Pursuant to Fede ral Rule of A ppellate Proc edure 43 (c) (2), Ac ting Attorne y Gene ral Peter * D. Ke isl e r i s a

uto ma tic a lly

su bs tit ute d f or fo rm e r A tto rn e y

Ge ne ra l A lbe rt o R. Go nza le s. The Honor able R. L eon J ordan, Senior U nited States District J udg e for the Easter

n District ** of Tenne ssee, sitting by

desig nation. NO T R EC OM M EN DE D F OR F UL L TEX T P UB LIC AT ION File Na me: 07a0751n.06 Filed: Oc tober 23, 2007 No. 06-3877 U N IT E D S T A T E S C O U R T O F A P P E A LS F O R T H E S IX T H C IR C U IT V ER A G J OL AJ , E T AL ., Petitioner On Petition for Review of a Dec ision of the B oa rd of I mmi g ratio n App e a ls v. P ET ER D. K EI S L ER , A L B ER TO R. G ONZAL ES , * A TTORN EY G ENERAL OF THE U NI TED S TA TES , Respondent ______________________________/

BEF OR E: BOG G S, C hie f Cir c uitJudg e , K EN NE DY , C ir c uitJudg e , a nd JORDAN, Distr ict Judge. ** KENN EDY, Circ uit Jud ge. Pe titioners Vera and L uk Gjolaj and fa

mily (“the Gjolajs”) seek r eview of

a fina l order of

remova l issued by

the B oard of

I mmigration Appeals (“ BIA”) , a do pti ngand

a ff ir min g the I mmi g ratio n Jud g e ’s (“ I J”) de nia l of their applic a tio ns fo r a sylum , withholding of r emoval, and reque st for voluntary depar ture. The I J found the Gjolajs’ te stimony was incredible and they had not car ried their burden of proof. B eca use the I J ’s denial is supported by substantial evidence in the re cord, w e AF F IRM the B I A’s dec ision and DENY the petition for revie w. BACK GR OUNDVer a Gjolaj was the only petitioner to apply

for a sy lum and withholding of r emoval. The 1 rema ining pe titioners’ claims ar e depe ndent on her claim. 2 The Gjolajs, natives a

nd citizens of Albania, ente red the United States without inspection at Dallas, Te x as, on or a

bout J anuar

y 4, 2001. On Dec ember 20, 2001, Petitioner Vera Gjolaj administratively

filed for asylum. The a

pplication was refe rre d to an I J in Detroit, Michig an, and 1 the Gjolajs wer e ser

ved with Notices to Appe ar. The Gjolajs conce ded re movability

. I n her initial asylum application, Ver a Gjolaj stated th at s h e and her family had suff ere d pe rs e c uti on

a t th e ha

nd s o f t he c omm un ist , a nd la te r s oc ial ist , A lba

nia n g ov e rnme nt f

or the ir membership and a ctivity

in the Democr atic Party

. Ver a stated that in 1990 and 1991, she and he r husband, L

uk, had par

ticipated in seve ral a

nti-communist demonstrations in which they wer e beaten by police alongwith other demonstrators. Acc ording to he r statement, Ve ra c ontinued her political involve me n t w it

h th e D e mo c r a ti c Pa

rty an d p arti c ip a te d

in d e mo n s tr a ti o n s f

r o m 1 9 9 7 to 2 0 00 protesting the socialist g overnme nt. She als o s er v ed as an election observe r for her pa rty and repor ted that she wa s threate ned and phy sically remov e d f r o m the poll center

for r eporting suspicious or fr audulent ballots to the elec tion officia ls. During this time, Ver a st ated that she re ceive d many t h r e a t s , w ar

n i n g h e r t o s t o p h e r

p o l i t i c a l a c t i v i t y. On Octobe r 2, 2000, as she was walking home from a party org anized to celebr ate the vic tory of a ne wly

elec ted Democ ratic c andidate, V era claime d t h at masked men pulled he r into a ca r,

