* The Ho nora ble Algenon L. Marb ley, United Stat es District Judge for the Southern Distri ct of Ohio, sit ting by designat ion. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 File Name: 04a03 50p.06 

### UNITED STATES COURTS OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

V IKTOR G JYZI , Petitione r,

v.
J OHN A SHCROFT , Attorne y G eneral ; C AROL J ENIFER , District D irector ; I MMIGRATI ON AND N ATURALI ZATI ON S ERVICE , Responde nts. X - - - -> , - - - - - N No. 03-3054

On Petition for Review of an Order of the Board o f Imm

igration Appeal s. No. A79 594 589. Submitted: August 12, 2004 Decided and Filed: October 13, 2004
Before: MOORE and COL E, Circuit Judges; MARBLEY, District Judge. *

_________________ COUNSEL
ON BRIE F: Richard A. Kulics, IMMI GRATION LAW CENTER, Birmingham, Michiga n, for Petitioner. Marshal l Tamor Golding, Richard M. Evans, UNITED STATES DEPARTMENT OF JUSTICE, Washingt on, D.C., f

or Respon

dents.

_________________

OPINION

_________________ R. GUY COLE, JR., Circuit Judge. Petitioner Viktor Gjyzi seeks r eview of an order

of the Board of Immig ration Ap peals (“BIA” ), dated December 17, 2002, which denied his applications for asy lum and withholding of remov al pursua nt to the I

mmigrat ion and Na

tionality Act (“I NA”) an d the Conve

ntio n Agains tTorture. Although the BI A disagreed with the I mmigr ation Judge ’s adv erse cr edibi lity fin ding – whichthe IJ made with respect to Gjy zi’s claims of

past persecution

and his date of entry

into the United States – the BIA neve

rtheless agreed with the

IJ’s c onclusion

that Gjy zi’s asy lum applic ation was

untimely and that he failed

to satisfy his burden of proof for withholding of removal and relief under the Convention

1No. 03-3054 Gjyzi v. A shcroft, e t al. Page 2

Agains tTorture. For the reas ons set forth in this opinion, we grant the petition for review, vacate d the judgment of the BI

A, and remand for further considera tion.
I. BACKGROUND
A. Facts Viktor Gjyzi is a native of Albania. He seeks asylum an

d withholdin g of removal on the basis of alleged persec ution for his political opinions and activities. Gjyzi was an active and outspoken member of the Democra

tic Party in Albania

and alle ges tha

t he was p ersecu

ted by the state police – w

hom he cla

ims are pro tective o f the Soci alist Part y a nd hostile to opposition movemen

ts – for his

political activitie s. In theaffidavit supportinghis ap plica tion for asylu m and t estim ony before the Immi gratio n Jud ge (“IJ”), Gjy

zi explained

that his fa

mily had long been a p olitically

active a nd perse cuted one . His father was killed in 1986 by C ommunist ba nds as poli

tical re venge for his democra

tic politic al opinion s. Gjy zi himself joined the Democ

ratic Pa rty inAugust 1991 and was active in election campaig ns and demon strations

until his departure from

Albania in the autumn of 2000. In 1991, 1992, and 1997, he served e ither as a member of the electoral commission or the chairman of the electora l commission. He was also an observer of other election s. He participated in demonstrations in the city of Fier between 1997 and 2000 and claims to have been beaten for that activity by the police. Gjy zi claims that he was repeatedly subject to police abuse and int imidati on for his political activitie s. Follo wing a Democratic Party rally in March 1991, he

was arrested, beaten, and detaine d by the police for three day s. Upon being released, the police threa tened him not to participate in other rallies or support for de mo cr ac y. In June of 1997, Gjy zi served as chairman of the election commission, but he expressed opposition to the ter

ror and t hreats in stigate d by

the Socia list Party and which, he felt, pervaded the election . While preparing a report on the ele ction, on June 29, 1997, Gjyzi was stopped by the police and told that he

would be imprisoned. The police took his report, read it, and beat him. He was struck on the head with a knife and bay

