               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0778n.06
                          Filed: November 6, 2007

                                          No. 06-3681

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

ALTIN BAKIU ,
      Petitioner-Appellant,

                                                    On Petition for Review from the
               v.                                   Board of Immigration Appeals

PETER D. KEISLER,* ACTING ATTORNEY
GENERAL OF THE UNITED STATES OF AMERICA
      Respondent-Appellee.

______________________________

       Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge; JORDAN, District Judge**

       KENNEDY, J. Altin Bakiu is an Albanian national who illegally entered the United States

and thereafter requested asylum and withholding of removal under the Immigration and Nationality

Act. His request for asylum and withholding of removal was denied by the immigration judge, and

the Board of Immigration Appeals affirmed the decision. The immigration judge also found that Mr.

Bakiu had filed a frivolous application for asylum, and the BIA also affirmed this decision. Mr.

Bakiu argues that the decision to deny him asylum and the finding of frivolousness were not

supported by substantial evidence. We disagree, and therefore deny his petition for review.



       *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Peter
D. Keisler is automatically substitute for former Attorney General Alberto R. Gonzales.
       **
        The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.

                                                1
                                         BACKGROUND

       Altin Bakiu, a citizen of Albania, claimed that he had endured persecution in Albania because

of his immediate family’s status. Most of Mr. Bakiu’s immediate family legally live in the United

States. Mr. Bakiu’s mother, father, and two of his siblings won the diversity lottery, which entitled

them to legally live within the United States. J.A. at 128. They moved to the Detroit, Michigan area

in October 2000. Petitioner did not come with them because families winning the diversity lottery

are only entitled to bring children under twenty-one, and Mr. Bakiu was twenty-three. J.A. at 96.

Mr. Bakiu’s brother Fatjon was also left behind in Albania, although it is not clear whether it was

because he was too old or because he was wheelchair-bound. J.A. at 125.

       At the time his family emigrated to the United States, Mr. Bakiu was legally living and

working in Italy. J.A. at 128, 98. He returned to Albania roughly in August 2001 because he lost

his job in Italy. J.A. at 128, 98. He then lived with his grandmother and brother in the family home

where he grew up. He alleged that upon his return to Albania he was persecuted.1

       Mr. Bakiu claimed that he has been persecuted because he has family legally living within

the United States. E.g., J.A. at 89. He asserted that, even though he was unemployed throughout

his time in Albania, individuals believed he had money because his family lived in the United States.

He claimed that these individuals extorted him, and if he refused to give them money, they beat him.



       1
          Mr. Bakiu exhibited confusion regarding this timeline. While Mr. Bakiu alleged that his
problems began “six months after [his] family left,” J.A. at 89, which would have been May 2001,
this is inconsistent with his mother’s testimony, which placed him working in Italy until August
2001, J.A. at 128. Mr. Bakiu made other ambiguous statements regarding this timeline. Mr. Bakiu’s
asylum application stated that he returned to Albania in January 2000, J.A. at 204, and he stated in
the removal proceedings that he lived in Italy “until 2000, 2001,” J.A. at 98. He also stated in the
removal proceedings, however, that he left Albania in February 2003 and had lived in Albania for
two years prior to that time, which means he lived in Albania beginning roughly in February 2001.

                                                 2
J.A. at 89-90. Mr. Bakiu was purportedly beaten five times for refusing to pay, and purportedly paid

the extortionists more than five times. J.A. at 90-91. The alleged beatings occurred “in remote

places, in, let’s say in the woods or a forest, remote places and they us[ed] force against [him] in any,

in all the ways. Until [he] accepted to give money. . . . [They beat him with] [d]ifferent objects like

steel boot, stone.” J.A. at 90. He asserted that even though he reported the violence to the police,

the police were either ineffectual or refused to help and the beatings continued. J.A. at 94-95, 205,

210. While his parents had initially been sending him around $300 per month, they increased that

amount incrementally until it reached $600 per month, allegedly to pay the extortionists. J.A. at 121.

        Mr. Bakiu states that he fled Albania to escape persecution, and on March 2, 2003 he illegally

entered the United States through Miami International Airport using a fraudulent visa. J.A. at 194.

Mr. Bakiu requested asylum, alleging that he was being extorted and abused in Albania because his

immediate family was legally living in the United States and it was therefore presumed by his

abusers that he was wealthy.