remove d their masks, re veale d that they wer e policemen, a nd took her to the station. Ver a stated that she wa s place d in a separ ate room and que stioned about her political a ctivity . Ver a cla imed that the polic e o f f ic e r th e n to u c h e d h e r in a s e xu a l ma n n e r . Wh e n s h e p r o te s te d , h e le f t the room. Acc ording to V era , later that night as she was sleeping the office r enter ed the room and rape d h er3

a tg u np o i n t , t e l l i n g h e r ( a

p p ar e n t l y s ar c a s t i c a l l y) t h a tt h e y w e r e c e l e b r a t i n g t h e v i c t o r y o f h e r p a rt y. The off icer rele ased he r the ne x t morning a nd t old her not to speak of the incident under

threat of h ar m t o h e r s e l f

an d h e r f a m i l y. Ver a’ s i n itial asy lum application was amended se vera l times. On J anuar y 21, 2003, Ver a filed the fir st amendment to her a sy lum application. Ver a submitted a sec ond amendment on September 15, 2004. A t a hea ring on September 30, 2004, Ver a stated that she did not know what was in her

2003 amendment a

nd reque sted to withdraw her 2004 amendment. She stated t hat she wished to chang e the a

pplication to refle ct that her daug hters had both be en kidnappe d. The c ourt continued the c ase a

nd Ver a submitted y et another amende d asylum application on November 4, 2004. Finally , at a mer its hearingon November 24, 2004, at t h e p ro m p t i ng of her attorney , Ver a

or a lly a me nd e d he r No ve mbe r 4 , 2 00 4 a pp lic a tio n to inc lud e tw o a dd iti on a l in c ide nts . T he c la ims in eac h application and the corr oborative doc uments are essentially the same. At the merits hea

ring , both Vera

and L uc Gjolaj testified a

bout the political persec ution they alleg edly suffe red in Alba

nia. I n support of their cl aims, the Gjolajs offe red the amende d asylum applications, a suppleme ntal written statement, membership car ds in the Democr atic Party and the As so c ia tio n o f F or

me r P oli tic a lly

Pe rs e c ute d Pe op le , a

nd oth e r d oc ume nts

. After the pre sentation of the e vidence , the I J rende red a n oral de cision, denying a ll relief b e c a u s e h e f o u n d t h e G

j o l a j s w e r e i n c r e d i b l e an d h a d n o t m e tt h e i r b u r d e no f

p r o o f

. S p e c i f i c a l l y, the I J found t hat Vera’s testimony was “ vag ue, it was inconsistent with her a pplication, and it was internally inconsistent,” and that L

uc’s testimony

“wa s also internally inconsistent, it was vag ue, and it did not t ruly corr oborate his w ife’s story on the basic e lements of the c laim, particular ly . . . her

ra pe in Oc tob e r of 20 00 .” F ur the rm or e , the I J f

ound that the pr of

fe re d c or rob orat iv e do c ume nts4

“ra ise on the fac e of the doc ument more que stions about the verity of the two a dult respondents than the y c an pos sib ly re so lve in the ir fa vo r. ” Ac c or din g to the I J, if a ny thi ng , th e do c ume nts “ te nd to torpedo the w ife’s c laim.” B ased on the Gjolajs’ adve rse cr ed i b i l ity deter mination and lack of

corr oborating documents, t h e I J found t hat they had “f ailed misera

bly ” to establish elig ibilit y for asylum or withholding of remova l. The I J also denied the Gjolajs’ re quest for voluntar y depar ture as they could not demonstrate by clea r and c onvincing evidenc e that they had the mea

ns and intent to depar t the United States. The I J order ed the Gjolajs’ r emoval to Albania. The Gjolajs timely appea led the I J ’s decision on De cembe r 10, 2004. On June 2, 2006, the BIA adopted a

nd aff irmed the I J ’s dec ision without opinion. The Gjolajs now appe al.

