       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Mullai v. Ashcroft                         No. 02-4313
    ELECTRONIC CITATION: 2004 FED App. 0326P (6th Cir.)
                File Name: 04a0326p.06                                        _________________
                                                                                  OPINION
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                         COOK, Circuit Judge. Elma Mullai, a native and citizen of
                _________________                         Albania, seeks review of a decision of the Board of
                                                          Immigration Appeals affirming, without opinion, the order of
 ELMA MULLAI,                  X                          an immigration judge denying her request for asylum and
                  Petitioner, -                           withholding of removal. Because substantial evidence
                                -                         supports the IJ’s conclusion that Mullai neither suffered past
                                -  No. 02-4313            persecution nor has a well-founded fear of future persecution
            v.                  -                         in Albania, we deny Mullai’s petition for review.
                                 >
                                ,                                                       I
 JOHN ASHCROFT , Attorney       -
 General; IMMIGRATION AND       -                            Mullai, age fifty-two, was born and raised in Albania, the
 NATURALIZATION SERVICE,        -                         daughter of a wealthy, Muslim family. After coming to
                Respondents. -                            power during the 1940s, the Communists confiscated her
                                -                         family’s property and also arrested one of her uncles because
                               N                          of his religious activities, sentencing him to seven years of
   On Appeal from the Board of Immigration Appeals.       imprisonment. Another of Mullai’s uncles escaped arrest by
                  No. A73 616 876.                        fleeing to the United States.

               Submitted: August 6, 2004                     According to Mullai, the Communist government targeted
                                                          her for persecution on at least five occasions. In April 1989,
        Decided and Filed: September 27, 2004             after she criticized the president of Albania in a private
                                                          conversation, the secret police detained her in jail for one
   Before: KENNEDY, SUTTON, and COOK, Circuit             week, forbidding any contact with her family and repeatedly
                    Judges.                               threatening her. She recounted to the IJ that on four separate
                                                          occasions from December 1990 through December 1991, the
                  _________________                       Albanian police beat and kicked her during her participation
                                                          in protests against the government. She explained the lack of
                       COUNSEL                            medical records of treatment for the injuries sustained during
                                                          the beatings by her decision not to seek medical treatment.
ON BRIEF: Robert M. Birach, Detroit, Michigan, for        Despite these experiences, Mullai received a college
Petitioner. James A. Hunolt, Emily A. Radford, UNITED     education under the Communist regime and held a chemical
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,           engineering position in a factory.
for Respondent.

                            1
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   Mullai alleges that after the Communist government             2002—twenty-four days after the voluntary-departure period
collapsed in 1992, her persecution continued under the new        expired. This court granted that motion.
Democratic Party government. In November 1994, at a
protest at which Mullai gave a speech, the police again beat                                    II
and kicked her. Then again two years later, after participating
in a protest that she helped organize, the secret police             Because the BIA affirmed the IJ’s decision without
detained Mullai in jail for two days without food or water and    opinion, we review the IJ’s decision as the final agency order,
threatened her. Two days after being released, she lost her       Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003), under the
job. These events prompted Mullai to seek and obtain a visa       “substantial evidence” standard. Under this deferential
to visit the United States. But she did not leave Albania until   standard of review, we uphold the IJ’s decision if it is
a few months later, after the government—without apparent         “‘supported by reasonable, substantial, and probative
provocation—again took her into custody and deprived her of       evidence on the record considered as a whole.’” Koliada v.
food and water for two days.                                      INS, 259 F.3d 482, 486 (6th Cir. 2001) (quoting INS v. Elias-
                                                                  Zacarias, 502 U.S. 478, 481 (1992)). We are not entitled to
  Mullai entered the United States on October 2, 1996, with       reverse “simply because [we are] convinced that [we] would
authorization to remain for six months. Because she               have decided the case differently.” Adhiyappa v. INS, 58 F.3d
remained beyond the authorized six months, the INS served         261, 265 (6th Cir. 1995) (internal quotation marks omitted).
her with a Notice to Appear in November 1997. Mullai then         “Rather, in order to reverse the BIA’s factual determinations,
applied for asylum, withholding of removal, and protection        the reviewing court must find that the evidence not only
under the United Nations Convention Against Torture, on the       supports a contrary conclusion, but indeed compels it.”
basis of past persecution due to her religion, membership in      Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992) (citing
a particular social group, and political opinion, and because     Elias-Zacarias, 502 U.S. at 481).
she feared future persecution in Albania. After a hearing, the
IJ found that Mullai failed to demonstrate that she was                                     A. Asylum
entitled to asylum on the basis of her claims of religious and
gender persecution. With respect to her allegations of              Mullai bears the burden of establishing that she is a
political persecution, the IJ concluded that Mullai had not       “refugee” eligible for asylum either because she has suffered
suffered past persecution and that even if she had, changed       actual past persecution or because she has a well-founded fear
country conditions rebutted the presumption of a well-            of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.
founded fear of future persecution.                               § 208.13(a); Elias-Zacarias, 502 U.S. at 481. If she
                                                                  demonstrates past persecution, she is entitled to a rebuttable
  The BIA summarily affirmed the IJ’s denial of Mullai’s          presumption of a well-founded fear of future persecution.
application for asylum, withholding of removal, and               8 C.F.R. § 208.13(b)(1). The government may overcome this
protection under the Convention Against Torture, and granted      presumption by establishing by a preponderance of the
Mullai a thirty-day period for voluntary departure (ending        evidence that there is “a fundamental change in circumstances
November 25, 2002). Mullai now requests review of the             such that [Mullai] no longer has a well-founded fear of
denial of her application for asylum and withholding. She         persecution in [her] country of nationality.” 8 C.F.R.
also filed a motion for a stay of removal on December 18,         § 208.13(b)(1)(i)(A).
No. 02-4313                          Mullai v. Ashcroft      5    6    Mullai v. Ashcroft                          No. 02-4313

