Vaka v. Gonzales , 192 F. App'x 9 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2802
DRITAN VAKA; RANOLA VAKA; and BRIANA VAKA,
Petitioners,
v.
ALBERTO R. GONZÁLES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Aleksander Milch, and Christophe & Associates, P.C., on brief
for petitioners.
Laurie Snyder, Attorney, Tax Division, U.S. Department of
Justice, Peter D. Keisler, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Civil Division,
Office of Immigration Litigation, on brief for respondent.
August 31, 2006
TORRUELLA, Circuit Judge. Petitioners Dritan Vaka,
Ranola Vaka, and Briana Vaka (collectively, the "Vakas") seek
review of a decision by the Board of Immigration Appeals ("BIA")
denying their applications for asylum, withholding of removal, and
relief under the Convention Against Torture ("CAT"). For the
reasons set forth below, we affirm the BIA's decision and deny the
petition for review.
I. Background
Dritan and Ranola Vaka are married and the parents of
Briana Vaka. All three are citizens of Albania who entered the
United States on or about December 19, 2000,1 without being
lawfully inspected, admitted or paroled. On November 19, 2001,
Dritan filed an application for asylum, alleging persecution on
account of his political opinion.2 On June 12, 2002, the
Immigration and Naturalization Service ("INS")3 served Dritan with
a Notice to Appear, charging the Vakas with removability under
1
The exact date of the Vakas' arrival in the United States is not
certain. However, the Government does not dispute the assertion
that the entry occurred around this time.
2
Dritan Vaka is the lead petitioner in this case and the only
individual claiming to have suffered persecution. His wife and
daughter's applications for asylum are derivative of his own,
depending wholly on the merits of Dritan's claim.
3
In March 2003, the relevant functions of the INS were
transferred to the new Department of Homeland Security and
reorganized as the Bureau of Immigration and Customs Enforcement
("BICE"). For clarity, the agency will continue to be referred to
as the INS throughout this opinion.
-2-
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1182(a)(6)(A)(i).
At a hearing before an Immigration Judge ("IJ") on
November 4, 2002, the Vakas admitted the allegations against them
and conceded removability. On March 5, 2004, the Vakas again
appeared before the IJ, and Dritan presented testimony detailing
the family's experiences in Albania prior to their departure for
the United States.4
Dritan was born April 24, 1970 in the town of Kelcyre-
Permet ("Permet"). Professionally, he was employed as a taxicab
driver and owned a cinema with his father. Politically, Dritan had
been a member of Albania's Democratic Party ("DP") since February
1992. Rather than maintain separate spheres for business and
politics, Dritan allowed the two aspects of his life to complement
each other; when he was not working, he volunteered his taxi
services as a chauffeur for local DP officials and opened his
cinema doors to host DP meetings. Furthermore, he participated in
party meetings and distributed literature encouraging people to
vote.
Dritan testified that his political activism made him the
target of abuse on several different occasions. The first incident
occurred in 1987 while Dritan was a high school student. Dritan
4
Ranola also presented testimony generally corroborating Dritan's
account.
-3-
opposed Albania's Communist government, and while talking with
friends one day, he expressed his belief that the state's policy of
forcing students to work on the weekends was "not right." When
authorities learned of his comments, Dritan was pulled out of
school, taken to the local police station, and beaten. Thereafter,
he was not permitted to return to school and was forced to complete
his education through night classes.
The next incident did not occur until March 1997 while he
was helping the DP prepare for upcoming elections. While driving
home from a party rally in Permet one night, he was stopped by a
group of men wearing masks and wielding automatic rifles. Dritan
immediately recognized two of the men as members of the local
branch of the Socialist Party, which he believed to be the
successor of the former Communist regime. The armed men forced
Dritan from the car, levied insults at him, beat him, threatened
him with the guns they carried, and stole his car. Although Dritan
was eventually able to recover the vehicle, it was abandoned twelve
miles away and heavily vandalized. Following this attack, Dritan
went to live with his uncle some six hours away. However, he still
managed to return to Permet in time to participate in elections
held in June 1997.
