Vatulev v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 31 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

VALENTINA VATULEV,

Petitioner,

v. No. 02-9573

JOHN ASHCROFT,

Respondent.

PETITION FOR REVIEW OF AN
ORDER FROM THE
BOARD OF IMMIGRATION APPEALS
(BIA No. A76 468 193)

Submitted on the briefs:

Jim Salvator, Lafayette, Colorado, for Petitioner.

Linda S. Wernery, Senior Litigation Counsel, William C. Minick, Trial Attorney,
Office of Immigration Litigation, Civil Division, U.S. Department of Justice,
Washington, DC, for Respondent.

Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.

BRISCOE , Circuit Judge.
 Petitioner Valentina Vatulev, a Moldovan citizen of Russian descent, seeks

review of a Board of Immigration Appeals (BIA) order adopting the decision of

an Immigration Judge (IJ) denying her application for asylum. Petitioner also

applied for withholding of removal, but has focused exclusively on asylum ever

since the IJ initially denied all relief. We hold that petitioner has failed to carry

the heavy burden placed on those challenging adverse asylum determinations, and

we therefore deny her petition for review. 1

To secure asylum, petitioner had to prove that she is a refugee as defined in

8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise

the discretionary authority to grant relief under 8 U.S.C. § 1158(b). Krastev v.

INS , 292 F.3d 1268, 1270-71 (10 th Cir. 2002). Because her application failed on

refugee status, our review is limited, in breadth, to that threshold determination.

Id. at 1271. Our review is further limited, in depth, to evaluating whether the

record on the whole provides substantial support for that determination or, rather,

is so decisively to the contrary that a reasonable factfinder would have concluded

petitioner is a refugee. Id. at 1275.

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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 There are three ways to establish refugee status, two of which are pertinent

here: “One way is by showing [the applicant] has a well-founded fear of future

persecution. A second way is by establishing that he or she has suffered past

persecution, which gives rise to a [rebuttable] presumption that he or she has a

well-founded fear of future persecution . . . .” Id. at 1270 (quotation and citation

omitted). The persecution involved must be “on account of [the applicant’s] race,

religion, nationality, membership in a particular social group, or political

opinion,” id. (quotation omitted), and must be imposed by the government or by

groups “which the government is unwilling or unable to control,” id. at 1275

(quotation omitted). Petitioner claims she has been, and if returned to Moldova

will continue to be, persecuted on account of her native Russian background by

the Moldovan government and Moldovan nationalist groups tolerated if not

sanctioned by the government. On its face, this claim is cognizable under the

asylum statute. Thus, our disposition turns on whether petitioner presented

evidence sufficient to compel a reasonable factfinder to accept her version and

legal characterization of the events prompting her application for asylum.

The IJ had two primary sources for the relevant facts. Petitioner testified

about Moldovan discrimination against Russians generally, and about acts of

violence toward her and her family in particular. The Immigration and

Naturalization Service (INS) submitted a State Department “Country Report” on

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Moldova, which provided context by summarizing the prevailing political and

social conditions in the country. The IJ credited petitioner’s testimony as far as

the basic events she related, but largely discounted the political significance she

attributed to them. In the end, the IJ concluded that the matters that clearly did

reflect official or officially tolerated anti-Russian conduct did not rise to the level

of persecution.

Petitioner’s claim was hampered by significant factual omissions in her

testimony. In connection with her most serious complaints, regarding four

incidents of actual or threatened violence toward her son, husband, and herself

over a span of about six years, she did not testify about any associated indicia of

ethnic persecution 2–to distinguish them from acts of common criminality or

personal hostility that do not implicate asylum eligibility, see, e.g. , Kharkhan v.

Ashcroft , 336 F.3d 601, 605 (7 th Cir. 2003); Zayas-Marini v. INS , 785 F.2d 801,

805-06 (9 th Cir. 1986). Two of the incidents, her son’s kidnaping-for-ransom and

her husband’s mugging, clearly involved financial extortion from petitioner’s

2
Petitioner argues that the IJ erred by giving dispositive weight to the fact
that she could not identify the perpetrators. We agree with petitioner that ethnic
or political persecution can be established just as well by showing an attack was
directed at a victim’s identity as by showing that it stemmed from the identity of
the perpetrators. But here the IJ examined the record for indicia of persecution in
both respects and simply found it lacking–petitioner had failed to show either that
the perpetrators acted on the basis of their (unknown) political/ethnic identity or
that they targeted petitioner’s family because of hers. See Admin. R. at 90.

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family (which, with two employed engineers, was relatively well-to-do). The

other two incidents, in which her husband was assaulted and she suffered a blow

to the head, did not involve obviously criminal incentives, but she did not offer

any details of the attacks to show that something larger than personal hostility

was involved. While the IJ could have inferred that the family’s Russian

background played a role, we cannot say such an inference had to be drawn.

