                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0864n.06

                                      Nos. 09-4442; 09-4444                                 FILED

                           UNITED STATES COURT OF APPEALS                              Dec 21, 2011
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk

ALEKSANDER SPAQI,

               Petitioner,
                                               ON PETITION FOR REVIEW
v.                                             OF A FINAL ORDER FROM THE
                                               BOARD OF IMMIGRATION
ERIC H. HOLDER, JR.,
Attorney General,

            Respondent.
___________________________/

BEFORE: SUHRHEINRICH, MOORE, and COOK, Circuit Judges.


       RICHARD F. SUHRHEINRICH, Circuit Judge. Aleksander, Preke, Prene, Bernardina,

and Andrian Spaqi petition this court for review of the Board of Immigration Appeals’s (“BIA”)

decisions denying their applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In Case No. 09-4442, Aleksander (“Aleksander”) petitions

for review of the BIA’s denial of asylum on the grounds that the BIA violated his constitutional right

to procedural due process. He also claims that he established past persecution and a well-founded

fear of future persecution, and that it is more likely than not that he will be persecuted or tortured

if returned to his country of origin. In Case No. 09-4444, Prek, Prene, Bernardina, and Andrian

(collectively “Petitioners”) claim that the Immigration Judge (“IJ”) abused her discretion when she

denied their motion to sever their derivative applications after the principal applicant, Prek Spaqi,

was determined to be statutorily barred from asylum and withholding. They also contend that the
Nos. 09-4442; 09-4444
Spaqi v. Holder

BIA abused its discretion when it denied their motion to remand, and that they qualify for protection

under the CAT.

        Because we conclude that Aleksander’s claim fails on the merits, we do not address his due

process claim. We DENY Aleksander’s requests for asylum and withholding of removal. Because

he waived his challenge to the BIA’s denial of his CAT claims, we DENY review of Aleksander’s

request for protection under the CAT.

        We also DENY the Spaqi family’s petition for review in Case No. 09-4444, because the BIA

did not abuse its discretion in denying the motion to sever. The Spaqis failed to challenge the IJ’s

denial of their CAT claim, and it is therefore beyond the scope of this court’s review.

                                        I. BACKGROUND

        Petitioners in these consolidated cases belong to the same immediate family. They are all

natives of the former Yugoslavia who were all born in the village of Djakvoica near the Albanian

border in what is now Kosovo. The parties to the petition for review in Case No. 09-4444 are Prek

Spaqi (“Prek”), his wife Prene, their daughter Bernardina, and son Andrian. Their son Aleksander

Spaki (“Aleksander”) is a party to a separate but consolidated petition for review in Case No. 09-

4442.

        The Spaqis entered the United States without permission near Laredo, Texas on September

4, 2004. On the same day, the Department of Homeland Security (“DHS”) filed Notices to Appear

(“NTA”) against Prek, Prene, Bernardina, and Andrian, charging them with being subject to removal

for entering the United States without having been admitted or paroled. DHS filed an NTA against



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Aleksander on November 2, 2004. Each of the petitioners admitted the factual allegations in the

NTAs and conceded removability. An IJ granted their motions to change venue to Detroit,

Michigan.

       On August 24, 2005, Prek filed applications for asylum, withholding of removal, and

protection under the CAT, listing other family members as derivative beneficiaries.1 Aleksander was

included on his father’s application as a derivative beneficiary. Aleksander was twenty years old at

the time of entry and turned twenty-one shortly thereafter.2 The IJ “separated out” Aleksander’s

claim because he was twenty-one years old, and could not longer qualify as a derivative beneficiary

of his father. Aleksander appeared before an IJ the same day in a preliminary master calender

hearing. On October 5, 2005, Aleksander filed a separate application for asylum, withholding of

removal, and protection.

       On November 6, 2006, Prek Spaqi testified before the IJ in support of his applications for

relief. Administrative Record (“A.R.”), 09-44423, at 634-91.     Prek testified that his family was

involved in a land dispute with their neighbors, the Romojas. Prek stated that sometime around

1984, the Serbian government “created a law to fix . . . the parts of land in Kosovo,” and a



       1
        A spouse and children under age twenty-one may also be granted asylum if the “principal
applicant,” 8 C.F.R. § 1208.21(a), lists them on his application and they are in the United States.
Id. § 11208.3(a). See 8 U.S.C. §§ 1158(b); 1101(b)(1).
       2
       Aleksander was born on October 10, 1983. He entered the United States on September 4,
2004. He turned twenty-one on October 10, 2004.
       3
        The testimony of Prek Spaqi and Nicole Pepa, is part of the record in both Case Nos. 09-
4442, and 09-4444. For ease of reference, the citations provided are found in Case No. 09-4442.

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Spaqi v. Holder

commission from Gjakova seized a portion of Prek’s land and opened a road behind his house. A.R.

637-38. Prek told the IJ that he filed a complaint with the Directory in Pristina, that “experts” were

sent to the site, and that the Directory ruled that “the Commission from Gjakova” had to return the

land to Prek. A.R. 641. The Gjakova Commission appealed that decision to the Supreme Court,

which ruled that the Gjakova Commission had to return the land to the Spaqis and close the road it

was constructing behind Prek’s house. A.R. 642.

