Vasili v. Holder , 732 F.3d 83 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1273
KOSTA VASILI; ANDRONIQI VASILI;
KLEOPATRA VASILI; ALEKSANDROS VASILI,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Ripple,* and Thompson
Circuit Judges.
Saher J. Macarius and Audrey Botros on brief, for petitioners.
Deitz P. Lefort, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, and Derek C. Julius, Senior Litigation Counsel, on
brief, for respondent.
October 16, 2013
*
Of the Seventh Circuit, sitting by designation.
THOMPSON, Circuit Judge. Petitioner Kosta Vasili, a
native and citizen of Albania, seeks review of a final removal
order requiring him and his wife, Androniqi, and their two
children, Kleopatra and Aleksandros, to return to Albania.1 The
petitioners say their application for asylum should have been
granted on the basis of past persecution and their well-founded
fear of future persecution if they are returned to their homeland.
We affirm the final removal order.
I. BACKGROUND
Kosta was born in Finiq, Albania in September of 1961 and
he and Androniqi married in 1992. Kosta did not have a good life
under Communist2 rule, and in March of 1992 he became involved with
the founding of Albania's Democratic Party. Kosta assisted the
fledgling political party by traveling to various villages handing
out flyers, "pretty much advertising for the new party." Some time
later, he and his wife relocated to Greece, where Kosta found
occasional work as an auto mechanic. He did not have a right to
permanently remain in Greece, and he returned to Albania on
1
Androniqi, Kleopatra, and Aleksandros are derivatives of
Kosta Vasili's application for asylum. We refer to the individual
petitioners by their first names for the sake of clarity, and we
utilize the spellings set forth in their applications for asylum
and for withholding of removal.
2
Kosta used the term "communists" to refer to communists,
socialists, and members of the Socialist Party. As the
distinctions between these groups are not material here, we follow
this convention and use the terms interchangeably.
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multiple occasions to visit his mother, brother, and sister. Kosta
and Androniqi's daughter, Kleopatra, was born in Greece in 1993.3
Kosta and his family returned to Albania in June of 2001 and moved
in with his mother. While there he resumed his political
involvement, which once again consisted of passing out flyers and
advocating for the Democratic Party. It was not long after the
family's return to Albania that the two incidents upon which the
petitioners base their claim for asylum occurred.
One day, Kleopatra was playing alone outside when she was
seriously injured after strangers threw something into their home's
courtyard. Kosta did not specify what this "something" was in his
testimony before an immigration judge ("IJ"), but in his written
declaration in support of his application for asylum, he stated
masked men threw a grenade into the yard. According to the written
application, the blast knocked Kleopatra off a set of stairs where
she had been sitting.
Androniqi was inside the home at the time of the incident
and did not see what happened. She heard a "big noise" while their
daughter was outside, and when she went to investigate she saw
3
Kosta testified before an immigration judge ("IJ") that
Kleopatra was born in 1997. However, he listed Kleopatra's date of
birth as July 22, 1993, on his application for asylum and indicated
in his declaration in support thereof that she was eight years old
at the time of an incident in 2001. The IJ also found that
Kleopatra was eight years old at the time of the incident. While
we note the discrepancy in age, the IJ found Kosta generally
credible, and it is immaterial to the outcome at any rate.
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Kleopatra on the ground. She surmised that Kleopatra fell off the
stairs and hurt herself. Androniqi believes the noise she heard
was the sound of a grenade because Kleopatra told her later that
she heard a loud sound before she fell.
Kleopatra suffered a serious head injury from her fall.
The Vasilis took their daughter to the hospital, where she
immediately underwent surgery. Kleopatra remained hospitalized for
ten to twelve days.
Kosta does not know who was behind this incident, but he
suspects it was perpetrated by members of the Socialist Party
because of his involvement with the Democratic Party. He believes
this is so because his entire family had problems with the
communists in the past, particularly his grandfather (who was
jailed) and his uncle. He himself indicated that he was not
permitted to attend school or to carry a gun when he served in the
army. Androniqi does not know who was behind the incident either,
but like her husband she suspects it was "people that were against
[her] husband because he was working for the new democracy, the
party."
The second incident occurred in July of 2001. Three men
wearing helmets and carrying guns stopped Kosta while he was
driving. The men beat Kosta with their guns and warned him to stop
working with the Democratic Party. There is no evidence in the
record as to the nature and extent of any injuries Kosta suffered
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or whether he sought medical treatment as a result of this beating.
