Alexandrescu v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2732

JAN-VINICIUS ALEXANDRESCU, LUMINITA ALEXANDRESCU,
BOGDAN ALEXANDRESCU,

Petitioners,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Patrick D. O'Neill, Jason P. Ramos, and O'Neill & Gilmore,
P.S.C. on brief for petitioner.
Erica B. Miles, Attorney, Office of Immigration Litigation,
Janice K. Redfern, Attorney, Office of Immigration Litigation, and
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Department
of Justice, on brief for respondent.

August 7, 2008
 LYNCH, Chief Judge. Jan-Vinicius Alexandrescu

("Alexandrescu") is a citizen and native of Romania, as are his

wife Luminita Alexandrescu ("Luminita") and son Bogdan

Alexandrescu. Alexandrescu petitions this court for review of the

denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture ("CAT"). An

immigration judge ("IJ") denied the application but granted

voluntary departure, and the Board of Immigration Appeals ("BIA")

affirmed. We deny the petition for review.

I.

Alexandrescu first entered the United States in January

1993 on a crewman's visa while working on a cruise ship. He stayed

past the visa's expiration in February 1993 and filed an

application for asylum in May 1993, listing his wife and son as

derivative applicants. His wife came to the United States on a

visitor's visa in June 1993, which expired in December 1993. Their

son did not arrive in the United States until June 1994; he also

entered on a visitor's visa, which expired in December 1994. All

overstayed.

The U.S. Department of Homeland Security issued Notices

to Appear to each family member on December 1, 2005. At a

preliminary hearing before an IJ on March 14, 2006, they conceded

their removability. On June 6, 2006, Alexandrescu filed an updated

asylum application, again listing his family as derivative

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applicants. We summarize Alexandrescu's statement in his asylum

application and the testimony received by the IJ on October 30,

2006.

Alexandrescu graduated as a lieutenant from the Romanian

military's Air Force Academy and flew MIG-16s from 1982 to 1984.

He was then assigned to fly more advanced aircraft in an elite

squadron, in which he remained until he was transferred to the

reserves in 1990.

As a military officer, Alexandrescu was required to join

the Communist Party and to espouse the party's ideology, even

though he privately disagreed with it. At a high-level Communist

Party meeting in 1987, he complained that the emphasis on politics

and ideology in the Air Force was preventing sufficient training

and resulting in unnecessary accidents. After a superior warned

him that such statements could hurt his career, he recanted them.

Alexandrescu met Luminita in 1988. She lived in Macesti,

a village near the Yugoslav border, and is of Yugoslav descent. To

leave his base and visit her, Alexandrescu needed the permission of

his superiors; they granted the requests even though they were

uneasy because the Yugoslav border was a high-traffic avenue for

escape from Romania.

That December, Alexandrescu requested permission to marry

Luminita. His superiors warned him against the marriage because of

her Yugoslav descent, yet he was granted the necessary permission.

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Shortly thereafter, he was again called before the base's Communist

Party Secretary, Gheorge Pasc, and the base's intelligence officer,

Ion Rusu; they interrogated him about his marriage and asked him to

divorce his wife because of her ethnic origin, but he refused.

That same day, Alexandrescu was told he would not fly

again until further notice, and for the next six months he claims

he "suffer[ed] the persecutions" of his superiors. He had to

report on his daily activities, and he concluded that his telephone

was bugged and his mail checked by the Securitate (the Romanian

secret police). For example, when his mother received a phone call

in April 1989 from her brother (who had emigrated legally to West

Germany) wishing her a happy Easter, then a prohibited holiday in

Romania, Alexandrescu was summoned to Rusu's office to explain the

call and answer questions about his uncle. In September 1989, his

mother sought permission to travel to West Germany to visit this

same brother; Alexandrescu testified that if he had not been an

officer in the Air Force and had not signed for her as a sort of

guarantor, she would never have been allowed to leave the country.

He also testified that she left and returned without further

difficulties.

During this time he was also tasked with manual labor

that he considered beneath his "quality as an officer," including

agricultural work and cleaning toilets. Alexandrescu felt that

this "denigrate[d" his "rank and . . . position" and made him an

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"inferior human being." However, in June 1989, he was allowed to

resume his flight duties.

In October 1989, Alexandrescu was told that he would be

moved to the Air Force reserves "through the back door," which

meant that he would not be eligible for "qualified positions"

(professional placements) in civilian life. Around the same time,

Alexandrescu raised the training issue again at a big party

meeting. Pasc, the Communist Party representative on the base,

told him that his remarks at the party meeting "signed [the]

decision" to move him into the reserves and that in civilian life,

Alexandrescu would "not be more than a Garbage Man."

Alexandrescu remained in the Air Force's employ, however,

during the Romanian democratic revolution from December 1989 to

March 1990. He claims his formal transfer to the reserves in April

1990 occurred shortly after he spoke out again about inadequate

training. As for why the government would wish to keep him in the

reserves if it was so displeased with his criticisms, Alexandrescu

surmised that the military had invested millions of dollars in his

training and that by keeping him "next to them" they could

"persecute [him] more for what [he] did in the past."

In civilian life, Alexandrescu obtained a commercial

pilot license and a job with the government-run airline. That job

was short-lived, an outcome which Alexandrescu blames on Pasc, who

had become the human resources office manager for the airline: when

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Alexandrescu was forced to resign, Pasc told Alexandrescu that

because Alexandrescu had been unwilling to support the old regime

during the revolution, he would "suffer for the rest of [his] life

even in Democratic Romania." The government-issued commercial

pilot's license, however, was never revoked.

