In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3871

FERDINAND PJETRI,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

On Petition to Review an Order of the 

Board of Immigration Appeals.

No. A 75-315-025

____________

ARGUED MAY 12, 2006—DECIDED NOVEMBER 13, 2006

____________

Before MANION, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Petitioner Ferdinand Pjetri is

a citizen and national of Albania, who filed for asylum

in the United States in 1998. That request was denied, but

he was granted voluntary departure by the Immigration

Judge (IJ), and he departed the United States in 1998. In

December 1999, he re-entered the United States, and was

apprehended near the Mexican border by U.S. immigration

officials. He again sought asylum and withholding of

removal, and in addition requested protection under the

United Nations Convention Against Torture (CAT). The

IJ denied his claims for relief, and that decision was

affirmed without opinion by the Board of Immigration

Appeals (BIA). He now appeals that denial to this court.
2 No. 05-3871

Because this was his second asylum application, the issue

before the IJ was whether he had evidenced changed

circumstances which materially affect his eligibility for

asylum. 8 U.S.C. § 1158(a)(2)(C) & (D). For that claim, the

IJ therefore focused Pjetri’s testimony on events occurring

after the initial asylum determination. Because the CAT

claim was unavailable at the time of the initial hearing,

however, this was the first opportunity for Pjetri to present

it to an IJ. Accordingly, the issue for the CAT claim was

whether Pjetri had demonstrated by a clear probability that

he would face persecution if removed to Albania. Lhanzom

v. Gonzales, 430 F.3d 833, 842 (7th Cir. 2005). At the

hearing on the two claims, the IJ declared that she had

familiarized herself with the testimony at the initial asylum

hearing. Because the IJ in that initial hearing had made no

finding that Pjetri was incredible, the IJ in this hearing

assumed the validity of that prior testimony for purposes of

this hearing as well. The IJ focused testimony on events

subsequent to the initial asylum determination, but allowed

testimony regarding those past events as well where

necessary.

Before the IJ, Pjetri alleged that he faced persecution as a

member of the Association of Politically Persecuted Persons.

That group was formed on behalf of victims of political

repression under the communist rule between 1945 and

1990. The Albanian government had promised compensation to those individuals, but those promises remained

unrealized. As a result, the APPP held meetings and

sponsored demonstrations to pressure the government to

fulfill that commitment. Pjetri argues that his participation

in such APPP actions caused the government to take

adverse actions against him and his family. He pointed to

actions taken against him and his family prior to 1998—the

date of the initial adverse asylum determination—and to

actions taken against his family in Albania subsequent to

1998 (because he claims to have never returned to Albania,
No. 05-3871 3

that testimony did not include any actions against him

personally). The actions against his family included an

incident in which his son was accosted by classmates who

were children of former communists, at which time his

name was mentioned. He testified that he learned of the

attack by a letter sent to him. Although Pjetri testified that

his son was stabbed during that incident, the letter provided by Pjetri describing the incident contained no reference to a knife or any stab wounds. Pjetiri also testified as

to threats made to his wife and children, including threats

of physical harm and a threat to burn down their home.

Pjetri’s wife had subsequently fled to the United States, and

was herself seeking asylum for persecution based on her

membership and position of authority in the Democratic

Party in Albania. Pjetri, however, based his asylum claim

on his membership in the APPP, and claimed that he was

fearful of both the democrats and socialists in Albania.

Pjetri did not present his wife or daughter as witnesses, and

did not provide affidavits from them in support of his claim.

He bolstered his claim with documents including country

reports, although the IJ relied on those reports in part to

reject his claim.

Pjetri raises a number of challenges that he labels as “due

process” violations as well as procedural violations. First, he

argues that the IJ erred in failing to inform him of his

rights to counsel, to free legal services, to present evidence,

to cross-examine witnesses, and to appeal, as is required by

8 C.F.R. § 1240.10(a)(1). He asserts that the language of

that regulation is mandatory, declaring that “the immigration judge shall” provide such notification, and that the

failure to fulfill that requirement is a due process violation.

