                          File Name: 06a0299n.06
                             Filed: May 1, 2006
               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No.:05-3366

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


LON RASI
      Petitioner
                                                    Petition for Review of an Order
                                                    of the Board of Immigration Appeals
               v.

ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
      Respondent
______________________________/


       BEFORE: KENNEDY, COLE, and MCKEAGUE Circuit Judges.

       KENNEDY, Circuit Judge.       Petitioner, Lon Rasi, petitions for review of the Board of

Immigration Appeal’s (“BIA”) order upholding the immigration judge’s (“IJ”) decision to deny his

application for asylum pursuant to Section 208 of the Immigration and Nationality Act (“INA”), 8

U.S.C. §1159, application for withholding of removal pursuant to Section 241(b)(3) of the INA, and

request for withholding of removal pursuant to the United Nations Convention Against Torture

(“CAT”), 8 C.F.R. §1208.16. Petitioner argues the BIA erred in holding his application for asylum

untimely and in adopting the immigration judge’s findings that he did not establish either past

persecution or a well founded fear of future persecution. For the following reasons we AFFIRM

the decision of the BIA and DENY the petition for appeal.
                                         BACKGROUND

       Petitioner, Lon Rasi (“Rasi”), is an ethnic Albanian from Kosovo of the Former Republic

of Yugoslavia. Rasi a native and a citizen of Yugoslavia. He claims he first entered the United

States at Miami on or about October 20, 1999, when he was twenty-four years old. JA at 212.

       On July 6, 2001, Rasi was served with a Notice to Appear (“NTA”) alleging removability

for entry without valid documents pursuant to 237(a)(1)(A) of the INA, 8 U.S.C. § 1227(a)(1)(A).

On October 23, 2001, Rasi, through his attorney, admitted the factual allegations in the NTA and

conceded removability. Rasi declined to designate a country of removal but because he claims he

is a native and citizen of Yugoslavia, the immigration judge designated Yugoslavia. Rasi submitted

applications for asylum, withholding of removal, and CAT protection. On September 2, 2003, the

immigration judge held an evidentiary hearing on Rasi’s applications. Only Rasi testified at the

hearing.

       Rasi testified that on March 15, 1998, he went with his brother and father to the market to

sell fruits and vegetables. The police tried to close the market early and his father protested which

resulted in the police beating up his father and holding Rasi and his brother at gunpoint. Rasi

testified that they were taken to a police station, detained for 70 hours, and given nothing to eat or

drink. Notably, while Rasi’s written asylum application indicated that during this incident he had

been beaten, Rasi testified that neither he nor his brother were beaten.

       Next, Rasi testified that on June 6, 1998, police came to his family home and forced them

to leave. When he and his family returned, “all the stuff around our home had been stolen, and taken

away.” JA at 273. After this incident, Rasi stated that he did feel safe for some time; however, he

no longer felt safe as of February 1, 1999, when police came to his family home again and took Rasi


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and his brother away from their parents. Rasi testified that they were detained in a basement of a

house along with 22 to 25 men. He stated that the police would come and take away three or four

men each day, and that those men never returned to the house. Rasi testified that on February 5 or

6, 1999, he and his brother and two others were taken from the house to a jail in Istok. Rasi

explained they were able to escape from the jail and that after walking for a long time, they arrived

in Montenegro on or about February 27, 1999. They stayed there for three months.

       Rasi testified that he went from Montenegro to Croatia for two weeks and then back to

Bosnia for approximately three months. He then went to Italy and then “to France and to somewhere

else. I don’t know”. Rasi testified that he went from France, “straight to the U.S.”. JA at 283.

       The IJ then interrupted Rasi’s direct examination to question him about his travels to the

United States. Rasi testified that he left France by airplane and that the plane stopped somewhere,

for about an hour, and then he went by boat to Miami, Florida. JA at 285.

       Once in the United States, Rasi testified that he met with a woman named Cheryl Daindrich.