       When the Romoja family refused to close the road, Preq’s brother proceeded to do so himself

one day while Prek was hunting. A.R. 643. Upon his return home, Prek observed the Romojas get

“real angry” at his brother, and that “12 people came . . . and started shooting.” Prek shot his pistol

“three times in the air[,] . . . two killings happened,” and two members of the Romoja family were

killed. A.R. 643-45. About an hour later, the police arrested Spaqi, his father and brother, and took

them to jail in Pia, Kosovo. A.R. 645. Following a hearing, Prek was sentenced to twelve years for

murder and attempted murder, and his brother was sentenced to death. A.R. 646. Prek appealed to

the Pristina Supreme Court, and on November 23, 1989, that court reduced his sentence to three

years, because of “mistakes” made by the trial court. A.R. 647, 652. According to Prek, the Pristina

Supreme Court determined that the Romoja family “did shoot on us,” and that he was “sentenced

before that I did kill somebody but that was not true.” A.R. 648.

       Prek told the IJ that he did not go back to his village upon his release from prison, because

he feared retribution. He explained that “right away when . . . a member of [a] family there is killed

they are in a blood feud.” A.R. 653-54. Prek lived six or seven kilometers outside of his village

until 1996, when he left for Croatia. A.R. 655-57. He visited his village in Kosovo seven times,

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Spaqi v. Holder

without incident. A.R.657-58. In 1998, he moved his entire family to Albania. A.R. 658-59. At

this time he learned from his wife that the Romoja family was “beating a lot their kids [and] their

men,” and that a priest had attempted a reconciliation, but that the Romoja family had refused. A.R.

659-60.

       Nicole Pepa, a national of Kosovo, a legal permanent resident of the United States, and a

relative of the Spaqi family, also testified. A.R. 612-32. Pepa told the IJ that he has known the

Spaqi family since he was two years old, and that the Spaqis are “one of the most well known

families in Kosovo, and the most patriotic family in Kosovo.” A.R. 616. He explained that he was

“a chief for reconciliation of the blood-feud,” which he characterized as a non-governmental

reconciliation commission. A.R. 617, 632. Pepa stated that the blood feud between the Spaqis and

the Romojas began when the government seized the Romojas’s land and redistributed it to the Spaqi

family. Pepa indicated that he was unable to resolve the dispute between the two families. A.R.

621-25.

       The IJ found Prek ineligible for asylum and withholding as a matter of law as a result of his

conviction and sentence for attempted murder. Counsel subsequently moved to sever the cases of

Prene, Bernardina, and Andrian, the three family members who remained as derivative beneficiaries.

The IJ denied the motion. After testimony was complete, the IJ issued an oral decision determining

that Prek was statutorily barred from asylum and withholding of removal as a result of his

commission of a particularly serious crime. The IJ also denied Prek’s application for protection

under the CAT. She then ordered Prek, Prene, Bernardina, and Andrian deported to Serbia.



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Spaqi v. Holder

       The Spaqi family appealed the decision. The BIA affirmed the IJ’s decision and dismissed

the appeal. The Spaqi family timely petitioned this court for review of the BIA’s decision.

       On September 22, 2008, Aleksander testified at a hearing before the same IJ in support of

his application for relief. Aleksander also testified that his family was engaged in a blood feud with

the Romoja family in Kosovo, concerning “the land,” and that his life would be in danger if he

returned to Kosovo. Aleksander stated that he suffered many beatings from the older Romoja boys.

He stated that when he was about thirteen years old, he went to live with his aunt in a village

approximately ten kilometers away from Qerim, because his mother told him his life was in danger.

Aleksander reported that during his second year of high school, friends of the Romoja family beat

him on one occasion, pushing him to the ground and warning “that one day [they] are going to kill

the entire family.” Aleksander stated that he was afraid to report the incident to the police and that

when he told his parents, they said to be careful. Aleksander claimed that he wanted to go to college

but the Romoja family prevented it “[b]ecause they have many people that work for these things with

money.” Aleksander stated that he came to the United States with his family “to get out of danger.”

       The IJ allowed Aleksander to introduce the transcript of his father’s proceeding. The IJ and

BIA therefore considered the testimony of Prek and Pepa in deciding Aleksander’s case.

       On December 1, 2008, the IJ issued a written decision determining that Aleksander failed to

file within one year of entry and was therefore ineligible for asylum, denying his applications for

withholding of removal and protection under the CAT, and ordering him removed to Kosovo. The

IJ determined that Aleksander failed to show past persecution or a well-founded fear of future

persecution on account of a protected ground, and had not demonstrated a likelihood that he would

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Spaqi v. Holder

suffer torture with the acquiescence of the Kosovo government. She found Aleksander credible but

concluded that his testimony was not sufficiently detailed and persuasive without corroborating

documentation. Aleksander filed a timely appeal.

       On October 30, 2009, the BIA affirmed the IJ’s decision and dismissed the appeal. The BIA

agreed with the IJ’s determination that Aleksander was ineligible for asylum because his application

was filed after the one-year period, and was unable to establish changed or extraordinary

circumstances relating to the delay. In the alternative, the BIA“agree[d] with the [IJ]’s alternative

finding that [Aleksander] failed to demonstrate eligibility for asylum.” The BIA stated that it

       agreed with the Immigration Judge that [Aleksander’s] evidence of a family blood
       feud, where [Aleksander] was beaten up by members of the rival family, did not rise
       to the level of past persecution on account of a statutorily protected ground. As noted
       by the Immigration Judge, the discord between the families stemmed from a fatal
       shooting, and an angry family seeking revenge for the death of their family member.
       (I.J. at 13). See Klawitter v. INS, 970 F.2d 149 (6th Cir. 1992) (finding harm based
       solely on a personal vendetta does not constitute persecution on account of a
       statutorily protected ground).

