Svetlana Grigore Sumschi v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10196
Non-Argument Calendar
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Agency No. A201-254-591
SVETLANA GRIGORE SUMSCHI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 26, 2017)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Svetlana Grigore Sumschi, a citizen of Moldova, seeks review of the final
order of the Board of Immigration Appeals (“BIA”) affirming an Immigration
Judge’s (“IJ”) denial of her 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”). Sumschi contends that
she was politically persecuted in Moldova when she was assaulted and threatened
because of her opposition to the Communist Party. She also argues that she has a
well-founded fear of future political persecution if she is removed to Moldova.
We review the BIA’s decision as the final judgment in an immigration
appeal. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). When
the BIA explicitly agrees with the IJ’s findings, we review both the BIA and the IJ
as to those findings. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016).
The BIA explicitly agreed with certain findings by the IJ in this case, so we review
those IJ findings in addition to the BIA’s decision. See id.
We review our subject matter jurisdiction de novo. Indrawati v. U.S. Att’y
Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Under the Immigration and
Nationality Act (“INA”), we lack jurisdiction to review a final order in an
immigration case unless “the alien has exhausted all administrative remedies
available to the alien as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). An
alien who failed to argue “the core issue now on appeal before the BIA” did not
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exhaust administrative remedies with respect to that issue. Indrawati, 779 F.3d at
1297 (quotation omitted). Issues that are not raised in an appellate brief are
abandoned. Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014).
Factual findings are reviewed under the highly deferential substantial
evidence test. 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 (quotations omitted). We view the record evidence in the light most
favorable to the BIA’s decision and draw all reasonable inferences in favor of that
decision. Id. We reverse a factual finding “only when the record compels a
reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal.” Id.
An applicant for asylum must meet the INA’s definition of “refugee.” INA
§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A “refugee” is
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
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). The alien must prove
persecution or a well-founded fear of persecution with specific and credible
evidence. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010).
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“[P]ersecution is an extreme concept requiring more than a few isolated
incidents of verbal harassment or intimidation[, and] mere harassment is not
persecution.” Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013)
(quotation omitted). Determining whether an alien was persecuted involves
considering the cumulative effect of the allegedly persecutory incidents. Diallo,
596 F.3d at 1333. We “have not required serious physical injury [to prove
persecution] where the [alien] demonstrates repeated threats combined with other
forms of severe mistreatment.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999,
1009–10 (11th Cir. 2008). For example, we previously concluded that the record
compelled a finding that an alien was persecuted when she received repeated death
threats over the course of two years and was dragged from her vehicle by her hair,
was traumatized by the torture and murder of a family groundskeeper who refused
to reveal her whereabouts, and was kidnapped and beaten. Id. at 1009–10. We
concluded that substantial evidence supported a finding that an alien was not
persecuted when he was arrested while participating in a demonstration,
interrogated and beaten for five hours, and detained for four days. Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009); see also Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008) (concluding that the record
did not compel a finding of persecution when an alien was threatened, detained for
36 hours, and beaten).
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“A credible death threat by a person who has the immediate ability to act on
it constitutes persecution regardless of whether the threat is successfully carried
out.” Diallo, 596 F.3d at 1333–34 (concluding that an alien was persecuted by the
soldiers who killed his brother when the alien was beaten, detained for eleven
hours, and threatened with death before he escaped). Attempted murder constitutes
persecution even if the alien is not physically injured. Sanchez Jimenez v. U.S.
Att’y Gen., 492 F.3d 1223, 1233-34 (11th Cir. 2007) (concluding that an alien was
persecuted when a revolutionary group attempted to murder him by shooting at his
moving car).
An alien proves a well-founded fear of persecution by establishing “a
reasonable possibility he or she would be singled out individually for persecution,
or that he is a member of, or is identified with, a group that is subjected to a pattern
or practice of persecution.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th
Cir. 2008) (quotation omitted). The “alien must establish that the government
would be her persecutor or that the government would be unwilling or unable to
protect her from persecution by a private actor.” Malu v. U.S. Att’y Gen., 764 F.3d
1282, 1291 (11th Cir. 2014). The alien’s fear of persecution must be both
subjectively genuine and objectively reasonable. De Santamaria, 525 F.3d at
1007. The “subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution.” Id. at 1007 (quotations
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omitted). An alien who shows past persecution is presumed to have a well-
founded fear of persecution. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir.
2013).
