GILCA v. Holder

United States Court of Appeals
For the First Circuit

No. 11-1711

DUMITRU GILCA,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Howard, Selya and Lipez,
Circuit Judges.

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.

May 23, 2012
 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

1
People of Roma ancestry are sometimes referred to (usually
derisively) as gypsies. We note that fact because the petitioner
claims, among other things, that he was harassed as a gypsy.

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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.

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 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

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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. See 8 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 (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

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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); see 8 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.

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 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 subjective test (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

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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.

2
This is in marked contrast to Sok, in which there was
evidence of actual physical harm. Indeed, even the threats in Sok
were of a different caliber than the threats here — they were
threats of bodily harm that were communicated face-to-face by an
armed man. Sok, 526 F.3d at 54-55.

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 The petitioner suggests that the perpetrators of these

incidents targeted him because of either his Roma features or his

political persuasion. He does not, however, point to any evidence,

direct or circumstantial, that substantiates this suggestion. The

IJ concluded that both incidents were unrelated to either the

petitioner's ethnicity or his anti-communist leanings, and the

empty record does not compel a contrary conclusion. See Elias-

Zacarias, 502 U.S. at 481 n.1 ("To reverse [an agency] finding we

must find that the evidence not only supports [a contrary]

conclusion, but compels it.").

Insofar as it relies on these two incidents, the claim

for asylum is deficient in another respect: the petitioner fails to

show a nexus between either incident and the Moldovan government.

Where, as here, "perpetrators of the alleged harms are not

themselves government actors (say, police officers or soldiers), an

asylum-seeker must show either that the alleged persecutors are in

league with the government or are not controllable by the

government." Morgan v. Holder, 634 F.3d 53, 59 (1st Cir. 2011)

(alteration and internal quotation marks omitted). It follows that

"abuse at the hands of a coterie of local hooligans" is not enough.

Harutyunyan, 421 F.3d at 69.

The short of it is that there is no record evidence of

any linkage between the Moldovan government and either of the two

incidents. By the same token, there is no plausible basis for a

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finding of either governmental condonation or governmental

inaction. The opposite is true: to the limited extent that they

were involved, the police appear to have acted impartially.

The petitioner's next claim does involve governmental

actors. He strives to persuade us that his involuntary detention

by the police on a different occasion evinces past persecution. We

are not convinced.

The detention was short in duration, did not involve any

significant use of physical force, did not result in overnight

incarceration, and terminated in the petitioner's prompt release.

According to the petitioner's own account, the police did not ask

about either his ethnicity or his political views, nor did they say

anything suggestive of a connection between his detention and any

statutorily protected ground. The reason that they gave for

detaining him — his suspected involvement in a brawl — was a

facially neutral one, which the record does not discredit.

Deciding "whether described harms rise to the level of

persecution is, except in clear cases, a judgment call." Morgan,

634 F.3d at 58. To the extent that this is a clear case, its

clarity favors the government's position. Not all unpleasant

experiences translate into persecution, see Rodriguez-Ramirez v.

Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005), and on this record,

the IJ was amply justified in regarding the petitioner's brief

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detention as a simple case of mistaken identity or, at worst, an

isolated incident.3

To sum up, it was well within the agency's purview to

conclude that the petitioner's experiences in Moldova, whether

viewed singly or collectively, did not amount to past persecution.

This conclusion, however, does not end our inquiry. An alien who

has not been able to establish past persecution sometimes can make

an independent showing that he has a well-founded fear of future

persecution. Lopez Perez, 587 F.3d at 461; see also 8 C.F.R.

§ 208.13(b)(2). In this instance, the petitioner claims to fear

future persecution because the police obtained fingerprints and a

booking photo during his earlier detention. Thus, he says, the

authorities can more easily identify him with his ethnic group and

his beliefs, and he may be beaten or have difficulty finding a job

as a result.

The IJ determined that this stated fear was not

objectively reasonable. The petitioner's concern that his

3
We have upheld an agency determination of no persecution in
numerous cases involving far more egregious police conduct. See,
e.g., Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005)
(involving seven arrests accompanied by brief detentions and
beatings); Bocova v. Gonzales, 412 F.3d 257, 261, 263 (1st Cir.
2005) (involving two beatings by the police, accompanied by death
threats); Nelson v. INS, 232 F.3d 258, 264 (1st Cir. 2000)
(involving three incarcerations in solitary confinement, plus
physical abuse).

