Evgheni Scurtul v. U.S. Attorney General ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10803
Non-Argument Calendar
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Agency No. A087-658-310
EVGHENI SCURTUL,
ALISA STUDIONOVA,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 5, 2012)
Before TJOFLAT, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
Evgheni Scurtul and his wife, Alisa Studionova, who are natives and
citizens of the Republic of Moldova (“Moldova”), seek review of the Board of
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Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“IJ”)
order finding them removable and denying their application for asylum,
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (“CAT”). On appeal, they
argue that Scurtul was persecuted by the Moldovan government based on his
political beliefs, and, as such, he has a well-founded fear of future persecution.
For the reasons set forth below, we deny the petition.
I.
Scurtul and Studionova entered the United States in June 2009, and May
2009, respectively, and remained without authorization after their temporary visas
expired. In September 2009, they submitted an application for asylum,
withholding of removal, and CAT relief based on Scurtul’s political opinion.
At the removal hearing, Scurtul testified that, on April 7, 2009, he
participated in a political meeting regarding allegedly false Moldovan election
results. The communist government sent police to disperse the meeting, and when
Scurtul attempted to escape, police grabbed him, threw him into a bus, and beat
him. Scurtul’s leg was badly injured, and he had bruises all over his body. The
next day, Scurtul sought medical treatment, and he was required to wear a cast on
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his leg for ten days. After this incident, the police sent him two notices to appear
for an interrogation, but he did not do so because he was afraid.
On cross-examination, Scurtul stated that approximately 10,000 people
attended the 2009 political rally. He further testified that police “threw [him] off
the bus” 15 minutes after they grabbed him. Upon questioning from the IJ, Scurtul
indicated that he was not a leader of the protest.
Among other exhibits, the government submitted the U.S. Department of
State’s 2009 Human Rights Report on Moldova, which indicated that Moldovan
authorities had pursued 46 criminal cases against police officers accused of abuse
during April 2009 demonstrations, and on April 15, 2009, President Vladimir
Voronin announced a “total amnesty” for anyone facing administrative charges
related to the demonstrations.
The IJ issued an oral decision, denying Scurtul’s asylum application and
finding that: (1) he had not suffered past persecution; and (2) he had failed to
establish an objectively reasonable, well-founded fear of future persecution in
Moldova. As to past persecution, Scurtul had merely sustained an ankle injury, and
he was treated on an outpatient basis. Further, the injury was not so severe that he
needed immediate medical treatment, as he waited until the following day to seek
medical care. Although Scurtul was required to wear a cast for ten days, his
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testimony and appearance during the asylum hearing established that he had not
sustained a lasting or long-term injury. Additionally, Scurtul was only detained by
police for 15 minutes, and considering all of his allegations, he failed to allege acts
that rise to the level of persecution.
As to future persecution, the IJ found that several factors undermined Scurtul’s
contention that, if he returned to Moldova, he would be immediately identified and
persecuted. Specifically, evidence established that: (1) Scurtul was only one of
10,000 protestors on April 7, 2009, and he was not a leader of the protest; (2) he was
allowed to leave after 15 minutes of detention, which rebuts his contention that police
would still be looking for him; and (3) no police action was taken when Scurtul
ignored the subpoenas to appear for an interrogation. Additionally, the Human Rights
Report established that the Moldovan president had announced a “total amnesty” for
anyone facing administrative charges related to the April 2009 protest, and the
Moldovan government had made efforts to punish the police abuse related to the
protest. Thus, under the totality of the circumstances, Scurtul had failed to establish
an objectively reasonable, well-founded fear of future persecution. Because he failed
to sustain the lower burden for asylum relief, Scurtul necessarily failed to establish
his eligibility for withholding of removal. Finally, as to CAT protection, there had
been no testimony that Scurtul would be tortured by, or with the consent of, a
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Moldovan government official if he returned to Moldova.
The petitioners appealed to the BIA, and after the BIA conducted a de novo
review, it dismissed the appeal. The BIA agreed with the IJ that Scurtul had not
suffered past persecution because he was only detained by police for 15 minutes, and
his injures required only outpatient medical treatment. The BIA also agreed with the
IJ’s finding that Scurtul had not established a well-founded fear of future persecution
because the police released him after 15 minutes, and although he had received two
notices to appear for questioning, the record did not indicate that an arrest warrant
had been issued. For these reasons, the BIA found that Scurtul failed to demonstrate
his eligibility for asylum or withholding of removal. The BIA also concluded that
Scurtul failed to establish eligibility for CAT protection.
II.
We review the BIA’s decision, but where the Board expressly adopts or agrees
with the IJ regarding an issue, we review the decisions of both the IJ and the BIA
regarding that issue. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.
2009). Here, the BIA conducted a de novo review, and agreed with the IJ that Scurtul
failed to establish past persecution or a well-founded fear of future persecution.
Therefore, we review both the IJ’s and BIA’s decisions on those issues. Id.We review the IJ’s and the BIA’s factual determinations under the highly
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deferential substantial-evidence test and will affirm if the decision “is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Id. at 1350-51 (quotation omitted). To reverse a finding of fact by the BIA or the IJ,
we must conclude that “the record not only supports reversal, but compels it.” Id. at
1351. We review the IJ’s and the BIA’s legal conclusions de novo. Id. at 1350.
Additionally, an appellant abandons an issue by failing to offer any arguments on that
issue. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
An alien may receive asylum in the United States if he is a “refugee” within the
meaning of the INA. Id. at 1230. The INA defines a refugee as a person who cannot
return to his home country due to “persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion.” INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). Thus, to be eligible
for asylum, an alien must establish, with credible evidence, either past persecution or
a well-founded fear of future persecution, on account of a protected ground.