A.R. at 3 (BIA Decision at 2). The BIA referenced the IJ’s finding that: “The alleged blood feud

has its origin in the criminal actions of certain members of the Spaqi family. [Aleksander] . . . failed

to establish that the alleged private actions targeted the Spaqi family as a group or that the

government has failed or refused to act.” A.R. at 92 (IJ Decision at 13).

       The BIA also ruled that Aleksander failed to meet the higher standard for withholding of

removal and that he could not prove likelihood of torture by or with the acquiesence of the

government to qualify for protection under CAT.




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Spaqi v. Holder

       Aleksander filed a timely petition for review in this court. See 8 U.S.C. § 1252(b)(1). His

appeal was later consolidated with his family’s.

                                         II. ANALYSIS

                                    A. Standards of Review

       Because the BIA issued its own opinion rather than summarily affirming the IJ, we review

the decision of the BIA as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057

(6th Cir. 2007). “To the extent the BIA adopted the [IJ]’s reasoning, however, this Court also

reviews the [IJ]’s decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Questions of law

are reviewed de novo. Id. We review both the IJ’s and the BIA’s factual findings under the

substantial-evidence standard.     Id.   “These findings are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted

and citation omitted).

                          B. Aleksander’s Appeal, Case No. 09-4442

                                          1. Timeliness

       The Board adopted the IJ’s determination that Aleksander was ineligible for asylum because

he failed to file within the one-year period, and that he failed to establish any changed or

extraordinary circumstances related to his delay. Because we conclude that substantial evidence

supports the BIA’s determination that Aleksander has not demonstrated eligibility for asylum, we

do not address this argument.




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Spaqi v. Holder

                                              2. Merits

        Aleksander appeals the BIA’s alternative holding denying his asylum claim on the merits,

as well as his claims for withholding of removal and protection under the CAT. To qualify for

asylum relief, Aleksander must demonstrate that he was subject to past persecution or has a well-

founded fear of future persecution “on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see also id. § 1158(b)(1)(B)(i);

I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To establish that the persecution is “on account

of” the protected ground of his political opinion or social group, Aleksander must provide “some

evidence . . . direct or circumstantial,” that his persecutors are motivated by his political opinion or

social group. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). “Persecution is ‘the infliction of

harm or suffering by the government, or persons a government is unwilling or unable to control, to

overcome a characteristic of the victim.’” Awad v. Holder, 2011 WL 2711069, at *5 (6th Cir. July

12, 2011) (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (citing In re Kasinga, 21

I & N. Dec. 357 (BIA 1996))). “Asylum is not available to an alien who fears retribution solely over

personal matters.” Zoarab v. Mukasey, 524 F.3d 777, 781 (6th Cir. 2008).

        As the testimony reflects, the blood feud related to the land dispute, which Prek himself

acknowledged was a “personal problem.” More importantly, the record shows that the police and

government authorities were active in both trying to resolve the land dispute and prosecute the

members of families who had engaged in murder or attempted murder of rival families. The land

dispute was resolved through the court system in Prek’s favor. Prek and his brother were arrested

for their role in shootings. And the court system again acted in Prek’s favor, eventually reducing his

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Spaqi v. Holder

sentence from twelve years to three years. These facts belie any assertion that the government was

unwilling or unable to control the alleged perpetrators.

         The record also established that after Prek left the village where he had been involved in the

killing of two members of the Romoja family, his family members remained there essentially without

harm. Moreover, Prek’s brother returned to Kosovo after his release from prison and did not report

any harm or harassment. Although Aleksander contended it was necessary for him to live with his

aunt ten kilometers from home, he did not suffer any serious harm from the Romoja family.

Aleksander claimed he was beaten by the older Romoja boys, but the incidents were never reported

to the police. See El Ghorbi v. Mukasey, 281 F. App’x 514, 517 (6th Cir. 2008) (holding that the

alien failed to show persecution for purposes of attaining asylum where she never complained to or

sought protection from the government or the police); Vata v. Gonzales, 243 F. App’x 930, 943 (6th

Cir. 2007) (holding that the alien failed to demonstrate that Albanian authorities were unwilling or

unable to protect him where he failed to report threatening phone calls to the Albanian police).

         In short, in this case, the “culture of blood feud . . . is wholly independent of political

activity.” Kalaj v. Gonzales, 137 F. App’x. 851, 855 (6th Cir. 2005) (in the context of Albania). See

also Locaj v. Gonzales, 219 F. App’x 483, 485 (6th Cir. 2007) (same). Even assuming the Spaqi

family constitutes a meaningfully defined social group, Aleksander failed to establish his

membership in this social group motivated any persecution. See Locaj, 219 F. App’x at 485.

         Because Aleksander failed to prove eligibility for asylum, he cannot establish the more

stringent standard for withholding of removal. See Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.

2005).