AN AL YSI S Where, a s here , the B I A summarily aff irms t h e I J wi t h o ut opinion, we revie w the I J ’s decision direc tly

to de termine whether the BIA’s decision should be upheld on appe al. De nk o v . I NS , 35 1 F .3 d 7 17 , 7 26 (6 th C ir . 2 00 3) ; 8 C .F .R. 10 03 .1 (e )( 4) . We mus t su sta in t he I J’s d e c isi on

if it i s “supported by

rea sonable, substantial, and probative evidence on the re cord c onsidered a s a whole.” INS v. Elias-Zacarias , 50 2 U. S. 47 8, 48 1 (1 99 2)

. To ov e rt ur n a fa c tua l de te rm inatio n un der this h i g h l y d e f

e r e n t i a l s t an d ar d , “ w e m u s tf i n d t h a tt h e e v i d e n c e n o to n l y su pp or ts [ a c o n t r a r y]

c on c lus ion , b ut c om

pe ls it.” Id. at 481 n. 1.

I . Re q u es t f

o r A s y l u m The Gjolajs petition for r eview of the I J ’s adver se cre dibilit y deter mination a

nd finding that the y fa ile d to e sta

bli sh e lig ibi lity fo r a sylum

. To qu a lif y fo r a sylum , a

n a pp lic ant m

us t f ir st e sta bli sh her status a s a re fug ee by demonstrati n g t h at s he is “una ble or unwilling ” to re turn to her native country beca use of “ perse cution or a w ell-founde d fea r of pe rsec ution on acco u n t of . . . ra ce,5

relig ion, nationality , m em b er ship in a particular social g roup, or political opinion.” 8 U.S.C. § 11 01 (a )( 42 )( A) , § 11 58 (b )( 1)

. I f c re dib le , the te sti mony of the a pp lic ant m ay

be su ff ic ie nt t o s us ta in her bur den of pr oof without corr oboration. 8 C.F.R. § 120 8

. 1 3 (a ). Howe ver, if the applicant’ s te sti mony “ c ou ld b e vie we d as inc re dib le , inc on sis te nt, or inc oh e re nt, a fa c t- fi nd e r m ay re a so na bly conclude , absent c orrobor ation, t h at the testimony is insufficient to meet the standa rd of pr oof require d.” Sako v. G onzales , 434 F.3d 857. 862 ( 6th Cir. 2006). Even if the a pplicant establishes ref ug ee status, the I J may

still deny asylum in his discretion. 8 C.F.R. § 208.14(a ). Credibilit y d et erminations, cr ucial to deter

mining whe ther a

n applicant ha s sustained her burden of establishing r efug ee status, are f indings of f

act r eviewe d under the substantial evidence standard. Sy lla v . I

NS , 388 F.3d 924, 925 (6th Cir. 2004). Under this hig hly defe rential standa

rd, finding s of fac t are “conc lusive unless any rea sonable a djudicator would be compelled to conc lude to t he c on tr a ry .” 8 U. S.C. 12 52 (b )( 4) (B ); Hassan v. Gonzales , 403 F.3d 429, 434 ( 6th Cir. 2005). There fore , we must deter

mine whether

“any rea sonable adjudicator ” would be compelled to f ind the Gjolajs’ testimony

cre dible. The I J had ample e vidence on which to ba se his a dverse cre dibilit y deter mination and denial of asylum. Considering the t otality of t he circumstance s and all relevant fa ctors, the I J found that the Gjolajs’ testimony was vag ue, ambig uous, and riddled with inc onsistencies. I n his decision, the I J noted sever al discrepa

ncies betwee n Ver a’s testimony and her written asy lum a pplication. I n her application, Ve ra state d that she had pa rticipated in seve ral anti-communist demonstrations in 1990 and wa s beate n along with other demonstrators

