Otrava, Coriolan v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 12, 2006
Decided October 17, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1706
CORIOLAN OTRAVA,
Petitioner, Petition for Review of an Order of the
Board of Immigration Appeals
v.
No. A95-585-345
ALBERTO R. GONZALES,
Respondent.
ORDER
Coriolan Otrava, a citizen of Romania, petitions for review of a Board of
Immigration Appeals’ (“BIA”) order summarily affirming the Immigration Judge’s
(“IJ”) denial of his petition for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). Mr. Otrava alleged that he was persecuted by
Romanian police officers because he is a Rom, commonly known as a Gypsy. The IJ
found that Mr. Otrava’s account of abuse was vague and did not establish a basis
for relief. On appeal Mr. Otrava argues that the IJ improperly called for
corroboration and erred in relying on improper speculation about his experience in
Romania. We deny the petition for review.
No. 05-1706 Page 2
Background
Mr. Otrava entered the United States in May 2002 on a B-1/B-2 temporary
visa. See 22 C.F.R. § 41.31(a) (classifying temporary visas). Before his visa was due
to expire, he applied for asylum and later received a Notice to Appear charging him
with removal.
At his hearing, Mr. Otrava testified to events that led him to acquire the
temporary visa. One night in March 2002, two men from a neighboring village
showed up at his house in Piscari. They asked him whether he would sell his two
daughters for $4,000 each. Mr. Otrava understood the men to be asking whether he
would sell his daughters into prostitution, and he refused. The men then grabbed
him by the neck and threatened to kidnap his daughters if he would not sell them.
Frightened by this scene, Mr. Otrava’s wife started screaming, and the two men
left, swearing and repeating their threats as they went on their way.
Distressed, Mr. Otrava’s wife urged him to go to the police station to report
the incident. When he arrived, the police asked, “Hey, you Gypsy, why are you
bothering us at this time of the night?” Otrava told them about the incident earlier
that evening, and they invited him in. Once inside, the policemen began beating
and punching him. Mr. Otrava testified that he was beaten so badly that he “fell
down” and was “left in [that] position for about an hour and a half.” When he
regained consciousness, the officers tried to force him to sign a consent form stating
that it was he, Otrava, who wanted to sell his daughters. He refused, and they beat
him up again, leaving him “shivering, almost frozen” in a cold room overnight. The
next morning the officers told him to go to the doctor and then report back to the
station. They told him that if he did not return, they would “make sure that things
would get worse.”
Mr. Otrava’s condition upon his return home prompted his wife to suggest
moving. She said they should pick up a few things and move from Piscari to her
parents’ house in Satmarel, a village forty kilometers away. Mr. Otrava asked his
nephew to drive them in his carriage to Satmarel, and he did, steering clear of the
police station along the way. In Satmarel Mr. Otrava came into contact with a
former colleague who helped him get a visa to leave the country. His wife arrived in
the United States five months later, but his daughters (disguised as boys to avoid
being sold into prostitution) remained in Satmarel. Back in Piscari, Mr. Otrava has
been informed, the police are still looking for him.
Mr. Otrava also testified about other encounters with the police as he worked
selling merchandise at local trade fairs. Once, at a fair in 2000, the police came,
identified him as a Gypsy, then beat him up and took his merchandise. At an auto
fair in 1997, the police asked for his identification and then fined him more money
No. 05-1706 Page 3
than he could earn selling the merchandise. In 1992 the police identified him as a
Gypsy, hit him, and detained him at the police station for two days.
The IJ denied Mr. Otrava’s application for relief because she found his
testimony of being beaten by police too vague to support his claim of persecution.
Alternatively, the IJ concluded that the incidents did not rise to the level of
persecution. The IJ did not discredit Mr. Otrava’s testimony but questioned why he
did not submit medical records of being beaten by the Romanian police or an
affidavit from his wife corroborating his testimony. The IJ noted that the U.S.
Department of State’s 2002 Country Report on Romania reflected the country’s
enhanced efforts to protect minorities, including the Roma, and that both the ruling
party and the party representing the Roma had signed a protocol to protect and
educate the public about the Roma. Also, the IJ noted that violence by rogue police
officers was being carefully monitored. In light of these developments, the IJ
determined that Otrava could not have a well-founded fear of future persecution in
Romania. The IJ commented that Mr. Otrava’s departure from Romania seemed to
be motivated by economic reasons, given that he was unemployed there but found a
job within three days of his arrival here. Since Otrava did not meet the lower
burden of proof required for asylum, the IJ concluded that he could not meet the
more stringent standard for withholding of removal. Finally, the IJ concluded that
Otrava had not presented sufficient evidence to support his claim that he would be
tortured by the Romanian government if he were returned.
Mr. Otrava appealed to the BIA, arguing that the IJ improperly called for
corroboration of his injuries and his Romani ethnicity. The BIA summarily
affirmed the IJ’s decision.1
Discussion
Mr. Otrava has advanced two principal arguments in his petition for review.
