Plaka v. Gonzales , 191 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Not for Publication in West's Federal Reporter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. 05-2341
ROBERT PLAKA,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General for the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Glenn L. Formica on brief for petitioner.
Michael Sady, Assistant United States Attorney and Michael
J. Sullivan, United States Attorney, on brief for respondent.
August 24, 2006
Per Curiam. The Board of Immigration Appeals affirmed
the denial of Robert Plaka's applications for asylum and
withholding of removal and ordered Plaka removed from the United
States to Albania. Plaka petitions for review, arguing that the
Board's order is not supported by substantial evidence.
Plaka is an Albanian national. He was a member of the
National Front Party, which supported the democratic movement in
Albania against the Communist Party. In 1991, Plaka helped topple
a statue of Albania's communist dictator, Enver Hoxha. Shortly
after the incident, Plaka was arrested and detained for three
hours. During this detention he was hit with a rubber stick. Upon
release, the police instructed Plaka to "stop breaking the law,"
and two weeks later Plaka received a letter from two unknown
individuals urging him to leave his hometown.
In 1994, the Democratic Party (which was in power at the
time) organized a rally supporting a proposed constitution. Plaka
spoke at the rally, and three police officers who were present
called Plaka "the enemy." The officers were ejected from the rally
and did not harm Plaka. Later that day, three unknown civilians
confronted Plaka about his speech.
The next incident occurred in 1997. Plaka testified
that, while serving as an election observer, he confronted a member
of the Socialist Party who was committing vote fraud. Plaka claims
that he subsequently was arrested by three masked police officers,
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held for three days, and beaten with a rubber stick. The final
incidents took place in 2002: after Plaka gave a television
interview accusing the Socialist Party of corruption, several
unidentified individuals robbed Plaka's store, and a Socialist
Party member beat him up.
After these incidents, Plaka left Albania for Italy. In
November 2002, he traveled to the United States and tried to enter
the country using a false Italian passport. Conceding
removability, Plaka applied for asylum and withholding of removal
on the basis of political persecution. At the conclusion of an
evidentiary hearing, an immigration judge denied Plaka's
applications for relief.
Plaka appealed to the Board, which affirmed the judge's
ruling. The Board found that neither the "sporadic incidents of
mistreatment that [Plaka] suffered at the hands of Socialist Party
supporters over a period of several years," nor "the degree of harm
he experienced while in police custody" rose to the level of
persecution. In addition, the Board discounted Plaka's testimony
concerning the robbing of his store because he failed to establish
that the incident was politically motivated. The Board also
concluded that Plaka failed to provide objective evidence that he
had a well-founded fear of future persecution if he were to return
to Albania.
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Finally, the Board rejected Plaka's withholding of removal claim
because he had not established that it was more likely than not
that he would be persecuted if returned to his home country. Plaka
timely petitioned this court for review of the Board's decision.
We focus on Plaka's asylum claim because the standard for
asylum claims is lower than the standard for withholding of removal
claims. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2003). Thus, if Plaka's asylum claim fails on the merits, so
does his claim for withholding of removal. See id.We review the Board's decision to determine if it is
supported by substantial evidence. See DaSilva v. Ashcroft, 394
F.3d 1, 4 (1st Cir. 2005). In so doing, we accept the Board's
factual findings and credibility determinations so long as they are
supported by "reasonable, substantial, and probative evidence on
the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). For the Board's fact-based determination that an
asylum applicant does not qualify for relief to be vacated, the
evidence must "point unerringly in the opposite direction."
Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).
An asylum applicant must establish that he has suffered
past persecution on one of several protected grounds (including
political opinion) or has a well-founded fear of such persecution
on account of one of these grounds. See Makhoul v. Ashcroft, 387
F.2d 75, 79 (1st Cir. 2004). To prove a well-founded fear of
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future persecution, the applicant's subjective fear must be
objectively reasonable. See Aguilar-Solis v. INS, 168 F.3d 565,
572 (1st Cir. 1999).
Plaka's argument concerning past persecution is
controlled by Bocova v. Gonzales, 412 F.3d 257 (1st Cir. 2005).
There, the Board ruled that an Albanian national had not been
persecuted where he established that, because of his support for
the Democratic Party, he had been twice arrested and once beaten by
the police with a chain to the point of unconsciousness over an
eight-year period. We affirmed the Board's ruling. While we
neither condoned nor minimized the petitioner's treatment, we
concluded that the infrequency of the events supported the Board's
view that the petitioner had proven only "a series of isolated
events" rather than the "systematic mistreatment" that is necessary
to demonstrate past persecution. Id. at 263; see also Nelson v.
INS, 232 F.3d 258, 263 (1st Cir. 2000) (evidence of persecution
"must rise above unpleasantness, harassment, and even basic
suffering").
So too here. Over an eleven-year period, Plaka was
arrested twice, hit with a rubber stick twice, beaten once, and
threatened at infrequent intervals.1 But there were large spans of
1
The Board was reasonable in not counting the robbing of
Plaka's store in its calculus. Plaka admitted that he did not know
who robbed the store, and there was evidence that economic crime
was rampant in Albania.
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time during which Plaka was not subject to harassment.
Accordingly, Plaka's testimony could reasonably be characterized as
recounting isolated events of harassment, not systematic
mistreatment. While a reasonable fact finder perhaps could have
found differently, that is not the standard we apply. The evidence
is not so one-sided that a reasonable factfinder would have to
conclude that Plaka was persecuted on account of his political
opinion, and therefore the Board's ruling must stand. See Bocova,
412 F.3d at 264.
We reach a similar conclusion concerning Plaka's fear of
future persecution claim. Plaka relied on the incidents of
harassment recounted above to claim a well-founded fear of future
persecution. Evidence that is insufficient to constitute past
persecution is, by itself, also insufficient to compel a finding of
a well-founded fear of future persecution. Id. There was also
evidence before the Board, in the form of a State Department
Country Report, that there is no ongoing pattern of systematic
mistreatment of Albanian citizens on account of their political
opinion, and Plaka did not dispute this evidence. See Waweru v.
Gonzales, 437 F.3d 199, 202 n.1 (1st Cir. 2006) ("The Board of
Immigration Appeals is entitled to rely on the State Department's
country report as proof of country conditions described therein,
although it must consider evidence in the record that contradicts
the State Department's descriptions and conclusions.").
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Accordingly, the Board was reasonable in concluding that there was
inadequate objective support for Plaka's claim that he feared
persecution if he returned to Albania.
The petition for review is denied.
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