oneted in the hip. The police then tore up the report and left him in the middle of the stree t, where his friends found him, ultimately taking him to the hospital, where he remained for three day s. Still, Gjy

zi conti nued his political activity and on either Nove mber 12 or December 12, 1999, he spoke at a demonstration about the problems with the Socialists – corruption, organized terror, drugs, and contraband. Three thousand people attended. However , toward the end of the rally, the police inter

vened and dispersed th e p ar ti ci pa nt s. Up on hi s d ep ar tu re fr om th e r al ly, Gjyzi was stopped by three Secret Police officers onthe street and threatened. He was told to stop his political activity , or they would “disappe ar me” – meaning imprison or kill him. The police then beat him.
InOctober

2000, he was the Democratic Party ’s observer for elections at a voting ce nter. However, he strongl y de nounced and public ly c ondemned

the allegedly

illegal acts of the Socialist Party in connection with these elections, and as a result of that, bega n receiving anony

mous letters and telephone c alls. On October 10, 2000, individuals shot into his home window with gu ns. He wa s later ph oned by these individua ls, who told

him that thi s was hislast warning. Gjy zi reported this incident to the police in Fier, butalleges that they

responded: “You

deserve that as a Democra tic who sup

ports Be risha.” The Demo cratic Party of Fier protested Gjy

zi’s treatme

nt by the polic e and de

manded that those r

esponsibl e for the shooting and threats be brought

to justice. However, seeing that no action was bein g taken and fea ring tha t the state mafia or police would come after him, to kill him, Gjyzi left Alba nia for the United States in October or November of 2000.
B. Administrative Proceedings
OnDecember 6, 2001, a noticeto appear was issued and charged Gjy

zi with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), because he entered the United States illegally . Hav in g conceded re mo va bi li ty, Gjyzi filed an application for a sylum and withholding of removal on October 29, 2001. AfterNo. 03-3054 Gjyzi v. A shcroft, e t al. Page 3

anevidentiary he aring on April 1, 2002, the IJ issued a dec ision . First, the IJ denied Gjy zi’s asylum applicationas untimely based on th e “v aga rie s [ si c] on t he d ate of h is ent ry” i nt o t he U ni ted St ate s. T he IJ seems to have been referring to the lack of

clarity surrounding

the date of Gjyzi’s ar

rival in the United

States. The Government’s charging instrument, Gj yzi ’s writte n asy lum applic ation, an

d the acc ompany

ing aff idavit all provide November 5, 2000 as the date of Gjy zi’s illegal entry. However, at his hearing before the

IJ , Gjy zi testified that he entered the United States on December 5, 2000. Based on these discrepancies – but despite the fac t that either entr

y da te was still sa

fely within the

one-y ear time limit preceding Gjy

zi’s asylum application– the IJ found Gjy zi not cre dible and stated that, as a result, she could not find that Gjy zi had shownby “clea

r and convincing evidence” that he filed his asylum application within one y ear of t he date of his arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B). The IJ also

denied Gjyzi withholding of re moval on the ground that his testimony concer ning his p ast persecutions was not credible. The IJ’s adverse credibility finding was based on

her perceived discrepancies between Gj yzi ’s as yl um applica tion and his testimony, and her conclusion that U.S. State Depa rtment country reports on Albania and other documents summarizing the pol itical s ituation in Albania did not support Gjyzi’s claims of persec ution. Gjy zi timely appealed to the B IA, challenging the IJ’s adverse credibi lity

findings and her denial of his applications for asy

lum and withholding of removal. A single B oard mem ber, acting pursuant to 8 C.F.R. § 10 03.1(e) (5), issued a terse opinion , which r epudiate d the IJ’s adver se credibi lity finding , but, withoutadditional explanation, upheld the IJ’s conclus i ons that Gj yzi’ s asy lum applic ation was

untimely and that he was inelig ible for withholding of removal pursuant to the Convention Against Torture. T he BIA ’s order

stated, in full:
We affirm the decision of the I mmigr ation Judge in part. See Matter of Burbano , 20 I&N Dec. 872, 87 4 (BIA 1994) (noting that adoption or affirmance of a decision of an Immigration