        The immigration judge (IJ) denied Mr. Bakiu’s petition for asylum and withholding of

removal. It found that Mr. Bakiu was not credible because of inconsistencies between his testimony

and his application, as well as contradictory evidence from the state department reports and the

experience of his family members and others in Albania. Additionally, it found that Mr. Bakiu had

not carried his burden of proof. The IJ also found that Mr. Bakiu had filed a frivolous asylum

application. Mr. Bakiu asks us to reverse the IJ’s determinations. Because we believe that the IJ’s

decision that Mr. Bakiu was incredible and filed a frivolous application was supported by substantial

evidence, we deny his petition for review.




                                                   3
                                             ANALYSIS

          Mr. Bakiu asserts on petition for review that the IJ’s denial of asylum was not supported by

substantial evidence. He also contends that the IJ’s decision that his application for asylum was

frivolous is not supported by substantial evidence. We review the BIA’s decision, and when the BIA

adopts the IJ’s decision, we review the IJ’s decision directly. Hasan v. Ashcroft, 397 F.3d 417, 419

(6th Cir. 2005).

          Mr. Bakiu claimed asylum under the Immigration and Nationality Act (INA), 8 U.S.C. §

1158(b)(1) (2006). An alien claiming such relief bears the burden of proving that he is a refugee,

which is defined as a person unwilling to return to his native “country because of persecution or a

well-founded fear of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion. ” Id. § 1101(a)(42). The testimony of the applicant can be enough

to carry his burden of proof, but it must be credible. 8 C.F.R. § 1208.13(a) (2006). If the applicant’s

testimony is not credible, then corroborative evidence must be provided. Id. A determination that

the applicant is incredible and has not carried his burden of proof is reversed when “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2006).

          Mr. Bakiu also claimed withholding of removal under the INA, 8 U.S.C. § 1231(b)(3) (2006).

An alien claiming such relief bears the burden of proving “that it is more likely than not that he or

she would be persecuted on account of race, religion, nationality, membership in a particular social

group, or political opinion upon removal to [his or her home] country.” 8 C.F.R. § 1208.16(b)(2)

(2006).

          Mr. Bakiu was also found to have submitted a frivolous application for asylum. J.A. at 69-

70. Any alien adjudged to “ha[ve] knowingly made a frivolous application for asylum” is forever


                                                   4
ineligible for any sort of immigration to the United States. Id. § 1158(d)(6). “[A]n asylum

application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20

(2006). We conduct substantial evidence review of frivolousness determinations. 8 U.S.C. §

1252(b)(4)(B).

                                         I. Denial of Asylum

       Mr. Bakiu argues that his testimony was credible, and that he carried his burden of proof.

We evaluate each argument in turn, and find that neither has merit.

                                            A. Credibility

       Mr. Bakiu asserts that his testimony was credible. Credibility determinations are upheld

unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 18 U.S.C. §

1252(b)(4)(B). The IJ must, however, give specific reasons for its determination. Sylla v. INS, 388

F.3d 924, 926 (6th Cir. 2004). Additionally, the issues and inconsistencies that provide a basis for

the determination must “go to the heart of the applicant’s claim,” and therefore cannot be “minor and

irrelevant.” Id.2

       The IJ’s determination that Mr. Bakiu was incredible is supported by substantial evidence.

The main inconsistencies which supported the judgment were regarding the nature of the police

department’s response to Mr. Bakiu’s complaint and the identity of the perpetrators. Mr. Bakiu’s

vague testimony also significantly supported the IJ’s determination.




       2
         The REAL ID Act of 2005, Pub. L. No. 109-13, div. B, sec. 101, 119 Stat. 231, 303
(codified as amended at 8 U.S.C. § 1158 (2006)), changed the standard governing credibility
determinations. Its provisions, however, do not apply in this case, as the effective date was March
1, 2003 and the changes apply only to applications filed on or after the effective date. Id., 119 Stat.
at 304.
                                                5
         Mr. Bakiu related inconsistent stories about his interaction with the police department. In

his application he alleged that when he went to the police, they “refuse[d] to try and stop [his

neighbors] from attacking [him].” J.A. at 205. Indeed, he asserted that the extortionists had the

“tacit support of the police.” J.A. at 210. In his testimony at the removal proceedings, however, Mr.

Bakiu stated that he reported the extortion and beatings to the police, the police stated that they were

“going to fix that problem,” which he took to mean that the police were “going to help,” and that the

police never refused to help him. J.A. at 91-95. He further intimated that the reason he believed the

police could not protect him was because he was beaten the day after he made the report, and

therefore he believed that the police were ineffectual. J.A. at 91, 94. He did not, however, pursue

his initial police report nor did he make an additional complaint about the subsequent beating. J.A.

at 94.