Kosta did not report either of these two incidents to the
police because he did not believe they would help him or even
investigate what had happened. Instead, Kosta and his family left
Albania and traveled to Greece, where they obtained visas
permitting entry into the United States. They entered the country
in August of 2001 and ultimately overstayed their visas. Conceding
their removability, the petitioners filed applications for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT").
Kosta testified before an IJ, expressing fears of
returning to Albania because of what happened to him and his family
in the past. If he goes back, he believes he will once again
become a target as a result of his political beliefs and
activities. While he admitted the Democratic Party has won
elections in Albania in recent years, he also stated that the
people who harmed him and his family remain in his village. Kosta
conceded, however, that no one has harmed his mother, brother, or
sister in any way since he left Albania in 2001.
The IJ also considered the Department of State's 2009
Country Report on Albania ("Country Report"). The Country Report
indicates the Albanian constitution gives its citizens the right to
peacefully change their government, and this right is in fact
exercised through periodic elections. Although the most recent (as
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of the date of the Country Report) parliamentary elections occurred
in a polarized environment in which media coverage was biased in
favor of the Socialist Party and Democratic Party (which, we note,
Kosta supports), a total of thirty-two political parties campaigned
freely across the country. Political parties operated without
outside influence and there were no major disputes or violence
throughout the election. The Country Report does not indicate
there has been any politically-motivated violence between
supporters of the Democratic and Socialist Parties or, for that
matter, that politically-motivated violence is a problem anywhere
in Albania.
The IJ denied the petitioners' requests for asylum,
withholding of removal, and protection under CAT. She found that
both Kosta and Androniqi were credible witnesses, but failed to
show they were eligible for asylum. While the IJ characterized the
injury to Kleopatra as a "very serious and unfortunate incident,"
she determined that the petitioners did not prove any connection
between the incident and Kosta's political beliefs. According to
the IJ, Kosta and Androniqi's suspicions, standing alone, were
insufficient to meet their burden of proof. She also determined
the second incident did not rise to the level of persecution
because Kosta did not show he experienced something more than
unpleasantness, harassment, or even basic suffering. As such, the
IJ concluded the petitioners were not eligible for asylum because
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they failed to sustain their burden of demonstrating they had been
persecuted in the past on account of Kosta's political views.
The IJ continued. Even if the petitioners had been able
to establish past persecution, any presumption of a well-founded
fear of future persecution had been rebutted by fundamental changes
chronicled in the Country Report. She specifically relied on the
Report's conclusion that there had been no major disputes or
violence during the last elections, along with the lack of any
reports of politically-motivated violence between members of the
Socialist Party and the Democratic Party. The IJ also found it
significant that Kosta's mother and siblings have remained in
Albania since the summer of 2001 and have not been harmed in any
way. Wrapping things up, the IJ found the petitioners did not have
a well-founded fear of future persecution and denied their request
for asylum.
The petitioners appealed to the Board of Immigration
Appeals ("BIA"), which issued a written decision on January 29,
2013. Without disturbing the IJ's credibility determination, the
BIA agreed that the petitioners failed to meet their burden of
proof. The BIA found the petitioners did not establish past
persecution because there was no evidence Kleopatra's injuries were
caused by the Socialist Party instead of "an unusual accident." As
for the incident involving the three men with guns, the BIA
determined it did not result in injuries severe enough to qualify
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as "persecution." The BIA concurred that the Country Report
demonstrated a fundamental change in circumstances sufficient to
rebut any presumption of a well-founded fear of future persecution.
Thus, the BIA concluded the petitioners failed to demonstrate
eligibility for asylum, withholding of removal, or protection under
CAT, and dismissed their appeal.
The petitioners' timely appeal to this Court followed.
II. DISCUSSION
Our review of the proceedings below "is limited to
determining whether substantial evidence in the administrative
record supports the IJ's findings that petitioner[s] neither
suffered from cognizable past persecution nor demonstrated a well-
founded fear of future persecution." Lumaj v. Gonzales, 446 F.3d
194, 198 (1st Cir. 2006). The standard of review is "deferential,"
and we must uphold the BIA's decision "so long as its decision is
supported by substantial evidence in the record." Topalli v.
Gonzales, 417 F.3d 128, 131 (1st Cir. 2005) (quoting Rodriguez-
Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)).
Determinations as to witness credibility are to be accorded "great
respect" when supported by specific findings. Lumaj, 446 F.3d at
198.
