Radjabov v. Holder, Jr.

Not for Publication in West’s Federal Reporter

United States Court of Appeals
For the First Circuit
_____________________

No. 11-2055

MAKHMUDBEK TAHIROVICH RADJABOV,
Petitioner,

v.

ERIC HOLDER JR., United States Attorney General,
Respondent.
______________________

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

Before
Boudin, Hawkins,* and Thompson,
Circuit Judges.
______________________

Saher Macarius, Philip H. Mantis, and Audrey Botros, on brief
for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Jennifer Paisner Williams, Senior Litigation Counsel, and Tiffany
L. Walters, Attorney, Civil Division, U.S. Department of Justice,
Office of Immigration Litigation, on brief for Respondent.
______________________

August 30, 2012
______________________

*
Of the Ninth Circuit, sitting by designation.
 HAWKINS, Circuit Judge. Makhmudbek Tahirovich Radjabov

(“Radjabov”) seeks review of a final order from the Board of

Immigration Appeals (“BIA”) denying his application for asylum,

withholding of removal, and protection under the Convention Against

Torture (“CAT”). Radjabov alleges that he faces persecution and

torture in his native Tajikistan at the hands of Tajik nationalists

and the Tajik government because he is an ethnic Uzbek whose family

members participated in a 1997 Uzbek uprising. The BIA rejected

this contention, adopting in part the conclusions of the

Immigration Judge (“IJ”), holding that the incidents of abuse

Radjabov suffered were either not directed at him on a statutorily

protected ground, or were not shown to be the result of government

action or inaction.

This court has jurisdiction pursuant to section 242 of

the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1252(a)(1)(4) (2006). Although the IJ’s and BIA’s analysis of the

case is troubling, under the stringent standard of review we employ

on such petitions, we deny relief.

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 I. Background

Radjabov was admitted to the United States in July 2003,

with a nonimmigrant exchange visitor visa authorizing him to remain

here until October 2003. Radjabov overstayed his visa and remained

in the United States because his family warned him of the

conditions in Tajikistan. In July 2004, Radjabov filed an asylum

application which was referred to an IJ after an interview with an

asylum officer. In August 2004, the Department of Homeland

Security commenced removal proceedings, charging Radjabov with

removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as

a nonimmigrant who remained in the United States for a time longer

than permitted. Radjabov conceded removability but sought asylum

and related relief. Although finding him credible, the IJ denied

Radjabov’s applications and granted voluntary departure. The BIA

dismissed Radjabov’s appeal, and he timely sought relief here.

Radjabov’s father, a well-known proponent of Uzbek

rights, was the head of the Tajikistan “National Front Movement.”1

1
Radjabov has referred to the group as the “National Front
Movement” in his testimony, but elsewhere in the record and in his
brief he refers to the group as the “Popular Front” which appears

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The Front defended the ruling political party led by President

Emomali Rahmon, who remains in power, against strong opposition by

Islamists. Radjabov’s brother also served in the National Front

Movement. When President Rahmon made efforts to appease the

Islamists, Radjabov’s brother and father became “active

participants” in a 1997 Uzbek uprising against the Rahmon

government.

The year of the uprising, Radjabov’s family began

encountering abuse. In January and March 1997, several individuals

in military uniforms, whom Radjabov identified as police officers,

came to the family’s house and took his father. On both occasions,

Radjabov’s father returned the next day beaten and bloody, but did

not tell Radjabov what had happened. Radjabov’s family tried to

find out what had happened by going to the police, who denied

having had custody of the father.

When Radjabov’s father was taken a second time, Radjabov

tried to help but was kicked and hit. After the second incident,

Radjabov’s family took his father to the hospital. In April 1997,

to be how the group is more commonly known in English.

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Radjabov’s father was taken for a third time by individuals in

paramilitary uniforms. His family found his father in a hospital,

where he died the next day. Radjabov’s mother and brother filed

complaints with many offices, which were never pursued.

In June 1997, individuals came to Radjabov’s house and

threatened the family that if they filed more complaints, they

would face the same fate as the father. They pushed Radjabov and

his family to the ground, beat them, and put knives to them. They

set fire to Radjabov’s kitchen with gasoline, which the fire

department came to extinguish. Radjabov’s mother then demanded

that his brother leave Tajikistan. Radjabov believed his brother

took refuge in either Russia or a central Asian country. When he

last heard from his brother in 2007, Radjabov’s brother told him

that he was going to Tajikistan from Uzbekistan, but the brother

disappeared.

Radjabov believes his father was targeted because his

views on democracy and Uzbek culture differed from the local Tajik

government and that his father was taken and beaten by the ruling

political party led by President Rahmon. He believes his brother

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went missing because of fear resulting from the abuses suffered by

his family.

