Tomic v. Holder ( 2012 )

10-4704-ag
Tomic v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19th day of March, two thousand twelve.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
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VEDRAN TOMIC,
Petitioner,
v. No. 10-4704-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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APPEARING FOR APPELLANT: JUSTIN CONLON, Esq., North Haven,
Connecticut.
APPEARING FOR APPELLEE: DANA M. CAMILLERI, Trial Attorney (Tony
West, Assistant Attorney General, Ernesto H.
Molina Jr., Assistant Director, on the brief),
*
Judge Jed S. Rakoff of the United States District Court for the Southern District of
New York, sitting by designation.
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Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review of the October 22, 2010 decision of the Board of
Immigration Appeals (“BIA”) is DENIED.
Vedran Tomic, a citizen of Bosnia, petitions for review of the BIA’s decision
affirming an order of removal by Immigration Judge (“IJ”) Michael W. Strauss. See In re
Vedran Tomic, No. A087 446 593 (B.I.A. Oct. 22, 2010), aff’g No. A087 446 593 (Immig.
Ct. Hartford, Conn., July 6, 2009). Tomic challenges the agency’s order only insofar as it
found him ineligible for asylum and denied his motion to remand.1 Under the circumstances
of this case, we review the BIA’s decision as well as the IJ’s decision “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal quotation
marks omitted). In reviewing a denial of asylum, we apply the substantial-evidence standard
to factual findings, which we will uphold “unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009); and we review questions of law de novo, see
Yanqin Weng v. Holder, 562 F.3d at 513. By contrast, we review the denial of a motion to
remand for abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157
1
Tomic has waived any challenge to the agency’s rejection of his claims for
withholding of removal and protection under the United Nations Convention Against Torture
by failing to present any arguments on these matters in his opening brief. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
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(2d Cir. 2005). In applying these principles, we assume familiarity with the facts and record
of prior proceedings, which we reference only as necessary to explain our decision.
1. Asylum Claim
a. Past Persecution
To prevail on his asylum claim, Tomic was required to demonstrate a well-founded
fear of future persecution, which will be presumed on a showing of past persecution. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); 8 C.F.R. § 1208.13(b)(1).
Because the agency did not make an adverse credibility finding, we assume that Tomic’s
testimony about his past experiences in Bosnia was credited. See Diallo v. INS, 232 F.3d
279, 288 (2d Cir. 2000).
Tomic first faults the agency’s finding that his childhood experiences during the War
in Bosnia and Herzegovina failed to qualify as past persecution based on ethnicity.2 Insofar
as Tomic charges the agency with overlooking record evidence regarding his wartime
experiences, we are not persuaded. Our precedent recognizes that an IJ is not required
“expressly [to] parse or refute on the record each individual argument or piece of evidence
offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
Nothing in the record “compellingly suggests” the agency’s failure to “take[] into account
all of the evidence before” it regarding Tomic’s wartime experiences. Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).
2
Tomic contends that he suffered persecution on account of the mixed marriage
between his mother, a Serb, and his father, a Croat.
3
Insofar as Tomic argues that the agency erred in not finding his wartime experiences
to amount to past persecution, substantial evidence supported the IJ’s factual findings that
certain incidents, notably, a sniper shooting Tomic’s father outside Tomic’s presence, were
not persecution of petitioner, see Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d Cir.
1999) (holding that persecution of petitioner’s close family member “may support a well-
founded fear of future persecution, . . . [but] does not form the basis for a finding of past
persecution” of petitioner), and in any event were not linked to any protected ground, see In
re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212 (B.I.A. 2007) (requiring showing that protected
ground was “one central reason” for past persecution); accord Castro v. Holder, 597 F.3d 93,
104 (2d Cir. 2010). Similarly, evidence that Tomic was once beaten by other children when
he refused to harass a Serbian man and was once himself hit by an adult as punishment for
throwing a firecracker that scared the man’s child did not compel a conclusion of ethnic
persecution fairly attributable to the Bosnian state. See Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 342 (2d Cir. 2006). Further, record evidence that Tomic’s mother was fired
from her job during the war because she was a Serb and that Tomic’s family had to sell
possessions to survive the war did not compel an agency finding of economic persecution
extending to Tomic in light of evidence that Tomic’s father and sister both remained
employed during the war and, shortly after the war, Tomic’s father worked for the United
Nations and the United States as a meteorologist; Tomic’s family owned land and cultivated
crops during the war; and Tomic continued to attend school during the war, enabling him
thereafter to pursue higher education. See id. at 341 (requiring showing of “deliberate
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imposition of a substantial economic disadvantage” to qualify as persecution); Matter of
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 217 (B.I.A. 2010) (requiring showing of “severe
economic disadvantage” to qualify as persecution).3
Tomic next faults the agency’s finding that threats he received from Wahabi Muslim
radicals in 2007 did not qualify as past persecution. Tomic claims that he was targeted by
these Wahabi radicals not based on ethnicity but based on his political and religious views:
he is a “left-leaning socialist” and “an agnostic who is critical of organized religion.” Pet’r’s
Br. at 6. Although this court has not specifically decided whether ensuing substantial
emotional distress can elevate unfulfilled threats to the level of past persecution, cf. Lim v.
INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that “unfulfilled threats” can rise to level of
persecution if they are “so menacing as to cause significant actual suffering or harm”), we
have held that more than “mere harassment” is necessary to establish persecution. Ivanishvili
v. U.S. Dep’t of Justice, 433 F.3d at 341. Citing that standard, the IJ found that the
unfulfilled threats against Tomic constituted mere harassment rather than persecution, despite
the emotional distress they caused Tomic. Because the evidence does not compel a contrary
conclusion, we cannot charge the agency with legal error. See id. (“[I]f the immigration
court, having correctly applied the definition of persecution to the facts of this case, had
3
Because the agency properly considered the evidence regarding these wartime
incidents cumulatively, our decision in Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006),
is not to the contrary. See id. at 150 (remanding for agency to consider whether evidence,
viewed cumulatively, demonstrated “pervasive campaign” of ethnic violence against
petitioner’s family).
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determined on the basis of the whole record that petitioner’s mistreatment indeed constituted
harassment, we would have no quarrel with the decision[,] for we recognize that the
difference between harassment and persecution is necessarily one of degree and must be
decided on a case-by-case basis.”).
No different conclusion is compelled by considering Tomic’s wartime and post-
wartime experiences together, even in light of a U.S. psychologist’s report detailing Tomic’s
damaged mental health resulting from these experiences. Insofar as Tomic suggests that the
agency overlooked the psychologist’s report because the IJ did not reference it in its
discussion of the Wahabi radicals’ threats, the charge is meritless. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F. 3d at 336 n.17; Wei Guang Wang v. BIA, 437 F.3d at 275. To the
contrary, the IJ was plainly aware that Tomic suffered emotional distress as a result of the
threats from Wahabi radicals.4
In sum, because the agency reasonably concluded that Tomic had failed to
demonstrate past persecution, it was not required to afford him a presumption of an
objectively reasonable and, thus, well-founded fear of future persecution if returned to
Bosnia. See Chun Gao v. Gonzales, 424 F.3d 122, 128 (2d Cir. 2005).
4
Because we conclude that the IJ did not err in failing specifically to cite the
psychologist’s report in its discussion of the Wahabi radicals’ threats, we do not reach
Tomic’s argument that the BIA engaged in improper fact-finding when it reasoned that
consideration of the report could not have affected the IJ’s findings regarding whether the
threats qualified as past persecution.
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b. Fear of Future Persecution
Tomic maintains that even without the benefit of a presumption based on past
persecution, he demonstrated a well-founded fear of future persecution at the hands of the
Wahabi radicals if returned to Bosnia. To the extent the agency found otherwise, Tomic
submits that it erred by relying in part on evidence that his family has continued to reside in
Bosnia without incident. See Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006)
(finding evidence that family members continue to reside in home country without harm
irrelevant where family members were not similarly situated). In fact, this court has held that
the fact that an asylum seeker’s family members have remained in their home country
unharmed can indeed “cut against” an asylum seeker’s claim of well-founded fear. Melgar
de Torres v. Reno, 191 F.3d at 313. While differences between the asylum seeker’s and his
family members’ situations might well diminish the value of such evidence, we have never
suggested that any differences in situation preclude the agency from considering family
members’ circumstances.
In any event, we need not consider whether the adoption of such a per se rule is
warranted here. The agency’s denial of Tomic’s asylum claim is supported by Tomic’s
failure to demonstrate that Bosnian government officials would be unable or unwilling to
protect him from the Wahabi radicals. See Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir.
1994). The agency’s denial of the claim is further supported by Tomic’s failure to
demonstrate that he could not safely resettle in Croat-dominated areas of Bosnia rather than
in Sarajevo or other areas having large Muslim populations. Accordingly, the agency was
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not compelled to find a well-founded fear of future persecution attributable to the Bosnian
government on this record.
2. Motion to Remand
Tomic correctly observes that the BIA mischaracterized the new evidence supporting
his motion to remand as referencing a 2007 bombing in Bosnia by Wahabi radicals, when in
fact it referenced a 2010 bombing. This mistake does not support the petition, however,
because the agency did not deny the motion on account of Tomic’s evidence being too old
or previously available. See 8 C.F.R. § 1003.2(c)(1). Rather, it determined that the new
evidence was unlikely to change the IJ’s finding on the issue of well-founded fear, a
conclusion that does not depend on the date of the reported bombing. See Matter of Coelho,
20 I. & N. Dec. 464, 471 (B.I.A. 1992) (noting that movant bears “heavy burden” to
demonstrate that if motion were granted, new evidence would likely change result). We
cannot say this determination constituted an abuse of the agency’s discretion. See Kaur v.
BIA, 413 F.3d 232, 234 (2d Cir. 2005).
3. Conclusion
For the foregoing reasons, the petition for review is DENIED. As we have completed
our review, any stay of removal that was previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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