  Substantial evidence supports the IJ’s determination that       and the Profile of Asylum Claims) and Mullai’s evidence
Mullai did not experience past persecution. For one thing, her    describe the type of general civil disorder and lawlessness to
ability to obtain an advanced degree under the Communist          which anyone living in Albania would be exposed. At worst,
regime does not reconcile easily with her claim that the          the record contains allegations of the Socialist government’s
Communist government targeted her for persecution. For            persecution of Democratic Party members—the party that
another, her treatment by the Communist government could          previously persecuted Mullai.
be reasonably viewed as motivated by her status as a protester
rather than religious persecution. With respect to the               As to our review of the IJ’s conclusion that changes in
Albanian Democratic Party’s treatment of Mullai, the              country conditions trump any presumed well-founded fear,
incidents Mullai alleges do not meet this circuit’s definition    Mullai urges us to assess as unwarranted the weight the IJ
of “persecution”—“more than a few isolated incidents of           gave to United States Department of State reports in
verbal harassment or intimidation, unaccompanied by any           evaluating her fear of future persecution. But Mullai herself
physical punishment, infliction of harm, or significant           provided a number of the State Department reports on which
deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384,      the IJ relied (including the Country Reports on Human Rights
390 (6th Cir. 1998). And although Mullai obtained a visa          for 1997 and 1999). Although this circuit acknowledges that
soon after her detainment in May 1996, she waited over three      State Department reports may be problematic sources on
months (until after she was again detained in September           which to rely, Koliada, 259 F.3d at 487 (citing cases from the
1996) to leave Albania. Because we find no evidence in the        First, Fourth, and Seventh Circuits), in other cases we adopt
record compelling us to reverse the IJ’s conclusion that          the view that such reports “are generally the best source of
Mullai did not suffer past persecution, we uphold the IJ’s        information on conditions in foreign nations.” Kokaj v.
decision that Mullai failed to demonstrate past persecution       Ashcroft, 100 Fed. Appx. 506, 508 (6th Cir. 2004). And we
severe enough to merit a grant of asylum on humanitarian          have relied on State Department reports when reviewing an
grounds. See In re Chen, 20 I. & N. Dec. 16 (BIA 1989)            IJ’s decision. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 639
(holding that petitioner, who with his family members             (6th Cir. 2004). Thus, the IJ’s reliance on these reports is
suffered persistent and severe persecution throughout the         supportable.
Cultural Revolution as a result of their religious beliefs, was
entitled to asylum on humanitarian grounds).                                      B. Withholding of Removal