We note that Pjetri in fact was represented by counsel,

presented evidence, and appealed the decision (the right to

cross-examine did not come into play as Pjetri was the sole

witness), but Pjetri nonetheless argues that the failure to

inform him of those rights requires a new hearing.
4 No. 05-3871

Along the same lines, he argues that the IJ erred in

failing to inform him of his right to request voluntary

departure. That is a curious argument, in light of Pjetri’s

argument to the BIA that the IJ erred in denying voluntary

departure, thus indicating that Pjetri in fact sought that

relief before the IJ (and presumably establishing a lack of

prejudice, see Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir.

2006)). As an added twist, the government argues that he

in fact was not eligible for voluntary departure, but that is

a claim that we ultimately need not decide.

Finally, Pjetri asserts that the IJ violated his right to due

process by failing to allow him an opportunity to present his

case for relief from removal. This due process claim stems

from the IJ’s alleged failure to allow him to present testimony as to events that occurred prior to the initial asylum

determination. Pjetri argues that the IJ should have

considered the events in his life as a whole, determining

whether the cumulative effect demonstrated a CAT violation, particularly given that the CAT claim was unavailable

to him until this hearing. Pjetri also asserts that the IJ

should have had the benefit of the full panoply of events in

determining whether he was entitled to withholding of

removal.

We note initially that the record indicates that the IJ in

fact considered the full range of events in making those

determinations, declaring that she had familiarized herself with the testimony from the first hearing, and was

incorporating it into her decision. In imposing initial limits

on the testimony at the hearing, the IJ stated that she

would accept the facts as stated in the prior IJ’s decision,

and noted that the prior IJ did not find Pjetri to be incredible. Therefore, the IJ familiarized herself with Pjetri’s

past testimony and assumed the credibility of that testimony. Moreover, despite her inclination to limit the testimony to avoid repetition with the first hearing, the IJ in

fact allowed Pjetri to testify as to events that occurred prior
No. 05-3871 5

to that initial asylum determination during this second

asylum hearing. Therefore, the record does not support

Pjetri’s contentions.

That matters not, however, because none of these claim

of due process or evidentiary violations were presented

to the BIA. The failure to exhaust administrative remedies

precludes our review. See 8 U.S.C. § 1252(d)(1); Margos

v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006). Nor does it

help to characterize the alleged failures as “due process”

violations. As we noted in Feto v. Gonzales, 433 F.3d 907,

912 (7th Cir. 2006), the only exception to the requirement

that claims must be raised before the BIA is the situation in

which the BIA itself would be powerless to address the

problem, as might occur regarding some fundamental

constitutional violations. Id. Where, however, a due process

argument is based on procedural failings that the BIA is

capable of addressing, the petitioner must exhaust his or

her remedies at the BIA before bringing the claim in this

court. Id. Where a petitioner fails to exhaust administrative

remedies available to him or her, this court lacks jurisdiction to consider the argument. Margos, 443 F.3d at 599; see

also Feto, 433 F.3d at 912 (discussing impact of REAL ID

Act on jurisdiction, and recognizing that an alien is required to raise most issues before the BIA before we can

reach them); Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir.

2006) (“Both before and after the REAL ID Act, this court

lacks jurisdiction over a claim if the alien has not exhausted

all administrative remedies as to that claim.”)

That is the case regarding the alleged due process

violations identified by Pjetri. Pjetri did not assert any of

those claims before the BIA. He acknowledges as much

regarding the alleged failure to notify him of his rights to

counsel, to free legal services, to present evidence, to crossexamine witnesses, to appeal, and to request voluntary

departure. It is true as well regarding the IJ’s allegedly

improper limitation of testimony. In appealing the IJ’s
6 No. 05-3871

adverse determination of his CAT claim to the BIA, Pjetri

presented only a cursory argument that the evidence he

presented established a clear probability that he would

be tortured or killed at the instigation of public officials

should he return to Albania. He never asserted that the

IJ improperly restricted the testimony relevant to the

CAT claim, and he never argued that he was denied the

opportunity to fully present his CAT claim. Similarly, Pjetri

raised no argument before the BIA alleging that the IJ

failed to consider the full range of events in reaching her

conclusion. Accordingly, Pjetri has failed to exhaust his

administrative remedies concerning the claims he presents

to this court, and we lack jurisdiction to consider those

claims. The appeal is dismissed for lack of jurisdiction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-13-06