[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 29, 2005
No. 04-12709
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Docket No. A77-928-391
KOL KROI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review from a Decision
of the Board of Immigration Appeals
_________________________
(June 29, 2005)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Kol Kroi seeks review of the Board of Immigration Appeals’ (“BIA”) order
affirming without opinion the immigration judge’s (“IJ’s”) decision to deny him
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”) and relief under the United Nations Convention Against Torture
(“CAT”). For the reasons discussed below, we DENY Kroi’s petition.
I. BACKGROUND
On 15 June 2000, Kroi, a native and citizen of Albania, arrived in the
United States and applied for admission under the Visa Waiver Permanent
Program (“VWP”).1 Later, Kroi submitted an application for asylum, withholding
of removal, and CAT relief.
In his application for asylum and testimony before the IJ, Kroi claimed that
he suffered past persecution in Albania because of political opinions and
membership in the Albanian Democratic Party (“DP”). Additionally, he asserted
that he has a reasonable fear of future persecution upon return to Albania and that
he is eligible for withholding of removal and CAT relief. Kroi stated the
following specific facts. In 1997, a group of “communist criminals” stopped him
and demanded money to support the communist party. AR at 189. When he
refused to give them money, they threatened his life. In 1998, Kroi joined DP
because “Communists gangs and terrorists,and ex-Communist Party members” had
1
The VWP authorizes the Attorney General to waive the entry document requirements for
qualifying nationals of certain countries who are seeking temporary admission to the United States
as nonimmigrant visitors. See INA § 217(a), as amended, 8 U.S.C. § 1187(a); 8 C.F.R. § 217 et seq.
2
taken over the Albanian government in 1997. Id. at 131. Kroi had no specific role
or job in the DP, but he attended meetings with friends, talked to people about the
DP, argued that Communists should not return to power in Albania, and
contributed to the party financially. He also attended a demonstration after the
death of a DP member of parliament.
In April 2000, the Albanian police came to Kroi’s house and took him to the
police station. At the station, they told him that they were aware of his DP
membership and financial contributions and threatened to put him in jail if he did
not stop supporting the DP. They also advised him to “become one of us” and to
“contribute to our party instead.” Id. at 134. Kroi understood that they meant the
Socialist Party (“SP”) when they referred to “our party.” Kroi did not report this
incident because he feared he would be killed. Kroi stated that two of his friends
who also had been members of the DP were murdered because they refused to
contribute money to the communist mafia.
Two or three days after the incident with the police, people stopped him in
the street and demanded money. They stated that they knew he went to DP
meetings. When Kroi refused to give them money, they did not harm him. A few
days later, armed masked men came to his house and demanded money. They told
Kroi that they knew he gave money to the DP and that he needed to give the
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masked men money to support the Communist Party. After the masked men
threatened Kroi at his house, Kroi decided to leave Albania because he thought his
life was in danger on account of his political involvement.
Since he left Albania, Kroi’s family has informed him that police have
returned to his house to look for him. Kroi believes he will be killed if he returns
to Albania. At trial, Kroi intimated that his family in Albania had not been harmed
or had any problems with the masked men since his departure.
In addition to his statements about the above incidents, Kroi presented the
following documentary evidence: (1) his high school diploma, (2) employment
records, (3) documents verifying his military service in Albania, membership in
the Catholic Church, and membership in the DP, and (4) a 2001 article which
mentioned Kroi and his DP membership and essentially reiterated the factual
claims made in Kroi’s application for asylum.
According to the U.S. Department of State’s 2000 Country Report on
Human Rights Practices in Albania, Albania is a republic with a multiparty
parliament, prime minister, and president who was elected by parliament. The SP
won 121 of 155 seats in parliament in the 1997 Albanian elections, which
occurred “after a 5-month period of chaos and anarchy due to the collapse of
pyramid schemes.” Id. at 224. At the time of the report, untrained and unreliable
4
police officers posed one of the most severe threats to internal security. Although
the government generally respected human rights, some problems were reported.
The DP made credible claims that its members were harassed by the government,
but there were no confirmed cases of political killings by the government.