  Substantial evidence also supports the IJ’s determination          Mullai also seeks review of the IJ’s denial of withholding
that even if Mullai suffered past persecution, changed country    of removal. To obtain such relief, she must show by a “clear
conditions rebut the presumption of a well-founded fear of        probability” that her life or freedom would be threatened on
future persecution in Albania. Although Mullai alleged            account of her race, religion, nationality, membership in a
persecution by the Communist and Democratic Party                 particular social group, or political opinion. INS v. Stevic,
governments, she has not demonstrated that the current            467 U.S. 407, 429-30 (1987); Mikhailevitch, 146 F.3d at 391.
government controlled by the Socialist Party would target her     Because the lesser standard for establishing asylum eligibility
for persecution. See Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir.    eludes Mullai, we conclude that she cannot meet the more
1996); Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986). As       stringent requirements for withholding of removal. INS v.
the IJ noted, both the United States Department of State          Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); Castellano-
reports (the Country Reports on Human Rights for Albania          Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (“[A]
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greater quantum of proof is required as to the likelihood of          Though jurisdictional questions abound among the circuit
persecution in the country of risk in order to establish           courts concerning voluntary- departure decisions, we answer
eligibility for withholding.”).                                    here only the question of whether a court may reinstate
                                                                   voluntary departure where the voluntary-departure period
                   C. Voluntary Departure                          granted by the BIA expires before petitioner seeks either a
                                                                   stay of removal or a stay of voluntary departure.
   Having concluded that substantial evidence supports the
IJ’s denial of asylum, we next address Mullai’s alternative           Mullai never moved to stay the time for voluntary
request that the court reinstate the BIA’s grant of a thirty-day   departure, and she only moved to stay removal after the
period for voluntary departure. Because we lack the authority      expiration of the voluntary-departure period. As a result, the
to grant Mullia’s request, we deny it.                             period for voluntary departure authorized by the Attorney
                                                                   General expired. Any judicial order to “reinstate” at this time
   The relief of voluntary departure is governed by § 240B of      would necessarily authorize a new opportunity to voluntarily
the Immigration and Nationality Act, 8 U.S.C. § 1229c,             depart, a function assigned to the Attorney General’s office
providing that “[t]he Attorney General may permit an alien         by 8 U.S.C. § 1229c and denied to the courts by 8 U.S.C.
voluntarily to depart the United States at the alien’s own         § 1229c(f) and § 1252(a)(2)(B)(i). Our application of the
expense” (thereby avoiding the usual consequences of               statutes today is consistent with the development of this issue
deportation) if the alien is not otherwise disqualified.           in the majority of circuit courts that have considered it after
Voluntary departure thus is typically granted by the               the passage of the IIRIRA. See, e.g., Reynoso-Lopez v.
immigration judge to qualifying aliens in tandem with the          Ashcroft, 369 F.3d 275, 282 (3d Cir. 2004) (collecting
denial of the more favorable relief of asylum, withholding of      authorities that hold that courts do not have jurisdiction to
departure, or the like. If the alien appeals a decision of the     reinstate or extend a voluntary-departure order).
immigration judge to the Board of Immigration Appeals and
the Board affirms, it too may grant a period of voluntary            This lack of a pre-expiration motion to stay disqualifies
departure.                                                         Mullai from benefitting from our decision in Nwakanma v.
                                                                   Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003). Nwakanma
  The Illegal Immigration Reform and Immigrant                     relied on a court’s injunctive power to stay pending matters
Responsibility Act of 1996 (IIRIRA) includes provisions that       and thereby avoided colliding with the IIRIRA constraints on
preclude judicial review of the grant or denial of voluntary       courts’ jurisdiction: “[I]n granting a stay of voluntary
departure. The statute provides: “No court shall have              departure, we do not pass on the substance of the decision to
jurisdiction over an appeal from denial of a request for an        grant voluntary departure; we only stay the immediate
order of voluntary departure under subsection (b) of this          effectiveness of the relief already granted by respondent in his
section, nor shall any court order a stay of an alien’s removal    discretion, to allow the petitioner to receive appellate review.”
pending consideration of any claim with respect to voluntary       Id.
departure.” 8 U.S.C. § 1229c(f). Additionally, 8 U.S.C.
§ 1252(a)(2)(B)(i) provides that “no court shall have                 In Mullai’s case, due to the absence of a stay, the
jurisdiction to review . . . any judgment regarding the granting   discretionary relief granted by respondent Ashcroft expired by
of relief under . . . [8 U.S.C.] section 1229c [voluntary          its own terms. Thus a decision at this time to reinstate would
departure] . . . .”
No. 02-4313                        Mullai v. Ashcroft    9

pass on the substance of the decision to grant voluntary
departure rather than staying its effectiveness.
                            III
  We accordingly deny Mullai’s petition for review and deny
her request to reinstate the expired voluntary-departure
period.