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Spaqi v. Holder

       Concerning his CAT claim, Aleksander asserts in his petition for review that it is more likely

than not that he would be persecuted or tortured upon removal. However, he makes no developed

argument particular to his CAT claim. He has therefore waived relief on those grounds. See Dillery

v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“It is well-established that ‘issues adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed

waived.’”) (quoting United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)); Shkabari v.

Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005) (holding that withholding of removal and CAT

claims not developed in brief were waived on appeal).

                           C. Spaqi Family Appeal, Case No. 09-4444

       We review for abuse of discretion the BIA’s denial of a motion to remand. Abu-Khaliel v.

Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). See Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.

2005) (governing motions to reopen).         We also review for abuse of discretion the BIA’s

determination that the IJ acted within her discretion in denying a motion to sever. Cf. id. (reviewing

an IJ’s denial of a continuance for an abuse of discretion because the grant of the continuance fell

within the discretion of the IJ). An abuse of discretion occurs when the denial of a motion “was

made without a rational explanation, inexplicably departed from established policies, or rested on

an impermissible basis such as invidious discrimination against a particular race or group.” Id.

(internal quotation marks and citation omitted).

       The BIA agreed with the IJ’s denial of the Spaqi’s request to sever because “the [Petitioners]

were represented by counsel, their counsel had an opportunity to sever the cases prior to the merits

hearing, and the grounds for statutory denial had existed since the inception of the case.” A.R., 09-

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Nos. 09-4442; 09-4444
Spaqi v. Holder

4444, at 4 (BIA Decision at 3). On appeal, Petitioners argue that “there was no conclusive indication

that the IJ would have found Prek statutorily ineligible for asylum and withholding of removal prior

to the IJ actually making such a ruling.” Pet. Br., 09-4444, at 21. There is a clear statutory basis for

the IJ’s finding, however, that Prek is statutorily ineligible for asylum based on his conviction for

attempted murder, an aggravated felony under the INA. See 8 U.S.C. § 1158(b)(2)(A)(ii) (stating

that an alien is barred from asylum if he has been convicted of a “particularly serious crime”); id. §

1158(b)(2)(B)(i) (stating that “a particularly serious crime” includes an “aggravated felony”); id. §

1101(a)(43)(A), (U) (defining “aggravated felony” as including “murder” and attempted murder);

id. § 1101(a)(43) (aggravated felony includes “such an offense in violation of the law of a foreign

country for which the term of imprisonment was completed within the previous 15 years”).

Furthermore, Petitioners disclosed this conviction on the family’s asylum application, suggesting

their awareness of its significance. And they do not contest its application on appeal. Accordingly,

the IJ provided a rational explanation for denying the motion to sever, which the BIA found to be

appropriate, and no abuse of discretion occurred.

        The BIA properly styled the motion to remand as one to reopen, which it may deny when “the

movant has not established a prima facie case for the underlying substantive relief sought.” INS v.

Abudu, 485 U.S. 94, 104 (1988). The BIA denied the motion to remand because Petitioners failed

to satisfy “their heavy burden of demonstrating the result of their case would likely change upon

remand.” A.R., 09-4444, at 4 (BIA Decision at 3). The BIA concluded that the remaining Spaqi

family members did not provide evidence demonstrating past persecution or a well-founded fear of

future persecution on account of a protected ground.

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Spaqi v. Holder

        Prima facie evidence is that which “reveals a reasonable likelihood that the statutory

requirements for relief have been satisfied.” Alizoti v. Gonzales, 477 F.3d 448, 452 (6th Cir. 2007)

(internal quotation marks and citation omitted). As the BIA and the IJ found, “the evidence of record

simply indicates that [Petitioners] are part of a family that was involved in a blood feud with another

private family.” A.R., 09-4444, at 4 (BIA Decision at 3). Moreover, an individual applicant for

asylum must prove that he or she will be singled out for persecution. See Akhtar v. Gonzales, 406

F.3d 399, 405-06 (6th Cir. 2005). “‘Although acts of violence against an alien’s family members

may demonstrate a well-founded fear of persecution, absent a pattern of persecution tied to the

asylum applicant, himself or herself, acts of violence against family members do not necessarily

demonstrate a well-founded fear of persecution.’” Id. (quoting Gebremaria v. Ashcroft, 378 F.3d

734, 739 (8th Cir. 2004)). Thus, while relevant, familial status alone cannot support a claim for

persecution. Id. at 406 (citing Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)). Cf. Mapouya

v. Gonzales, 487 F.3d 396, 412 (finding that the applicant provided evidence tending to show that

he still faced an individualized threat of future persecution despite changed country conditions). The

evidence presented at the 2006 hearing focused primarily on Prek’s conflict with the Romojas, and

Prek’s subsequent departure from Kosovo, and Pepa’s efforts at reconciliation. Because this

evidence was insufficient to establish a prima facie case of eligibility with respect to Prek in that it

demonstrated simply a private dispute, it was likewise insufficient to establish eligibility for the

derivative family members.4 Thus, the BIA did not act abuse its discretion in concluding that the


       4
          The government argues that the derivative family members cannot establish prima facie
eligibility because they never filed their own applications. Because the BIA did not abuse its

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Spaqi v. Holder

derivative beneficiaries had not established a prima facie case of eligibility for asylum or

withholding.