An alien may not be removed to a country if the alien’s life or freedom
would be threatened in that country on account of race, religion, nationality,
membership in a particular social group, or political opinion. INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A). An alien seeking withholding of removal “must show
that it is more likely than not that he will be persecuted on account of a protected
ground if he returned to his home country.” Gonzalez, 820 F.3d at 403. An alien
unable to meet the well-founded fear standard for asylum generally fails to meet
this more stringent standard for withholding of removal. Sanchez Jimenez, 492
F.3d at 1239.
An alien is eligible for CAT relief if the alien establishes it is more likely
than not that she would be tortured if removed to the proposed country of removal.
8 C.F.R. § 208.16(c)(2). “Torture” is
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent of acquiescence of a public
official or other person acting in an official capacity.
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8 C.F.R. § 208.18(a)(1).
Upon review of the record and consideration of the parties’ briefs, we deny
the petition. As an initial matter, Sumschi adequately exhausted her arguments
regarding a well-founded fear of future persecution. She raised the core issue of
future persecution to the BIA by arguing that evidence of human rights problems,
government corruption, and Community Party activity demonstrates she will be
persecuted if removed to Moldova. See Indrawati, 779 F.3d at 1297. Thus, she
adequately exhausted the arguments regarding a well-founded fear of future
persecution that she raises to this Court. See Indrawati, 779 F.3d at 1297 (stating
that exhaustion “is not a stringent requirement” and simply requires an alien to
have “argued the core issue now on appeal before the BIA” (quotation omitted)).
As to waiver, Sumschi does not abandon her arguments regarding a well-founded
fear of future persecution. She essentially challenges the BIA’s entire well-
founded fear finding by arguing that the evidence shows she has an objective,
reasonable fear of being persecuted and that there is corruption, abuse, and
Communist infiltration in the Moldovan government. Thus, we reach the merits of
her future persecution argument.
Substantial evidence supports the IJ and BIA’s denial of asylum. First, the
record does not compel reversal of the IJ and the BIA’s determination that
Sumschi’s assaults and threats considered cumulatively do not rise to the level of
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persecution. Sumschi was trampled during an anti-Communist demonstration
when the police began to disburse the demonstrators. However, her testimony
reflects that she was not specifically targeted, but was injured because the situation
became chaotic. Two women confronted her in an elevator after distributing
political flyers. One of the women held a knife to her throat and threatened to kill
her and her family if she continued to oppose the Communist Party. However, her
testimony indicates that the women released her from the elevator and did not
intend or attempt to kill her. She and her family received threatening telephone
calls from the women after the incident in the elevator, but she remained in
Moldova for nearly a year following the incident and was never again directly
confronted. Sumschi did not face attempted murder or the type of severe
mistreatment that we have recognized as persecution. See, e.g., De Santamaria,
525 F.3d at 1009–10; Sanchez Jimenez, 492 F.3d at 1233. In fact, we previously
held that worse treatment than that suffered by Sumschi did not constitute
persecution. See, e.g., Kazemzadeh, 577 F.3d at 1353; Djonda, 514 F.3d at 1171,
1174. Substantial evidence supports the IJ and BIA’s determination that
Sumschi’s treatment in Moldova did not reach an extreme level that constitutes
persecution. See Rodriguez, 735 F.3d at 1308 (referring to persecution as “an
extreme concept” requiring more than mere harassment or intimidation (quotation
omitted)).
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Second, the record does not compel reversal of the BIA’s decision that
Sumschi has not shown an objective, well-founded fear of persecution if removed
to Moldova. The evidence reflects that the Communist Party lost the majority in
the Moldovan parliament before Sumschi left the country and that a coalition of
opposition parties controls the parliament and elected a president. Although
government corruption and torture of detained people by the police continue to be
problems in Moldova, the government increased sentences for torture and replaced
officials in charge of police forces. Individuals can criticize the government
without reprisal and have the right to change their government peacefully through
elections. Sumschi did not present evidence showing that Communists continue to
target political opponents, and she and her family have not been threatened since
November 2010. Consequently, there is substantial evidence in the record to
support the BIA’s determination that Sumschi did not demonstrate an objective,
well-founded fear of future persecution in Moldova.
Because Sumschi has not established asylum eligibility, substantial evidence
also supports the BIA’s decision that she has not met the higher burden to show
eligibility for withholding of removal. See Sanchez Jimenez, 492 F.3d at 1238-39.
Additionally, based on the above analysis, substantial evidence supports the IJ and
the BIA’s determination that she has not established eligibility for CAT relief by
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showing that it is more likely than not she will be tortured if removed to Moldova.
See 8 C.F.R. § 208.16(c)(2).
PETITION DENIED.
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