Rasi stated that he had intended to seek asylum and that he had signed “some papers” but that he

“didn’t know as to what those papers were.” JA at 287. Rasi said that he found out on February 21,

2001, that she had filed an application for Temporary Protected Status (“TPS”) on his behalf, not

asylum, and his TPS application was denied. Rasi stated he did not know if Ms. Daindrich was an

attorney and that he never filed a complaint against her with the Michigan State Bar. JA at 294.

       On cross-examination, Rasi testified that his brother, Luigi, lived with him in Michigan and

was with him during the March 1998, June 1998, and February 1999 incidents. The IJ asked Rasi

why his brother was not in court “corroborating those incidents” and he responded, “I don’t know

why; he’s at work.” JA at 291.


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       Rasi was asked if there were any other incidents when he was harmed or felt threatened other

than those in March 1998 and February 1999. Rasi testified that there were “a lot of occurrences”

but that he did not recall the date other than that it was 1998. However, Rasi later testified that he

was actually only referring to the June 6, 1998, incident and that there were no other incidents.

       The IJ found that Rasi’s application for asylum was time-barred. The IJ also held that Rasi’s

testimony was not credible, that he did not establish either past persecution or a well-founded fear

of future persecution on account of his “ race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C.§ 1231 (b)(3)(A). The IJ then denied Rasi’s asylum

application (assuming it was not time-barred), his application for withholding, and CAT protection

on the merits.

       Rasi appealed the IJ’s decision to the BIA. On March 2, 2005, the BIA adopted and affirmed

the decision of the IJ “insofar as he found that the respondent had not satisfied the filing

requirements for asylum or established eligibility for withholding of removal.” JA at 2. The BIA

dismissed Rasi’s appeal and this petition for review followed.

                                            ANALYSIS

                                    I. Application For Asylum

       Section 208(a)(2) of the INA, 8 U.S.C. §1158(a)(2)(B) requires aliens to apply for asylum

within one year of their arrival in the United States. Untimely applications are considered only if

there are changed circumstances materially affecting the applicant’s eligibility for asylum or

extraordinary circumstances that justify the delay. 8 U.S.C. §1158(a)(2)(D).

       The BIA adopted the finding of the IJ that Rasi “had not satisfied the filing requirements for

asylum.” JA at 2. Rasi contends that the BIA erred in finding that his application is untimely and


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he points to surrounding circumstances that he contends fall under the exceptions in 8 U.S.C.

§1158(a)(2)(D).

       In Castellano-Chacon v. I.N.S., we addressed whether we have jurisdiction to review a

decision by the BIA that an application is untimely in light of 8 U.S.C. §1158(a)(3) which states that

“[n]o court shall have jurisdiction to review any determination of the Attorney General under

paragraph (2).”     We held that “we are barred from reviewing the BIA’s decision denying

[Petitioner’s] application on the basis that it was untimely and must therefore affirm the BIA’s

decision on this point.” 341 F.3d 533, 544 (6th Cir. 2003). Notably, the jurisdictional preclusion

includes a bar to review any determination regarding the applicability of exceptions to the one-year

rule. 8 U.S.C. §1158.

       Rasi concedes that discretionary rulings of the Attorney General are not judicially reviewable

but contends that “the failure to perform the evaluation and analysis mandated by the statute and the

CFR are reviewable de novo.” Pet. Br. at 16. We need not comment upon whether such behavior

would, in fact, be subject to de novo review because we find that the IJ in this case sufficiently

evaluated Rasi’s explanations for why he waited to file his asylum application. See JA 214-216.

       Thus, we lack jurisdiction to review the BIA’s determination that Rasi’s asylum application

was untimely.

                          II. Application for Withholding of Removal

       The BIA adopted the IJ’s findings regarding Rasi’s eligibility for withholding of removal.

JA at 2. Where the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to

determine whether the decision of the BIA should be upheld on appeal. Denko v. INS, 351 F.3d 717,

723 (6th Cir. 2003). Rasi contends that the IJ and the BIA erred in denying his application for


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withholding of removal because he alleges he has a “legitimate fear that his very status as a refugee,

as well as a Catholic ethnic Albanian places him at risk.” Pet. Br. at 26.

