                                      File Name: 07a0218n.06
                                       Filed: March 26, 2007

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                             No. 06-3599

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

ELENA DRITARJA,

          Petitioner,

v.                                                          ON APPEAL FROM THE
                                                            BOARD OF IM M IGR ATION
ALBERTO GONZALES, Attorney General of the                   APPEALS
United States,

          Respondent.


                                                       /

                                              OPINION


Before:          KENNEDY, MARTIN, and SUTTON, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Elena Dritarja appeals from an adverse

decision of the Board of Immigration Appeals regarding her petition for asylum and other relief from

removal.

                                                   I

          Dritarja is a native and citizen of Albania, where, according to her testimony, she and her

family were persecuted on account of their Serbian ethnicity. Dritarja’s petition for asylum

specifically focused on two troubling incidents. First, on December 24, 2001, while she and her

parents were preparing to celebrate the Christmas holiday at their family home, a police officer
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accompanied by three civilians invaded the home, assaulted Dritarja and her mother, and arrested

her father. Her father was held in jail for two days without being charged, where he was tortured and

severely beaten before being released.

       The second incident occurred on June 18, 2002, when Dritarja was walking to the grocery

store to buy some oil and sugar for her mother. Three men pulled up beside her in a white Mercedes

and forced her into the car at gunpoint. They drove for roughly thirty minutes and brought Dritarja

to an abandoned house, where she was forcibly raped by two of her assailants. While driving her

back from the house, the men told Dritarja that her family should return to Serbia and her father

should withdraw from the political organization of which he was a member (the Moraca-Rozafa, an

association of ethnic Serbians and Montenegrins living in Albania). The men dropped her off

approximately two kilometers from her house, and she later informed her mother what had happened.

Her mother helped treat the physical injuries she had suffered from the rape, and arranged for

Dritarja to leave the country.

       Dritarja’s parents paid $15,000 for her to be smuggled with a fake passport into the United

States. Dritarja claims to have entered the United States through John F. Kennedy Airport in New

York on August 2, 2002. She affirmatively applied for asylum on March 5, 2003, but this petition

was denied. She was subsequently served with a notice to appear and charged with removability.

She sought relief in the form of asylum, withholding of removal, and protection under the

Convention Against Torture. Her case was removed from New York to Detroit, where her requested

relief was denied by an immigration judge. The judge ruled that Dritarja could not establish that she

had applied for asylum within one year of her arrival in the United States, as there was no
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documentary evidence of her date of entry, despite affidavits from both of her parents that placed her

in Albania less than a year prior to the time she affirmatively filed for asylum. The immigration

judge also made an adverse credibility finding with regard to Dritarja’s claim that she had been

raped. The judge relied on what she deemed to be Dritarja’s inconsistent explanations about why

her father was arrested and whether she told her father about the rape, varying pronunciations used

by Dritarja to name the leader of Moraca-Rozafa, and Dritarja’s demeanor during her testimony, as

well as the assertion in State Department country reports concluding that Serbians and Montenegrins

were not persecuted in Albania. For example, according to the immigration judge, Dritarja’s claim

that she did not tell her father of the rape was contradicted by an affidavit, submitted by Dritarja’s

mother, stating: “she told us that she had been raped . . . .” (Emphasis added.) The judge concluded

that Dritarja “quite simply submitted no evidence that any harm will come to her from the

government of Albania because of any basis which she has articulated in her application.”

       The Board of Immigration Appeals affirmed and adopted the decision of the immigration

judge, finding that “there are not exceptional circumstances to overcome the respondent’s failure to

timely file her application for asylum,” and that “without credible testimony the respondent is not

eligible for withholding of removal or relief under the United Nations Convention Against Torture.”

Dritarja now appeals from the Board’s order.

