                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 04a0059n.06
                               Filed: October 29, 2004

                                           No. 02-4428

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PRENDE MERAJA,                                         )
                                                       )
       Petitioner,                                     )
                                                       )
v.                                                     )    ON APPEAL FROM THE BOARD
                                                       )    OF IMMIGRATION APPEALS
                                                       )
JOHN ASHCROFT, U.S. Attorney General,                  )
                                                       )
       Respondent.                                     )


Before: SILER, MOORE, and COLE, Circuit Judges.

       PER CURIAM. Petitioner Prende Meraja appeals her denial of asylum. She argues that

the Immigration Judge (“IJ”) erroneously found her not credible, her past persecution entitles her

to asylum, and the Board of Immigration Appeals (“BIA”) improperly concluded that her case fit

the criteria for streamlined affirmance. For reasons stated hereafter, the BIA’s denial of asylum is

AFFIRMED.

BACKGROUND

       Meraja is a native of Albania. She spent nearly thirty years in an internment camp, where

Albanian communists forced her into “hard labor,” and denied her an education, the right to vote,

and the right to earn a living. She was released from the internment camp circa 1988. In 1990, the

Albanian communist regime was displaced. In 1997, socialists were elected to power.
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Meraja v. Ashcroft

       Meraja left Albania and entered the United States in 1999. She conceded removability and

applied for asylum and withholding of removal under the Torture Convention. In her application

for asylum, she described three incidents in which she was physically assaulted. Two of these

incidents involved the police, and one involved two young men, or “thugs.”

       After the hearing, the IJ denied asylum based on adverse credibility, noting that Meraja’s

testimony before the IJ was inconsistent with her asylum application. Alternatively, the IJ

discounted her communist persecution because of changed country conditions, and found that her

recent persecution was based on her son’s 1997 desertion from the military, rather than on any

protected ground. The BIA affirmed without opinion.

ANALYSIS

Denial of Asylum

       Because the BIA affirmed the IJ without opinion, this court reviews the IJ’s decision

regarding denial of asylum as the final administrative order. Yu v. Ashcroft, 364 F.3d 700, 702 (6th

Cir. 2004).

       The IJ has discretion to grant asylum to any alien who qualifies as a “refugee.” 8 U.S.C.

§ 1158(a) & (b). A refugee is any alien unable or unwilling to return to her home 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.” 8 U.S.C. § 1101(a)(42)(A). This

court “review[s] the IJ’s factual determination as to whether the alien qualifies as a refugee under

a substantial evidence test.” Yu, 364 F.3d at 702. Under this test, the IJ’s findings are “conclusive




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unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

       The significant inconsistencies between Meraja’s application and her testimony provide

substantial evidence for the IJ to find that she lacked credibility. Her testimony is inconsistent in

both the sequence and her descriptions of the alleged persecution events. Three events in particular

involve two police encounters and one encounter with “thugs.” Meraja’s application placed the

“thug” incident as the first incident, before any police encounters. Her application stated that the

“thugs” hit her, but made no mention of her being hospitalized for two weeks. In contrast, in her

testimony she asserted that she had been hospitalized for two weeks after the “thug” incident, which

itself had followed a police incident. Meraja’s application alleged an incident in which the police

claimed they were looking for her son, and hit her for lying about his whereabouts. Her application

further alleges a second police encounter, in which the police beat her and she was hospitalized for

two weeks. In contrast, her testimony does not detail a second police encounter.

       The IJ noted these inconsistencies and ultimately determined that Meraja was not credible.

These inconsistencies are not minor because they describe the persecution that goes to the heart of

Meraja’s claim for asylum. Thus, the IJ’s adverse credibility determination is supported by

sufficient evidence, and a reasonable adjudicator would not “be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). This adverse credibility finding alone sufficiently supports

the IJ’s finding that Meraja failed to qualify as a refugee. Nevertheless, her argument that her past

persecution entitles her to asylum is addressed below.




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        Meraja contends that her past persecution by the communist regime, including placement in

the internment camp, established a well-founded fear of persecution. Because this regime no longer

controls Albania, the IJ found this past persecution to be immaterial. The IJ completed an extensive

analysis of country reports, determining that country conditions had changed since the persecution

occurred. Furthermore, the IJ noted that Meraja had experienced no problems for seven years,

covering the period from 1990, when the communists fell, to 1997, when her son deserted the

military.

        Finally, the IJ determined that Meraja had failed to tie incidents that occurred during and

after 1997 to any protected ground. The IJ’s determination that her attackers were motivated by her

son’s desertion from the military was supported by Meraga’s accounts of the incidents. Persecution

based on a refusal to serve in the military does not, in itself, constitute persecution based on political

opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 481-83 (1992).

        Substantial evidence supports the IJ’s finding that Meraja’s persecution under the communist

regime was immaterial in light of the changed country conditions. Furthermore, substantial evidence

supports the IJ’s conclusion that she was harmed by the police because of her son’s desertion, rather

than because of her political opinion.

The BIA’s Affirmance without Opinion

        Meraja challenges the BIA’s affirmance without opinion, alleging that such streamlining is

in violation of due process requirements and that her case did not fit the criteria for streamlining.

Regulations at that time (Nov. 18, 2002) provided that a Board member could streamline a case if

he or she determined, inter alia, that “the result reached in the decision under review was correct;


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Meraja v. Ashcroft
[and] that any errors in the decision under review were harmless or nonmaterial.” 8 C.F.R.

§ 3.1(e)(4) (2003).1 Meraja argues that her case should not have been streamlined because the IJ’s

decision was wrong and his errors were material and harmful.

        This court has ruled that “it is not a due process violation for the BIA to affirm the IJ’s

decision without issuing an opinion.” Denko v. I.N.S., 351 F.3d 717, 730 (6th Cir. 2003) (internal

quotation omitted). We have not determined, however, whether the BIA’s decision to streamline

a case is subject to judicial review. Assuming, for argument only, that judicial review is proper,

Meraja’s argument against use of the streamline procedure fails. Even if the standard of review most

favorable to Meraja were to be employed, the result would be the same. De novo review – unlikely

to be the appropriate standard – would essentially place this court in the position of the BIA, which

reviews the IJ’s findings of fact under the clearly erroneous standard. See 8 C.F.R. § 3.1(d)(3)(i)

(2003). The BIA has indicated that a decision may be reversed as clearly erroneous “when although

there is evidence to support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” In re Zamudio, 2004 WL 848586 (BIA Feb.

26, 2004) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 365 (1948)). The IJ’s

findings of adverse credibility and a lack of well-founded fear of persecution were not clearly

erroneous. Therefore, even if this court were to review the BIA’s decision to affirm without opinion,

it would be affirmed.

        AFFIRMED.



        1
         This streamline regulation was later moved to 8 C.F.R. § 1003.1(e)(4), with substantially
similar requirements, by 68 Fed. Reg. 9824-01 (Feb. 28, 2003).

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