Topalli v. Gonzales, 04-2514.

• Decision Date: 02 August 2005
• Docket Number: No. 04-2514.,04-2514.
• Citation: 417 F.3d 128
• Parties: Olgert TOPALLI, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

417 F.3d 128

Olgert TOPALLI, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-2514.

United States Court of Appeals, First Circuit.

Submitted June 30, 2005.

Decided August 2, 2005.

Sunit K. Joshi and Joshi & Associates, P.C. on brief for petitioner.

Karen A. Smith, Attorney, Tax Division, U.S. Department of Justice, Peter D. Keisler, Assistant Attorney General, Civil Division, and Douglas E. Ginsburg, Senior Litigation Counsel, on brief for respondent.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

The petitioner presents a sympathetic case. Olgert Topalli, a 24-year-old Albanian man, was arrested and beaten multiple times for his participation in anti-government rallies. He escaped Albania with his sister after criminals attempted to kidnap her and force her into prostitution. In the end, the strict standard of review under which we operate and the clear language of the immigration statutes compel us to deny the relief sought: reversal of the agency's¹ decision not to grant asylum, withholding of removal, or relief under the Convention Against Torture (CAT). We deny the petition.

I.

Because the Board of Immigration Appeals (BIA), though not the Immigration Judge (IJ), found Topalli credible, we recount the facts as Topalli rendered them.

Topalli and his family were from Korce, Albania. In 1999 he joined the Albanian Democratic Party (ADP) (the opposition party to the Socialist government) as a full member after having participated in the party's youth forum for the previous four years. As a member of the ADP, Topalli was arrested and detained by the police seven times between 1999 and 2001. Four of those arrests were for Topalli's participation in anti-government rallies, which were illegal because the demonstrators did not obtain a permit. The three other times, Topalli was "arrested on the streets for no reason . . . because [the police] would remember [him]." None of the periods of detention lasted more than 24 hours. The police did not have the right to detain anyone without pressing charges for more than 24 hours. Topalli also explained that at his last rally (and possibly others) he fought with the police and confronted them, and so the police may have arrested him because he was fighting them.

Topalli said that each time he was arrested, the police beat him. He did not claim that the beatings ever resulted in injuries requiring medical attention. He also gave few details about these encounters with the police except for the first and last times he was arrested. The first time he was arrested was in 1999, when he participated in his first rally. That detention lasted 12 hours, and two or three policemen beat Topalli on the chest and the back with rubber sticks, swearing at him. The last time he was arrested was in March 2001, when he participated in his last rally. This time the police told Topalli that if he "continued to participate, they would imprison [him]." After he was released, Topalli lived for four months with his aunt in a village about two hours' drive away from Korce. He then returned to live with his parents in Korce for several years and ceased to participate in ADP events, and he did not have any more problems with the police.

Topalli's older sister Alkada was raped in October 2002 by several men. Topalli's father went to the police station to file a report, but nothing was done by the police because Alkada could not identify her attackers. There was no indication this was connected with Topalli's political activities.

Topalli's family won a visa lottery in 2003 for entry into the United States. His whole family in Albania, save he and his older sister Alkada and her daughter, emigrated to the United States. Topalli and Alkada stayed behind because they were over 21 and not eligible for the visas.

On February 4, 2004, Topalli saw four men trying to kidnap his sister and push her into a car as she returned from work. He fought with the men and managed to help Alkada escape, but was rendered unconscious in the struggle. The men took him to an unknown place, and when he woke up, they threatened him with a gun and told him not to go to the police or file charges or they would kill Topalli and his sister. They also explained that they had intended to kidnap Alkada and ship her to Italy for prostitution. Topalli did not recognize the men, and there was no indication that this incident was connected with Topalli's activities in the ADP. He did not report the event to the police.

After this incident, Topalli decided to leave Albania with his sister and join the rest of his family in the United States. He and his sister obtained two false Italian passports for $10,000. Using the fake passports, Topalli, Alkada, and Alkada's daughter left Albania on March 11, 2004, and attempted to enter the United States at San Juan, Puerto Rico, on March 22, 2004. Immigration officials refused him admission upon discovering that the passports were false and detained him, and Topalli claimed fear of persecution if returned to Albania. He was then referred to an IJ for asylum-only proceedings.²

After a merits hearing on June 17, 2004, the IJ found Topalli to be not credible and denied his application for asylum, withholding of removal, and protection under the CAT.

Topalli appealed the IJ's denial to the BIA. On October 8, 2004, the BIA dismissed Topalli's appeal. The BIA disagreed with the IJ's adverse credibility finding, finding the inconsistencies and omissions relied upon by the IJ to be inconsequential. It nonetheless affirmed the IJ's denial of relief because it found that the maltreatment suffered by Topalli did not amount to past persecution, and that Topalli failed to show past persecution or reasonable likelihood of future persecution:

While [Topalli] was arrested and physically mistreated a number of times due to his participation in illegal demonstrations, his detentions were short, never lasting more than 24 hours, and he apparently did not receive injuries requiring medical attention. He admitted that, when he stopped participating in these demonstrations, the arrests ceased.

The BIA also concluded that Topalli's "primary reason for fleeing Albania was to protect his sister from further criminal attacks and attempts to force her into prostitution," which the BIA implicitly concluded not to be past persecution on account of one of the protected statutory grounds under 8 U.S.C. § 1101(a)(42)(A).

Topalli timely petitioned this court for review of the BIA's order dismissing his appeal.³ Topalli's primary argument is that the BIA erred in determining that the treatment afforded to him did not constitute past persecution. Because we find that substantial evidence supports the BIA's finding that Topalli's treatment was not past persecution on account of one of the protected grounds, other arguments for relief by Topalli also fail.⁴

II.

An asylum applicant bears the burden of proving that he or she is "unable or unwilling to return to [the applicant's country of nationality] . . . 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." 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. § 1208.13(a). Applicants may meet this burden in one of two ways: 1) by demonstrating a well-founded fear of persecution on account of one of the statutory grounds, or 2) by establishing past persecution on account of one of the statutory grounds so as to be entitled to a presumption of a well-founded fear of persecution. Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); 8 C.F.R. § 1208.13(b). Topalli argues that he has met the burden for showing past persecution.

We review the BIA's determination that Topalli failed to show past persecution under the deferential substantial evidence standard. Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000). Under that deferential standard, we must uphold the BIA's resolution "so long as its decision is supported by substantial evidence in the record." Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir.2005). The BIA's determination must stand "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Rodriguez-Ramirez, 398 F.3d at 123.

The Arrests and Beatings

Topalli first argues that a finding of past persecution is compelled by the seven times when he was arrested, detained, and beaten.

Because there is no statutory definition of "persecution" under 8 U.S.C. § 1101(a)(42)(A), "it is in the first instance the prerogative of the Attorney General, acting through the BIA, to give content to it." Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005). Due to the infinite variety of factual circumstances the BIA is likely to face, the BIA has preferred to decide what amounts to past persecution on a case-by-case basis, instead of announcing rigid rules embodying some precise calculus of maltreatment and suffering. See id.

The question of whether Topalli suffered past persecution on account of his political beliefs here is a close one. But we are bound by our standard of review, and without minimizing Topalli's beatings at the hands of the police, the record does not compel a reasonable fact finder to say...