In contrast, petitioner explicitly stated that ethnic discrimination was

evident in certain state institutions. She insisted that official disfavor of Russians

precluded her children’s attendance at state colleges. We note, however, that her

children were able to attend private colleges. Similarly, while she testified that

state jobs are withheld from Russians, she and her husband were able to secure

employment. We agree with the IJ and BIA that the institutional discrimination

described by petitioner, while deplorable in any free society, did not constitute

persecution affording petitioner eligibility for asylum. See, e.g. , Ouda v. INS ,

324 F.3d 445, 450 (6 th Cir. 2003); Bucur v. INS , 109 F.3d 399, 402 (7 th Cir.

1997); see also Woldemeskel v. INS , 257 F.3d 1185, 1191 (10 th Cir. 2001)

(actual or feared employment discrimination, including termination, does not,

without more, constitute persecution).

Petitioner testified that her family received many threatening phone calls.

Despite several opportunities to elaborate, however, she did not provide details

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about the threats and never established a concrete connection between these calls

and any overt violence or mistreatment. 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. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9 th Cir.

2003); Boykov v. INS , 109 F.3d 413, 416 (7 th Cir. 1997). Of course, unfulfilled

threats are still properly considered in determining whether a petitioner has a

reasonable fear of future persecution. Lim v. INS , 224 F.3d 929, 936 (9 th Cir.

2000); Boykov , 109 F.3d at 416. Even for this purpose, however, the vague and

conclusory nature of petitioner’s testimony undercut its probative value. See

Boykov , 109 F.3d at 417 (upholding BIA’s determination that vague testimony

about anonymous phone threats was insufficient to establish fear of future

persecution). She did relate more detail about a threatening letter the family

received, which stated that her son would be killed, followed by her husband and

her daughter. But the sheer length of time–nearly ten years–that has passed since

receipt of that threat diminishes its present significance.

Petitioner also testified about a few incidents related to her by her husband,

who remained in Moldova when she left in 1998. He told her that he found a note

on the door saying “leave you Russian pig,” that his mailbox had been broken and

trash had been left by the door, and that someone wrote “Vatulev is a kike” at his

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workplace. Such ethnic slurs and petty vandalism are odious, but, again, they fall

far short of what would compel a reasonable factfinder to rule in favor of

petitioner’s claim of persecution. See Singh v. INS , 134 F.3d 962, 969 (9 th Cir.

1998) (holding several incidents of theft and vandalism insufficient to compel

finding of persecution).

Larger cultural forces can imbue individualized conflicts or threats with

more (or less) substance than they may suggest on their face. Hoxha v. Ashcroft ,

319 F.3d 1179, 1182-83 (9 th Cir. 2003) (“The more egregious the showing of

group prosecution–the greater the risk to all members of the group–the less

evidence of individualized persecution must be adduced.” (quotation omitted)).

In Hoxha , for example, an ethnic Albanian who could not show past persecution

on the basis of unfulfilled Serb threats directed specifically at him was able to

buttress his entitlement to asylum on fear-of-persecution grounds with evidence,

including a State Department profile of conditions in Serbia, that “provide[d] a

lengthy and grisly documentation of the numerous atrocities committed against

ethnic Albanians.” Id. at 1182-84. We have nothing like that here, however.

Indeed, the relative order and improving social/political conditions summarized in

the Country Report on Moldova would attenuate, not amplify, any potential threat

of cognizable persecution behind petitioner’s personal experiences. Cf. Dandan

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v. Ashcroft , 339 F.3d 567, 575 (7 th Cir. 2003); Molina-Estrada v. INS , 293 F.3d

1089, 1095-96 (9 th Cir. 2002).

In light of the foregoing, we cannot say the IJ’s conclusion that petitioner

failed to qualify as a refugee is contrary to what a reasonable factfinder would

have been compelled to conclude. Under our deferential review of immigration

decisions, we must affirm.

There is one last matter to address. Petitioner contends that, as a result of

applying its streamlined review procedure, the BIA improperly failed to consider

two additional items of evidence (threatening letters received by her husband) that

she submitted following the IJ’s decision. Petitioner’s own procedural omissions

deprive us of jurisdiction to review this claim of error.

After she appealed the IJ’s decision to the BIA, petitioner filed a motion

for reconsideration, to which she attached the letters in question. The IJ denied

the motion, and petitioner did not appeal the denial of the motion or the IJ’s

implicit rejection of the new evidence. And she did not mention the new evidence

in her brief on appeal from the IJ’s asylum decision. In criticizing the BIA’s

adoption of the IJ’s decision because the BIA did not address this evidence,

petitioner projects onto the BIA her own procedural omission. We agree with the

Commissioner that judicial review of the matter is barred by petitioner’s failure to

comply with the mandatory requirement that she exhaust administrative remedies.

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See Nguyen v. INS , 991 F.2d 621, 623 n.3 (10 th Cir. 1993); Rivera-Zurita v. INS ,

946 F.2d 118, 120 n.2 (10 th Cir. 1991).

The petition for review is DENIED.

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