Olgert Topalli v. ALBERTO GONZALES, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 04-2514
OLGERT TOPALLI,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Sunit K. Joshi and Joshi & Associates, P.C. on brief for
petitioner.
Karen A. Smith, Attorney, Tax Division, U.S. Department of
Justice, Peter D. Keisler, Assistant Attorney General, Civil
Division, and Douglas E. Ginsburg, Senior Litigation Counsel, on
brief for respondent.
August 2, 2005

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Alberto Gonzales was sworn in as Attorney General of the United 1
States on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
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LYNCH, Circuit Judge. The petitioner presents a
sympathetic case. Olgert Topalli, a 24-year-old Albanian man, was
arrested and beaten multiple times for his participation in anti-
government rallies. He escaped Albania with his sister after
criminals attempted to kidnap her and force her into prostitution.
In the end, the strict standard of review under which we operate
and the clear language of the immigration statutes compel us to
deny the relief sought: reversal of the agency's decision not to 1
grant asylum, withholding of removal, or relief under the
Convention Against Torture (CAT). We deny the petition.
I.
Because the Board of Immigration Appeals (BIA), though
not the Immigration Judge (IJ), found Topalli credible, we recount
the facts as Topalli rendered them.
Topalli and his family were from Korce, Albania. In 1999
he joined the Albanian Democratic Party (ADP) (the opposition party
to the Socialist government) as a full member after having
participated in the party's youth forum for the previous four
years. As a member of the ADP, Topalli was arrested and detained
by the police seven times between 1999 and 2001. Four of those
arrests were for Topalli's participation in anti-government

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rallies, which were illegal because the demonstrators did not
obtain a permit. The three other times, Topalli was "arrested on
the streets for no reason . . . because [the police] would remember
[him]." None of the periods of detention lasted more than 24
hours. The police did not have the right to detain anyone without
pressing charges for more than 24 hours. Topalli also explained
that at his last rally (and possibly others) he fought with the
police and confronted them, and so the police may have arrested him
because he was fighting them.
Topalli said that each time he was arrested, the police
beat him. He did not claim that the beatings ever resulted in
injuries requiring medical attention. He also gave few details
about these encounters with the police except for the first and
last times he was arrested. The first time he was arrested was in
1999, when he participated in his first rally. That detention
lasted 12 hours, and two or three policemen beat Topalli on the
chest and the back with rubber sticks, swearing at him. The last
time he was arrested was in March 2001, when he participated in his
last rally. This time the police told Topalli that if he
"continued to participate, they would imprison [him]." After he
was released, Topalli lived for four months with his aunt in a
village about two hours' drive away from Korce. He then returned
to live with his parents in Korce for several years and ceased to

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participate in ADP events, and he did not have any more problems
with the police.
Topalli's older sister Alkada was raped in October 2002
by several men. Topalli's father went to the police station to
file a report, but nothing was done by the police because Alkada
could not identify her attackers. There was no indication this was
connected with Topalli's political activities.
Topalli's family won a visa lottery in 2003 for entry
into the United States. His whole family in Albania, save he and
his older sister Alkada and her daughter, emigrated to the United
States. Topalli and Alkada stayed behind because they were over 21
and not eligible for the visas.
On February 4, 2004, Topalli saw four men trying to
kidnap his sister and push her into a car as she returned from
work. He fought with the men and managed to help Alkada escape,
but was rendered unconscious in the struggle. The men took him to
an unknown place, and when he woke up, they threatened him with a
gun and told him not to go to the police or file charges or they
would kill Topalli and his sister. They also explained that they
had intended to kidnap Alkada and ship her to Italy for
prostitution. Topalli did not recognize the men, and there was no
indication that this incident was connected with Topalli's
activities in the ADP. He did not report the event to the police.