Judge, in wh ol e o r i n p ar t, is “s im pl y a statement that the Board’s conclusions uponreview o f the re cord coi ncide wit h thosethe I

mmigrat ion Judge a

rticulat ed in his or her deci sion”). We have reviewed the record, and a re unable to agree with the I mmigration Judge that material reasons existed to find that the resp ondent wa s incred ible in the se procee dings. That aspect of the respondent’s appeal is sustained. However, we find that the Immigration

Judge co rrect ly concluded that the r espondent had failed to apply for asylum within the 1-yea

r period require d under

the law. That aspect of the I mmigration Judge’s decisionis affirmed. Further, we agree with the Immigration

Judge that the respondent failed to satisfy his burden of proof for withholding of removal and relief under the Convention Agains tTorture . We affir m that aspe ct of the

Immig ration Judg e’s dec ision as we ll. Accordingly , the appeal is dismissed. Gjyzi timely

appealed the adverse decision of the B IA.
II. ANALY SIS
A. The Timeliness of Gjyzi’s Asylum Application
Our con cern here is as follows. The I J deemed Gjyzi’s asy

lum application untimely on the sol e ground that he made conflicting representa tions concerning

his date o f entry

into the Unite d States a

nd was, therefore, not credible. As we noted above, Gjy zi’s asylum application listed November 5, 2000 as his dat e of ent ry ; bu t in h is te stimony

bef ore the IJ , he claimed to have entered the United States on Dec ember 5, 2000.
Onappeal, the BI A bro ad ly repudiated the I J’s adverse credibility finding s. Yet, without any additional explanation, the BI A affir med the I

J’s conclu sion that G

jyzi f ailed to show by clea

rand convincingevidenc e that he filed his a syl

um applic ation with

inone yea

r of his entering the United States.No. 03-3054 Gjyzi v. A shcroft, e t al. Page 4

By broadly re

pudiating the IJ’s adverse credibility findings, the BIA

vitiated the argument that Gjy zi fail edto establi sh his date of entry be cause he was not credible due to the discrepa ncy betwe en the November

5 and December 5, 2000 entry dates. Altern a tively, by finding him credible, the BI A has implicitly credited one or the other of Gjyzi’s repr

esentations concerning

his date of entry. I

n either case, because each date still places Gjy zi saf ely within the one- ye ar filing period pr

ovided by

8 U.S.C. § 1158(a) (2)(B)

– since hi s applica

tion for a syl

u m and withh olding of removal was filed on October 29, 2001 – the basi s for the

BIA ’s decis ion is diff

icult to comprehend. In other wor ds, in acase where the I

J’s adverse credibi lity

finding s are the

only basis for an untime liness de cision, th e BI A fails to explain how it can reject the IJ’s adverse c

redibility determinations, but still uphold the IJ’s disposition which flowed exclusive ly f

rom those adverse credibi lity

determinations. The Government is correct that we lack jurisdiction to review the de nia l of an asylum applica tion based onthe factual determination that the application was untimely filed. The I NA states, in relevant part that: “No court shall have jurisdiction to review any

determination of the Attorney General [concerning the timelines s of an alien’s application for asylum].” 8 U.S.C. § 1158(a)(3). In the G over

nmen t’s vi ew, G

jy zi seeks review of the timeliness determination, and therefore, we have nothing to review. But Gjy zi does not chall enge the BIA’s timeliness determination per se ; rather, he argues that the BIA made a

legal error in the course of making that determination. This is an important distinction, because, as a matter of due process , assigningcomplete discretion to an agency to apply the law does not allow that de cisionmaker to ignore the law. See McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479, 111 S. Ct. 888, 112 L.Ed.2d 1005 (1991) (provisionbarring appellate judicial review of a determination concerning an immigration

applica tion did notforeclose “genera

l collateral challenges to unconstitutional practices and policies used by

the age ncy in processingapplications.”) In other words, th e specte

r of a due process violation i s raised

– and ea sily

falls within our jurisdiction – where the agency ignores its own law.
Inthis case , the deni al of asy lum to Gjy