Dritan further testified that in June 1999, as elections
approached in October, members of the Socialist Party searched his
home, threatened him, and damaged his cinema to such an extent that
-4-
he chose to cease operating it as movie theater. However, the
cinema continued to be used to host DP meetings. Then in September
of 2000, several men came to the Vakas' home, threatened the
family, and physically abused Dritan. As evidence of the severity
of the attack, Dritan testified that he received care at the local
hospital for a cut above his eye. Additionally, the assailants
fatally shot the family dog as they left the home.
Although he continued to work during the day, Dritan
claimed that he no longer went out at night as a result of these
incidents. However, he remained in Albania through the elections
of October 2000 and into November, when he and his family finally
left the country permanently. Traveling with valid Albanian
passports personally issued to both Dritan and Ranola some six or
seven years earlier, the Vakas first traveled to Greece, then
Italy, then France. In France they obtained false Greek
documentation and used it to travel to Belgium, then Spain, and
finally Mexico. From Mexico the Vakas crossed into the United
States illegally, apparently sometime around December 2000. Once
in the United States, the Vakas joined Dritan's brother, a
naturalized United States citizen, and Dritan's parents.
Following the hearing of March 5, 2004, the IJ issued her
decision. The IJ found that Dritan and Ranola had testified
credibly and that Dritan "has been harmed in the past on account of
his political activities." Emphasizing this point in reference to
-5-
the 1997 car theft, the IJ specifically stated, "The Court wants to
make a finding that these actions could not have been motivated for
criminal intents since nothing was stolen." Despite these
conclusions, the IJ held that the Vakas were not eligible for
asylum. In making this determination, the IJ relied on several
distinct lines of reasoning.
First, the IJ suggested that the Vakas' real motivation
for coming to the United States may have been to reunite with
family, rather than escape persecution. The IJ noted that the
family apparently had the option of remaining in Greece with
Dritan's sister who lives and works there. The Vakas could also
have sought protection in any number of western European countries.
Highlighting this point, the IJ pointed out that Dritan could have
fled ever since his Albanian passport was first issued in 1993 or
1994,5 but instead remained in Albania in order to make
arrangements to travel to the United States.
Second, the IJ suggested that the degree of harm and the
nature of risk experienced by Dritan were not severe enough to
trigger asylum eligibility. The IJ noted that the attacks and
threats only occurred sporadically. Furthermore, Dritan was not
5
By the court's calculation, this would have been when Dritan and
Ranola received their Albanian passports. Although the original
documents were never presented before the IJ, Dritan testified that
they had received the passports some six or seven years prior to
the departure from Albania. The IJ accepted this assertion as true
and cited the testimony in her decision.
-6-
prevented from working or owning property and, even after the final
assault, he continued to participate in the DP and hold meetings at
his cinema. The IJ also pointed to the fact that the Vakas did not
leave Albania until two months after the last incident of abuse.
Third, the IJ noted "the fact that conditions appear to
be improving in Albania" and recognized the presence of "general
improvements" regarding levels of electoral violence. The decision
also noted that the Country Report for Albania, issued by the State
Department in 2003, indicated that conditions had "steadily
improved." In sum, while the IJ recognized that elections have
been plagued by problems in the past, that corruption persists, and
that human rights abuses still occur in Albania, the IJ found it
probative that the political process was becoming less irregular.
Thus, the IJ denied the Vakas' application for asylum,
holding "the risk of harm does not rise to the well-founded
standard." With their asylum claim denied, the IJ granted the
Vakas voluntary departure from the United States, in lieu of
removal. The Vakas then filed a timely appeal to the BIA, which
affirmed the IJ's decision on November 8, 2005. Without
elaborating, the BIA concurred in the IJ's conclusion that
"[a]lthough the lead respondent experienced past harm on account of
his political opinion, we agree that this mistreatment does not
rise to the level of persecution." Therefore, the BIA found that
the Vakas failed to meet their burden and issued an order denying
-7-
their appeal. Pursuant to the IJ's ruling, the BIA further ordered
the Vakas to voluntarily depart the United States within 60 days or
be subject to removal. The Vakas now petition this court for
review of the BIA's decision.