Although the Albanian Constitution stipulated against torture and brutal treatment,
police officers abused suspects and arrested persons, and in 2000, more than 190
police officers were fired because of “incompetence, lack of discipline, or
violations of the law,” id. at 226. At the time of the report, the police continued to
arrest and detain people arbitrarily.
According to the 2001 State Department Country Report on Human Rights
Practices for Albania, the Albanian government has a poor human rights record,
and the DP frequently reported that its members suffered harassment or dismissals
from official positions for political reasons. On one occasion, a DP supporter was
arrested and died in prison.2 The DP accused the government of failing to
investigate its allegations that more than 21 of its members, supporters, and
officials had been killed between 1997 and 1999.
2
In this instance, the medical examiners concluded that DP member’s death was a suicide.
His family and members of the DP did not believe that explanation. (Id.)
5
According to the 2001 State Department’s Albania Profile of Asylum
Claims and Country Conditions, it is highly unlikely that many applicants will
have credible claims to political persecution. Albania has a coalition government
led by the Socialist Party, but many applicants attempt to bolster their claims for
asylum by alleging that a communist regime has returned to power. The Profile
states that such claims are “contradicted by virtually all state actions.” Id. at 217.
Incidents of persons being targeted for persecution based on political grounds
were very rare at the time of the report, while organized and amateur crime were
much more prevalent. All political parties had been active throughout Albania
with no pattern of mistreatment. “There [was] no post-Communist tradition of
retribution against political leaders and few instances thereof.” Id. at 218.
The IJ denied Kroi’s application for asylum, withholding of removal, and
CAT relief. After summarizing the evidence presented by Kroi, the IJ made the
following findings: (1) Kroi’s testimony was generally credible; (2) the conduct
that Kroi was subjected to by the Albanian police did not rise to the level of past
persecution; (3) Kroi failed to establish an objectively reasonable fear of future
persecution; and (4) there existed no nexus between Kroi’s DP membership and
the extortion he suffered, given the widespread corruption in Albania. Stating that
an alien who flees general conditions of violence and human rights violations in
6
his home country does not qualify for asylum, the IJ also found that neither Kroi
nor his family was physically harmed and concluded that Kroi was not eligible for
asylum. Additionally, the IJ determined that Kroi failed to demonstrate the higher
burden needed for withholding of removal because he did not demonstrate
eligibility for asylum. Finally, the IJ ruled that Kroi failed to show that a
government official or someone acting under government consent or acquiescence
would torture Kroi if he returned to Albania.
Kroi appealed to the BIA and argued that the IJ erred in (1) finding that he
was not subject to past persecution because he was subjected to pain and suffering
by Albanian police officers and because persecution need not be physical; (2)
determining that his fear of future persecution is not objectively or subjectively
reasonable; (3) concluding that there existed no nexus between the attempted
robbery and his claim of past persecution on account of his political beliefs; (4)
finding that his fear of harm upon return to Albania stemmed from general strife in
the country rather than his membership in the DP or political beliefs; (5) ruling
that there was no evidence that Kroi would suffer future persecution in Albania;
and (6) refusing to withhold removal or grant CAT relief. The BIA affirmed the
IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4). Kroi filed this
timely petition for review.
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II. DISCUSSION
On appeal, Kroi advances three main arguments. First, he contends that the
extortion and police detention he suffered constitute past persecution on account
of his membership in the DP and his political opinion. He argues that this past
persecution establishes a presumption that he has a well-founded fear of future
persecution if he returns to Albania, and that his fear is both subjectively and
objectively reasonable in light of his experiences and the country conditions in
Albania. Second, Kroi contends that the persecution he endured qualifies him for
withholding of removal. Third, he avers that he is entitled to CAT relief because
he will be subjected to torture by the government due to his political beliefs should
he return to Albania.3
When the BIA summarily affirms the decision of IJ without an opinion, we
review the IJ’s decision as the final removal order. Sepulveda v. U.S. Attorney
Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam). We review the IJ’s
factual determinations under the substantial evidence test, and we “must affirm the
[IJ’s] decision if it is ‘supported by reasonable, substantial, and probative evidence
3
Because Kroi’s removal proceedings commenced after 1 April 1997, his case is governed
by the permanent provisions of the INA, as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”). Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d
1331, 1332 (11th Cir. 2003) (per curiam).