                                                  II

                                        A. Asylum Claims

       Dritarja’s allegations of the treatment to which she and her family were subjected are

obviously troubling. However, we must defer in large part to the immigration judge’s adverse
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credibility determination. Moreover, in light of the immigration judge’s determination that Dritarja’s

petition for asylum was untimely, we are without jurisdiction to review this aspect of the claim. See

Almuhtaseb v. Gonzales, 453 F.3d 743, 746-48 (6th Cir. 2006). We would have jurisdiction to

review the denial of asylum if it implicated any constitutional claims, such as a due process violation,

or matters of statutory construction. Id. at 748. Yet Dritarja makes no such claims, nor are any due

process violations apparent to us. Because we lack jurisdiction, we cannot review Dritarja’s asylum

claim and accordingly dismiss it.

            B. Withholding of Removal and Convention Against Torture Claims

        We are not similarly barred from reviewing Dritarja’s other claims for relief, and thus we

address them in somewhat greater detail. In order to be granted withholding of removal, an applicant

“must provide evidence showing that there is a ‘clear probability’ that his or her life would be

threatened on account of race, religion, nationality, membership in a particular social group, or

political opinion.” Ben Hamida v. Gonzales, No. 06-3134, 2007 U.S. App. LEXIS 5258, at *20 (6th

Cir. Mar. 7, 2007). This involves a standard that is substantively similar but more burdensome for

an applicant to meet than a claim for asylum. Id. To gain relief under the Convention Against

Torture, an applicant must show that it is more likely than not that she will be tortured upon return

to her country. Id. at *21. The immigration judge and the Board premised their rejection of both of

Dritarja’s claims on the adverse credibility determination, declining to assess whether her allegations

would show a clear probability of persecution, or a likelihood of torture, if taken as true.

        Factual findings, including adverse credibility determinations, are reviewed under the

substantial evidence standard, and “are conclusive unless any reasonable adjudicator would be
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compelled to conclude to the contrary.” Id. at *4 (quoting 8 U.S.C. § 1252(b)(4)(B)). We review

the immigration judge’s opinion directly where its reasoning is adopted by the Board, as occurred

here. Id. Although few of the inconsistencies upon which the immigration judge based her adverse

credibility determination are profound when taken alone, in light of their cumulative effect, we

cannot say that we are compelled to reach a contrary conclusion regarding Dritarja’s credibility. See

Birbili v. Gonzales, No. 05-3941, 2006 U.S. App. LEXIS 28281, at *6 (6th Cir. Nov. 13, 2006)

(“[T]his case appears to fall into the category of asylum cases in which the bases for the immigration

judge’s adverse credibility determination are not overwhelming, but which are not so deficient as

to compel a contrary result, as is required under the applicable standard of review.”).

       Several of the issues identified by the immigration judge can be viewed as attempts by

Dritarja to “enhance” her claims of persecution, which supports their use in an adverse credibility

determination. See Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). Specifically, the

immigration judge ruled that when first questioned about the arrest of her father, Dritarja said that

she did not know why he was arrested. At the hearing, however, she said that it was a result of his

participation in a pro-Serbian political group. There is good reason to believe that this change in

Dritarja’s story, minor as it may seem, reflected an effort to construct a meritorious asylum claim.

The immigration judge also specifically noted that during her testimony, Dritarja appeared to be

“reciting a learned script.” This type of first-hand observation is the very reason that we defer to

finders of fact. Further, the inconsistencies between Dritarja’s account of telling only her mother

about the rape and the statement in her mother’s affidavit that Dritarja told “us” (as in both parents)
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about the attack might on the one hand be a relatively minor inconsistency, but on the other could

be indicative of a failed attempt by the family to fabricate a story.

       These several points might not necessarily convince us that Dritarja was lying, or that we

would have made the same decision as the immigration judge, but that is not our standard of review

in a case such as this. And even if we were to believe Dritarja, we cannot say that she has met the

high standard required for relief in this case: namely, showing a clear probability that she will be

persecuted, or that it is more likely than not she will be tortured, upon her return to Albania.

                                                  III

       For the above reasons, we dismiss Dritarja’s petition for review of her time-barred asylum

claim, and we affirm the Board’s denial of her requests for withholding of removal and relief under

the Convention Against Torture.