       Lastly, Petitioners did not challenge the IJ’s denial of Prek’s application for protection under

the CAT in his petition to the BIA. The claim has not been exhausted and is therefore beyond the

scope of this court’s review. 8 U.S.C. § 1252(d)(1).

                                       III. CONCLUSION

       For the foregoing reasons, we DENY the petition for review in Case No. 09-4442. We also

DENY the petition for review in Case No. 09-4444.




discretion in denying the motion to reopen on other grounds, we need not and do not address the
procedural requirements for filing a motion to reopen as a derivative beneficiary. Compare Haddad
v. Gonzales, 437 F.3d 515, 518 n.5 (6th Cir. 2006) (noting that filing a motion to reopen as a
derivative “is incompatible with the statute and regulations”), with Selami v. Gonzales, 150 F. App’x
504, 506-07 (6th Cir. 2005) (unpublished opinion) (dismissing derivative’s petition for review
because she had filed no independent asylum application of her own and noting the government’s
suggestion that she file a motion to reopen accompanied by her own application).

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Spaqi v. Holder

       KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

Because the BIA did not properly review the full record, Aleksander Spaqi has established a due-

process violation arising out of the BIA’s treatment of his untimely asylum application. On the

merits, the BIA erred as a matter of law when it concluded that Aleksander could not show

persecution on account of a protected ground as a result of the harm he experienced as a member of

the Spaqi family. I therefore would grant Aleksander’s petition for review of the BIA’s decision in

Case No. 09-4442 denying Aleksander’s requests for asylum and withholding of removal. Because

Aleksander waived challenge to the BIA’s denial of his CAT claims, I would, however, deny review

of the portion of Aleksander’s petition requesting protection under the CAT. I agree with the

majority’s disposition of Case No. 09-4444.

       In Case No. 09-4442, I would remand to the BIA with instructions to consider the one-year

finding in light of the full record, and to address in the first instance whether Aleksander has

demonstrated past persecution or a well-founded fear of future persecution by persons whom the

government of Kosovo is unable or unwilling to control. Because the BIA’s analysis of Aleksander’s

withholding of removal claim turned on its analysis of his asylum claim, the BIA should also

determine whether Aleksander meets the withholding-of-removal standard.

       The BIA agreed with the IJ’s determination that Aleksander was ineligible for asylum based

upon his failure to file within the one-year period, and his failure to establish any changed or

extraordinary circumstances related to this delay. Aleksander concedes that, in general, asylum

applicants must file their applications for asylum within one year after their arrival in the United

States. See 8 U.S.C. § 1158(a)(2)(B). He argues, however, that he qualifies for an exception for a

                                               -15-
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Spaqi v. Holder

late-filed application because he has demonstrated “the existence of . . . extraordinary circumstances

relating to the delay in filing an application within the period specified.” Id. at § 1158(a)(2)(D).

        Pursuant to 8 U.S.C. § 1252(a)(2)(A) and (B), when an asylum application is denied as

untimely, this court has jurisdiction to review only “constitutional claims or questions of law,” 8

U.S.C. § 1252(a)(2)(D), and not “discretionary or factual questions,” arising out of that

determination, Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Aleksander claims that

he was denied procedural due process because, when reviewing the IJ’s one-year finding, the BIA

considered an incomplete Administrative Record. Because this is a constitutional claim, he contends

that we may assert jurisdiction.

        As an alien, Aleksander is “entitled to the due process of law in deportation proceedings,”

Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009), which “requires that an alien be afforded

a full and fair hearing,” Gilaj v. Gonzales, 408 F.3d 275, 290 (6th Cir. 2005). “Due process [also]

demands a reasonably accurate and complete transcript to allow for meaningful appellate review and

to allow the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj v.

Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). “To prevail on a due process claim, [Aleksander] must

demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially affected

the outcome of [his] case.” Al-Ghorbani, 585 F.3d at 992.

        I believe that Aleksander has established a violation of his procedural due-process rights.

First, and most importantly for the due-process analysis, it appears that the BIA did not review “a

reasonably accurate and complete transcript [that would have] allow[ed] for meaningful appellate

review and [for Aleksander] to mount a challenge to the proceedings conducted before the IJ.”

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Sterkaj, 439 F.3d at 279. The IJ found that Aleksander did not provide documentation “to

corroborate his inclusion on his father’s application, or that his father’s application was filed within

one year of entry to the United States.” Administrative Record (“A.R.”), 09-4442, at 90 (IJ Decision

at 11). The BIA agreed with the IJ that Aleksander “turned 21-years-old shortly after entry, and

failed to produce documentation to meet his burden of demonstrating extraordinary circumstances.”

Id. at 2 (BIA Decision at 1).

        To the contrary, the record before the BIA should have included a transcript of the first

hearing in Aleksander’s case which would have corroborated Aleksander’s claim that he had been

included in his father’s application. Aleksander described this hearing in detail in his appeal to the

BIA and noted the particular case number of the asylum application in which he was originally

included as a derivative beneficiary. In addition, Aleksander provided to the BIA a copy of his

father’s I-589, which listed Aleksander as a derivative beneficiary. At the hearing, held before the

one-year period expired, the IJ separated out Aleksander’s case because he could no longer be

included on his father’s application. The IJ then deliberately scheduled a hearing to occur before

Aleksander’s twenty-second birthday, and suggested that he would thereby remain eligible for filing




                                                 -17-
Nos. 09-4442; 09-4444
Spaqi v. Holder

a separate application for asylum.1 The Administrative Record in Aleksander’s case, however, did

not include the key transcript.