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identifying information would be misused by the police is pure

conjecture, unanchored to any evidence in the record.4

The petitioner's more generalized fear is that he will

encounter a pattern of hostility in present day Moldova because of

his Roma ethnicity or his political opinions or both. This fear is

buttressed to some extent by the country conditions report,

together with second-hand accounts that a number of students were

killed at an anti-communist protest (although their deaths were

determined to be accidental).

When an alien claims to have a well-founded fear of

future persecution on the ground that persons like him face a

pattern of abuse, see 8 C.F.R. § 208.13(b)(2)(iii), that claim is

subject to a "demanding" standard which "requires a showing of

regular and widespread persecution creating a reasonable likelihood

of persecution of all persons in the group." Rasiah v. Holder, 589

F.3d 1, 5 (1st Cir. 2009); see Decky v. Holder, 587 F.3d 104, 113

(1st Cir. 2009). The agency concluded that the sporadic violence

and harassment experienced by persons of Roma ancestry in Moldova

is neither systematic nor pervasive enough to suggest that the

petitioner would face persecution upon his return. Moreover, the

4
To be sure, the petitioner points to some unidentified
threats that he and his mother received as proof that he might be
persecuted in the future. But there is no evidence to suggest that
the nameless callers were governmental actors, and "private
conduct. . . . [is] a non-factor in analyzing the prospect of
future persecution." Lopez Perez, 587 F.3d at 463.

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agency, at least implicitly, determined that there was no severe

and widespread persecution of political dissidents in modern-day

Moldova. These determinations are supported by substantial

evidence: there is no compelling proof of a pattern of persecution

of similarly situated persons such that the petitioner reasonably

can expect to face persecution upon his repatriation.

Let us be perfectly clear. We do not mean to imply that

persons of Roma ancestry or those with anti-communist views are

never subjected to harassment in Moldova. But the objective

reasonableness of an alien's fear depends on matters of degree, and

the fact that some members of a marginalized group may encounter

sporadic discrimination "does not automatically entitle all members

of that minority to asylum." Rasiah, 589 F.3d at 5. The agency

reasonably determined that there is no universal and systematic

mistreatment of members of these groups in Moldova, and in the

absence of some evidence in the record compelling findings to the

contrary, the agency must be afforded considerable leeway in

assessing such situations.

Here, moreover, other evidence tends to support the

agency's determination. The petitioner traveled back and forth

from Moldova to the United Kingdom of his own volition, and his

stated fear of future persecution is undercut by his uncoerced

decision to return home after reaching British soil. See Attia v.

Gonzales, 477 F.3d 21, 24 (1st Cir. 2007).

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 We also note that the petitioner, while in his homeland,

held a steady job as an English teacher. This casts considerable

doubt on his assertion that he will be unable to obtain gainful

employment should he be removed to Moldova. In the same vein, the

petitioner's professed fear of ethnically based discrimination is

weakened by the fact that his mother and sister continue to live

and work, without apparent incident, in Moldova. See Aguilar-Solis

v. INS, 168 F.3d 565, 573 (1st Cir. 1999) (explaining that when a

petitioner's "close relatives continue to live peacefully in the

[petitioner's] homeland," that circumstance "undercuts the alien's

claim that persecution awaits his return").

That ends this aspect of the matter. Because the agency

supportably concluded that the petitioner neither experienced past

persecution nor entertained a well-founded fear of future

persecution, the petitioner's asylum claim fails.

The petitioner's alternate claim for withholding of

removal is easily dispatched. That relief requires "a clear

probability of persecution, rather than merely a well-founded fear

of persecution." Ang, 430 F.3d at 58. When, as in this case, the

alien has been unable to establish a well-founded fear of future

persecution sufficient to warrant asylum, his evidence perforce

fails to establish a clear probability of future persecution.

Consequently, the agency did not err in rejecting the petitioner's

counterpart claim for withholding of removal.

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 We need not linger long over the petitioner's skeletal

claim for CAT protection. This claim is presented only in passing,

and we regularly have held that "issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990); accord Morgan, 634 F.3d at 60.

One loose end remains. In this venue, the petitioner

argues for the first time that because he appeared pro se before

the IJ, he suffered prejudice related to his lack of English

language proficiency and his unfamiliarity with immigration

procedures. We cannot entertain this argument: "theories not

advanced before the BIA may not be surfaced for the first time in

a petition for judicial review of the BIA's final order." Makhoul,

387 F.3d at 80.

We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.

So Ordered.

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