II. Discussion
A. Applicable Law
Under the INA, the Attorney General has the authority to
grant asylum to any individual who qualifies as a refugee. 8
U.S.C. § 1158(b)(1)(A).6 The INA defines "refugee" as an
individual who is unable or unwilling to return to his or her
country of nationality "because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A). Government regulations interpreting the
INA provide two separate avenues by which an alien may establish
the he or she qualifies as a refugee: 1) by showing a well-founded
fear of future persecution; or 2) by showing the existence of past
persecution, thereby raising a regulatory presumption of a well-
founded fear of future persecution. See Palma-Mazariegos v.
Gonzáles, 428 F.3d 30, 34 (1st Cir. 2005); 8 C.F.R. § 208.13(b)(1)-
(2).
6
Following the reorganization of the INS that occurred after the
creation of the Department of Homeland Security, the INA was
amended to give the Secretary of Homeland Security the authority to
grant asylum as well. See 8 U.S.C. § 1158(b)(1)(A).
-8-
In order to demonstrate a well-founded fear of future
persecution, the asylum applicant must meet subjective and
objective elements; that is the fear of persecution must be both
genuine and objectively reasonable. See Palma-Mazariegos, 428 F.3d
at 35. Additionally, a well-founded fear of future persecution
requires "a reasonable possibility of suffering such persecution if
[the applicant] were to return to [his or her] country," and the
anticipated persecution must be committed because of one of the
five statutorily protected grounds. 8 C.F.R. § 208.13(b)(2).
As noted, an alien also may become eligible for asylum by
showing that he or she has suffered from past persecution. 8
C.F.R. § 208.13(b). As with the fear of future persecution, the
past persecution must have been committed on the basis of one of
the five protected grounds. 8 C.F.R. § 208.13(b)(1). Once the
asylum applicant has demonstrated past persecution, a presumption
of a well-founded fear of future persecution also arises. Id.However, the Government may rebut this presumption by establishing
that changed country conditions have removed the threat of
persecution or by demonstrating that the alien can safely relocate
within his or her native country without fear of further
persecution. 8 C.F.R. § 208.13(b)(1)(i).
Although federal regulations provide a coherent structure
for the adjudication of asylum claims once the existence of past
persecution or the likelihood of future persecution is determined,
-9-
they provide little insight as to what sort of conduct actually
constitutes "persecution." See generally 8 C.F.R. § 208.13. Thus,
the INA and INS regulations largely leave the exact import of the
term to be determined by judicial exposition. See Nelson v. INS,
232 F.3d 258, 263 (1st Cir. 2000). To that end, the case law of
this circuit indicates that proving the existence of persecution is
a fairly difficult burden to meet. See Guzmán v. INS, 327 F.3d 11,
15 (1st Cir. 2003). We have held that the fact that an alien has
endured some physical abuse does not necessarily mean that the
incident should be classified as "persecution," even when the abuse
is suffered because of one of the five protected grounds. See id.
at 16 (finding that a "one-time kidnaping and beating falls well
short of establishing 'past persecution'"); Nelson v. INS, 232 F.3d
at 264 (finding that substantial evidence supported an IJ's ruling
that three incidents of detainment lasting less than 72 hours each,
all accompanied by some physical abuse, did not rise to the level
of persecution); Ravindran v. INS, 976 F.2d 754, 756-60 (1st Cir.
1992) (finding no persecution where a member of a minority ethnic
group had been interrogated and beaten for three days in prison and
warned about pursuing political activities).
To qualify as persecution, the harm suffered must
represent more than "episodic violence or sporadic abuse." Palma-
Mazariegos, 428 F.3d at 37. Furthermore, the nature of the harm
"must rise above unpleasantness, harassment, and even basic
-10-
suffering." Nelson, 232 F.3d at 263. Beyond these few guiding
principles, however, whether particular conduct constitutes
persecution must be determined on an ad hoc basis. See Aguilar-
Solís v. INS, 168 F.3d 565, 570 (1st Cir. 1999).
We review the BIA's denial of asylum under the
deferential substantial evidence standard. Lan Zhu Pan v.
Gonzáles, 445 F.3d 60, 61 (1st Cir. 2006). The BIA's decision
passes muster under this standard if "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elías-Zacarías, 502 U.S. 478, 481 (1992). However,
if "the record evidence would compel a reasonable factfinder to
make a contrary determination," we are obliged to overturn the
holding. Aguilar-Solís, 168 F.3d at 569. Since we are not
compelled to reach a conclusion contrary to the decision
promulgated below, we affirm the BIA's order.