Radjabov left Tajikistan in August 1998 for Turkey where

he attended university until 2003. During that time, he visited

Tajikistan in 1999 and 2003, hoping that things had calmed there.

In 1999, he stayed with his mother for one month without incident.

In January 2003, Radjabov again returned to Tajikistan

for about a month, but this time faced trouble. He was soon mugged

by Tajik nationalists who demanded money for the “right to walk in

their territory.” When he refused, they beat him, but he managed

to escape them on a passing tram. Then, in February 2003, Radjabov

was again beaten by a group of Tajik nationals who were speaking

Farsi near a local bus station. The group told him “You Uzbeks

should not stay here. And you Uzbeks should pay for staying here.”

Radjabov did not report the incident to the police. Radjabov

testified that police officers were standing fifty to sixty meters

away and believes even though they surely heard the ethnic insults,

they did not intervene. Radjabov’s injuries left him hospitalized

for ten days. After his release, he returned to Turkey.

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 Radjabov again visited Tajikistan for two days in June

2003. During this visit, a group stopped him while he was with his

Tajik girlfriend. The group insulted him for a dating a Tajik girl

and demanded that he kneel and give up his money, Radjabov

complied, and the group laughed and left. He then returned to

Turkey before traveling to the United States.2

II. Discussion

A. Standard of Review and Legal Standards

In this case, the stringency of the standard of review

matters greatly. We must uphold the BIA's asylum determination if

it is “‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks

2
As discussed further below, there is confusion in the record
as to the number of incidents of abuse Radjabov suffered in 2003.
Radjabov’s brief, as well as the BIA and IJ opinions cite to only
two incidents: the winter 2003 beating which resulted in Radjabov’s
ten-day hospitalization, and the summer 2003 humiliation in front
of his Tajik girlfriend. Radjabov’s asylum application, and the
Government’s brief, both cite to all three of the incidents listed
here. Because under our standard of review, we look to the entire
record to see if it compels granting Radjabov relief, we include
all three events in our analysis.

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omitted). We may reverse the BIA's findings of fact only if the

evidence presented by the petitioner was such that “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B); see also Vanchurina v. Holder, 619 F.3d 95,

99 (1st Cir. 2010). The court reviews the BIA's conclusions of law

de novo, “with appropriate deference to the agency's interpretation

of the underlying statute in accordance with administrative law

principles.” Manzoor v. INS, 254 F.3d 342, 346 (1st Cir. 2001).

Where the BIA deferred to or adopted the IJ's reasons for denying

Radjabov's claims, the court reviews those portions of the IJ's

decision as part of the final decision of the BIA. See Gourdet v.

Holder, 587 F.3d 1, 5 (1st Cir. 2009).

To establish eligibility for asylum, an alien must

demonstrate he is a refugee. See 8 U.S.C. § 1158(b)(1); 8 C.F.R.

§ 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63 (1st

Cir.2004). A refugee is a person unable or unwilling to return to

his home 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.” 8 U.S.C.

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§ 1101(a)(42)(A); see also Laurent, 359 F.3d at 63-64. Once an

alien proves past persecution, he creates a rebuttable presumption

that his fear of future persecution is well-founded. See 8 C.F.R.

§ 208.13(b)(1); see also Fergiste v. INS, 138 F.3d 14, 18 (1st

Cir.1998). Where an applicant has not shown past persecution, he

may still demonstrate that his fear of future persecution is

well-founded, albeit unaided by any presumption, if the fear is

both subjectively genuine and objectively reasonable. See Da Silva

v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2003).

B. Past Persecution

Radjabov presents a strong claim that he suffered past

persecution, but under our exacting standard, as well as the

deference we accord to BIA determinations, we cannot say that the

record compels a conclusion in his favor.

Radjabov first argues that we should overturn the BIA

decision because the BIA and the IJ both utilized the wrong

standard for the level of government involvement necessary to

establish past persecution. The IJ indeed utilized an incorrect

conceptual framework, analyzing whether the abuse suffered by

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Radjabov was “with the consent or at the direction of the

Government of Tajikistan,” finding that it was not. Under that

standard, Radjabov’s testimony as to the policemen’s failure to

respond during his 2003 beating was not relevant, and the IJ did

not take it into account.

However, the BIA did cite the correct, broader standard,

recognizing that “persecution implies some connection to

governmental action or inaction, related to a protected ground for

asylum.” A.R. 3 (citing Orelien v. Gonzales, 467 F.3d 67, 72 (1st

Cir. 2006); Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.

