Edmond Cenolli v. U.S. Attorney General , 208 F. App'x 718 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2006
No. 06-12366 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-433-272
EDMOND CENOLLI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 29, 2006)
Before TJOFLAT, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Edmond Cenolli, a native and citizen of Albania, petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of asylum, withholding of removal,
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”). Cenolli challenges the
BIA’s denial of his claims and also argues that he was denied a fair review of his
appeal from the Immigration Judge’s (“IJ”) decision. For the reasons set forth
more fully below, we deny the petition.
Cenolli, a member of the opposition democratic party, alleged persecution
by the police and members of the socialist party on account of political opinion.
Cenolli testified that the only problem he had in Albania occurred during the June
24, 2001 election. He explained that, during the election, he was an observer for
the democratic party and, while waiting in line to vote, a socialist party member
approached him and tried to convince him to change his vote. When he refused,
the socialist party member called two members of the police, who hit and kicked
him. Cenolli left Albania the next day.
In addition to this incident, Cenolli testified that his father, a party member
and local spokesman, was arrested three times by the police and socialist party
supporters because of his support for the democratic party. On October 19, 1998,
his father was detained for a week, mistreated, and not fed. In June 1999, he was
detained for four days. In September 2001, he was detained for over a week.
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The IJ denied asylum, withholding of removal, and CAT relief and ordered
Cenolli removed to Albania and the BIA dismissed Cenolli’s appeal. The BIA
found that the Cenolli’s encounter during the election did not amount to past
persecution because he reported no significant injuries or the need for medical
treatment, and was not subject to any harm or threats apart from this incident. The
BIA further found that neither this incident, Cenolli’s father’s arrests, nor evidence
of continuing human rights problems in Albania established a well-founded fear of
persecution. The BIA also found that Cenolli did not meet his burden to establish
eligibility under the CAT because he did not establish that he would more likely
than not be tortured upon his return.
Cenolli argues that, based on his beating at the election, his father’s arrests,
and evidence of country conditions in Albania, the BIA erred in finding that he
failed to establish past persecution, a well-founded fear of persecution, and
eligibility for withholding of removal. He also argues that the BIA erroneously
concluded that one incident alone does not establish past persecution. As to his
CAT claim, Cenolli argues that the BIA erred by not independently reviewing his
claim, as it failed to engage in a separate analysis of his testimony and evidence as
to this claim.
Because the BIA did not expressly adopt the IJ’s opinion and made its own
findings, we review the BIA’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262,
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1284 (11th Cir. 2001). We review factual determinations using the substantial
evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).
We will affirm if the decision “is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (citation and
quotation marks omitted). We review the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision. Id. To conclude that the BIA should be reversed, we “must find that
the record not only supports that conclusion, but compels it.” Fahim v. U.S. Att’y
Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (citation and quotation marks omitted).
“[T]he mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). Legal
and constitutional challenges are reviewed de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003); (constitutional challenges); Mohammed v.
Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001) (legal challenges).
The Attorney General or the Secretary of Homeland Security has discretion
to grant asylum if an alien meets the INA’s definition of a “refugee.” See 8 U.S.C.
§ 1158(b)(1)(A), INA § 208(b)(1)(A). The asylum applicant carries the burden of
proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. In order to carry
this burden, the applicant must, with specific and credible evidence, establish
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(1) past persecution on account of a statutorily listed factor, or (2) a “well-founded
fear” that the statutorily listed factor will cause future persecution. 8 C.F.R.
§ 208.13(a), (b); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
Persecution is “an ‘extreme concept,’ requiring ‘more than a few isolated incidents
of verbal harassment or intimidation,’ and . . . ‘[m]ere harassment does not amount
to persecution.’” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.
2005) (citing Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)).
Furthermore, “[n]ot all exceptional treatment is persecution.” Gonzalez, 212 F.3d
at 1355.
In the absence of past persecution, “the petitioner must demonstrate a
well-founded fear of future persecution that is both subjectively genuine and
objectively reasonable.” Ruiz, 440 F.3d at 1257. “The subjective component can
be proved ‘by the applicant’s credible testimony that he or she genuinely fears
persecution,’ while the objective component ‘can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.’” Id.(citation omitted). The applicant must present “specific, detailed facts showing a
good reason to fear that he or she will be singled out for persecution on account of”
a protected ground. Al Najjar, 257 F.3d at 1287 (quotation marks and citation
omitted). An applicant who fails to establish eligibility for asylum on the merits
necessarily fails to establish eligibility for withholding of removal or CAT relief.
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Forgue, 401 F.3d at 1288 n.4.
As to past persecution, the BIA did not rely on the proposition that a single
incident could not amount to persecution, but reasoned that this particular incident
did not result in significant injuries or the need for medical treatment and that,
aside from this incident, Cenolli had no other problems. This finding is supported
by substantial evidence. Cenolli’s only problem was the incident during the
election. Cenolli was not the only person asked to vote for the socialists; he
testified that the person who approached him also approached “many other people”
about changing their votes.