Here, the IJ rendered a decision from the bench and the
BIA released a detailed written opinion affirming the IJ's decision
and providing its own analysis. Accordingly, we review both
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decisions. Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009).
Questions of law, of course, are reviewed de novo. López-Castro v.
Holder, 577 F.3d 49, 52 (1st Cir. 2009). And, barring an error of
law, we reverse "only if the record is such as to compel a
reasonable factfinder to reach a contrary determination." Chhay v.
Mukasey, 540 F.3d 1, 5 (1st Cir. 2008).
A. Request for Asylum
Pursuant to 8 U.S.C. § 1158(b)(1) and 8 C.F.R. § 208.13,
an applicant for asylum bears the burden of proof and "must show
either past persecution or well-founded fear of future
persecution." Albathani v. Immigration & Naturalization Serv., 318
F.3d 365, 373 (1st Cir. 2003). To establish past persecution, the
applicant must demonstrate such persecution was "on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 C.F.R. § 208.13(b)(1); see also
8 U.S.C. § 1158(b)(1)(B)(i). We have previously held that to
qualify as "persecution" within the meaning of the statutory
definition, the complained-of acts must be "the direct result of
government action, government-supported action, or government's
unwillingness or inability to control private conduct." Nikijuluw
v. Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005).
An applicant's successful showing of past persecution
"establishes a rebuttable presumption of a well-founded fear of
future persecution." Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st
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Cir. 2005); see also 8 C.F.R. § 208.13(b)(1). The presumption of
well-founded fear may be rebutted if the government is able to
establish, by a preponderance of the evidence, that "[t]here has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution." 8 C.F.R.
§ 208.13(b)(1)(i). Information appearing in a country report
showing "fundamental changes in the specific circumstances that
form the basis of a petitioner's presumptive fear of future
persecution" may be sufficient to rebut any well-founded fear of
future persecution. Uruci v. Holder, 558 F.3d 14, 19-20 (1st Cir.
2009) (quoting Chreng v. Gonzales, 471 F.3d 14, 22 (1st Cir.
2006)).
1. Past Persecution
An individual seeking asylum "'bears a heavy burden,'"
and faces a "'daunting task'" in establishing subjection to past
persecution. Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir.
2006) (quoting Guzman v. Immigration & Naturalization Serv., 327
F.3d 11, 15 (1st Cir. 2003)). To meet this standard, "the
discriminatory experiences must have reached a fairly high
threshold of seriousness, as well as [occurred with] some
regularity and frequency." Id. Infrequent beatings, threats, or
periodic detention, we have said, do not rise to the level of
persecution, and the nature and extent of an applicant's injuries
are relevant to the ultimate determination. See Attia v. Gonzales,
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477 F.3d 21, 23-24 (1st Cir. 2007) (no persecution where the
applicant was beaten twice over a nine year period and experienced
a "general climate of discrimination"); Topalli, 417 F.3d at 132(seven arrests accompanied by short periods of detention and
physical beatings over the span of two years found not to
constitute past persecution); Bocova v. Gonzales, 412 F.3d 257,
263-64 (1st Cir. 2005) (no past persecution where the petitioner
was arrested, beaten, and threatened with death twice in an eight
year period, even though one of those incidents resulted in a loss
of consciousness and subsequent hospital treatment); Nelson v.
Immigration & Naturalization Serv., 232 F.3d 258, 263-64 (1st Cir.
2000) (no persecution where the petitioner had been subjected to
physical abuse and placed in solitary confinement for less than
seventy-two hours on three different occasions). Thus,
"persecution requires 'more than mere discomfiture, unpleasantness,
harassment, or unfair treatment'" and "'implies some connection to
government action or inaction.'" López-Castro, 577 F.3d at 54(quoting Nikijuluw, 427 F.3d at 120-22).
Here, the IJ found that the petitioners submitted
credible evidence regarding two incidents: the injury to Kleopatra
and the "traffic stop incident" in which Kosta was beaten by three
men with guns. However, the IJ found--and the BIA agreed--that the
testimony as to these incidents was not sufficient to establish
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past persecution. We are satisfied that these decisions were
supported by substantial evidence in the record.