2005))(emphasis added)). It is also true, though, that the BIA,

like the IJ, failed to note that Radjabov had testified that during

the 2003 beating, police had stood by, had been aware that he was

being beaten for his Uzbek ethnicity, but failed to intervene. Id.

Radjabov’s testimony on this point should have been taken into

account. The IJ had found Radjabov credible, and Radjabov’s

testimony that on one occasion he had been abused due to government

inaction would have lent support to his past persecution claim.

Yet, even if this evidence had been taken into account

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explicitly, we still cannot say that the record compels the

conclusion that Radjabov suffered abuse due to governmental action

or inaction. As to the 1997 abuses Radjabov suffered, while

possibly at the hands of the government, the record does not

indicate that these were directed at him due to a protected ground,

as opposed to just his father. While we have held that “‘[a]n

imputed political opinion, whether correctly or incorrectly

attributed, may constitute a reason for political persecution

within the meaning of the [INA],’” Vasquez v. INS, 177 F.3d 62, 65

(1st Cir. 1999) (quoting Ravindran v. INS, 976 F.2d 754, 760 (1st

Cir. 1992)), the petitioner must show that such an imputation

actually occurred. Id.; see also Singh v. Mukasey, 543 F.3d 1, 6

(1st Cir. 2008) (no persecution when petitioner was harmed during

attack against father, but failed to establish that the attack was

motivated by his own political opinions). Here, Radjabov has not

shown that during the 1997 incidents, he was targeted as a result

of his own status, or because his father’s activities or political

beliefs were imputed to him. As such, a rational finder of fact

would not have to conclude that the 1997 incidents should be

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considered as part of the basis of Radjabov’s own persecution

claim.

The record similarly does not force the conclusion that

the 2003 incidents that were actually directed at Radjabov occurred

due to government action or inaction. With respect to the winter

2003 mugging and the June 2003 humiliation in front of Radjabov’s

girlfriend, there is absolutely no evidence of government action or

inaction—not even Radjabov’s own testimony. Nor is there testimony

that Radjabov reported the incidents to police, which we have held

is enough to prevent the incidents from qualifying as

“persecution.” See, e.g., Castillo-Diaz v. Holder, 562 F.3d 23,

27-28 (1st Cir. 2009) (no past persecution where petitioner had not

reported incidents of mistreatment to police).

Thus, the only incident that could possibly substantiate

a past persecution claim is the winter 2003 incident when Radjabov

was beaten as a result of his Uzbek ethnicity, while police

officers stood in the distance, which resulted in Radjabov’s

injuries and hospitalization. As the Government points out,

however, Radjabov has not shown that the police actually saw the

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incident or actually heard the ethnic insults hurled at him; he

concludes these facts based on how far he alleges them to have been

from him. This is unfortunately insufficient to clear our legal

hurdles.

Moreover, even if it was obvious from the record that the

2003 incident resulted from government inaction, an isolated

incident of mistreatment due to government action or inaction does

not necessarily give rise to a viable past persecution claim. It

is true, as Radjabov argues, that individual incidents of abuse

taken together can rise to the level of persecution, but here, the

record does not compel the conclusion that they do.

First, it is not clear that the abuse Radjabov suffered

was serious enough. There is no statutory definition of

"persecution" and so the question is answered on a case-by-case

basis. See Orelien, 467 F.3d at 71. Persecution “requires that

the totality of a petitioner's experiences add up to more then mere

discomfiture, unpleasantness, harassment, or unfair treatment.”

Nikijuluw, 427 F.3d at 120. The mistreatment complained of must

have "reached a fairly high threshold of seriousness, as well as

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some regularity or frequency." Butt v. Keisler, 506 F.3d 86, 90

(1st Cir. 2007).

Though we do not minimize Radjabov’s past treatment, we

cannot say that his claim survives this exacting standard. First,

this court has determined that claims citing abuse as much if not

more egregious did not cross the “threshold of seriousness”

necessary to overturn the BIA’s denial of relief. For example,

this court has upheld BIA determinations that a petitioner failed

to establish past persecution where the petitioner was arrested,

beaten, and detained by police seven times over a two-year period

for participating in political demonstrations. See Topalli v.

Gonzales, 417 F.3d 128, 132 (1st Cir. 2005); see also Bocova v.

Gonzales, 412 F.3d 257, 261, 263 (1st Cir. 2005) (two incidents of

arrest and severe beatings, as well as death threats), Nelson v.

INS, 232 F.3d 258, 264 (1st Cir.2000)(three incarcerations in

solitary confinement, plus physical abuse).