        Instead of considering the referenced materials, the BIA relied on the IJ’s findings, which

mischaracterized the proceedings below. Inexplicably, the same IJ who concluded that Aleksander

did not demonstrate that he was included in his father’s timely application had herself separated out



        1
        An excerpt of that hearing follows:
       [Judge for the Record:] Let the record reflect that the Respondent is present and this
       case was part of the father’s file, file A 98 490 634, and that . . . Grace, will you make
       a copy of that and put it in his file as well. . . . [T]his matter will be separated out at
       this point because the Respondent is now 21 years of age.
       ...
       [Judge:] Is there a separate Application for him?
       [Aleksander’s Attorney (“Attorney”):] No, Your Honor. I miscalculated the age and
       I did not prepare a separate Application.
       ...
       [Judge:] I assume you’re going to consolidate this with the father?
       [Attorney:] Yes, Your Honor.
       ...
       [setting a hearing date for October 21]
       [Judge:] And unfortunately he won’t be eligible for Asylum but only eligible
       for—well, yes he will be because he’s, be 21.
       [Attorney:] . . . I can submit the Application prior to the one year anniversary, Your
       Honor. . . .
       [Judge:] Right, because of his 21st birthday.
       [Attorney:] Right.
       [Judge:] . . . October 12, 2005, at 11:00.
       [Department of Homeland Security (“DHS”):] That still passes his 21st, his 22nd
       birthday.
       [Attorney:] I will submit, I will...
       [Judge:] When’s his 22nd birthday?
       [DHS:] He was born October 10, ‘83, so he turned 21 October 10, of ‘84, ‘04, I’m
       sorry.
       [Judge:] Well, let’s make it October 5, then.
Supp. App’x at 2-4.

                                                  -18-
Nos. 09-4442; 09-4444
Spaqi v. Holder

Aleksander’s case and had adjudicated his father’s timely application. Furthermore, the BIA’s

assertion that Aleksander’s application was four years late is belied by the record. The IJ found that

Aleksander entered the United States on September 4, 2004, and filed his asylum application on

October 5, 2005, which is a little over thirteen months after entry. Despite this finding, the IJ

erroneously asserted in its decision that Aleksander filed his application almost four years after his

arrival. The BIA simply repeated this error.2

       The BIA’s treatment of the one-year issue suggests that the BIA either did not independently

review the record, or at most, reviewed an incomplete one. As a result, Aleksander was deprived

of his right to have the evidence presented “fairly considered.” Ahmed v. Gonzales, 398 F.3d 722,

725 (6th Cir. 2005). We have stated that “[w]hat is required is merely that [the BIA] consider the

issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive

that it has heard and thought and not merely reacted.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir.

2003) (internal quotation marks omitted); see Abdulai v. Ashcroft, 239 F.3d 542, 549-50 (3d Cir.

2001) (suggesting that “the BIA denies due process to an alien when it acts as a mere rubber-stamp”)

(internal quotation marks omitted). I do not believe the BIA’s opinion in this case meets that

threshold.

       The government counters that Aleksander did not exhaust his due-process challenge before

the BIA. “Although an alien’s due process challenge generally does not require exhaustion (the BIA


       2
         The erroneous four-year finding is crucial because the BIA and IJ provided very little
analysis of Aleksander’s argument that he qualified for an exception to the one-year period, and such
a discretionary exception hinges on the reasonableness of the time taken by the applicant to file the
petition.

                                                -19-
Nos. 09-4442; 09-4444
Spaqi v. Holder

lacks authority to review constitutional challenges), the alien must raise correctable procedural errors

to the BIA.” Sterkaj, 439 F.3d at 279. “[O]nly claims properly presented to the BIA and considered

on their merits can be reviewed by this court in an immigration appeal.” Ramani v. Ashcroft, 378

F.3d 554, 560 (6th Cir. 2004); 8 U.S.C. § 1252(d)(1) (providing that federal courts cannot exercise

jurisdiction over an appeal from an order of removal if the alien has failed to exhaust all

administrative remedies). Aleksander asserted in his brief to the BIA that his separate application

should be treated as timely because he was included as a derivative on his father’s timely

application.3 Aleksander then described in detail the hearing in which the IJ instructed Aleksander

to file a separate petition, and explained that his father’s asylum application, which he submitted

with his appeal, clearly listed him as a derivative beneficiary. I conclude, therefore, that Aleksander

“rais[e]d correctable procedural errors to the BIA” and exhausted those claims relevant to his due

process challenge. Sterkaj, 439 F.3d at 279.

        “To constitute fundamental unfairness . . ., a defect in the removal proceedings must have

been such as might have led to denial of justice.” Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir.

2005) (internal quotation marks omitted). “To prevail on a due process claim,” therefore,

Aleksander bears the burden of demonstrating “actual prejudice, and that the alleged prejudice

materially affected the outcome of his . . . case.” Mapouya v. Gonzales, 487 F.3d 396, 416 (6th Cir.

2007); see Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005) (stating that “a constitutional


       3
        Aleksander incorrectly asserted to the BIA that he had been included on his father’s
application when he was still a minor. It appears that his father’s application was filed after
Aleksander had attained age 21. The core of his argument to the BIA, however, was that it was
reasonable for him to have relied on the derivative application under the circumstances.