zi based on

the timeliness of

his asylum application may be correct or incor rect, bu t at prese nt, it lacks an actu

al or divin

able re asoned b asis, whic h raises due proc ess concerns and compels us to vacate the order deny ing asylum and to r

eturn the case t o th e immigration authorities for further explanation. See Mickevi ciute v. I.N.S ., 327 F.3d 1159, 1164 n.4 (10th Cir. 2003) (“Bec ause our jurisdiction in part depends on the basis for the BI A’s decision, we remind the BIA that to the extent i t fails to a

dequate ly a

rticulat e the gr ounds on wh

ich it den ies relie f, our jur

isdiction may b e difficult to ascertain.”).
B. Past Persecution and Withholding of Removal The omissions in

the BIA and I

J’s conclusions with resp ect to Gjy zi’s past pe

rsecution and elig

ibility for withholding of removal are equally problematic.
Becau se Gjyzi does not

raise his Convention Again st Tortur e claim in his brief before this Court, we consider only his challeng e to the BIA and I J’s denial of his applicationfor withholding of removal pursuant to the INA.
To be eligible for withholding of removal pursuant to the I NA, an alien must establish that “it is more likely than not” that his or

her “lif e or fre edom woul d

be threatened in the proposed country of removal on account of race, rel igion, na

tio nality, membership in a particula r social group, or political opinion.” 8 C.F.R. § 20 8.16(c) (2). We mu st uphold the BIA' s determination denying withholdin

g of re moval, unl ess it is "manifest ly contrary to the law." Castellano-Chacon v. I.N.S., 341 F.3d 533, 552 (6th Cir. 2003). If an aliencan esta

blish that he has bee

n subject t o p ast persecution, there is a presumption, subject to rebuttal by the Government, that

his “life or freedom would be threatened in the futur e” in the country

of remov al. 8 C.F.R. § 208.16(b)(1)(i).
Even under this highly de ferential standard of review, we conclude that the BIA ’s decis ion cannot, onthis record, be u phe ld . Bo th th e BIA and IJ fail to sta te concl usions at a

ll on seve ral impor tant issue s.No. 03-3054 Gjyzi v. A shcroft, e t al. Page 5

1 We also note that if upon rem and, the B IA determ ines the Gjyzi has d emon strated that he has suffered p ast persecution, t he BIA must make an indi vidual iz ed determination regarding whet her the Respondent has shown through a preponderance of the evidence, that “[ t]here has been a fundamental change i n circumstances such t hat the applicant no longer has a well -foun ded fear of pers ecut ion in the ap plican t’s coun try of natio nality.” 8 C .F.R. § 208 (b)(1 )(A); see als o Ouda v. I. N.S. , 324 F.3d 445 , 455 (6th Cir. 2003). T he BIA m ust resi st the urge to give controll ing weight t o State Department materials wit hout properly assessi ng Gjyz i’s parti cular

clai m. Indi vidual asses sment i s parti cularly import ant i n cases such as this one , where the State De partm ent’s own materials contain apparentl y contradictory i nformation. Finally, this Court encourages t he IJ to mak e spec if

ic c redi bil ity f

indi ngs ba sed on t

he f air consi derat ion, as appr opria te, of well- documented events in Alba nia. H ere, the IJ ap pea red to analo gize G jyzi’s de cision to fl ee, t wo weeks aft er bei ng sh ot at his home, and th e G ove rnme nt’s relucta nce to pursue the assail ants, wi th recent events in Detroit, Michigan. The IJ stated: “The ability to ar rest indiv iduals in volve d in dr ive-by sh ootin gs is certai nly a problem that

is unde rstoo d in this co untry and this city [De troit, Michigan]. ” In a f ootnote, the IJ furth er no ted tha t: “A three -year-old child w as killed in the city of D etroit two weeks ago, and her as sai lants are still at l ibert y.” Though j udges are, of cours e, permi tted an d encouraged t o draw on thei r own experien ces and co mmo n sense in making d ecisions, we n ote th at eachal ien ’s cas e i s en ti tl ed t o cons ide rat ion on t erms relevant to t he c ount ry fr om whi ch t