Cenolli testified that he was beaten by the police after his refusal. At some
unspecified point, eight democratic party members came to his aid. As a result of
the altercation, he received a cut lip and “different marks on [his] body” that were
no longer visible. Cenolli did not require any medical treatment or go to a doctor
as a result of his injuries. Based on this evidence, we cannot conclude that the
record compels the conclusion that this single beating rose to the level of
persecution. See, e.g, Tawm v. Ashcroft, 363 F.3d 740, 742-43 (8th Cir. 2004)
(finding no persecution where the petitioner was detained and beaten “lightly” in
1994 and detained and beaten in 1998, after which he received an ointment for
swelling and recovered fully within a week); Dandan v. Ashcroft, 339 F.3d 567,
573-74 (7th Cir. 2003) (holding that the record did not compel a finding of
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persecution where petitioner was detained for three days during which time he was
beaten, resulting in a “swollen” face).
The BIA’s finding that Cenolli did not have a well-founded fear of
persecution based on either his or his father’s support for the democratic party is
also supported by substantial evidence. Cenolli became involved with the
democratic party in 1996, but did not have any problems due to his party
membership until the June 24, 2001 elections. Although Cenolli’s father was
arrested two times while Cenolli was still living in Albania, there is no evidence
that he had any problems due to these arrests or his father’s political activity.
Cenolli’s only problem occurred within the context of election violence. Cenolli
described a situation where a socialist party member was asking many people to
vote for his party; Cenolli was not specifically sought out for this purpose. The
record does not compel the conclusion that the police or socialist party supporters
would still be interested in Cenolli as a result of this incident and, given that
Cenolli had no other problems due to his or his father’s political activity or his
father’s arrests, the last of which occurred almost three years before Cenolli’s
hearing before the IJ, the record likewise does not compel the finding that his fear
of being singled out for persecution on these grounds is objectively reasonable. Cf.
Sepulveda, 401 F.3d at 1231-32 (finding that the record did not compel conclusion
that petitioner had a well-founded fear of being singled out for persecution
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because, although she exercised leadership in the nonviolence movement, the
evidence did not indicate that her notoriety as an activist would outlast her four-
year absence from Colombia).
While the background reports document abuses by the police and, despite
some improvements, report continued serious problems with the government’s
human rights record, they do not compel a finding that Cenolli has an objectively
reasonable well-founded fear of being singled out for persecution on account of his
political opinion. There were no political killings or confirmed cases of strictly
political detention in 2003. As of the 2001 Profile, all political parties were active
in most of the country without a pattern of mistreatment. Furthermore, the October
2003 elections were an improvement over previous elections, with only a few
isolated incidents of irregularities and violence, and campaigns were generally
calm and conducted without the heated rhetoric that characterized past campaigns.
While Cenolli may subjectively fear returning to Albania, substantial evidence
supports the finding that Cenolli’s fear of being singled out for persecution on
account of his or his father’s political opinion is not objectively reasonable.
Because Cenolli failed to establish eligibility for asylum on the merits, he
also failed to establish eligibility for withholding of removal and relief under the
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CAT.1 Forgue, 401 F.3d at 1288 n.4.
In addition to challenging the merits of the BIA’s decision, Cenolli argues
that he did not receive a fair review of his appeal by the BIA because the BIA
failed to consider the Department of Homeland Security’s (“DHS”) failure to file a
reply brief. He reasons that, because DHS’s failure to file a reply brief waived any
objections to the issues he raised in his appeal, the BIA should have considered
DHS’s failure to file a brief as non-opposition to these issues.
We disagree. The regulations do not require DHS to file a reply brief on
appeal to the BIA. 8 C.F.R. § 1003.38(f) (“Briefs may be filed by both parties[.]”)
(emphasis added). Moreover, subject to the standards governing its determination
of cases, the BIA is instructed to resolve cases based on its independent judgment
and discretion. Id. § 1003.1(d)(1)(ii). Nor did the BIA violate Cenolli’s due
process rights, as he was afforded notice and an opportunity to be heard.
Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 1287 n.14 (11th Cir. 2005),
cert. denied, 126 S.Ct. 1662 (2006).
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We find the BIA’s analysis of Cenolli’s CAT claim sufficient and, thus, do not remand
for additional findings. Not only does the failure to establish asylum on the merits necessarily
result in a failure to establish eligibility for CAT relief, Forgue, 401 F.3d at 1288 n.4, but
Cenolli based his CAT claim on the same arguments and evidence as his asylum claim and we
have found a similar finding sufficient to permit review. See Huang v. U.S. Att’y Gen., 429 F.3d
1002, 1007 (11th Cir. 2005) (holding that BIA’s finding that, “[e]ven accepting the respondent’s
claim as credible, she still would not meet her burdens of proof for asylum, withholding of
removal, or protection under the Convention Against Torture[,]” was sufficient to permit
review).
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In light of the foregoing, the petition for review is
DENIED.
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