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The record does not reveal what happened to Alkada and her 2
daughter.
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After this incident, Topalli decided to leave Albania
with his sister and join the rest of his family in the United
States. He and his sister obtained two false Italian passports for
$10,000. Using the fake passports, Topalli, Alkada, and Alkada's
daughter left Albania on March 11, 2004, and attempted to enter the
United States at San Juan, Puerto Rico, on March 22, 2004.
Immigration officials refused him admission upon discovering that
the passports were false and detained him, and Topalli claimed fear
of persecution if returned to Albania. He was then referred to an
IJ for asylum-only proceedings.2
After a merits hearing on June 17, 2004, the IJ found
Topalli to be not credible and denied his application for asylum,
withholding of removal, and protection under the CAT.
Topalli appealed the IJ's denial to the BIA. On October
8, 2004, the BIA dismissed Topalli's appeal. The BIA disagreed
with the IJ's adverse credibility finding, finding the
inconsistencies and omissions relied upon by the IJ to be
inconsequential. It nonetheless affirmed the IJ's denial of relief
because it found that the maltreatment suffered by Topalli did not
amount to past persecution, and that Topalli failed to show past
persecution or reasonable likelihood of future persecution:

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Topalli's challenge is to the BIA's dismissal of his appeal as 3
a whole, but he offers no arguments with respect to his claims for
withholding of removal or protection under the CAT. He has
therefore waived any challenge to the BIA's denial of these claims.
See Qin v. Ashcroft, 360 F.3d 302, 305 n.5 (1st Cir. 2004).
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While [Topalli] was arrested and physically
mistreated a number of times due to his
participation in illegal demonstrations, his
detentions were short, never lasting more than
24 hours, and he apparently did not receive
injuries requiring medical attention. He
admitted that, when he stopped participating
in these demonstrations, the arrests ceased.
The BIA also concluded that Topalli's "primary reason for fleeing
Albania was to protect his sister from further criminal attacks and
attempts to force her into prostitution," which the BIA implicitly
concluded not to be past persecution on account of one of the
protected statutory grounds under 8 U.S.C. § 1101(a)(42)(A).
Topalli timely petitioned this court for review of the
BIA's order dismissing his appeal. Topalli's primary argument is 3
that the BIA erred in determining that the treatment afforded to
him did not constitute past persecution. Because we find that
substantial evidence supports the BIA's finding that Topalli's
treatment was not past persecution on account of one of the

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Topalli also argues that 1) the severity of his past persecution 4
qualifies him for a discretionary grant of asylum under 8 C.F.R.
208.13(b)(1)(iii); and 2) because he suffered past persecution, we
should remand the case to the BIA and the IJ to determine whether
his fear of future persecution is well-founded. Both of these
arguments require a threshold finding that the BIA erred in finding
that Topalli did not suffer past persecution.
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protected grounds, other arguments for relief by Topalli also
fail.4
II.
An asylum applicant bears the burden of proving that he
or she is "unable or unwilling to return to [the applicant's
country of nationality] . . . 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. § 1101(a)(42)(A); see 8 C.F.R. § 1208.13(a).
Applicants may meet this burden in one of two ways: 1) by
demonstrating a well-founded fear of persecution on account of one
of the statutory grounds, or 2) by establishing past persecution on
account of one of the statutory grounds so as to be entitled to a
presumption of a well-founded fear of persecution. Mihaylov v.
Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); 8 C.F.R. § 1208.13(b).
Topalli argues that he has met the burden for showing past
persecution.
We review the BIA's determination that Topalli failed to
show past persecution under the deferential substantial evidence
standard. Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). Under

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that deferential standard, we must uphold the BIA's resolution "so
long as its decision is supported by substantial evidence in the
record." Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005). The BIA's determination must stand "unless any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B); see Rodriguez-Ramirez, 398
F.3d at 123.
The Arrests and Beatings
Topalli first argues that a finding of past persecution
is compelled by the seven times when he was arrested, detained, and
beaten.
Because there is no statutory definition of "persecution"
under 8 U.S.C. § 1101(a)(42)(A), "it is in the first instance the
prerogative of the Attorney General, acting through the BIA, to
give content to it." Bocova v. Gonzales, __ F.3d __, 2005 WL
1491490, at *3 (1st Cir. June 24, 2005). Due to the infinite
variety of factual circumstances the BIA is likely to face, the BIA
has preferred to decide what amounts to past persecution on a case-
by-case basis, instead of announcing rigid rules embodying some
precise calculus of maltreatment and suffering. See id.
The question of whether Topalli suffered past persecution
on account of his political beliefs here is a close one. But we
are bound by our standard of review, and without minimizing
Topalli's beatings at the hands of the police, the record does not

