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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15703
Non-Argument Calendar
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Agency No. A087-380-029
ION ZAPOROJAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 9, 2012)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
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Petitioner Ion Zaporojan seeks review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings, filed
pursuant to 8 C.F.R. § 1003.2(c). After review, we deny the petition for review.1
I. BACKGROUND FACTS
A. Asylum Proceedings
Petitioner Zaporojan is a native of Moldova and a citizen of Moldova and
Romania. In 2006, Zaporojan entered the United States and then overstayed his
visitor’s visa. In 2009, Zaporojan filed an application for asylum, withholding of
removal and relief under the Convention Against Torture (“CAT”). Shortly
thereafter, Zaporojan was placed in removal proceedings, where he conceded his
removability.
Zaporojan’s asylum application alleged past persecution and a well-founded
fear of future persecution in Moldova based on his political opinion and his
membership in a particular social group, specifically his father’s family.
Zaporojan’s father was a businessman and local politician in Soroca, Moldova. In
2005, Zaporojan’s father was killed just before he was to testify against a local
1
We review the denial of a motion to reopen for abuse of discretion. Jiang v. U.S. Att’y
Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to determining whether there
has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).
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mafia member about extortion and public corruption. Thereafter, a journalist
delivered a cassette tape to Zaporojan’s mother containing taped conversations
between Zaporojan’s father and Moldovan officials. Zaporojan claimed that the
Moldovan mafia and police had targeted, and would continue to target, Zaporojan,
his mother and his brother in an effort to obtain the incriminating cassette tape.
After a hearing, the Immigration Judge (“IJ”) denied all requested relief.
The IJ concluded, among other things, that Zaporojan was statutorily ineligible for
asylum and withholding of removal because: (1) Zaporojan did not show a nexus
between the harm he had suffered in Moldova and a statutorily protected ground;
and (2) Zaporojan, as a Romanian citizen, could live in another country within the
European Union (“E.U.”) and avoid harm by the Moldovan mafia.
In a May 19, 2011 decision, the BIA agreed with the IJ and dismissed
Zaporojan’s appeal. The BIA concluded that Zaporojan had not shown that his
attackers were motivated by his familial relationship to his father or his political
opinion. Rather, Zaporojan’s attackers were motivated by a desire to obtain the
cassette tape containing incriminating evidence, which was not a statutorily
protected ground. As to future persecution, the BIA agreed that Zaporojan had not
shown a likelihood of harm given that: (1) the Moldovan mafia had little influence
outside Moldova and Romania; (2) Zaporojan could live anywhere in the E.U.;
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and (3) his mother lived unharmed in Italy. This Court denied Zaporojan’s
petition for review. Zaporojan v. U.S. Att’y Gen., 450 F. App’x 904 (11th Cir.
2012).
B. Motion to Reopen
On August 10, 2011, Zaporojan filed a timely motion to reopen with the
BIA.2 Zaporojan’s motion to reopen claimed that he had new evidence that the
Moldovan government continued to seek him internationally to arrest him on
fabricated charges. Zaporojan attached: (1) a February 7, 2011 document issued
by the Soroca Police Department stating that Zaporojan “was announced in the
international search, as well as participated in founding and organizing the
manifestation of popular movement against the leadership state” and “[a]gainst
him extent of arrest was chosen”; (2) a May 24, 2011 statement from Alexandru
Sirbu, Zaporojan’s tenant at the family home in Soroca, stating that, in January
2011, police came to the house and asked Sirbu where Zaporojan, his mother and
his brother were and told Sirbu that if he wanted to have a normal life, he must let
them know if he found out something about the Zaporojan family, and, on
2
Zaporojan also moved for reconsideration of the BIA’s final order of removal. In his
petition for review, Zaporojan does not challenge the BIA’s denial of that motion. Thus, we do
not address it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(stating that when petitioner fails to offer argument on an issue, that issue is abandoned).
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February 9, Sirbu found a letter from the police department in the mailbox, which
he gave to Mihai Prepelita, Zaporojan’s uncle; and (3) a May 26, 2011 statement
by Mihai Prepelita stating that Prepelita received the police department letter from
Sirbu, opened it and found two documents stating that Zaporojan and his brother
“are in International search,” and that Prepelita then called Zaporojan’s mother to
warn them and sent the documents to the brothers in the United States.
The BIA denied Zaporojan’s motion to reopen. The BIA concluded that
Zaporojan’s “limited evidence proffered with the request for reopening has not
been shown to meet the requirements for reopening the respondent’s removal
proceedings.” The BIA elaborated that the evidence did not “sufficiently reflect
that there exists a reasonable possibility that the respondent would be targeted for
harm rising to the level of persecution on account of his membership in a
particular social group or other protected ground.” The BIA also determined that
the evidence did not “make a prima facie showing that the government of Moldova
would torture or acquiesce in the torture of the respondent.”
