                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0197n.06
                           Filed: December 30, 2004

                                           No. 03-3086

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


LINDITA GJONAJ, KLAUDIA GJONAJ, and              )
JORGO GJONAJ,                                    )
                                                 )
       Petitioners,                              )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES BOARD OF IMMIGRATION
                                                 )   APPEALS
JOHN ASHCROFT, United States Attorney            )
General,                                         )
                                                 )
       Respondent.                               )




       Before: SILER, SUTTON, and FARRIS, Circuit Judges.*


       SUTTON, Circuit Judge. Lindita Gjonaj challenges an order of removal against her and her

two children, claiming that the Board of Immigration Appeals erred in making an adverse credibility

determination regarding her application and testimony. Because substantial evidence supports the

Board’s finding and because no other evidence compels a contrary conclusion on the removal issue,

we deny the petition for review.




       *
         The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
No. 03-3086
Gjonaj v. Ashcroft

                                                 I.


       A native and citizen of Albania, Gjonaj entered the United States in April 1999 with her two

minor children, Klaudia and Jorgo, without being admitted or paroled by an immigration officer.

She fled Albania, she later testified, to avoid persecution for being an active member of the

Democratic party and an election observer in 1996 and 1997. In her written application for asylum,

Gjonaj asserted that her parents had been persecuted for opposing Albania’s former communist

regime and had been interned at a labor camp where her mother eventually died. In October 1996

and June 1997, her application continues, the former communists threatened to kill her and her

husband. On April 28, 1998, secret police detained her in prison for two days, interrogated her, beat

her twice and threatened to kill her. As a result of these beatings, she miscarried during her fourth

month of pregnancy. Also, beginning on March 8, 1999, she was detained for three days in prison

again, where she was interrogated, sexually harassed and “threatened to be sold at Italy’s public

houses if [she] continue[d] [her] political activity.” JA 100.


       After being served with a Notice to Appear for being present in the United States illegally,

she requested asylum, withholding of removal and protection under the Convention against Torture,

8 C.F.R. § 208.13(c)(1), on behalf of herself and her children. At her hearings, Gjonaj’s testimony

differed from the assertions in her written application. She made no mention of the death threats she

and her husband received in 1996 and 1997. When cross-examined about her alleged arrest on April

28, she testified that she was certain that the arrest had occurred on March 28 and that her

application contained the wrong date, but later changed her testimony to say that the arrest occurred

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on April 28. When asked to explain why her birth certificate had her married name on it, Gjonaj was

unable to give any explanation. And in response to questions about her and her children’s birth

certificates, Gjonaj testified that she received them from her husband but did not know when he

obtained them.


        The immigration judge (IJ) denied Gjonaj’s requests and ordered her and her children

removed to Albania. In the process of reaching this decision, the immigration judge declined to

consider untranslated documents submitted by Gjonaj. Addressing other documents purportedly

from the government of Albania, the immigration judge noted that Gjonaj “has submitted no

evidence from which this Court can [adduce] that these are reliable or even issued by officials in the

country of Albania.” JA 32. In view of past experiences with fraudulent documents purportedly

issued by the Albanian government, the immigration judge concluded that “the lack of

authentication in this case seriously undercuts any weight that this Court can attach to these

documents.” Id. Lastly, the immigration judge noted that although Gjonaj’s husband was present

at the arrest in April 1998 and entered the United States in time to testify, her husband did not testify

to corroborate her testimony. Taking all of these factors into account, the immigration judge

concluded that Gjonaj’s testimony was not credible and was uncorroborated.


        The Board of Immigration Appeals affirmed the immigration judge’s denial of Gjonaj’s

request. In doing so, it cited her inconsistent testimony as to the date of her first arrest, her failure

to mention death threats purportedly made against her and her husband and her failure to

authenticate any of her documentation.

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                                                 II.