8
on the record considered as a whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262,
1283-84 (11th Cir. 2001) (citation omitted). Because the substantial evidence
standard is highly deferential, we can reverse the IJ’s decision “only if the
evidence ‘compels’ a reasonable fact finder to find otherwise.” Sepulveda, 401
F.3d at 1230 (citation omitted). We review de novo the IJ’s ruling to the extent
that it is based on the interpretation of applicable statutes. Mazariegos v. U.S.
Attorney Gen., 241 F.3d 1320, 1324 (11th Cir. 2001). With these standards in
mind, we will address each of Kroi’s claims in turn.
A. Asylum
Any alien who arrives in the United States or is present in the United States
may apply for asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant the alien’s application if the alien qualifies as a “refugee” under
8 U.S.C. § 1101(a)(42)(A). § 1158 (b)(1). According to the statute, a “refugee” is
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country 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 . . . .
§ 1101(a)(42)(A) (emphasis added). The asylum applicant carries the burden of
9
proving that he meets this definition. See Al Najjar, 257 F.3d at 1284.
To establish asylum eligibility based on group membership or political
opinion, the alien must, with specific and credible evidence, establish that he
suffered past persecution on account of his group membership or political opinion,
or that he has a “well-founded fear” of future persecution on account of his
political opinion or group membership. 8 C.F.R. § 208.13(a), (b); accord
Sepulveda, 401 F.3d at 1231. “Demonstrating such a connection requires the alien
to present specific, detailed facts showing a good reason to fear that he or she will
be singled out for persecution on account of such an opinion [or other statutory
factor].” Al Najjar, 257 F.3d at 1287 (internal quotations and citation omitted)
(emphasis in original). In other words, to obtain relief, an asylum applicant must
show more than that he has a particular political opinion; he must show that he
was persecuted because of that opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483,
112 S. Ct. 812, 816 (1992).
1. Past Persecution
Although the INA does not explicitly define “persecution,” we have
recognized that “[n]ot all exceptional treatment is persecution,” Gonzalez v. Reno,
212 F.3d 1338, 1355 (11th Cir. 2000), that “persecution . . . requir[es] more than a
few isolated incidents of verbal harassment or intimidation,” and that “[m]ere
10
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231
(internal quotations omitted). As a general rule, “behavior . . . must threaten
death, imprisonment, or the infliction of substantial harm or suffering” in order to
qualify. See Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996). “Threats alone
generally do not constitute actual persecution; only rarely, when they are so
immediate and menacing as to cause significant suffering or harm in themselves,
do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d 1207,
1210 (10th Cir. 2003); see also Sepulveda, 401 F.3d at 1231 (menacing telephone
calls and threats did not constitute past persecution). Similarly, confinement and
detention by the police do not necessarily constitute persecution. See Nelson v.
INS, 232 F.3d 258, 264 (1st Cir. 2000) (three episodes of solitary confinement,
each accompanied by physical abuse, did not constitute persecution); Kapcia v.
INS, 944 F.2d 702, 704, 708 (10th Cir. 1991) (no persecution where alien was
“arrested four times, detained three times, and beaten once”); Kubon v. INS, 913
F.2d 386, 388 (7th Cir. 1990) (brief confinement in opposition to totalitarian
regime not necessarily past persecution).
In this case, we conclude that substantial evidence supports the IJ’s finding
that Kroi did not establish that he suffered past prosecution. First, the two to three
hour detention by the police does not necessarily rise to the level of past
11
persecution. Kroi was not harmed physically, his detention was brief, and he was
not charged with any crime. Second, the extortion attempts and threats, although
unpleasant, do not necessarily constitute past persecution. Third, even if the
conduct does rise to the level of persecution, the record does not compel a finding
that Kroi was singled out for persecution on account of his DP membership.
