission was fundamentally fair, and petitioners have not demonstrated

that it prejudiced the outcome of the matter. Petitioners have not made any showing

that admission of the DHS report violated their due process rights. 

Finally, petitioners contend that the combination of the above alleged errors

demonstrate the IJ's bias, which prevented them from receiving a full and fair hearing.
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Even if petitioners had included this issue in their appeal to the BIA, the claim

is without merit. The record does not reflect bias on the IJ's part, and petitioners have

not provided any examples of bias they allege in prior cases before that judge. 

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Petitioners did not raise any allegation of bias in their appeal, however. By not raising

this issue before the BIA they failed to exhaust their administrative remedies and

deprived this court of jurisdiction over this claim. Sultani v. Gonzales, 455 F.3d 878,

884 (8th Cir. 2006).2

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

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