       Our review in this area is circumscribed. Contrary to Gjonaj’s contention, we do not give

de novo review to decisions of the Board of Immigration Appeals. We must defer to the Board

when its factual findings, such as determinations of credibility, are “supported by reasonable,

substantial, and probative evidence on the record considered as a whole,” Marku v. Ashcroft, 380

F.3d 982, 986 (6th Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)), and indeed

we may not reverse factual findings of the Board unless the evidence compels a contrary result, 8

U.S.C. § 1252(b)(4)(B) (decreeing that the Board’s “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary”); see also Elias-

Zacarias, 502 U.S. at 481 n.1.


       An applicant for asylum bears the burden of demonstrating that she is a refugee within the

meaning of the Immigration and Nationality Act, namely that she is unwilling to return to her

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). Here, the Board of Immigration Appeals found that Gjonaj failed to carry that

burden because her testimony was not credible.


       Substantial evidence supports this credibility determination. Gjonaj contended in her written

application that former communists threatened her life (and that of her husband) twice. While a

reasonable adjudicator could expect such threats to be uniquely memorable, Gjonaj neglected to



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mention them during her oral testimony. This omission also conflicts with her claim that these

events caused her to fear future persecution. And during her testimony, Gjonaj repudiated the April

28 date she had asserted in writing, saying the date in the application was a mistake: “I don’t know

how but I am sure that I got arrested on March 28th of 1998. It is [ ] a mistake, I [was] arrested on

March 28th of 1998.” JA 73. Yet later during the same day’s testimony, she again asserted that her

first arrest occurred in April. The IJ and Board may fairly consider the fact that a witness’s

testimony tacks back and forth when making a credibility finding.


       Since her testimony lacked the credibility to support her application by itself, Gjonaj was

entitled to try to corroborate her testimony. See 8 C.F.R. § 208.13          (“The testimony of the

applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). But

Gjonaj’s efforts to corroborate her testimony accentuated rather than alleviated these credibility

concerns.   Her birth certificate, for example, recorded her married name, a demonstrably

questionable fact for which she had no explanation. And while she suggests in her brief that

documents “may be authenticated in immigration proceedings through any ‘recognized procedure,

such as those required by INS regulations or by the Federal Rules of Civil Procedure,’” Gjonaj Br.

at 13 (quoting Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)), she took no steps to authenticate

the documents under any of those avenues. Making matters worse, she testified that she did not

personally obtain the documents from the government or know when her husband did. Lastly,

Gjonaj could have corroborated her testimony by having her husband testify, at least as to her first

arrest. Because he allegedly bribed the prosecutor for her release, he would have had some



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knowledge of the incident and indeed he was available to testify: as the record shows, he waited

outside the hearing room during the hearing. For reasons yet to be explained, however, Gjonaj

presented no testimony from her husband supporting her claims. In short, while Gjonaj bears the

burden of demonstrating persecution or a well-founded fear of future persecution, she failed to

present credible evidence capable of carrying that burden.


       In response, Gjonaj notes that no one asked her about the death threats during the hearing.

Perhaps not. But the fact remains that she bore the burden of proof on this issue and (for whatever

reason) did not testify about these events. She also argues that the immigration judge incorrectly

excluded her documents based on the submission of fraudulent documents by other Albanian

applicants in other cases. In one sense, she is correct; in another, she is not. No doubt, it would be

inappropriate for an immigration judge to make an across-the-board ruling that because documents

from a certain country were frequently fraudulent, the judge need not examine the authenticity of

the documents independently. But here the immigration judge specifically excluded the documents

not because documents from Albania were frequently fraudulent, but because “the lack of

authentication in this case seriously undercuts any weight that this Court can attach to these

documents.” JA 32 (emphasis added).


       Since substantial evidence supports the Board’s determination that Gjonaj is not eligible for

asylum, it follows that she cannot meet the more stringent standard for withholding of removal.

Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001). Likewise, she is unable to show that she is




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entitled to protection under the Convention against Torture. Castellano-Chacon v. INS, 341 F.3d

533, 552 (6th Cir. 2003).


                                              III.


       For these reasons, we deny the petition for review.




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