Particularly in light of the widespread crime and corruption in Albania, Kroi’s
testimony that alleged communists attempted to take money from him both before
and after he joined the DP weakens any inference that he was targeted because of
his political beliefs and affiliations. See Perlera-Escobar v. Executive Office for
Immigration, 894 F.2d 1292, 1298-99 (11th Cir. 1990) (noting that we must affirm
the BIA’s decision that there exists no nexus between the harassment and a
protected ground, even if other inferences about the tormentors’ motives may be
drawn, so long as substantial evidence supports the BIA’s conclusion).
2. Well-Founded Fear of Future Persecution
An applicant can establish a well-founded fear of persecution if (1) he has a
fear of persecution in his country of origin; and (2) there exists a reasonable
possibility that he will suffer persecution if she returns; and (3) he is unable or
12
unwilling to return to her country due to that fear.4 8 C.F.R. § 208.13(b)(2). “An
applicant must demonstrate that his . . . fear of persecution is subjectively genuine
and objectively reasonable.” Al Najjar, 257 F.3d at 1289 (internal quotation
omitted). We have held that an imputed political opinion may form the basis for a
well-founded fear of persecution within the meaning of the INA. Id. (internal
quotations and citations omitted).
We conclude that substantial evidence supports the IJ’s finding that Kroi
did not demonstrate a well-founded fear of future persecution on account of a
protected ground. As stated previously, the record does not compel a finding that
Kroi was targeted or will be targeted on account of his DP membership or political
opinion. Accordingly, the IJ did not err in denying Kroi’s petition for asylum.
B. Withholding of Removal
An alien who seeks withholding of removal under the INA must
demonstrate that his “life or freedom would be threatened in [the country of
removal] because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); accord
Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The alien
4
Applicants who establish past persecution are presumed to have a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1)(ii). Because Kroi has not established past persecution,
however, he is not entitled to this presumption.
13
must show that he “more-likely-than-not would be persecuted or tortured upon his
return” to his country. Mendoza, 327 F.3d at 1287. As with an asylum claim, the
alien must demonstrate some nexus between the alleged persecution or fear of
persecution and one of the five protected grounds. See Perlera-Escobar, 894 F.2d
at 1297 (“Even a clear probability that an alien’s life is threatened without any
indication that the basis of the threat is related to a statutorily enumerated ground
is insufficient to establish eligibility for relief.”). The standard for withholding
removal is more stringent than the “well-founded fear” standard for asylum, and
an applicant unable to meet the “well-founded fear” standard for asylum is usually
unable to qualify for withholding of removal. See D-Muhumed v. U.S. Attorney
Gen., 388 F.3d 814, 819 (11th Cir. 2004).
In this case, Kroi failed to meet the lower burden required to establish a
“well-founded” fear of future persecution in Albania. Accordingly, he cannot
meet the higher withholding of removal standard. We affirm the IJ’s denial of
Kroi’s application for withholding of removal.
C. Relief Under CAT
To obtain withholding of removal under the CAT’s implementing
regulations, an alien must establish that he “more likely than not” will be tortured
upon return to his home country. 8 C.F.R. § 208.16(c)(2). “Torture” is defined as
14
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1). Because applicants seeking CAT relief must meet a higher
burden of proof than applicants seeking asylum, those who cannot prove a “well-
founded fear” to obtain asylum usually cannot prove entitlement to relief under
CAT. See Najjar, 257 F.3d at 1303.
In this case, the record does not compel a finding that Kroi would be
tortured by someone acting “at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.” 8
C.F.R. § 208.18(a)(1). Further, Kroi failed to demonstrate a “well founded fear”
of future persecution upon return to Albania, and it thus follows that Kroi failed to
show that it was more likely than not he would be tortured on account of a
protected factor. Accordingly, the IJ did not err in denying Kroi CAT relief.
III. CONCLUSION
15
Because substantial evidence supports the IJ’s determination that Kroi is not
entitled to asylum, withholding removal, or CAT relief, Kroi’s petition is
DENIED.
16