[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 10-12761 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 21, 2011
JOHN LEY
________________________ CLERK
Agency No. A088-168-561
MARIN DANCHEV YONKOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 21, 2011)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Marin Danchev Yonkov petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of
withholding of removal.1 Yonkov, a citizen of Bulgaria, claims he suffered past
persecution and fears future persecution in Bulgaria because of his homosexuality.
After review, we deny his petition.2
To establish eligibility for withholding of removal, an applicant must show
that his “life or freedom would be threatened in that country because of [his] race,
religion, nationality, membership in a particular social group, or political opinion.”
Immigration and Nationality Act (“INA”) § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A). To meet this standard, the applicant bears the burden to show
that it is “more likely than not” that he either suffered past persecution or has a
well-founded fear of future persecution on account of one of the five protected
grounds. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)
(hyphens omitted); 8 C.F.R. § 208.16(b)(2).3
1
On appeal, Yonkov does not challenge the denial of his request for asylum or for relief
under the Convention Against Torture, and we do not address these claims. See Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Where, as here, the BIA adopts the IJ’s reasoning, we review both the IJ’s and the BIA’s
decisions. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the
determination that an alien is statutorily ineligible for withholding of removal under the “highly
deferential” substantial evidence test, which requires us to affirm if the decision is “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.” Id.
(quotation marks omitted). We will reverse “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 of the
administrative findings.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009)
(quotation marks omitted).
3
Although this Court has not addressed the issue, the BIA has concluded that
homosexuals constitute a “particular social group.” In re Toboso-Alfonso, 20 I. & N. Dec. 819,
822-23 (BIA 1990). On appeal, the parties do not dispute that homosexuality is a protected
factor. Accordingly, we need not reach that issue.
2
We will not reverse a finding that an applicant failed to demonstrate a nexus
between the alleged persecution and a protected ground unless the evidence
compels a conclusion that the applicant has been or will be persecuted “because
of” the protected ground. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
890 (11th Cir. 2007) (quotation marks omitted). Furthermore, evidence of acts of
private violence or criminal activity does not demonstrate persecution on a
protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).
Although the INA does not define persecution, this Court has described
persecution as “an extreme concept requiring more than a few isolated incidents of
verbal harassment or intimidation.” Ruiz v. Gonzalez, 479 F.3d 762, 766 (11th
Cir. 2007) (quotation marks omitted). This Court has concluded that threats in
conjunction with brief detentions or a minor physical attack that did not result in
serious physical injury do not rise to the level of persecution. See, e.g.,
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (arrest,
five-hour interrogation and beating, followed by four-day detention); Djonda v.
U.S. Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008) (36-hour detention,
beating and threat of arrest); Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1289-91
(11th Cir.2006) (five-day detention).
3
Here, Yonkov testified that he suffered two attacks in Bulgaria over an
eight-year period. The first attack occurred in 1992, when Yonkov was in high
school. While at a bus stop, Yonkov was called disrespectful names and his nose
was broken.
The second attack occurred in December 2000, shortly before Yonkov came
to the United States in January 2001. Two unseen assailants attacked Yonkov
from behind while he walked down the street at night. Yonkov’s attackers called
him derogatory names for homosexuals and hit and kicked him, breaking his jaw.
Yonkov was hospitalized for six days and had surgery to reposition his jaw, which
affected his ability to chew or speak for about two months.
A medical report stated that Yonkov’s attackers “aimed to rob him.”
Yonkov admitted that he told his doctors he was attacked as part of a robbery and
explained that Bulgarian people think homosexuals are wealthy.4 Yonkov also
admitted he never saw his assailants and “guess[ed]” or “assum[ed]” that they
knew he was gay because they called him by name and because he was a ballet
dancer and had a “style of walking” that was “artistic.”
4
For the first time on appeal, Yonkov contends he did not tell his doctors the reason for
his attack because of the inhospitable climate for gays in Bulgaria. There is no record evidence
supporting this contention, and we cannot consider facts not raised in the administrative forum.
See Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004).
4
Yonkov reported the second attack to the Bulgarian police. A detective
visited Yonkov in the hospital and asked him questions. However, Yonkov does
not know what happened with the police investigation because he left for the
United States shortly thereafter.
Yonkov testified that in Bulgaria homosexuality is viewed as a sickness and
that the Bulgarian government does not protect homosexuals. The 2008 U.S. State
Department’s Country report for Bulgaria indicated that: (1) Bulgarian law
prohibited discrimination based on sexual orientation, (2) the Bulgarian
government did not enforce the law effectively and gay Bulgarians were reluctant
to pursue legal remedies because of the stigma for being openly gay; (3) reports of
violence against sexual minorities were rare, and (4) the Bulgarian police arrested
approximately sixty people who attempted to disrupt Bulgaria’s first gay pride
parade, in which approximately a hundred participants marched under tight
security protection.
We cannot say that the evidence compels the conclusion that Yonkov
suffered past persecution or has a well-founded fear of future persecution. First,
under our precedent, the two incidents Yonkov described, which occurred eight
years apart, do not amount to persecution. In any event, the evidence does not
compel a conclusion that the two attacks were motivated by Yonkov’s
5
homosexuality. Notably, the IJ found that the primary motive for the second
attack was robbery, and that finding is supported by substantial evidence.
Furthermore, substantial evidence supports the determination that Yonkov
failed to demonstrate a likelihood of future persecution. For the reasons already
stated, the two attacks do not provide a reasonable basis for fearing persecution on
account of a protected ground. Moreover, although Yonkov asserted that the
Bulgarian police do not protect homosexuals from attack, the documentary
evidence contradicted his claim. According to the 2008 Country Report, while
homosexuals are stigmatized and discriminated against, physical violence against
them is rare. In 2008, Bulgarian police protected marchers in the first gay pride
parade and arrested about sixty protesters who attempted to disrupt it.
Because substantial evidence supports the determination that Yonkov, even
if credited, was statutorily ineligible for withholding of removal, we do not
address Yonkov’s other argument that the IJ failed to make a clean adverse
credibility determination.5
PETITION DENIED.
5
We reject the government’s argument that Yonkov abandoned any challenge to his
statutory eligibility for withholding of removal. Although the majority of Yonkov’s brief
focused on the adequacy of the IJ’s adverse credibility finding, the brief also raised as a separate
issue whether Yonkov had met his burden to show that the attacks he experienced in Bulgaria
constituted persecution on account of a protected factor. See Allstate Ins. Co., v. Swann, 27 F.3d
1539, 1542 (11th Cir. 1994) (explaining that, although issues not clearly designated in the
opening brief are ordinarily deemed abandoned, those briefs are “read liberally to ascertain the
issues raised on appeal”).
6