         This is an inconsistency striking at “the heart of the applicant’s claim.” An applicant has to

prove that he or she is “unable or unwilling to avail himself or herself of the protection of” the

country from which the applicant has fled. 8 U.S.C. § 1101(a)(42) (2006). It matters greatly,

therefore, whether the police truly could not protect Mr. Bakiu, or whether the police were complicit

in the alleged persecution. Refusing to help and being complicit in persecution is much different

than receiving one report and no further reports or requests for help from the complaining party.

Indeed, Mr. Bakiu’s testimony is not only inconsistent with his application, it likely supports a

finding that Mr. Bakiu has not proven that the police are unable or unwilling to help him with the

alleged persecution and therefore has not established his eligibility for asylum.

         Mr. Bakiu’s testimony at the removal hearing about the identity of his persecutors was also

inconsistent with his asylum application. He repeatedly emphasized in his asylum application that


                                                   6
his neighbors were extorting and beating him. J.A. at 210 (identifying his neighbors as those who

caused him harm); J.A. at 210 (“I believe that my neighbors think that since my family is in America,

they must be rich and since I was alone, I was also vulnerable because of the police refusal to protect

me from them.”); J.A. at 205 (“I am afraid of my neighbors, they have been the culprits.”); J.A. at

235 (“He said that people in his neighborhood knew that his parents were living in the United States

and they wanted money from him for this reason.”). While testifying, however, Mr. Bakiu stated the

opposite; Mr. Bakiu insisted that his extortionists were not his neighbors and were instead

individuals unknown to him. J.A. at 102 (“They’re unknown people from me. . . . I don’t know their

names, first names, last names.”); J.A. at 103 (stating that the attackers were not his neighbors).

When given a chance to explain the discrepancy, Mr. Bakiu only stated that it could “maybe” be

explained by the fact that he was not asked details in his application and prior interview or that

“maybe” he was “a little bit scared” and therefore did not “concentrate[] [o]n all of the questions.”

J.A. at 115.

       This inconsistency similarly strikes at “the heart of the applicant’s claim.” An applicant has

to prove that the persecution was “on account of” one of the protected grounds in the INA. 8 C.F.R.

§ 1208.13(b)(1) (2006). “[T]he statute[, therefore,] makes motive critical, [so] he must provide some

evidence of it, direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis

in original). Mr. Bakiu claimed that he was persecuted because he was presumed wealthy due to his

immediate family members legally living within the United States. The identity of his persecutors,

therefore, is circumstantial evidence as to whether or not they extorted and beat him because of his

membership in this alleged particular social group. The fact that the extortionists were his neighbors

would better support his claim; they would at least be aware that Mr. Bakiu’s family lived in the


                                                  7
United States. When Mr. Bakiu changed his story to his persecutors being unknown to him, his

asylum claim was substantially weakened. How did he know that these unknown individuals were

extorting him because of the status of his family? He testified that the attackers did know his family

was in the United States, J.A. at 101, but he did not specify how he knew that the attackers knew the

location of his family, and he did not provide much of an explanation for how the unknown attackers

gained such information. J.A. at 101-02 (“They were individuals that knew that my family was in

the United States? . . . They sending some other individuals to, that I, unknown individuals that ask

me for what they want. . . . I don’t know [who they were]. They’re unknown people from me. . . .

I don’t know their names, first name, last names.”); J.A. at 103 (“Maybe other people that knew me

they, they, these guys took the information from the people that know me and they knew that my

parents were in the United States so that’s why they’re asking me (indiscernible) –” ).

       It could be that Mr. Bakiu was using two different definitions of “neighbor.” On his

application, Mr. Bakiu could have meant that his attackers were his “neighbors” because the

individuals were aware that his family lived in the United States and had found out that he went to

the police regarding the first attack. “Neighbor” in such a context would mean that it was a person

in Mr. Bakiu’s general vicinity, not necessarily someone he knew. In his testimony, then, Mr. Bakiu

could have resisted the word “neighbor” because the questioners were focusing on whether Mr.

Bakiu knew his attackers, which suggests that the questioner believes a “neighbor” to be someone

Mr. Bakiu would know. While this is a reasonable explanation of the discrepancy, we are not

compelled by the record to conclude that the IJ was incorrect in not so finding; the IJ’s decision that

Mr. Bakiu was using the word “neighbor” in the same manner, and that therefore his application was

inconsistent with his testimony, was supported by substantial evidence.