. S h e also claimed in he r statement that she had

rec eived numer ous oral and written t hreats. During her r emoval proc eeding s, howeve r, Ve ra f ailed to m e nti on

any of the se be a tin g s o r thr e a ts that we nt to the he art of he r p oli tic a l pe rs e c uti on

c la im.6

The I J also noted that Ve ra f ailed to provide a

ny details conc erningparticula rly when, where , or how she wa s beate n. Fur

thermore , the I J noted contra dictions betwee n Ver a’s testimony and wr itten application re g ardingher a lleg ed ra pe. Ve ra state d in her a

pplication that prior to the rape the police office r had que stioned her about her political a ctivities a nd touched he r in a sexual manner . After she proteste d, he lef

t the room. Acc ord i n g t o h er application, he r eturne d hours later to rape her. On direc t examination, however, Vera merely testified t hat t he officer had questioned he r hours prior to t he ra pe . Sh e did

no t men ti on any

ina pp ro pr ia te se xua l c on ta c t a t a ll. Whe n a sk e d o n c ro sse xami na tio n w he the r s he ha d b e e n to uc he d s e xua lly be fo re the ra

pe , Ve ra s ta te d th a t sh e ha d n ot. The g overnme nt counsel conf ronted Ve ra w ith her contra dictory testimony

and she responded, “ I couldn’t tell eve ry

thing that ha

ppened.” Ba sed on her

vag ue and inconsistent testimony , the I J found her “ completely

unbelievable .” Be cause the I J is in the best position to determine cr edibility based on the demea

nor of the w itness and pre sentation of testimony , we wi l l n o t overrule that deter mination lightly

. The I J also found that the doc uments proffe red by the Gjolajs in suppor

t of their claims wer e suspicious. First, the Gjolajs’ De mocrati c P arty membership ca

rds wer e cur iously

missing the po rt ion of the c ard wh e re no ta tio ns wo uld be ma de fo r pa y me nt of me mbe rs hip du e s and do natio ns . When que s ti o n e d , V e r a d id n o t kn o w w h y th e ir c ar d s d id n o t h a v e th is in f o r mati o n . Se c o n d, the Gj ola js s ub mit te d two a lle g e d s ta te me nts fr om D e moc ra tic Part y le a de r F re d St e rk a

j, r e fl e c tin g the ir po lit ic a l a c tiv ity

wi th t he pa rt y . T he se state me nts we re su sp ic iou s o n th e ir fa c e a s Ste rk a

j’ s n a me was spelled dif

fer ently on eac h and they

appea red to have bee n signe d by differ ent people. T hird, the Gjolajs appe nded member ship cards for the A ssociation of F ormer Politically Persec uted People. On t h e fa ce of

the member ship card it stated that Vera was a member be cause she had be en7

perse cuted for pol itical motives and her pare nts had bee n imprisoned. I n Ver a’s testimony , howeve r, she stated that the only

family member that had bee n impris o n ed wa s her unc le. When she was confr onted by this inconsistency betwee n her testimony and her document, Vera chang ed her story

and c la ime d th a t on ly

he r f a th er had been imp ri so ne d, bu t no t he r m oth e r. F ourt h, the Gj ola

js proff ere d statements from their family phy sician, Z eqir Duka, conce rning Ver a’s a lleg ed ra pe and Luc’s a lleg ed hea d injury . The s t at ements l isted Duka’s title as “ L eg al Phy sician of Criminal Te c hn iqu e .” Th e I J sta te d th a t V e ra “ wa s never abl e to giv e the Court any va lid or c re dib le explanation as to why

her f amily doctor would also have a dual hat as a c riminal technique doc tor for the r epublic of Albania.” The I J noted, moreove r, that ac cordingto State Depar tment Country Reports, Albanian “ medical rec ords proff ere d in a sy lum c ases in the United States a re of ten forg ed”

and ne ith e r V e ra

no r L uc c ould de mon str a te the va lid ity or c ha in o f c us tod

y of the do c ume nts

. Acc ording ly , the I J stated that the supporting documents prof fer ed by the Gjolajs wer e “ve ry suspicious and should not be g iven any weig ht by

