Gilca v. Holder

• Decision Date: 23 May 2012
• Docket Number: No. 11–1711.,11–1711.
• Citation: 680 F.3d 109
• Parties: Dumitru GILCA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

680 F.3d 109

Dumitru GILCA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–1711.

United States Court of Appeals, First Circuit.

Submitted March 28, 2012.

Decided May 23, 2012.

Gary J. Yerman on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, and Wendy Benner–León, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before HOWARD, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Dumitru Gilca, is a native and citizen of Moldova. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture (CAT). After careful consideration, we deny the petition.

The petitioner was admitted to the United States on July 12, 2006, pursuant to a non-immigrant J–1 cultural exchange visa, which authorized him to remain until August 10, 2006. Instead of departing, he applied for asylum, citing his Roma descent and his membership in Moldova's pro-democratic political party. ¹

An asylum officer interviewed the petitioner and referred his case to the immigration court. An Immigration Judge (IJ) held an evidentiary hearing. The petitioner appeared pro se, conceded removability, and cross-applied for asylum, withholding of removal, and protection under the CAT. Because the IJ found the petitioner's hearing testimony generally credible, we rehearse the raw facts in line with that testimony.

The petitioner attempted to recount various episodes of harassment and discrimination that had occurred in his homeland. He was threatened with expulsion from high school after he organized students in opposition to the implementation of Russian as the primary language at the school and spoke out against the Communist Party. While attending a university, a professor threatened him with a grade reduction due to his pro-democracy stance.

In March of 2004, he was beaten on a public street by several unidentified individuals, leaving him with a broken nose and fractured ribs. Although his assailants said nothing about their motives, the petitioner thought that they had attacked him because of his Roma appearance and, possibly, his political beliefs.

Roughly two weeks after the assault, the petitioner traveled to the United Kingdom for the summer. During that interval, his mother received a few telephoned threats. The anonymous caller declared that if the petitioner returned to Moldova, he would risk being prosecuted, beaten, or killed. No explanation for these threats was given by the caller, but the petitioner thought they were made because he was expressing his opinions.

Soon after the petitioner returned home, he was followed by four unknown individuals in a strange car. The quartet tried unsuccessfully to restrain him outside his apartment. He was unharmed and reported the incident to the police. The police concluded that the incident was likely the activity of some hooligans looking for money.

The following spring, plainclothes police officers detained the petitioner on suspicion of involvement in a street fight. They shoved the petitioner and escorted him to a police station, where they took fingerprints and photographs before releasing him.

Notwithstanding desultory threats, the petitioner continued to attend anti-communist demonstrations. Ten days after he participated in a May 2005 protest, he received several anonymous calls warning him to be careful because he was speaking out too much.

After his graduation from the university, the petitioner obtained employment as a teacher at a private school for the 2005–2006 academic year. He claims that, while there, he was subjected to petty harassment on account of his Roma ethnicity and his anti-communist beliefs. The petitioner repaired to the United States shortly after the end of the academic year.

The petitioner testified that he did not return to Moldova because he feared persecution on the basis of his Roma ancestry and/or political opinions. In support of this claim, he adverted to the threats and episodes of violence described above. The IJ weighed his testimony and also considered the most recent State Department country conditions report which mentioned incidents in which both persons of Roma descent and members of opposition political groups had experienced various types of harassment in Moldova. Notwithstanding her finding that the petitioner was generally credible, the IJ concluded that he had not carried his burden of proving either past persecution or a well-founded fear of future persecution on account of a statutorily protected ground. See8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Consistent with these conclusions, the IJ denied the petitioner's application for asylum. She also denied his application for withholding of removal and CAT protection and entered an order of removal. The petitioner appealed to the BIA, which affirmed the IJ's decision. This timely petition for judicial review followed.

Because the BIA added its own gloss to the IJ's reasoning, we review its decision and the IJ's antecedent decision as a unit. Arévalo–Girón v. Holder, 667 F.3d 79, 81 (1st Cir.2012). In this exercise, “we test the agency's factual findings ... under the familiar substantial evidence rule.” Id. This standard requires us to accept all findings of fact “so long as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). In the absence of an error of law—and we discern none here—we can set aside the agency's decision “only if the evidence ‘points unerringly in the opposite direction.’ ” Id. (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004)).

We start with the petitioner's asylum claim. “An asylum-seeker bears the burden of proving that he is a refugee within the meaning of the immigration laws.” Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir.2007); see8 U.S.C. § 1158(b)(1)(B)(i). To qualify as a refugee, an alien must demonstrate that he is unable or unwilling to return to his homeland “because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). Once a showing of past persecution is made, “a rebuttable presumption arises that a petitioner's fear of future persecution is well-founded.” Nikijuluw, 427 F.3d at 120.

Persecution is a term of art in immigration law. The term connotes a level of harm that “add[s] up to more than mere discomfiture, unpleasantness, harassment, or unfair treatment.” Id. We caution, further, that “persecution always implies some connection to government action or inaction.” Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005). An alien will be found eligible for asylum only if he experiences untoward treatment that is at the hands of the government, condoned by the government, or a result of the government's unwillingness or inability to control the offending acts. Id.

Even if an alien genuinely fears that he will be persecuted upon returning to his homeland, that subjective fear is insufficient to confer protected status. Rather, “an alien must pass both a subjectivetest (by showing that [he] genuinely fears persecution) and an objective test (by showing an objectively reasonable basis for that fear).” Lopez Perez v. Holder, 587 F.3d 456, 461–62 (1st Cir.2009).

In the case at hand, the petitioner's evidence involves mostly verbal harassment during his youth, threats of scholastic discipline (e.g., expulsion and grade-reduction), and telephone calls predicting disagreeable consequences should the petitioner not modify his behavior. But the petitioner is now an adult; he has graduated without incident from both high school and college; and none of the dire predictions materialized (that is, there is no evidence to suggest that he was ever physically harmed by those who threatened him).

Citing Sok v. Mukasey, 526 F.3d 48 (1st Cir.2008), the petitioner argues that threats alone may constitute past persecution. This is true as far as it goes—but it does not take the petitioner very far. Even though Sok stands for the proposition that threats can in some circumstances suffice to show past persecution, id. at 54–55, “the presence or absence of physical harm (and, indeed, the degree of harm inflicted) remains a relevant factor in determining whether mistreatment rises to the level of persecution.” Ruiz v. Mukasey, 526 F.3d 31, 37 (1st Cir.2008). Thus, Sok cannot be read to change our settled rule that “[h]ollow threats, ... without more, certainly do not compel a finding of past persecution.” Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir.2005).

This gets the grease from the goose. The IJ found that the vague threats addressed to the petitioner, virtually all of which were conveyed over the telephone by unknown persons, were nothing more than empty words.² This determination was supported by substantial evidence in the record. Consequently, we must honor it.

In an attempt to create a linkage between the verbal threats and some physical harm, the petitioner alludes to the severe beating he suffered at the hands of unknown assailants and his on-the-street confrontation with some nameless men in a strange car. This linkage is woven entirely out of gossamer strands of speculation and surmise. None of these persons either spoke to the petitioner or otherwise indicated why they had targeted him. For aught that appears, both of these incidents exemplify no more than random violence.

The petitioner suggests that the perpetrators of these incidents...