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It is Topalli's burden to provide us with specifics of the 5
circumstances of his maltreatment, which only he has knowledge of,
in order to compel us to find for him. See Dandan v. Ashcroft, 339
F.3d 567, 574 (7th Cir. 2003).
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compel a reasonable fact finder to say that he suffered past
persecution.
The record reveals that the detentions never exceeded 24
hours (and sometimes lasted for much less time). The police only
once threatened Topalli with imprisonment if he continued with his
(sometimes illegal) political activities, and Topalli himself was
confident that the police did not have the power to incarcerate him
for more than 24 hours without formal charges. Topalli did not
give a great deal of detail concerning the duration or severity of
the beatings, but it is relevant that Topalli did not claim to 5
need medical attention from the beatings. Topalli conceded that at
least some of the arrests might have been due to his fighting with
the police at the illegal rallies, rather than the result of police
singling him out in a pattern of targeted political harassment.
Besides the three times when he was arrested walking down the
street, there were no other incidents of police surveillance,
targeted harassment, or threats against him. Moreover, Topalli was
able to live in relative peace in Albania, free from police
harassment, for almost three years after his last arrest. We
cannot say that we are compelled to conclude that Topalli was
subjected to systematic maltreatment rising to the level of

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persecution, as opposed to a series of isolated incidents. See
Bocova, 2005 WL 1491490, at *4.
In addition, circuit courts, including this one, have
affirmed on comparable facts the BIA's determination that a
petitioner's maltreatment did not rise to the level of persecution
necessary for asylum eligibility. See, e.g., Bocova, 2005 WL
1491490, at *1, *4 (finding no persecution where petitioner was
arrested, beaten, and threatened with death twice over an eight-
year span, and one beating caused petitioner to lose consciousness
and to be taken to hospital); Dandan v. Ashcroft, 339 F.3d 567,
573-74 (7th Cir. 2003) (finding no persecution where petitioner was
detained for three days, denied food, and beaten until face was
swollen); Nelson, 232 F.3d at 264 (finding no persecution where
petitioner was placed in solitary confinement three times, each
time lasting less than 72 hours and involving physical abuse, and
petitioner was periodically surveyed, threatened, and stopped and
searched).
Topalli suggests that the BIA impermissibly made the
presence or absence of injury requiring medical attention into a
sort of "acid test" for persecution, contrary to Begzatowski v.
INS, 278 F.3d 665, 670 (7th Cir. 2002) (BIA cannot require
applicants for asylum to prove serious or permanent injury as the
sine qua non of persecution). That is not a fair reading of what
the BIA did. The BIA took into account, as do we, the absence of

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the need for medical attention after the beatings as but one factor
in the analysis. The BIA is certainly allowed to take into account
the severity, duration, and frequency of physical abuse to
determine whether the abuse extends beyond "unpleasantness,
harassment, and even basic suffering" to rise to the level of
persecution. Nelson, 232 F.3d at 263-64; see also Dandan, 339 F.3d
at 573 (frequency of beatings, while not dispositive, is a
significant factor in determining past persecution).
The Attempted Kidnaping
Topalli also argues that the criminal attempt to kidnap
his sister for prostitution and the subsequent beating he suffered
constitute persecution because the government is unwilling or
unable to control the criminals. This argument is misplaced.
Even if we assume that Topalli is correct that the police
are so corrupt that they "collude with traffickers in attempts to
export girls abroad for monetary gain," Topalli has not alleged any
theory for how such criminal activities are directed at him "on
account of race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). There is no evidence that the attempt to kidnap
Alkada was because of either Alkada's or Topalli's political
activities. The record indicates that the assault on Topalli and
his sister was a random act of criminal violence, not persecution
on account of one of the statutory grounds. See Ravindran v. INS,

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976 F.2d 754, 759 (1st Cir. 1992) ("Generally, evidence of
widespread violence and human rights violations affecting all
citizens is insufficient to establish persecution."). We also
agree that the evidence does not support Topalli's claim that he
would be persecuted in the future.
III.
The petition for review is denied.

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