this Court.” F ina lly , th e I J found

that the Gj ola

js’ po lit ic a l pe rs e c uti on

c la im w a s in c on sis te nt w ithbo th past and pre sent country

conditions. Th e I J stated that the State De partment Country Reports for Albania for t he y ear s in question reflec ted that “ther e have been no ma jor outbreaks of violence since 1998, and all available evidenc e sug g ests that neither the g overnme nt nor the major political par ties eng ag ed in policies of a

buse or c oerc ion ag ainst their political opponents.” Accordingto the Country Re po rt iss ue d in 20 01 , the y e ar t he Gj ola js a rr ive d in the Un ite d St a te s, it w ou ld b e “ hig hly un lik e ly that any on e wo uld

have c re dib le c la ims fo r po lit ic a l pe rs e c uti on .” Th e I J als o n ote d, a c c or din g to the Country

Reports for A lbania, pre sently there is “no pattern o r fa ct o f persecution of a ny one sim ila rl y sit uate d to he r, that is a

c omm on ru n o f t he mil l me mbe r” of

the De moc ra

tic Part y . T hu s,8

the I J found that the Gjolajs’ asylum claim was inconsistent with both past and pre sent conditions in Albania. I n total, the ambig uity

and interna l inconsistencies of the G jolajs’ testimony as we ll as the inc on sis te nc ie s b e tw e e n th e ir te sti mony , su pp or tin g do c ume nts , a

nd c ountr y c on dit ion s c on sti tut e substantial evidence such that a r easona ble finder of f ac t could conc lude that the Gjolajs we re inc re dib le . F ur

the rm or e , a

re a so na ble a dju dic a tor

c ou ld f ind tha t th e Gj ola

js h a d fai le d to

corr oborate their cla im as the documents prof fer ed in support wer e suspicious and unauthe nticated. We t here fore are not compelled to conc lude that the Gjolajs satisfied their asylum burden of establishing pa st persec ution or a we ll-founded f ear of future perse cution. II. Request for Withhol din g of Rem oval The Gjolajs also pe tition for reviewof the a dminist rative de nial of their r equest for wi thh old ingof

re mov a l. I

n o rd e r to qu a lif

y fo r wi thh old ing of re mov a l, a n a pp lic ant m

us t e sta bli sh a cle ar pr obability

that she wil l be persecute d if forc ed to return to the country of re moval. Pilica

v . A sh c ro ft , 3 88 F .3 d 9 41 , 9 51 (6 th C ir .2 00 4) . A n a pp lic ant mus t de mon str a te that “ it i s mo re lik e ly than not” that she w ill be persec uted upon re turn. 8 C.F.R. § 1208.16(b)( 2). The I J fo u nd that beca use the Gjolajs fa iled to establish eligibility for a sy lum, they

nece ssarily

failed to mee t the highe r burde n for withholding of re moval. We are not compelled to re ach a contra ry conclusion. III. Request for Volun tary D eparture Th e Gj ol ajs cla im th at t he I J erredin den y in g thei r req ues t f or v ol un tar y

dep art ure. By statute, howeve r, “[n]o court shall have jurisdiction over a n appea l from denial of

a re quest for a

n ord er of vo lun tary

de pa rt ur e un de r [8 U. S.C. § 1 22 9c (b )]. ” 8 U .S. C. § 12 29 c (f ). Th e re fo re , th is Court lacks jurisdiction to review the I J ’s denial of voluntary

depar ture.9 IV. Request for Relief Under the Convention Against Torture Finally , the Gjolajs argue that the I J err ed by not considering their applic a ti o n f o r withholding of removal under the Convention Ag ainst Torture

. The Gjolajs, howeve r, di d not reque st such relief in their asylum application. The I J noted this in his decision and further stated that he w ould have reje cted the r equest e ven if it had be en prope rly tender ed. We find no er

ror. V. Co nc lusi on For the fore g oing r easons, we AF F IRM the decision of the BIA and DENY the petition for revie w.