       In order to qualify for withholding, Rasi must demonstrate that there is a clear probability

that he would be subject to persecution if he were to return to Kosovo on account his “ race,

religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.§ 1231

(b)(3)(A); Castellano-Chacon, 341 F.3d at 545 (a petitioner must “demonstrate that there is a clear

probability that he would be subject to persecution”). To establish a clear probability of future

persecution, the “applicant must demonstrate that ‘it is more likely than not’ that he or she will be

persecuted upon return.” Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir.2005) (quoting 8 C.F.R. §

1208.16(b)(2)). The standard of review requires us to uphold a determination against withholding

unless it is “manifestly contrary to law”. Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (8 U.S.C.

§1252(b)(4)(C))).    “[A]dministrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”             Id. (quoting 8 U.S .C. §

1252(b)(4)(B)).

       Rasi argues that he has proven past persecution and is entitled to a presumption of a well-

founded fear of suffering future persecution under 8 C.F.R. § 208.13(b)(ii). The IJ found that Rasi’s

testimony was not credible and that even if it was credible the evidence he provided does not rise

to the level of past persecution.

                                        A. Past Persecution

       In finding that Rasi was not credible, the IJ relied on numerous inconsistencies between

Rasi’s written application for asylum and his testimony at the evidentiary hearing. The IJ first

noted that Rasi’s recount of how he came to the United States “shifted remarkably” from the time


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he signed his written application to the time he gave his testimony. JA at 216. Rasi testified at the

hearing that he flew from Paris to somewhere in the Bahamas on October 14, 1999, that he stopped

on an “island” (he did not indicate what island besides the Bahamas somewhere) for about an hour,

and then changed planes. He said he then took a boat to Miami which took less than one day;

however, in his application he indicates he arrived in the Bahamas on October 18, 1999, and in

Miami on October 20th. Additionally, in his application Rasi claimed that he was in Montenegro

for six months and then testified that he was only there for three months. When questioned why,

Rasi stated “there isn’t really any reason why.” JA at 305. Finally, Rasi indicated that he has been

in the U.S. less than four years, but during his examination Rasi stated that he couldn’t go back to

Yugoslavia “after five years.” JA at 216.

       The IJ also pointed out inconsistencies with respect to the alleged acts of past persecution.

For example, the IJ noted that with regard to the alleged June 6, 1998, raid on his home, Rasi first

claimed that his house had been raided several times before this incident. Later he backed off that

claim and admitted he was actually only referring to the June 6th incident. Further, Rasi testified

that everything was “stolen” from the home, but he omitted this fact from his written application.

Rasi also inconsistently testified regarding the March 15, 1998 incident. In his written application

Rasi states that he and his brother “were beaten and deprived of food. We were bruised all over

our bodies.” JA at 518. However, at the evidentiary hearing, upon questioning by the IJ, Rasi stated

that he had not been beaten during this incident.

       Finally, the IJ noted that even though Rasi’s brother could have corroborated Rasi’s

testimony, he failed to do so. Rasi’s brother, Luigi, was supposed to be testifying as he:

       [U]nderwent many of the same treatments as the respondent. Luigi, however, was
       not called as a witness and the only explanation for it was that Luigi is at work here

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       in the Detroit area. Other than that, no other reasonable explanation was proffered.
       Hence the respondent had the ability to corroborate his claim and he did not do so.

JA at 227.