B. Past Persecution
First, we believe substantial evidence exists to support
the BIA's conclusion that Dritan's experiences did not rise to the
level of past persecution, even though he suffered some harm
because of his support for the DP. The mere existence of
politically motivated abuse, though deplorable, does not
necessarily indicate that persecution has taken place. See Guzmán,
327 F.3d at 15. As noted, "episodic violence or sporadic abuse"
does not reach the level of past persecution. Palma-Mazariegos,
-11-
428 F.3d at 37. The three incidents in which Dritan suffered harm
as a result of his affiliation with the DP could be fairly
characterized as episodic and sporadic, having occurred over the
course of three and a half years and each separated by at least
fourteen months.
As the IJ also noted, Dritan continued to work and openly
supported the DP for the duration of the alleged persecution.7
According to his own testimony, he was not deterred from voting in
elections in 1997, 1999, or 2000. Furthermore, even after his
family was threatened and his cinema damaged, he continued to host
DP meetings. Thus, despite the occasional episodes of physical
abuse, Dritan was largely able to continue participating in both
7
The BIA appears to have implicitly adopted this rationale when
it affirmed the IJ's holding, writing, "Although the lead
respondent experienced past harm on account of his political
opinion, we agree that this mistreatment does not rise to the level
of persecution." When the BIA defers to or adopts the decision of
the IJ, a court of appeals must then directly review the decision
of the IJ. Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003).
This also seems to be permissible when the BIA offers only "a brief
explanatory order," as is the case here. Settenda v. Ashcroft, 377
F.3d 89, 94 & 98 (1st Cir. 2004) (performing a substantial evidence
review of the IJ's decision under these circumstances). Moreover,
as the Government points out in its brief, there is some indication
in the INS's explanation of its own regulations that the courts of
appeals should be somewhat more open to reviewing the IJ when the
BIA decision is issued by a single Board member, as is also the
case here. See Board of Immigration Appeals: Procedural Reforms to
Improve Case Management, Part III, 67 Fed. Reg. 54,878, 54,886
(Aug. 26, 2002) (suggesting as an example that when a single-member
BIA decision adopts the IJ decision but with specific
modifications, "any reviewing court would be able to look to the
combination of the immigration judge's opinion and the single-
member decision to understand the conclusions reached in the
adjudication").
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his professional and political life. Although we do not seek to
minimize the severity of the Vakas' experiences, we are not
compelled to find that the harm suffered by Dritan rose to the
level of persecution.
C. Well-Founded Fear of Future Persecution
Since the Vakas failed to establish past persecution,
they are not entitled to the regulatory presumption of a well-
founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1).
Nevertheless, they are still afforded the opportunity to
demonstrate such a fear by direct evidence. See Palma-Mazariegos,
428 F.3d at 34. For the following reasons, we conclude that
substantial evidence supports the BIA's conclusion that Dritan
failed to show he possessed a well-founded fear of future
persecution should he return to Albania.
First, substantial evidence existed to support the
finding that any fear of future political persecution was not
objectively reasonable because of changed country conditions within
Albania. At the hearing before the IJ, the Government introduced
two State Department documents on conditions in Albania, the 2003
Country Reports on Human Rights Practices ("Country Report"), and
the 2001 Profile of Asylum Claims and Country Conditions
("Profile") for Albania. United States Department of State, Bureau
of Democracy, Human Rights, and Labor, Albania: Country Reports on
Human Rights Practices - 2003, (2004); United States Department of
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State, Bureau of Democracy, Human Rights, and Labor, Albania:
Profile of Asylum Claims and Country Conditions (2001). The
documents tend to show that changed country conditions within
Albania are such that asylum-seekers may no longer have a well-
founded fear of future persecution based on their political
opinion. For example the Profile states, "elections held in
October 2000 made clear and unmistakable progress toward meeting
democratic standards." Notably, these were the last elections in
which Dritan participated, as the family left the country only a
month afterward. The Country Report describes a similar trend
continuing through the elections of October of 2002, stating
"[o]verall, the municipal elections were a major step forward, with
good performances by the police, many local election officials, and
electoral institutions." Admittedly, the Country Report also
describes ongoing human rights violations and systematic
deficiencies in the political process. Still, the general tone of
the Report is that of a continuously improving political
atmosphere.