II. DISCUSSION
An alien’s motion to reopen “shall state the new facts that will be proven at
a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” Immigration and Nationality Act (“INA”)
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§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). The BIA may grant the motion if the
alien presents new evidence that is material and could not have been discovered or
presented at the removal hearing. Id. § 240(c)(7)(C)(ii), 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(1). An alien moving to reopen
bears “a heavy burden” with respect to materiality in that he must show “that, if
the proceedings were opened, the new evidence would likely change the result in
the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-67 (11th Cir. 2009); Ali
v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). Thus, the BIA may deny a
motion to reopen if the new evidence does not establish prima facie eligibility for
relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
To establish prima facie asylum eligibility,3 an applicant must show past
persecution or a fear of future persecution on account of a protected ground, which
includes political opinion or membership in a particular social group.4 INA
§ 101(a)(42), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1230-31 (11th Cir. 2005). Under the REAL ID Act of 2005, an asylum
3
Similarly, to be eligible for withholding of removal, an alien must show it is more likely
than not that he will be persecuted on account of a protected ground. INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). Because this standard is higher than the standard for asylum, an alien who fails to
show asylum eligibility also cannot show eligibility for withholding of removal. Sepulveda, 401
F.3d at 1232-33.
4
The INA does not define “particular social group.” However, because the parties do not
dispute that a family is a “particular social group,” we do not address this issue.
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applicant must show that a protected ground “was or will be at least one central
reason” for the persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).5
Evidence of acts of private violence or criminal activity, however, do not
demonstrate persecution on account of a protected ground. Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Additionally, where an asylum
applicant can avoid the feared persecution by relocating, and it would be
reasonable to expect the applicant to do so, he cannot establish a well-founded fear
of persecution. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir.
2009); 8 C.F.R. §§ 1208.13(b)(2)(ii), 208.16(b)(3)(i).
Here, the BIA did not abuse its discretion in denying Zaporojan’s motion to
reopen. Zaporojan’s original asylum application was denied on the ground that he
was statutorily ineligible for relief because he had not shown the required nexus to
a protected ground. Specifically, Zaporojan’s evidence at the initial removal
hearing did not show that the Moldovan police and mafia had targeted him
because of his imputed political opinion or because he was his father’s son.
Rather, it was undisputed that the Moldovan police and mafia were interested in
Zaporojan because they believed he had an audio cassette containing incriminating
5
Because Zaporojan’s 2009 asylum application was filed after May 11, 2005, the REAL
ID Act provisions apply to his case. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 302, 305-06.
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evidence, which they wanted to recover. Zaporojan also had not shown: (1) that
he risked harm outside of his hometown of Soroca, where all of the threats and
attacks occurred; or (2) that he, as a Romanian citizen, could not avoid the harm
by living elsewhere within the E.U.
Zaporojan’s newly proffered evidence would be unlikely to change that
result. Zaporojan contends that his new evidence shows that the Soroca police
department fabricated a criminal charge against him and seeks him as an
international fugitive. The problem for Zaporojan is that his new evidence still
does not show a motive that implicates a protected ground. Indeed, the new
evidence provides no explanation for why the Soroca police department would
fabricate a charge and continue to hunt for Zaporojan. The only motive Zaporojan
has ever given is the cassette tape of incriminating evidence, which the BIA
already concluded was not “on account of” a protected ground.
Zaporojan’s new evidence also does not establish a well-founded fear of
persecution. As a Romanian citizen, Zaporojan still has the ability to live and
work anywhere in the E.U. Zaporojan’s appeal brief claims the Moldovan
government “has taken steps to hunt him internationally on Interpol,” but his new
evidence does not support this statement. First, the document does not mention
Interpol, much less state that the Moldovan government has taken whatever steps
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are necessary for Zaporojan to be “hunted” through Interpol. Second, it is not
clear from the translation of the Soroca police department’s document exactly
what steps, if any, the Soroca police department took against Zaporojan. A
generous reading suggests that Zaporojan was charged with an offense, a warrant
was issued for his arrest and an “international search” then “was announced.”
Zaporojan submitted no other evidence as to the meaning of this document and
whether it could be used to harm him outside of Soroca or elsewhere in the E.U.
In addition, Zaporojan’s new evidence does not make a prima facie showing
that Zaporojan is eligible for relief under CAT. To establish eligibility for CAT
relief, an applicant must demonstrate that it is more likely than not that he would
be tortured by, or with the acquiescence of, the government, if he is removed to
the designated country of removal. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1).
Zaporojan’s evidence does not show that the Moldovan government is likely to
torture him or acquiesce in his torture.
Finally, we find no merit to Zaporojan’s argument that the BIA failed to
adequately consider his new evidence. The BIA is not required to address each
piece of evidence individually, so long as it considered the issues raised in the
motion and announced its decision in a way that demonstrates it “heard and
thought and not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
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(11th Cir. 2010) (quotation marks omitted); Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1374 (11th Cir. 2006).
Here, the BIA referred to Zaporojan’s new evidence, which it (correctly)
described as “limited,” and concluded that it did not show a “reasonable
possibility” that Zaporojan “would be targeted” on account of a protected ground
or “make a prima facie showing” for CAT relief. Thus, Zaporojan’s evidence “did
not meet the requirements” for reopening, i.e. would not change the outcome of
his removal proceedings. The BIA’s explanation, though brief, was sufficient to
allow for appellate review of its decision.
For all these reasons, we cannot say the BIA abused its discretion in
denying Zaporojan’s motion to reopen.
PETITION DENIED.
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