Sepulveda, 401 F.3d at 1230-31.
The standard for establishing eligibility for withholding of removal is
substantially the same as that for asylum. See Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1375 (11th Cir. 2006) (describing the standard for withholding of removal). The only
relevant difference is that an alien seeking withholding of removal must demonstrate
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a “more likely than not” probability of future persecution, which is a more stringent
standard than the “well-founded fear” standard required for asylum. See id.;
Sepulveda, 401 F.3d at 1231-33. Consequently, an alien generally cannot qualify for
withholding of removal if he is unable to meet the lower standard of proof for asylum.
Sepulveda, 401 F.3d at 1232-33; Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th
Cir. 2001). “To establish eligibility for CAT relief, an applicant must show that it is
more likely than not that he will be tortured by, or with the acquiescence of,
government officials if returned to the designated country of removal.” Todorovic
v. U.S. Att’y Gen., 621 F.3d 1318, 1324 (11th Cir. 2010).
We have explained that persecution “is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and. . . mere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231(quotations and alteration omitted). For example, we have rejected a claim of
persecution where the petitioner was arrested for participating in a student
demonstration, interrogated and beaten for five hours, detained for four days, and
monitored by authorities after his release. Kazemzadeh, 577 F.3d at 1353; see also
Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1289-91 (11th Cir. 2006) (concluding that
an alien did not suffer persecution where authorities detained him for five days,
forced him to watch re-education materials, made him stand in the sun for two hours,
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and, after his release, monitored him and occasionally searched his residence).
If an applicant fails to demonstrate past persecution, he may still qualify for
asylum relief by establishing a well-founded fear of future persecution.
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008). However,
the applicant’s fear of persecution must be “subjectively genuine and objectively
reasonable.” Al Najjar, 257 F.3d at 1289. In most cases, the objective prong can be
fulfilled either by establishing past persecution or that the alien has a “good reason
to fear future persecution.” Id. In addition to providing an independent avenue for
asylum eligibility, an applicant who makes a showing of past persecution benefits
from a rebuttable presumption of a well-founded fear of future persecution.
De Santamaria, 525 F.3d at 1007. The applicant must also show a nexus between a
statutorily protected ground and the feared persecution, and he can do so by
presenting specific, detailed facts showing a good reason to fear that he will be
“singled out” for persecution on account of the statutorily protected factor. Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).
In this case, substantial evidence supports the IJ’s and the BIA’s conclusion
that Scurtul did not suffer persecution while living in Moldova. Specifically,
Scurtul’s testimony established that, after he participated in a large political protest
on April 7, 2009, he was detained and beaten by police, resulting in a leg injury and
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bruises. However, the beating lasted only 15 minutes before he was released, and he
did not seek medical treatment until the following day. While he was required to
wear a cast for ten days, he did not testify that he stayed overnight in the hospital or
that he suffered any long-term injuries. On appeal, Scurtul argues that the incident
caused him to suffer “psychological trauma,” but he fails to identify any evidence to
support this claim, and during his testimony before the IJ, he only discussed his
physical injuries. In sum, the record does not establish that the April 2009 incident
was sufficiently extreme to show past persecution, as we have held that much worse
treatment than a 15-minute detention and beating was insufficient to constitute
persecution. See e.g. Kazemzadeh, 577 F.3d at 1353 (concluding that a four-day
detainment and a five-hour interrogation and beating was insufficiently severe to
constitute persecution); Zheng, 451 F.3d at 1289-91 (concluding that a five-day
detainment did not rise to the level of persecution).
As to future persecution, Scurtul suggests that, because he was summoned for
a police interrogation after the April 2009 incident, he would be immediately arrested
and persecuted if he is removed to Moldova. However, this evidence, without more,
does not establish that Scurtul had an objectively reasonable, well-founded fear of
future persecution. See Al Najjar, 257 F.3d at 1289. To the contrary, his own
testimony suggested that he is unlikely to be “singled out” for persecution if he
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returns to Moldova. See Forgue, 401 F.3d at 1286. Specifically, although he had
been active in political organizations, approximately 10,000 protestors participated
in the April 2009 protest, and he was not one of the protest’s leaders. Further,
although Scurtul had been summoned to a police interrogation in 2009 and his parents
had been threatened in November 2010, evidence also showed that the Moldovan
government had initiated criminal prosecutions against many of the police officers
involved in dispersing the April 2009 protest, and the government had declared a
“total amnesty” for the protestors involved. Thus, the record supports the IJ and
BIA’s conclusion that Scurtul failed to establish an objectively reasonable fear of
future persecution. See Al Najjar, 257 F.3d at 1289.
Because Scurtul has failed to establish eligibility for asylum, he also failed to
qualify for withholding of removal. See id. at 1292-93. Furthermore, as to CAT
protection, he never alleged before the BIA or in his brief to this Court that he would
likely be tortured in Moldova by, or with the acquiescence of, government officials.
Todorovic, 621 F.3d at 1324. Accordingly, he has abandoned his claim that he is
eligible for CAT protection. See Sepulveda, 401 F.3d at 1228 n.2.
For the foregoing reasons, we deny Scurtul’s and Studionova’s petition for
review.
PETITION DENIED.
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