Alexandrescu testified that he "was surprised in the

beginning how easy [he] got the [government airline] job knowing

[his] record." He could not explain why he was hired and allowed

to work without harassment for the first few months if his record

was indeed ruined, guessing that maybe it was because Romania was

a "free country now and more democratic," or because "they play[ed]

a game," or because he was only flying domestic, not international,

flights.

Between 1991 and 1993, Luminita worked for an independent

newspaper opposed to the administration, which was still controlled

by former Communist Party members. Meanwhile Alexandrescu worked

odd jobs as a security guard. Alexandrescu's last job in Romania

was with Air Antares, a new private airline.

In January 1993, Alexandrescu took a job as a waiter with

a cruise line and freely left Romania on a Romanian passport.

Alexandrescu considered returning to Romania in April 1993 after

his father-in-law's death, but Luminita begged him not to return

because people whom she assumed were associated with the military

had contacted her about his whereabouts and she feared for his

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safety. He testified that as a member of the reserves, he is

required to report any changes in address to the military, which he

has not done. He also claimed that these visitors had told his

wife they knew he had applied for political asylum in the United

States, even though that knowledge would appear to predate his

actual application.

He fears now that on return to Romania, he will be

prosecuted for failing to report his whereabouts to the military,

which would result in his imprisonment. He testified that his

parents told him that people from the military had come by their

house in 2003 or 2004 looking for him, though he had not asked them

to send a corroborating letter to the court and he had not

mentioned this fact in his revised asylum application.

The IJ issued her oral decision on October 30, 2006. The

IJ found no persecution in this case and enumerated many

inadequately explained and uncorroborated elements of

Alexandrescu's story. The IJ also concluded that Alexandrescu had

totally failed to establish a well-founded fear of future

persecution, noting that it was unclear who the feared persecutor

was and why, fifteen years later in a democratic Romania, the same

people would be willing and able to persecute him if he returned.

On appeal, the BIA affirmed, emphasizing that Alexandrescu had not

alleged events amounting to persecution. This petition followed.

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 II.

We start with Alexandrescu's asylum claim. To establish

his eligibility for asylum, Alexandrescu must establish that he

either suffered past persecution (which creates a rebuttable

presumption of future persecution) or has a well-founded fear of

future persecution. 8 C.F.R. § 208.13(b). We must accept the

administrative findings of fact "unless any reasonable adjudicator

would be compelled to conclude to the contrary." 8 U.S.C.

§ 1252(b)(4)(B). "When the BIA adopts the IJ's opinion and

discusses some of the bases for the IJ's decision, we have

authority to review both the IJ's and the BIA's opinions." Ouk v.

Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). The BIA's and IJ's

conclusion that Alexandrescu suffered no persecution is amply

supported by the record.

Assuming without deciding that all other considerations

are resolved in petitioner's favor -- that his complaints about

insufficient training constituted political speech and were the

cause of his poor treatment, that his testimony was credible and

fully corroborated, and that asylum can be granted on the basis of

economic persecution -- Alexandrescu simply has not alleged conduct

severe enough to constitute persecution. There is no serious

economic deprivation here: Alexandrescu lost his job, not his

ability to make a living. See Khalil v. Ashcroft, 337 F.3d 50, 53,

55 (1st Cir. 2003) (denying petition where asylum applicant

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described economic hardship not amounting to persecution); see

also, e.g., Zhuang v. Gonzales, 471 F.3d 884, 890 (8th Cir. 2006)

("Fears of economic hardship or lack of opportunity do not

establish a well-founded fear of persecution."); Musabelliu v.

Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (denying asylum where

applicant was discharged from military for opposing corruption

because "[l]osing a job is not persecution" and "[a]sylum is not a

form of unemployment compensation"). Further, as both the BIA and

the IJ emphasized, Alexandrescu was granted permission for his

every request: to visit and then marry Luminita despite her ethnic

background, to allow his mother to travel to West Germany, and to

leave Romania to work abroad on a cruise ship.

Because Alexandrescu has failed to establish past

persecution, he does not benefit from a presumption of future

persecution and must offer specific proof that his fear of future

persecution is well-founded. 8 C.F.R. § 208.13(b)(1). He argues

that he will face legal prosecution and imprisonment upon return

because he has failed to inform the military of his whereabouts and

will thus be considered a deserter. Generally, a sovereign

nation's normal penalties for avoiding military service are not

considered persecution. Mekhoukh v. Ashcroft, 358 F.3d 118, 126

(1st Cir. 2004). While there are some exceptions to this general

rule of thumb, none of them apply here. See id. Further,

Alexandrescu has provided no information about the current

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practices of the Romanian military, making it impossible to tell

whether he would be punished for not reporting his movements,

especially as he has never been called up for duty. Cf. Mojsilovic

v. INS, 156 F.3d 743, 747-48 (7th Cir. 1998) (finding no well-

founded fear of persecution where asylum applicant failed to

demonstrate that he would in fact be punished for refusing to serve

in Yugoslav army).

Nor has he clarified who would seek to persecute him on

a protected ground: not only could he provide no specifics

regarding which of his former alleged persecutors still hold

positions of power, but he also failed to explain how punishment

for disobeying a military law could be connected to his political

views. See Foroglou v. INS, 170 F.3d 68, 71 (1st Cir. 1999)

(punishment for refusing to serve in a military is generally not

persecution on account of membership in a protected group).

Because the standard for withholding of removal is more

difficult to meet than the asylum standard, Alexandrescu's failure

to satisfy the asylum standard means that his withholding of

removal claim must also fail. Khalil, 337 F.3d at 56. We also

deny the petition as to the CAT claim because Alexandrescu has not

alleged any past or potential future treatment that could possibly

be considered torture.

The petition is denied.

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