Stella Moudoyan v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
NOV 25 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STELLA MOUDOYAN, AKA Stella No. 17-70020
Bovo, MELINA BOVO, and MARTINO
BOVO, Agency Nos. A099-061-381,
A099-061-382, A099-061-383
Petitioners,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2019
Pasadena, California
Before: FARRIS, McKEOWN, and PARKER, Jr.,** Circuit Judges.
Stella Moudoyan, on behalf of herself and her two children, Melina and
Martino Bovo, seeks review of the Board of Immigration Appeals’ (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the Second Circuit, sitting by designation.
dismissal of her appeal from an Immigration Judge’s final order of removal. We
review the BIA’s factual findings for substantial evidence, Duran-Rodriguez v.
Barr, 918 F.3d 1025, 1028 (9th Cir. 2019), and deny the petition for review.
The BIA found that an Italian mafia syndicate’s four separate threats to
Moudoyan and her children were neither explicit, overt, nor implied, and were
combined with no other instances of harm or violence that would cause them to
amount to past persecution—even when considered cumulatively. It found that
Moudoyan’s fear of future persecution was too speculative and not objectively
reasonable, in part because she provided no evidence that her husband had in fact
cooperated with Italian authorities against the mafia. The BIA noted that the Italian
government had been making progress in disrupting organized crime, and that
Moudoyan had not shown relocation within Italy to be unreasonable.
The record evidence does not compel a contrary conclusion as to past
persecution. See id.; Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000). “In
certain extreme cases,” this Court has held that “repeated and especially menacing
death threats can constitute a primary part of a past persecution claim, particularly
where those threats are combined with confrontation or other mistreatment.” Lim v.
INS, 224 F.3d 929, 936 (9th Cir. 2000) (citing Reyes-Guerrero v. INS, 192 F.3d
1241, 1243–46 (9th Cir. 1999); Del Carmen Molina v. INS, 170 F.3d 1247, 1249
2
(9th Cir. 1999)). But without accompanying physical harms, threats “constitute
past persecution in only a small category of cases, and only when the threats are so
menacing as to cause significant actual ‘suffering or harm.’” Id. (citing Sangha v.
INS, 103 F.3d 1482, 1487 (9th Cir. 1997)).
Moudoyan describes feelings of fear, including shaking, trembling, and
being “afraid of [her] own shadow” in the wake of the threats, but she does not
describe “significant actual suffering or harm.” We do not dismiss Moudoyan’s
feelings—we acknowledge that a threat from members of an organized crime
family is a serious form of intimidation. But a petitioner’s description of threats
alone and her subjective fear associated with them is generally insufficient to carry
her burden to establish past persecution. See id. (“Flipping the burden of proof
every time an asylum applicant claimed that he had been threatened would unduly
handcuff” the government.). Moudoyan alleges no other physical harm,
confrontation, or mistreatment on the part of the mafia. Cf. Nahrvani v. Gonzales,
399 F.3d 1148, 1153 (9th Cir. 2005); Marcos v. Gonzales, 410 F.3d 1112, 1119
(9th Cir. 2005); Canales-Vargas v. Gonzales, 441 F.3d 739, 741–44 (9th Cir.
2006).
The BIA’s finding that the mafia’s confrontation with Martino in a public
park was not even an “implied” threat was incorrect. Given the context and the
3
three previous threats, the mafia’s intentions in that interaction were clear. But
even taken as legitimate, the four veiled, non-explicit, conditional threats, absent
any other harm, were not extreme enough to compel a finding of past persecution
in the face of this Court’s precedent.
Nor does the record compel a finding that Moudoyan established an
objectively reasonable fear of future persecution. 8 U.S.C. § 1158(b)(1)(B)(i). This
component requires “credible, direct, and specific evidence.” Mendez-Gutierrez v.
Gonzalez, 444 F.3d 1168, 1171 (9th Cir. 2006). Moudoyan provided expert
testimony that the mafia had committed revenge killings against confirmed
government informants and their family members in the past, but neither
Moudoyan nor the expert could confirm that the triggering occurrence for such
killings had occurred: that Moudoyan’s former husband, Angelo Bovo, had in fact
cooperated with authorities. Moudoyan argues that even if Bovo never cooperated,
but only considered it, the mafia might nonetheless kill Bovo’s family to deter
other would-be informants from cooperating in the future. But she described only
four veiled threats, each conditioned on the fact of Bovo’s cooperation with
authorities, and provided no direct or specific evidence that the mafia ever killed
former members or their families upon mere consideration of cooperation. As a
result, although the Court acknowledges Moudoyan’s subjective fears, it cannot
4
find that the evidence she presented compelled the BIA to find differently as to the
objective component.
We find that the record does not compel findings of past persecution or a
reasonable fear of future persecution, so we need not reach whether relocation
within Italy would be unreasonable. 8 C.F.R. § 1208.13(b)(2)(ii). Moudoyan fails
to make the showing required for asylum, so she also fails to meet the more
stringent “clear probability” standard that governs witholding of removal. See
Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006); 8 C.F.R. § 1208.16(b).
Moudoyan did not request review of the BIA’s denial of her application for
protection under the Convention Against Torture, so she waived that claim. See
Armentero v. INS, 412 F.3d 1088, 1095 (9th Cir. 2005) (“Failure to raise an
argument in an opening brief constitutes waiver, . . .”).
PETITION DENIED.
5