His first is a renewed contention that the IJ improperly called for corroboration of
his injuries and ethnicity. Essentially, he understands the IJ to have denied his
application because he failed to provide corroboration. He relies on cases like
Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003), for the proposition that when
an applicant testifies credibly, corroboration is unnecessary.
1
Mr. Otrava also moved to reopen his case before the BIA. That motion was
denied on June 2, 2005, and Mr. Otrava did not appeal from that decision. He nevertheless
referenced the June 2 decision in the jurisdictional statement of his opening brief to this
court, prompting the government to move for clarification of jurisdiction. Mr. Otrava has
since clarified the question of this court’s jurisdiction when he conceded that the June 2
decision is not before the court in this petition.
No. 05-1706 Page 4
But Mr. Otrava misinterprets the IJ’s decision. The IJ did not deny his
application for lack of corroboration; rather, she found that he had not met his
burden of proof because his testimony was too vague to support a finding of past
persecution or, alternatively, that the incidents he recounted did not rise to the
level of persecution. The IJ’s reference to the lack of corroboration is somewhat
troubling in light of our repeated pronouncements that corroboration is not required
of otherwise credible applicants for asylum who filed their applications before the
REAL ID Act took effect (like Mr. Otrava). See, e.g., Diallo v. Gonzales, 439 F.3d
764, 766 & n.1 (7th Cir. 2006). We are also troubled by the IJ’s inference that
Mr. Otrava’s entry into this country was primarily for economic reasons because he
was unemployed in Romania. The IJ did not discredit Mr. Otrava’s testimony, and
although he testified to having difficulty finding permanent employment, he said he
made a living as a trader selling merchandise at fairs. But taken as a whole, the
IJ’s opinion reflects that her primary concern was not (as Otrava suggests) a lack of
corroboration or credibility so much as a need for Mr. Otrava’s claim to be
sharpened and clarified. Indeed, the IJ’s conclusion was that Mr. Otrava’s vague
and overly generalized allegations were insufficient to satisfy his burden of proof.
See Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (finding burden of
proof not satisfied where petitioner’s allegations of being detained, beaten, and held
for three days without food lacked specifics). Alternatively, the IJ concluded that
the incidents Otrava described did not rise to the level of persecution. We cannot
say the record compels a different conclusion. Bolsgun v. Ashcroft, 374 F.3d 452,
498 (7th Cir. 2004).
Mr. Otrava’s second argument is difficult to discern. We do not understand
him to be arguing that he offered sufficient evidence to entitle him to asylum;
indeed, he concedes at least eight times in his brief that his testimony was
“incomplete” or “insufficient.” Instead, he argues that the IJ erred in relying on her
own speculations and should have developed the record if she found it lacking in
detail.
This argument falters for several reasons, the first of which is that it is
undeveloped. To avoid jurisdictional problems, applicants must properly present
their arguments first to the BIA. See Toptchev v. INS, 295 F.3d 714, 721 (7th Cir.
2002). Here, Otrava’s notice of appeal to the BIA does not refer to the IJ’s failure to
develop the record; it challenges only what Mr. Otrava saw as an improper demand
for corroboration. Nor does Mr. Otrava’s brief to this court cite any legal authority
for the proposition that an IJ has a duty to develop the facts in a removal hearing.
By not developing such an argument in his petition to this court, Mr. Otrava has
waived the argument. See Weinstein v. Schwartz, 422 F.3d 476, 477 n.1 (7th Cir.
2005) (noting that failure to develop arguments on appeal constitutes waiver);
accord Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004) (enunciating the same
principle in immigration context).
No. 05-1706 Page 5
In any event, the issue of an IJ’s duty to develop the record is not squarely
implicated in this case because Mr. Otrava was represented by counsel. While the
immigration regulations place the burden of proof on the applicant for asylum,
8 C.F.R. § 208.13(a); Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005), the
Immigration and Nationality Act provides that an IJ shall “receive evidence, and
interrogate, examine, and cross-examine the alien and any witnesses,” 8 U.S.C.
§ 1229a(b)(1). An alien represented by counsel, however, is entitled to less
assistance from the IJ than a pro se applicant. See Al Khouri v. Ashcroft, 362 F.3d
461, 464-65 (8th Cir. 2004); Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000); see
also Ming Shi Xue v. BIA, 439 F.3d 111, 125 n.18 (2d Cir. 2006) (noting that IJ’s
duty to develop the record does not amount to “assist[ing] the counseled asylum
applicant in putting forward an affirmative asylum claim in the first place”). Thus,
even were we to reach this issue despite its lack of development by either party, we
would not be inclined to hold that the IJ breached her duty under 8 U.S.C.
§ 1229a(b)(1) because Mr. Otrava was represented by counsel at his hearing.
Mr. Otrava’s last argument is that the IJ erred in not placing the burden on
the government to rebut the presumption of a fear of future persecution. However,
only when an applicant has established past persecution does the burden of
rebutting future persecution shift to the government. See 8 C.F.R. § 208.13(b)(1)(ii);
Cecaj v. Gonzales, 440 F.3d 897, 900 (7th Cir. 2006). Mr. Otrava wrongly assumes
that he established past persecution.
Accordingly, we DENY the petition for review.