We cannot say that the three incidents of abuse directed

specifically at Radjabov—the mugging, the beating, and the

humiliation—together compel the conclusion that he has suffered

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abuse of the requisite “severity, duration, and frequency.”3

Second, the record does not compel the conclusion that

the incidents of Radjabov’s abuse were connected enough to

constitute persecution. Where multiple incidents give rise to an

asylum petitioner's claim, this court determines whether the

incidents were the result of “systematic mistreatment” or were

rather “isolated incidents.” Khan v. Mukasey, 549 F.3d 573, 576

(1st Cir. 2008). Here, where there is only evidence of government

action or inaction as to one of the incidents of abuse targeted

directly at Radjabov, there is no way to connect the incidents to

one another in a manner that satisfies the past persecution

standard.

C. Well-Founded Fear of Future Persecution

Because we must affirm the BIA on its past persecution

determination here, Radjabov’s asylum claim rests on whether he has

indisputably demonstrated that he has a well-founded fear of future

3
Again, the IJ and BIA did not take into account the evidence
of the first incident, Radjabov’s mugging—nor does Radjabov cite it
in his brief. It is not clear why this is so. Yet, although it
perhaps renders a close case closer, it does not change our
conclusion.

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persecution. Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir.

2009); see also 8 C.F.R. § 208.13(b)(2). To do so, Radjabov must

satisfy a subjective requirement—that he “genuinely fears

persecution”—and an objective requirement—by “showing an

objectively reasonable basis for that fear.” Lopez Perez, 587 F.3d

at 461–62. The latter test is satisfied “if a reasonable person in

the petitioner's circumstances would fear persecution based on a

statutorily protected ground.” Nikijuluw, 427 F.3d at 122. It

appears that both the BIA and IJ found that Radjabov had not

provided evidence sufficient to meet either the subjective or

objective requirements. Multiple factors weigh against us

determining otherwise.

For one, Radjabov returned voluntarily to Tajikistan

three times since he left the country for university in Turkey.

Although on two of these visits home he encountered violence, the

fact of these visits alone undercuts his claims to having an

objective or subjective fear of persecution upon return. See

Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 161 (1st Cir. 2006)

(determining an alien's two voluntary returns to her home country

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to be a strong indication that she harbored no subjective fear).

Additionally, the Country Report from February 2009 upon which the

IJ relied in making his determination demonstrated that neither

discrimination against Uzbek minorities, nor police harassment were

common. Radjabov takes issue with the IJ’s and BIA's reliance on

the Report, but this was entirely permissible: the regular Country

Reports produced by the U.S. State Department are generally

persuasive of country conditions. See, e.g., Zarouite v. Gonzales,

424 F.3d 60, 63 (1st Cir. 2005). Finally, Radjabov's mother,

sisters, and one brother continue to live in Tajikistan without

incident. Relatives’ safety in the petitioner’s native country,

while not conclusive, is relevant in determining the likelihood of

his persecution upon return and the reasonableness of his fear.

See Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)(“[T]hat

close relatives continue to live peacefully in the alien's homeland

undercuts the alien’s claim that persecution awaits his return”);

In re A-E--, 21 I. & N. Dec. 1157, 1160 (BIA 1998) (en banc)

(holding that the reasonableness of an alien’s fear of persecution

is reduced when his family remains in his native country unharmed

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for a long period of time after his departure). Unfortunately,

Radjabov’s close case is not close enough to win him asylum on

appellate review.

D. Withholding of Removal and CAT Relief

To be eligible for withholding of removal, the petitioner

must satisfy an even more demanding requirement: that there is a

clear probability, or that it is “more likely than not,” that he

would be persecuted should he return to his home country. See,

e.g., Singh, 543 F.3d at 7; Guillaume v. Gonzales, 504 F.3d 68, 71

n. 2 (1st Cir. 2007). Thus, because Rajabov's claim for asylum

fails, so too does his claim for withholding of removal. See,

e.g., Guillaume,504 F.3d at 71 n. 2; Palma-Mazariegos v. Gonzales,

428 F.3d 30, 37 (1st Cir. 2005).

Radjabov also argues for CAT relief, but offers no more

than a few conclusory statements in his brief as to the basis of

his claim. Thus, it appears that this claim fully relies on

conceptualizing the incidents underlying his persecution claim as

torture. As with his claim for withholding of removal, because the

abuse he suffered does not rise to the level of persecution, it

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cannot rise to the requisite level for CAT relief. See, e.g.,

Barsoum v. Holder, 617 F.3d 73, 81 (1st Cir. 2010); Singh, 543 F.3d

at 7.

On the basis of the foregoing, Radjabov’s petition for

review is DENIED.

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