                                                  8
       Mr. Bakiu’s very vague testimony also greatly supports the IJ’s finding that Mr. Bakiu lacked

credibility. An applicant must provide “ ‘credible, direct, and specific evidence’ ” of past

persecution or of the basis for the applicant’s fear of future persecution. Klawitter v. INS, 970 F.2d

149, 153 (6th Cir. 1992) (quoting Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per

curiam)) (emphasis added). Mr. Bakiu first testified that the extortionists used “violence” against

him. J.A. at 89-90. When asked what sorts of violence, he stated that it was “physical violence.”

J.A. at 90. When asked to be more specific, he stated: “They are taking me [to] remote places, let’s

say [to] the woods or a forest, remote places and they us[ed] force against me in any, in all the ways.”

J.A. at 90. This was followed by him being asked if he was beaten, and Mr. Bakiu answering in the

affirmative. When asked what he was beaten with, he said “Different objects like steel boot, stone.”

J.A. at 90. He was then asked how many times he was beaten, and he replied “Anytime that I []

refus[ed] to give money.” When asked to be more specific, he said that he “remember[s] five times”

and that he did not refuse to pay the extortionists after the fifth beating. When asked how many

times he had paid his persecutors prior to fleeing the country, he stated that he “paid more than five

times.” J.A. at 90-91.

       This sort of testimony is very vague and lacking in detail, and it therefore permits the IJ to

draw an inference of incredibility. Despite repeatedly being asked to elaborate, Mr. Bakiu never

described basic parts of his story which would be easy to relate if the events had actually occurred.

For instance, he never described how many individuals were extorting him, how old the individuals

were, whether or not it was the same group of people each time, how he knew that the extortionists

were aware his family was in the United States, whether he would give the extortionists all the

money his parents sent or just partial sums, or whether he required medical treatment or sustained


                                                   9
any sort of injury from being beaten when he refused to pay. There are numerous other details that

could have made his story more credible. Cf. Sylla, 388 F.3d at 928-29. Based on Mr. Bakiu’s

testimonial vagueness, his inconsistent statements regarding the identity of his attackers, as well as

his inconsistent statements regarding the reaction of the police, the IJ’s finding that Mr. Bakiu was

incredible was supported by substantial evidence; the record does not compel us to conclude that Mr.

Bakiu was credible.

                                         B. Burden of Proof

       Mr. Bakiu next argues that the IJ erred in denying his claim for asylum because he carried

his burden of proof. We review the IJ’s decision for substantial evidence. 8 U.S.C. § 1252(b)(4)(B)

(2006). The IJ’s decision here is supported by substantial evidence because Mr. Bakiu’s testimony

was central to establishing his claim, and the IJ found that testimony incredible.

                                    C. Withholding of Removal

       Mr. Bakiu also petitioned for withholding of removal under the Immigration and Nationality

Act (INA), 8 U.S.C. § 1231(b)(3) (2006). Because Mr. Bakiu failed to establish his eligibility for

asylum, “it therefore follows that he cannot satisfy the more stringent standard for withholding of

[removal].” See Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001).

                                II. Frivolousness of the Application

       We review an IJ’s determination that an asylum application was frivolous for substantial

evidence. Sterkaj v. Gonzales, 439 F.3d 273, 278 (6th Cir. 2006). This means upholding the IJ’s

determination unless “any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B) (2006). “[A]n asylum application is frivolous if any of its material




                                                 10
elements is deliberately fabricated.” 8 C.F.R. § 1208.20 (2006). It must further be found that the

“alien [] knowingly made [the] frivolous application for asylum,” 8 U.S.C. § 1158(d)(6) (2006).

       While it is a close question, the IJ’s determination that Mr. Bakiu’s asylum application was

frivolous was supported by substantial evidence. The IJ believed that Mr. Bakiu fabricated a story

about being extorted because he wanted to join his family in the United States. J.A. at 66. The IJ

relied on the State Department’s Profile of Asylum Claims, which described how many Albanians

fabricate stories of persecution as a means to legally immigrate to join families already living within

the United States. J.A. at 191. The IJ also relied on the fact that Mr. Bakiu was inconsistent about

crucial details and very vague on other details that went to the heart of his application. Lastly, the

IJ believed it likely that Mr. Bakiu deliberately falsified information because Mr. Bakiu failed to

apply for asylum in Italy and France, two countries through which he traveled prior to entering the

United States. J.A. at 55. While this is not the strongest evidence from which the IJ could infer a

“deliberate” and “knowing[]” falsification, we are not compelled by the record to conclude the

contrary.



                                          CONCLUSION

       For the foregoing reasons, the petition for review is DENIED.




                                                  11
