Constantin Afanasie Rotaru v. U.S. Attorney General ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16634
Non-Argument Calendar
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Agency No. A200-859-194
CONSTANTIN AFANASIE ROTARU,
ALINA ROTARI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 30, 2017)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Constantin Afanasie Rotaru and his wife, Alina Rotari, seek review
following the Board of Immigration Appeals’ (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) denial of Rotaru’s application for asylum, withholding
of removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Rotaru,
the lead petitioner, claims that the BIA erred in failing to provide specific, cogent
reasons to support its adverse credibility determination. Additionally, Rotaru
argues that the BIA erred as a matter of law and fact in denying his application for
asylum because he established a well-founded fear of persecution if removed to
Moldova, based on past persecution on account of his political opinion. We will
address each point in turn.
I.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we will also
review the IJ’s decision to that extent. Id. Here, the BIA did not expressly adopt
the IJ’s decision but agreed with the IJ’s findings regarding the adverse credibility
finding, as well as her ruling regarding past persecution and a well-founded fear of
future persecution. Thus, we review both decisions to that extent. See Al Najjar,
257 F.3d at 1284.
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To adequately raise an issue on appeal before us, the party must “specifically
and clearly identif[y] it in [his] opening brief; otherwise, the claim will be deemed
abandoned and its merits will not be addressed.” Cole v. U.S. Att’y Gen., 712 F.3d
517, 530 (11th Cir. 2013) (quotation omitted). Additionally, we lack jurisdiction
to consider claims that have not been raised before the BIA. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
On appeal from the BIA’s decision, we review legal questions de novo.
Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). Factual
determinations are reviewed under the substantial-evidence test, which requires us
to ‘view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “must affirm the BIA’s
decision if it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. at 1027 (quotation omitted). In order to reverse
administrative factual findings, we must determine that the record “compels”
reversal, not merely supports a different conclusion. Id. We have found BIA
errors to be harmless if the BIA also rested its ruling on an alternative
determination that was not erroneous. Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d
1311, 1314 (11th Cir. 2013).
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Credibility determinations constitute factual findings, so they are reviewed
under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1286 (11th Cir. 2005). We “may not substitute our judgment for that of the IJ with
respect to credibility findings.” Id. (alteration and quotation omitted). The
substantial evidence test does not allow us to reweigh the importance attributed to
specific evidence in the record. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175
(11th Cir. 2008).
Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13, § 101, 119 Stat.
302, for applications, like Rotaru’s, that are filed after May 11, 2005, a credibility
determination may be based on the totality of the circumstances, including: (1) the
applicant’s demeanor, candor, and responsiveness; (2) the plausibility of the
applicant’s testimony; (3) the consistency between the applicant’s oral and written
statements, whenever made; (4) the internal consistency of each statement; (5) the
consistency of the applicant’s statements with other evidence in the record; and (6)
any inaccuracies or falsehoods in the applicant’s statements.
INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). The inconsistencies,
inaccuracies, or falsehoods need not go to the heart of the applicant’s claim. Id.An applicant for asylum must meet the INA’s definition of a refugee. INA §
208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a person “who is
unable or unwilling to return to, and is unable or unwilling to avail himself . . . of
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the protection of” 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)(A), 8 U.S.C. § 1101(a)(42)(A). To establish eligibility for asylum, a petitioner must demonstrate either
past persecution, or a well-founded fear of future persecution, based on a
statutorily listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257(11th Cir.
2006).
If the petitioner cannot demonstrate past persecution, he must demonstrate
that he has a well-founded fear of future persecution by showing that there is a
reasonable possibility of him suffering persecution if he returned to his home
country. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The fear
of persecution must be “subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289. The subjective component is typically fulfilled by
credible testimony that the petitioner genuinely fears persecution, and the objective
component generally can be satisfied by establishing either past persecution or that
the petitioner has good reason to fear future persecution. Id. If the alleged
persecution is not by the government or government-sponsored, the petitioner
bears the burden of showing that she cannot avoid the persecution by relocating
within her home country. 8 C.F.R. § 208.13(b)(3)(i); Mazariegos v. U.S. Att’y
Gen., 241 F.3d 1320, 1327 (11th Cir. 2001). The petitioner also must show that the
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government of her home country is unable or unwilling to protect her. Lopez v.
U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007).
Furthermore, “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 v. U.S. Att’y Gen., 401 F.3d 1226,
1231 (11th Cir. 2005) (quotations and alteration omitted); see also Silva v. U.S.
Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (holding that death threats and
threatening anonymous phone calls were merely harassment and, without more,
did not qualify as persecution). Although attempted murder constitutes
persecution, even where the petitioner was harmed, a minor beating does not. See
Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (minor beating);
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (attempted
murder). In determining whether an alien has suffered past persecution, the
factfinder must consider the cumulative effect of the alleged acts. Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). Threats or harm to a petitioner’s
family member do not constitute evidence of persecution against the petitioner
“where there has been no threat or harm directed against the petitioner.” Cendejas
Rodriguez, 735 F.3d at 1308; see also De Santamaria, 525 F.3d at 1009 n.7
(holding that harm to another person may constitute evidence of persecution
against a petitioner where the harm “concomitantly threatens the petitioner.”).
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Here, we are willing to assume, arguendo, that substantial evidence does not
support the BIA’s and IJ’s adverse credibility finding.1 Nevertheless, we conclude
that the BIA and the IJ correctly determined that, even assuming that Rotaru’s
testimony was credible, his asylum application was still due to be denied because
he failed to show that he suffered past persecution.
Substantial evidence supports the BIA’s and IJ’s conclusion that Rotaru did
not suffer from past persecution. First, the evidence does not compel the
conclusion that the single assault incident that Rotaru alleged rose to the level of
persecution. See Delgado, 487 F.3d at 861. Rotaru alleged that he was struck
from behind between his neck and right shoulder with an apparent object, and that
two men began to kick him repeatedly. He alleged that he received treatment from
his family doctor, who gave him medication and prescribed bed rest. While this
incident certainly amounts to assault, the record does not compel a finding that it
met the “extreme” threshold level of persecution. See Djonda, 514 F.3d at 1174(holding that a minor beating in conjunction with threats did not compel a
conclusion of persecution).
1
As an initial matter, because Rotaru fails to raise any argument on appeal concerning his
withholding of removal and CAT claims, he has abandoned those issues. See Cole, 712 F.3d at
530.
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Furthermore, because Rotaru did not satisfy his burden of showing past
persecution, he was not entitled to a rebuttable presumption of a well-founded fear
of future persecution. And because Rotaru does not independently address the
BIA’s conclusion that he failed to show a well-founded fear of future persecution,
he has abandoned any challenge to such conclusion. See Cole, 712 F.3d at 530.
Accordingly, because the record does not compel reversal of the agency’s
determination that Rotaru failed to meet his burden of establishing eligibility for
asylum, we DENY Rotaru’s petition.
DENIED
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