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Camishi v. Holder

August 17, 2010

ARTUR CAMISHI, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: March 10, 2010

Before BYE, ARNOLD, and COLLOTON, Circuit Judges.

Artur Camishi, a citizen of Albania, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing Camishi's appeal from the Immigration Judge's (IJ) order removing him from the United States to Albania. Camishi argues the IJ and BIA violated his due process rights under the Fifth Amendment. Camishi also argues the IJ and BIA improperly denied his request for asylum under 8 U.S.C. § 1158, as well as his request for withholding of removal under 8 U.S.C. § 1231(b)(3), and for protection under Article III of the Convention Against Torture (CAT). We deny the petition for review.

I.

Camishi was admitted to the United States on November 5, 2000, as a non-immigrant visitor with authorization to remain in the United States until May 4, 2001. Camishi remained in the United States after that time, without authorization, and he filed an asylum application*fn1 with the Immigration and Naturalization Service (INS).*fn2 The INS issued Camishi a Notice to Appear and charged him with removability under 8 U.S.C § 1227(a)(1)(B) as an alien who, after admission as a non-immigrant under 8 U.S.C. § 1101(a)(15), remained in the United State for a time longer than permitted. Camishi appeared before an immigration judge and conceded removability, but requested asylum, withholding of removal, and protection under CAT. Camishi claimed he had experienced past persecution and feared future persecution in Albania because of his political activity supporting the Democratic Party. Camishi claimed he was beaten, imprisoned, and unable to work because of his affiliation with the Democratic Party. Camishi left Albania after he was summoned to appear before a court and the police confiscated information which Camishi had collected about government officials involved in illegal activity.

In support of his claims, Camishi submitted four documents: (1) "Vertetim" dated September 23, 2001 (a letter from Vili Minarolli, "Head of the Tirana Branch of the Democratic Party of Albania," confirming Camishi's membership and political activities); (2) "Flete-Thirje" dated August 26, 2000 (an "Appearance Order" from Vice-Colonel Ilir Belivoda, the "Chief of Order of Police," directing Camishi to appear at the Commissariat of Police on August 27, 2000); (3)"Urdher" dated October 14, 2000 (an "Order of Appearance of Citizen" from the "Officer of Court Police" directing Camishi to appear in court on November 10, 2000); and (4) an Albanian Democratic Party Membership Card issued May 5, 1993.

The documents were examined by a forensic document examiner at the Forensic Document Laboratory (FDL) in DHS's Immigration and Customs Enforcement (ICE) section. The forensic examiner could not conclusively authenticate the "Vertetim," "Flete-Thirje," and "Urdher" because the FDL did not have contemporaneous genuine specimens for comparison. The forensic examiner concluded the "Vertetim" and the "Flete-Thirje" were not what they purported to be because the documents share a combination of mechanical markings which indicate they were prepared by a common source, yet were ostensibly prepared by different agencies more than a year apart. The forensic examiner also concluded the "Urdher" was suspicious because: (1) the wet seal on it bore evidence it was produced by hand, which is not an accepted way of preparing a wet seal, (2) the hand drawn seal covered a portion of the signature and the date, and (3) the document was initially misdated as being issued in the year "1000" then later changed to "2000." Finally, the forensic examiner determined the Democratic Party Membership card should not be accepted at face value, as it was allegedly obtained eight years before the other documents, yet did not show any signs of wear and showed signs of being made contemporaneously with the other documents and then probably back-dated.

Camishi offered testimony from an expert on the government, politics, and history of Albania. The historical expert explained there are serious economic difficulties which affect documentation because of the political transitions in Albania. There is no pattern for official documentation in Albania. Government offices often use regular paper, sometimes use typewriters, and other times use letterhead paper. In this context, the historical expert concluded the documents seemed genuine, but indicated there is a great deal of opportunity for document fraud in Albania because of frequent inconsistencies in government documents.

The IJ denied Camishi's applications for asylum, withholding of removal, and CAT protection. The IJ concluded Camishi lacked credibility because Camishi submitted fraudulent documents. The IJ further found Camishi failed to meet the requisite burden of proof to establish an asylum claim as he failed to demonstrate the isolated incidents he suffered in Albania were because of his political affiliation. Since Camishi failed to establish eligibility for asylum, the IJ found he necessarily failed to satisfy the more stringent standard for withholding of removal, and denied Camishi's CAT claim because he was generally not credible and failed to meet his burden of proof in demonstrating he was more likely than not to be tortured upon return to Albania. See 8 C.F.R. § 208.16(c)(2). The BIA affirmed the IJ's decision and dismissed Camishi's appeal.

II.

Camishi argues his due process rights under the Fifth Amendment were violated when the BIA failed to address the timeliness of his asylum application. The IJ found Camishi was ineligible for asylum because he could not demonstrate by clear and convincing evidence his application was filed within one year after arriving in the United States. See 8 U.S.C. § 1158(a)(2)(B). Also, Camishi was not able to demonstrate either the existence of changed circumstances which materially affect his eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within one year after arriving in the United States. See 8 U.S.C. § 1158(a)(2)(D). Nonetheless, the IJ also denied Camishi's claim for asylum on the merits, independent of the time bar. Without reaching the timeliness issue, the BIA affirmed the judgment of the IJ on the merits, because Camishi lacked credibility as he submitted fraudulent documents in support of his claim.

To establish a Fifth Amendment due process violation, Camishi must demonstrate both a fundamental procedural error and prejudice as a result of the error. Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003). Prejudice requires "a showing that the outcome of the proceedings may well have been different had there not been any procedural irregularities." Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007). Camishi must demonstrate an error which potentially affects the outcome. Id. Since the IJ denied the petition on an adverse credibility finding independent of the time bar, and the BIA affirmed the credibility finding, we conclude there is no prejudice and Camishi's due process rights under the Fifth Amendment were not violated.

On appeal to the BIA, Camishi did not discuss his claim of withholding from removal pursuant to 8 U.S.C. § 1231(b)(3) or his claim for relief under CAT. In order to seek judicial review, Camishi must exhaust all administrative remedies available to him as of right. 8 U.S.C. § 1252(d)(1). In Etchu-Njang v. Gonzales, 403 F.3d 577, 581-83 (8th Cir. 2005), we concluded Congress likely intended to require an alien not only pursue all stages of administrative review, but also raise all issues before the agency (BIA). As Camishi did not raise any issues related to ...


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