The Vakas fault the IJ's reliance on these documents,
citing the Seventh Circuit's observation that the State Department
"softpedals human rights violations by countries the United States
wants to have good relations with." Gramatikov v. INS, 128 F.3d
619, 620 (7th Cir. 1997). However, the Vakas offer no reason why
the State Department's views on Albania in particular should be
-14-
viewed with skepticism. Furthermore, this circuit has stated that
the State Department's country reports "are generally probative of
country conditions." Palma-Mazariegos, 428 F.3d at 36. Despite the
Vakas' assertions, the Country Report may "outweigh[] the
petitioner's conclusory assertions of continuing danger . . . ."
Aguilar-Solís, 168 F.3d at 572-73. Therefore, we believe
substantial evidence was present for the BIA to conclude that a
well-founded fear of future persecution did not exist, even though
Dritan had testified credibly regarding the past incidents of
abuse.
Second, substantial evidence supports a finding that
Dritan's alleged fear was not subjectively genuine. As noted by
the IJ, it is quite possible that the Vakas' relocation was
motivated by a desire to come to the United States rather than a
wish to flee Albania. The Vakas passed through Greece, Italy,
France, Belgium, Spain, and Mexico without seeking asylum, instead
insisting on continuing on to the United States. They even went as
far as obtaining fraudulent identification in order to leave France
and continue their journey. The fact that Dritan's brother and
parents already reside in this country further supports the
conclusion that the Vakas may have had an ulterior motive for
leaving Albania. As the Profile warns, "[a]djudicators should
explore all the motivations an applicant might have for requesting
asylum, including family members already present in the United
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States . . . ." Finally, the family's continued presence in
Albania for two months after the last assault on Dritan further
undermines their allegation of a genuine fear. Thus, substantial
evidence existed for the BIA to adopt the IJ's holding that Dritan
failed to meet his burden of proving a well-founded fear of future
persecution.
C. Withholding of Removal and CAT
Whereas asylum eligibility only requires an alien
demonstrate a well-founded fear of future persecution, 8 U.S.C.
§ 1101(a)(42)(A), withholding of removal requires an alien to show
that "it is more likely than not that he or she would be
persecuted," 8 C.F.R. § 208.16(b)(2). In recognition of the fact
that the standard for withholding of removal is more stringent than
the standard for asylum, we have held that "a petitioner unable to
satisfy the asylum standard fails, a fortiori, to satisfy the
[standard for withholding of removal]." Mediouni v. INS, 314 F.3d
24, 27 (1st Cir. 2002) (citations and internal quotation marks
omitted). Since the Vakas failed to established asylum
eligibility, their claim for withholding of removal must also be
denied.
In regard to the Vakas' CAT claim, their brief offers no
developed argumentation as to why they qualify for relief.8 Nor
8
After briefly explaining the law, the Vakas simply state, "the
Vakas should be granted withholding of removal under Article III of
the Convention Against Torture since there is a clear probability
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did they sufficiently raise the issue before the BIA. In holding
with well-established principles of appellate review, issues not
raised below are deemed waived, as are issues unaccompanied by
developed argumentation. See Ravindran v. INS, 976 F.2d 754, 761
(1st Cir. 1992) ("Issues not raised before the Board may not be
raised for the first time upon judicial review of the Board's
decisions."); Nikijuluw v. Gonzáles, 427 F.3d 115, 120 n.3 (1st
Cir. 2005) (denying an asylum-seeker's CAT claim where the
petitioner "devoted his appellate brief exclusively to his asylum
claim and has failed to develop any argument supporting [his CAT
claim]"). Thus, the Vakas' claims for withholding of removal and
relief under the CAT were properly denied.
III. Conclusion
For the foregoing reasons, we find the BIA's conclusions
supported by substantial evidence. Therefore, we deny the petition
for review and affirm the BIA's order.
Affirmed.
they will suffer torture if returned to Albania." No explanation
as to what the legal definition of "torture" is, or why the Vakas
are likely to be subject to it, is given.
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