                                                 -20-
Nos. 09-4442; 09-4444
Spaqi v. Holder

violation results in prejudice if it “potentially [affected] the outcome of the proceedings.” (internal

quotation marks omitted) (alteration in original)).

        First, had his claim been reviewed properly, Aleksander’s untimely filing may have been

excused on grounds of changed or extraordinary circumstances. The IJ and BIA have discretion to

consider an untimely application if the alien demonstrates “the existence of changed . . . or

extraordinary circumstances.” 8 U.S.C. § 1158(a)(2)(D).4 Among the non-exhaustive list of

“extraordinary circumstances” provided by the governing regulations is the exception that arises

when:

        [t]he applicant filed an asylum application prior to the expiration of the 1-year
        deadline, but that application was rejected by the Service as not properly filed, was
        returned to the applicant for corrections, and was refiled within a reasonable period
        thereafter.”

8 C.F.R. § 1208.4(a)(5)(v). Aleksander appeared before the IJ, was included on an asylum

application filed before the one-year period expired, and filed his own separate application a month

later, at a hearing scheduled by the IJ herself. Thus, Aleksander was included on an application filed

before the conclusion of the one-year period, and his derivative “application . . . was rejected . . . as

not properly filed.” Id. (emphasis added). In addition, this exception requires that the application

“was refiled within a reasonable period” after the first application was rejected. Id. It surely appears



        4
        “Changed circumstances”may include “[i]n the case of an alien who had previously been
included as a dependent in another alien’s pending asylum application, the loss of the spousal or
parent-child relationship to the principal applicant through . . . attainment of age 21.” 8 C.F.R.
§ 1208.4(a)(4)(i)(C). Aleksander had turned 21 before his father’s application was filed, but the
examples provided by statute are not exhaustive. Aleksander’s argument may be analogous to this
ground for an exception to the one-year period.

                                                  -21-
Nos. 09-4442; 09-4444
Spaqi v. Holder

more reasonable that Aleksander filed his application one year and one month rather than four years

after his arrival, and roughly six weeks after his derivative application was rejected.

          By showing that the Administrative Record lacked a key hearing transcript which contributed

to inadequate review of his claims, Aleksander has established “actual prejudice” that “materially

affected” his eligibility for asylum. Mapouya, 487 F.3d at 416. The BIA, however, alternatively

denied his asylum claim on the merits. Whether the violation “materially affected the outcome of

his . . . case,” id. (emphasis added), therefore, turns on our review of the BIA’s alternative findings.

If the outcome of his case would have been different but for the one-year finding, then Aleksander

has established prejudice, and the BIA must reconsider its determination in light of the complete

record.

          Aleksander appeals the BIA’s alternative denial of his asylum claim on the merits, as well

as the BIA’s denial of his claims for withholding of removal and protection under the CAT. To

qualify for asylum, Aleksander must show that he is a “refugee” within the meaning of the INA

§ 101(a)(42), 8 U.S.C. § 1101(a)(42); see 8 C.F.R. § 1208.13(a). To establish that he is a refugee,

Aleksander must demonstrate that he has suffered past persecution or has a well-founded fear of

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

or political opinion.” 8 U.S.C. § 1101(a)(42); see id. at § 1158(b)(1)(B)(i); Berri v. Gonzales, 468

F.3d 390, 396 (6th Cir. 2006).

          Aleksander claimed to have suffered persecution on account of his membership in particular

social group: the Spaqi family. The BIA determined that Aleksander’s membership in his own

family did not constitute membership in a particular social group and that conflict between the

                                                  -22-
Nos. 09-4442; 09-4444
Spaqi v. Holder

families did not give rise to harm on account of a protected ground. The BIA did not find that

Aleksander failed to show the requisite severity of harm. Rather, the BIA’s analysis was limited to

nexus—that Aleksander had not shown that any harm to him was on account of a ground specifically

protected by the INA (race, religion, nationality, membership in a particular social group, or political

opinion).

          The BIA erred as a matter of law when it determined that “Spaqi family members embroiled

in a blood feud,” A.R., 09-4442, at 3 (BIA Decision at 2)—which the IJ characterized as

Aleksander’s immediate family and close relatives—do not constitute a particular social group. Both

Aleksander and Prek identified the particular social group suffering persecution as consisting of Prek

Spaqi, his children, and his close relatives. In Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir.

2003), this court adopted the BIA’s definition of a “particular social group” as composed of

individuals who share a “common, immutable characteristic.” Id. at 546-47. “[A] common,

immutable . . . characteristic” includes those qualities that members “either cannot change, or should

not be required to change,” such as “sex, color, or kinship ties.” Bi Xia Qu v. Holder, 618 F.3d 602,

606 (6th Cir. 2010) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)) (emphasis

added).