With respect to the first incident, both Kosta and
Androniqi admitted they did not witness what happened--in fact, it
is not clear from the record what actually occurred that day--nor
do they know who was responsible. While they both suspect they
were targeted because of Kosta's political activities, this is
nothing more than sheer speculation and supposition. There was no
evidence whatsoever of a connection between the incident and
government action or inaction. Without any evidence of who was
responsible or what prompted the incident, "it is no more than a
guess that a nexus existed between the [incident] and a statutorily
protected ground." See López-Castro, 577 F.3d at 53. The
petitioners' hypothesis as to the identity and motivation of the
perpetrators is insufficient to meet their burden of proof. See
id.Substantial evidence also supported the conclusion that
the "traffic stop incident" did not rise to the level of
persecution. While the IJ credited Kosta's testimony that members
or supporters of the Socialist Party administered the beating and
were motivated by Kosta's political activities, the record is
wholly devoid of evidence as to the nature and extent of Kosta's
injuries, if any. There is no evidence as to whether he sought
medical attention as a result of the incident. Furthermore, there
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is no evidence Kosta was detained or imprisoned in connection with
that incident or at any point after his return to Albania in 2001.
We have previously determined that much more egregious acts of
violence and imprisonment, including attacks resulting in a loss of
consciousness and repeated detentions, are not sufficiently severe
as to constitute persecution.
Summing up, while Kleopatra certainly suffered a tragic
and serious injury in 2001, the evidence in the record does not
compel us to find the incident was "on account of" Kosta's
political opinions or activities. Similarly, the BIA and the IJ's
finding that the "traffic stop incident" did not rise to the level
of persecution is supported by substantial evidence. Thus,
substantial evidence supported the BIA and the IJ's determination
that the petitioners failed to demonstrate they experienced past
persecution.
2. Fundamental Change in Albania
The BIA and the IJ proceeded to analyze Kosta's
application with the assumption that past persecution had been
shown. Both concluded the petitioners do not have a well-founded
fear of future persecution should they be returned to Albania.
Having carefully reviewed the entire record, we are not "compelled"
to disagree.
Noting Kosta's mother, sister, and brother's ongoing
residence in Albania since his 2001 departure, the IJ found it
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significant that none of them have had any problems with the
Socialists or the government, even though Kosta's own testimony
indicated that his entire family had a generations-long history of
difficulty with both. Under such circumstances, where the record
does not "provide[] a satisfactory differentiation" between a
petitioner and similarly-situated family members, Aguilar-Solis v.
Immigration & Naturalization Serv., 168 F.3d 565, 573 (1st Cir.
1999), the lack of harm to remaining family members is a factor
that is "entitled to weight in the decisional calculus." López-
Castro, 577 F.3d at 54 n.4. That Kosta's family members continued
to live unharmed in Albania explicitly and permissibly weighed
against the reasonableness of his fear of future persecution should
he return. Given the limited scope of our review, it is not for us
to second-guess the weight the IJ assigned to this factor.
The BIA and the IJ also found that the Country Report
showed a fundamental change in Albania's political climate since
the petitioners' departure. They concluded these changes rebut any
presumption that the petitioners could have a well-founded fear of
future political persecution. This finding is supported by
substantial evidence in the administrative record.
According to the Country Report, Albanian citizens
exercise their right to change their government peacefully through
periodic elections. The most recent election prior to the IJ's
decision took place in a "highly polarized environment" in which
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thirty-two parties campaigned freely, there was no major violence,
and the parties operated without restriction or outside
interference. There were no reports of political violence between
Socialist and Democratic Party members or, for that matter, of any
politically-motivated violence.
Nevertheless, the petitioners argue the BIA and the IJ
erred because the Country Report also points out the presence of
criminal violence in Albania, as well as some corruption and
incompetence within the police force. This argument is wholly
without merit. General criminal activity is not evidence of a
well-founded fear of political persecution. See, e.g., id. at 53("[A]lthough crime is an unpleasant consequence of life in many
modern societies, victimization by a criminal element, without
more, is not probative of ethnic persecution."). Simply put, the
Country Report does not reflect any political persecution in the
recent past.
Indeed, our decisions over the last several years
recognize the "fundamental change" in Albania's political climate.
