Pula v. Gonzales

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2208
ALMA PULA,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Fatos Koleci on brief for petitioner.
Michael Sady, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.
July 13, 2007
Per Curiam. Alma Pula ("Pula"), her husband, and their
two children, all of whom are natives and citizens of Albania,
petition for review of a decision of the Board of Immigration
Appeals ("BIA"), dismissing their appeal from a decision of an
immigration judge ("IJ") denying their claims for asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT").
The undisputed facts are essentially as follows: Pula
and her family are well-known anti-communists and supporters of the
Democratic Party. When she left Albania, the Socialist Party was
in power. For some time before that, she had been serving as the
Vice Director of the Higher School of Nursing. The Director, who
was a doctor and member of the Socialist Party, resented her
because she was a woman and a nurse, had strong connections with
foreign funding sources, had instituted various reforms at the
school giving nurses more teaching responsibility, and had
complained that students were being sexually harassed and extorted
for money by doctors on the faculty. In response to those
complaints, the Director said, "[T]he Jaranis [Pula's family] are
always troublemakers[;] . . . they think they are so perfect . . .
[W]ho cares about your democratic little ideas."
After Pula learned that her position was being advertised
with enhanced qualifications that only a doctor could satisfy and
that the position was likely to be filled by a doctor with
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Socialist Party connections, she confronted the Director and
threatened to expose the corruption and sexual harassment at the
school. Two days later, when she was walking home from the school,
she was accosted by an unknown man (whom she thought was a member
of the Albanian secret police because of the way he was dressed),
who called her a "bitch of Sali Berisha," the leader of the
Democratic Party; grabbed her by the hair; and told her to shut up
or he would make her shut up, which she took as a death threat.
When she arrived home, she found that her two young sons had
disappeared. When the boys returned unharmed a few hours later,
they reported that a man who said that he was a friend of hers took
them for a ride, bought them ice cream, and told them to tell their
mother to take better care of them in the future. Shaken up by
those two events, which she thought were connected, she consulted
a family friend who advised her to stay indoors and ultimately to
leave Albania. She took his advice, and she and her sons left a
month later to join her husband, who was already in the United
States visiting relatives.
In finding Pula and her family ineligible for asylum, the
BIA correctly determined that Pula's alleged mistreatment, while
undoubtedly frightening, did not rise to the level of "persecution"
for purposes of eligibility for asylum or withholding of removal.
See, e.g., Alibeaj v. Gonzales, 469 F.3d 188, 189-90 (1st Cir.
2006) (concluding that death threats, beating, and misappropriation
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of property, without any permanent or serious physical injuries,
were "plainly insufficient to compel a finding of persecution").
The BIA also permissibly rejected Pula's claim that those events
were on account of her political beliefs. See Ziu v. Gonzales, 412
F.3d 202, 204-05 (1st Cir. 2005) (holding that "IJ was free to
reject such speculation as to motive even while generally finding
petitioner credible as to historical facts"). The timing of the
alleged incidents--just two days after Pula had threatened to
expose corruption in the nursing school's handling of donated
funds--is a strong indication that those incidents were motivated
by a desire to silence such exposure rather than by Pula's long-
standing political affiliation or beliefs. As Pula herself
testified, coming between embezzlers and their funding sources
could well place her in danger. Finally, the BIA also
supportably determined that Pula had failed to show that the
unidentified men who assaulted and threatened her and abducted her
sons were connected with the Albanian government. Her testimony
that the assault occurred near the headquarters of the secret
police and that the assaulter resembled a member of that
organization because he was wearing a light gray business suit
certainly does not compel a finding of a government connection.
See generally Attia v. Gonzales, 477 F.3d 21, 13 (1st Cir. 2007)
(stating applicable standard of judicial review). She provided no
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evidence at all that the abductor of her children was a government
agent.
Absent past persecution on a protected ground, the IJ
correctly placed the burden on Pula to prove that she had a well-
founded fear of future persecution, Orelien v. Gonzales, 467 F.3d
67, 72 (1st Cir. 2006), and concluded that she had failed to do so.
Although neither the IJ nor the BIA explained their reasoning on
this point, "the agency's path may reasonably be discerned" from
the record. Tota v. Gonzales, 457 F.3d 161, 166 n.9 (1st Cir.
2006) (quotation marks and citation omitted); see also Sulaiman v.
Gonzáles, 429 F.3d 347, 350 (1st Cir. 2005) (declining to remand
for an express finding on past persecution where agency's reasoning
was sufficiently clear from the record to permit judicial review).
Like her claim of past persecution, Pula's fear of future
persecution was premised on the scenario that if forced to return
to Albania, she would expose corruption at the nursing school and
would be persecuted on that ground. The determination that Pula's
alleged past persecution on that ground was not on account of her
political beliefs applies equally well to her fear of future
persecution on that same ground.
The fact that the IJ's and BIA's decisions did not
expressly mention some evidence in Pula's favor--including the
declaration and testimony of Bernd Fischer, a professor of Balkan
history, who opined that Pula had reason to fear persecution by the
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Socialist Party government--is inconsequential. "[E]ach piece of
evidence need not be discussed in a decision." Morales v. INS, 208
F.3d 323, 328 (1st Cir. 2000). Rather, "'in the absence of clear
evidence to the contrary, [we] presume that [the IJ and BIA] have
properly discharged their official duties.'" Tota, 457 F.3d at 168
(citation omitted). No such contrary evidence exists here.
Indeed, in the course of the hearing, the IJ expressly stated that
he had reviewed the documentary evidence, including Professor
Fischer's declaration, before the hearing, and the IJ also allowed
Dr. Fischer to testify by telephone even though his declaration was
already in evidence.
Moreover, a review of the record in its entirety does not
compel a contrary conclusion. Even Dr. Fischer's opinion that Pula
had grounds to fear persecution by the Socialist Party government
was qualified. And the recent reports of country conditions in the
record indicate that politically related violence by the Socialist
Party government against Democratic Party supporters had abated by
the time of the hearing before the IJ. See also Tota, 457 F.3d at
166-67; Alibeaj, 469 F.3d at 193.
Having properly found Pula and her family ineligible for
asylum, the BIA also correctly concluded that they could not meet
the higher standard for withholding of removal. Orelien, 467 F.3d
at 73. Its determination that the Pulas were not eligible for CAT
relief was also legally correct and supported by the record. As
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the IJ and BIA concluded, Pula presented no evidence that she would
likely be "tortured" upon returning to Algeria, as that term is
narrowly defined in the applicable regulations. See id. (citing 8
C.F.R. § 208.18(a)(1)).
In sum, we find the BIA's decision to be free of legal
error and supported by substantial evidence in the record as a
whole. Accordingly, we affirm the BIA's decision and deny the
petition for review. See 1st Cir. R. 27.0(c).
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