          Because family identity may be common, distinctive, and immutable, we observed that a

particular social group defined by “membership in the same family[] is widely recognized” in this

circuit and others as falling within the INA’s protection. Al-Ghorbani, 585 F.3d at 995; see, e.g.,

Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) (“Our prior opinions make it clear that we

consider family to be a cognizable social group within the meaning of the immigration law.”); Jie

                                                 -23-
Nos. 09-4442; 09-4444
Spaqi v. Holder

Lin v. Ashcroft, 377 F.3d 1014, 1029 (9th Cir. 2004) (“Where family membership is a sufficiently

strong and discernible bond that it becomes the foreseeable basis for personal persecution, the family

qualifies as a ‘social group.’”); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There can, in

fact, be no plainer example of a social group based on common, identifiable and immutable

characteristics than that of the nuclear family.”). Accordingly, under our circuit precedent, a “known

family” bound by immutable kinship ties—which is thus particular and socially visible 5—constitutes

a particular social group. Toma v. Gonzales, 179 F. App’x 320, 324 (6th Cir. 2006) (internal

quotation marks omitted).      In accordance with widespread precedent, Aleksander has thus

demonstrated membership in a particular social group by virtue of membership in his family.

       There is no suggestion, furthermore, that Romoja family members bear a grudge particular

to Aleksander—instead, they want to harm him because of his membership in the Spaqi family,

which provides the nexus required by statute. Compare Torres, 551 F.3d at 630 (vacating BIA’s

order denying relief because applicant’s “testimony is rife with examples that provide his family’s

history”—namely, the targeting of his older brothers—as the cause of his persecution), with Demiraj


       5
        According to the BIA, the “key characteristics of a particular social group are particularity
and social visibility.” Al-Ghorbani, 585 F.3d at 994 (citing Matter of S-E-G-, 24 I. & N. Dec. 579,
582 (BIA 2008)). When holding that the family may satisfy the particularity and social-visibility
requirements, we explained that:
       The essence of the particularity requirement . . . is whether the proposed group can
       accurately be described in a manner sufficiently distinct that the group would be
       recognized, in the society in question, as a discrete class of persons. Social visibility,
       on the other hand, requires that the shared characteristic of the group should generally
       be recognizable by others in the community. The shared characteristic must be
       considered in the context of the country of concern and the persecution feared. Id.
       (internal citations and quotation marks omitted). There is no suggestion that the
       Spaqi family is not distinct and recognizable in their community.

                                                -24-
Nos. 09-4442; 09-4444
Spaqi v. Holder

v. Holder, 631 F.3d 194, 199 (5th Cir. 2011) (concluding that “[t]he record here discloses a

quintessentially personal motivation” for vengeance, and not one based on family membership).

Thus, the BIA erred when it concluded that conflict between the families did not constitute harm on

account of a protected ground.

       Because the stated basis for denying asylum relief on the merits was improper, Aleksander

has shown that the due-process violation may have “materially affected the outcome of his . . . case.”

Mapouya, 487 F.3d at 416. Consequently, on remand, the BIA should review the IJ’s one-year

finding in light of the full record. See Ahmed, 398 F.3d at 728 (“The proper remedy for this due

process violation is to give [petitioners] an opportunity to have their case heard fairly.”).

       To prevail ultimately on his asylum claim, Aleksander must show past harm or well-founded

fear of future harm that rises to the level of “persecution,” and that the persecution is “by the

government or persons [the] government is unwilling or unable to control.” Kante v. Holder, 634

F.3d 321, 325 (6th Cir. 2011) (internal quotation marks omitted); see Gilaj, 408 F.3d at 283-85. The

BIA did not specifically address whether the severity of the alleged harm rose to the level of

persecution or whether the government of Kosovo is unable or unwilling to protect him from the

harm. “When the BIA does not fully consider an issue,” as a “reviewing court” we are “‘not

generally empowered to conduct a de novo inquiry into the matter being reviewed.’” Bi Xia Qu, 618

F.3d at 609 (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006)). Because the BIA did not fully

consider whether Aleksander is eligible for asylum, we must “remand to the [BIA] for additional

investigation or explanation.” Thomas, 547 U.S. at 186 (internal quotation marks omitted).

Accordingly, I would remand to the BIA for consideration of whether Aleksander has established

                                                 -25-
Nos. 09-4442; 09-4444
Spaqi v. Holder

past persecution or well-founded fear of future persecution from which the government of Kosovo

is unable or unwilling to protect him. In addition, the BIA’s dismissal of Aleksander’s withholding

of removal claim was based on its analysis of his asylum claim. Therefore, the BIA must also

consider on remand whether Aleksander has established “that there is a clear probability that he will

be subject to persecution if forced to return to” Kosovo, such that he is entitled to withholding of

removal. Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004).

       Because the BIA did not properly review the full record, Aleksander has established a due-

process violation arising out of the BIA’s treatment of his untimely asylum application. On the

merits, the BIA erred as a matter of law when it concluded that Aleksander could not show

persecution on account of a protected ground as a result of the harm he experienced as a member of

the Spaqi family. I therefore would grant Aleksander’s petition for review of the BIA’s decision in

Case No. 09-4442 denying Aleksander’s requests for asylum and withholding of removal. I would

remand to the BIA with instructions to consider the one-year finding in light of the full record, and

to address in the first instance whether Aleksander has demonstrated past persecution or a well-

founded fear of future persecution by persons whom the government of Kosovo is unable or

unwilling to control. Because the BIA’s analysis of Aleksander’s withholding of removal claim

turned on its analysis of his asylum claim, the BIA in my view must also determine whether

Aleksander meets the withholding-of-removal standard.

       For the reasons explained above, I respectfully dissent in Case No. 09-4442.




                                                -26-