In 2009 we affirmed the denial of an Albanian national's
application for asylum. Uruci 558 F.3d at 16. Uruci involved a
member of the Democratic Party who alleged he would be persecuted
if returned to Albania. Id. In affirming the immigration judge's
denial of the application we relied upon our 2006 opinion in Tota
v. Gonzales, 457 F.3d 161 (1st Cir. 2006), where we found "that
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'substantial evidence culled from the [2004] State Department
asylum claims report, specifically tailored to the discussion of
political persecution of [Democratic Party] members by the
Socialist government, supports [a] finding that the government met
its burden of rebutting [a] . . . presumptive well-founded fear of
persecution.'" Uruci, 558 F.3d at 20 (quoting Tota, 457 F.3d at
168 (bracketed text and ellipses in original)). We then proceeded
to uphold several administrative findings: violence in Albania
peaked in 1997 and 1998 and subsequently declined, the government
and political parties do not engage in policies of abuse or
coercion against political opponents, and there are no indications
that the Socialist Party engages in a pattern of repression or
violent behavior against its opponents. Id.
And in 2010 we determined that another Albanian citizen
did not have a well-founded fear of future persecution at the hands
of the Socialist Party. Nako v. Holder, 611 F.3d 45, 50 (1st Cir.
2010). The Department of State's 2006 Country Report and 2006
Profile of Asylum Claims and Country Conditions for Albania
established that "there were no major outbreaks of political
violence in Albania since 1998," the Democratic Party was in power
after peaceful elections in 2005, and "the political parties had
ceased abuse or coercion of political opponents." Id. at 48. Of
particular import here is the following observation:
Those reports not only indicated that the
Democratic Party now controls Albania, but
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also thoroughly documented the cessation of
politically motivated violence and persecution
by either party as well as a decline in police
misconduct. This court has previously deemed
these particular facts fatal to nearly
identical petitions for review by other
Albanian Democratic Party members who have
claimed a fear of political persecution by the
Socialist Party.
Id. at 49 (emphasis added) (citing Uruci, 558 F.3d at 19-20;
Alibeaj, 469 F.3d at 193; Bollanos v. Gonzales, 461 F.3d 82, 86
(1st Cir. 2006); Tota, 457 F.3d at 166-68). The petitioner in Nako
had "not pointed to any concrete acts of political violence" to
call the conclusions of the 2006 Country Report into question, nor
did he present any evidence that he would likely be singled out for
political persecution by the Socialist Party. Id. at 50.
Here, as in Nako, the BIA and the IJ relied on the
Country Report to support their finding of fundamental change in
Albania. There is not even a scintilla of evidence in the record
contradicting or calling into question any of the findings
contained within the Country Report. The petitioners did not
present any evidence showing the resumption or likely resumption of
political violence in Albania, nor did they come forward with any
evidence showing Kosta is likely to be singled out and subjected to
political persecution should he return there. As no reason has
been presented to us as to why we should depart from our holdings
in Nako, Uruci, and Tota, we affirm the BIA and the IJ's
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determination that the petitioners do not have a well-founded fear
of future persecution and are, therefore ineligible for asylum.
B. Alternative Requests
Although the petitioners initially sought withholding of
removal and/or protection under CAT, they do not press these claims
on appeal. Their brief only addresses Kosta's request for asylum,
and alternative forms of relief are not mentioned at all until the
final page. Even there, however, withholding of removal and
protection under CAT merely appear as part of their boilerplate
prayer for relief. Therefore, we find the petitioners have waived
any request for withholding of removal or protection under CAT.
See Nikijuluw, 427 F.3d at 120 n.3 (petitioner waived claims for
withholding of removal and protection under CAT by failing to
address them in his brief).
Assuming such claims were not waived, our conclusion that
the BIA and the IJ's determinations were supported by substantial
evidence is fatal. This is because a petitioner bears a heavier
burden of proof in an application for withholding of removal or
protection pursuant to CAT than he does in an application for
asylum. Lumaj, 446 F.3d at 198 (a request for withholding of
removal "cannot succeed when an asylum claim fails"); Settenda v.
Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004) ("[A] CAT claim . . .
establishes a higher burden of proof than an asylum claim . . .
."). Because the petitioners did not meet their burden to show
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eligibility for asylum, it inevitably follows that their requests
for withholding of removal and protection under CAT must fail.
III. CONCLUSION
The BIA and the IJ's denial of the petitioners'
application for asylum was supported by substantial evidence in the
record, including evidence of a fundamental change in Albania such
that the petitioners do not have a well-founded fear of future
persecution. Because nothing in the record compels us to reach a
contrary conclusion, we affirm the BIA and the IJ's denial of the
asylum claim. As the petitioners failed to show they are eligible
for asylum, they are similarly ineligible for withholding of
removal and protection under CAT.
We, therefore, deny the petition for review and affirm
the final order of removal.
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