heyare see ki ng a sy lu m. As discussed, the IJ denied Gjy zi withholding of removal because shefound tha t he was not credi

ble with respect to his clai

ms of past p ersecu

tion, due t

o perce ived in consist encies in his testimony and asy lum application. The IJ also rejected Gjy zi’s claims of past persecution on t he gro und that t

hey wer e not supp ortedb y the U.S. State Depar tment Country Report on Albania or the Profile of Asylum Claims and Country Conditions s

ubmitted by

the Gove

rnment. 1 The BIA overturned the IJ’s a dverse c redibilit y finding s, butagain, without explanation, affirmed the denial of withholding of re moval pursuant to the INA. Havingvoided

the rationale that Gjyzi was not cr edible, the BIA fa

iled to indicate an alternative basis for finding that Gjyzi was ineligible for asylum and withholding of removal under the I

NA.
It is d ifficult to conduct meaningful judicial review of the I J’s decision finding that an al ien ha s “failed to satisfy his burden of proof for withholding of

removal” when there is no underly ing determination of whether there was past persecution. See E l Mora ghy v. Ashcroft , 331 F.3d 195, 204 (1st Cir. 2003) ; Yatskin v. I.N.S ., 255 F.3d 5, at 9 (1st Cir. 2001). It is not discernible whether the BIA’s re

versal of the IJ’s adverse credibi lity finding

signaled the BI

A’s belief that Gjyzi sufficie ntly showed past perse cution – altho ugh th at i s a l ogi cal im pl ica ti on o f th e BIA ’s r ul in g. If it di d sign al reco gnition o f Gjy zi’s past persecution, th er e i s a pr es um pt io n, su bj ec t t o r eb ut ta l b y th e G ov er nm en t, th at Gj yz i ’s life or freedom would be threatened in the future. But there simply is no evidenc e that Gjyzi’s case wa s evaluated under t hat burden-shifting scheme. The BI A purported to affirm the IJ’s denial of withholding of r emoval , because , as the B IA st

ated, “t he Boar d’s conc lusions . . . coincide with those

the I mmigrat io n Judg e articulated

in . . . her decision,” but we know that the IJ never reached the burden- shifting analy sis, because it rejected Gjyzi’s claims of pa st persecution. The absence of reasoned discussion of past perse c ution unde rcuts any mea ningful review of the BIA ’s appar

ent reje ction of the claim that Gjy zi would be s

ubject to future persecution. We do not know whether Gjyzi should have had the benef it of the regulatory

presumption of future persecution based on prior events, and if so, whether or not that presumption was employ ed. Here, we do not suggest that the evidence c ompels a conclusion either way with respect to Gjyzi’s withholding of removal claim, but in light of the uncertainty a s to whethe r Gjy zi’s case was dec ided withi

n the prescribed regulatory

framework, a remand for fur ther explanation and consideration is required.
III. CONCL USION The need for clear administrative findings is implicit in the statute pursuant to whichwe review the BIA’sdecision . The stat

ute requires that the agenc y’ s conclus ions be “s

upported by r easonab le, substa

ntial, and probative evidence on the record conside red as a whole. . . .” 8 U.S.C. § 11 05(a)(4); see also SEC v. Chenery Corp. , 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947) (“a reviewing court

. . . m ust j udge the propriety of [administrative] action solely by the g rounds invoked by the

agency ,” and “tha

t basis mustNo. 03-3054 Gjyzi v. A shcroft, e t al. Page 6

be set forth with such clarity a s to be understandable.”). Although the BIA need not write extensively on every issue – indeed, we have joined our sister circuits in holding that “the B IA’s streamlining proc edures,” suchas summar

y affirman

ces of I J decisions, “do not the

mselves a

lone viola

te an alie n’s right to due process,” Denko v. I.N.S. , 351 F.3d 717, 730 (6th Cir. 2003) – the failure of the BI A to explain its decision in this case unnecessarily frustrates our review.
For those rea son s, t he o rde r of th e BIA is vac ate d, a nd t he c ase is rem and ed t o t he B IA for further proceedings consistent with this opinion.