       Rasi challenges several of the conclusions reached by the IJ based on his testimony and

written asylum application. However, it is not enough for Rasi to argue that the immigration judge

could have drawn different conclusions from the evidence presented. INS v. Elias-Zacarias, 502

U.S. 478, 481 n.1 (1992) (finding it is “besides the point” that a record may be “adequate to

support” a different conclusion). Rasi further argues that some of the inconsistencies relied on by

the IJ were irrelevant, not based in fact, or related to linguistic matters.1 However, after reviewing

the aforementioned inconsistencies, and other inconsistencies cited by the IJ, we cannot say that

a reasonable adjudicator would be compelled to conclude that Rasi is credible. Thus, we uphold

the finding of the IJ that Rasi did not credibly establish that he suffered past persecution;

consequently, Rasi is not entitled to a rebuttable presumption that he has a well-founded fear of

future persecution and we need not address the IJ’s alternative finding that even if credible, Rasi’s

allegations do not constitute past persecution under 8 C.F.R. § 208.13(b)(ii).

       However, we must still address whether, even without this rebuttable presumption, Rasi has

demonstrated that there is a clear probability that he would be subject to persecution if he were to

return to Kosovo on account his “ race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C.§ 1231 (b)(3)(A).



       1
         We note that Rasi also argues the IJ found his testimony to be consistent by pointing to the
fact that the IJ stated Rasi “testified very, very consistently with the asylum application” JA at 227;
however, the government submits, and we agree, that this was a typographical error given the IJ’s
finding was that Rasi was not credible and that his testimony was “diametrically opposed to his
application signed moments before.” JA at 239.

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                                      B. Future Persecution

       The IJ held that in light of both the changed country conditions in Kosovo and Rasi’s own

testimony, Rasi did not establish by a “clear probability” that he has well-founded fear of future

persecution. Relying on the 2002 “Country Reports” for Yugoslavia, or the Former Republic of

Yugoslavia, the 1999 “Country Reports” for Serbia/Montenegro, and an article entitled “Kosovo

Crisis Update,” the IJ found that since the United Nations took control of the government, the

country conditions have “changed remarkably,” and that “Albanians from Kosovo upon their return

are not subject to a pattern or practice of mistreatment.” JA at 230. After reviewing the reports

relied on by the IJ, we cannot say that a reasonable adjudicator would be compelled to conclude

to the contrary.

       The IJ also found that Rasi’s fear of future persecution is belied in his own testimony.

Asked by the IJ why he could not go back to Kosovo given that 772,000 other Kosovars had

returned, Rasi stated:

       I’ve never felt or said that I wouldn’t go back to my place, but where could I go
       where my parents are not there, when my sole and only brother is here with me,
       when I’ve been here for five, over five years now, when if I get there, I don’t know
       without time there, whether I’ll find a house or work or anything at all, I have to
       start everything from zero, all the life from scratch, from nothing, and I know
       nobody. I have nobody. JA at 302.
The IJ then asked if it was “fair to say that the reason you don’t want to go back is because you

don’t know anyone and it’s inconvenient,” and Rasi replied “[i]t’s not, the reason is not that I do

not know anybody, but my parents are not there and life is not secure; this is the reason why.” JA

at 302-03. We agree that Rasi’s testimony suggests more of a fear of starting anew than anticipated




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future persecution “on account of his race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C.§ 1231 (b)(3)(A).

       Thus, we uphold the IJ’s finding that Rasi has not established by a “clear probability” that

he would be subject to persecution if he were to return to Kosovo.

                                III. Convention Against Torture

       Rasi appeals the IJ’s denial of his request for withholding of removal under Article 3 of the

Convention Against Torture (“CAT”). However, because Rasi failed to challenge the denial of

CAT protection before the BIA, he failed to exhaust his administrative remedies with respect to this

claim. Thus, we are without jurisdiction to consider it now. 8 U.S.C. § 1252(d)(1); Sswajje v.

Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003); Gilaj v. Gonzales, 408 F.3d 275, 289 (6th Cir. 2005)

(“we have jurisdiction to review only those claims for which the applicant has exhausted the

administrative remedies available to the alien as a matter of right”).

                                         CONCLUSION

       For the foregoing reasons we AFFIRM the BIA’s decision denying Rasi’s application

for asylum and application for withholding of removal. We DISMISS his claim pursuant to the

legislation implementing the Convention Against Torture for lack of jurisdiction.




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