Laurentiu Bubulici v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 12, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14706
Non-Argument Calendar
________________________
Agency No. A088-690-716
LAURENTIU BUBULICI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 12, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:

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Laurentiu Bubulici, a native and citizen of Moldova proceeding pro se,
petitions us for review of the Board of Immigration Appeals’ (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1158(a), 1231(b)(3), and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c). He argues that the BIA erred when it1
determined that he had neither suffered past persecution nor had a well-founded
fear of persecution if he were returned to Moldova. For the reasons set forth in
this opinion, we DENY Bubulici’s petition as it relates to his claim of past
persecution, GRANT Bubulici’s petition as it relates to his claim of future
persecution, VACATE the BIA’s decision, and REMAND for further proceedings
consistent with this opinion.
I. BACKGROUND
Bubulici, a native and citizen of Moldova, entered the United States on or
about 19 December 2006 on an H2B visa, which authorized him to remain in the
country until 25 August 2007. Administrative Record (“AR”) at 255. Bubulici
Bubulici does not challenge the denial of CAT relief in his petition for review and thus1
we deem this claim abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005) (per curiam).
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submitted an application for asylum, withholding of removal, and CAT relief,
alleging persecution on the basis of political opinion, on 25 July 2007. Id. at 146-
154. On 25 September 2007, the Department of Homeland Security served
Bubulici with a Notice to Appear (“NTA”), charging him with removability
pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the
United States without authorization after the expiration of his visa. Id. at 255.
Bubulici admitted the allegations in the NTA and conceded removability at an
initial hearing. Id. at 82.
At his 4 November 2008 removal hearing, Bubulici testified that he joined
the European Action Movement (“EAM”), a political party formed in opposition
to the Communist Party, in 2005. Id. at 93. He explained that there were 10,000
EAM members country-wide and about fifty members in his village. Id. at 93-94.
His father, who was the president of the EAM in their county, organized meetings
and was “in charge [of] everything pertaining to the party’s role in [the] county.”
Id. at 94-95. Bubulici testified that on 5 April 2006, three men approached him
late at night as he was leaving a local market. Id. at 95-96. The men identified
themselves as members of the Communist party, told Bubulici to stop his political
activities, and punched and kicked him. Id. at 96-97. Bubulici sustained bruises
to his face, chest, and abdomen, as well as a concussion. Id. at 97. He also
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suffered digestive problems as a result of being kicked in the stomach. Id.
Bubulici was admitted to the hospital the following day and was told to rest for at
least two weeks. Id. at 97-98, 159. Following this incident, Bubulici received
several threatening phone calls warning him that he would be attacked again if he
did not cease his political activities. Id. at 98. Although Bubulici remained
politically active with EAM until leaving Moldova on 18 December 2006, he was
not attacked again. Id. at 98, 113.
Bubulici further testified that on 26 December 2006, three men approached
his father late at night and severely beat him. Id. at 98-99. During the attack, the
men warned his father that if Bubulici returned to Moldova, it would be “very bad
for [Bubulici], because [Bubulici] started the movement in the village.” Id. at 99.
The assailants also told Bubulici’s father that he could be killed if he continued his
activities with EAM. Id. Both Bubulici and his father reported their attacks to the
police, but the police did not investigate. Id. 99, 109. Bubulici then testified that
on the evening of 18 January 2007, police officers detained his parents on
suspicion that his mother, who was president of the Club of the European Council
(“the Club”), a not-for-profit non-governmental organization, had stolen
humanitarian aid the Club had received from the U.S. Id. at 100-01. The police
also detained another EAM member and tried to coerce her into making a false
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statement against Bubulici’s mother. Id. at 100. Bubulici’s mother was tried for
burglary but was ultimately acquitted. Id. at 102, 160-61. Bubulici further
testified that in May 2007, his parents were stopped near their house and beaten by
unknown assailants, who demanded to know Bubulici’s whereabouts. Id. at 100,
103, 162. His close friend and fellow EAM member also was robbed and beaten
in May 2007 by men who threatened to kill him if he did not disclose Bubulici’s
whereabouts. Id. at 103, 162.
Finally, Bubulici testified that he feared returning to Moldova because he
believed he would suffer beatings and that false charges would be brought against
him. Id. at 102. He acknowledged that his family still lived in the same village,
but stated that his parents were regularly investigated by the local police and that
someone recently had broken into his family’s computer center. Id. at 103. He
indicated that due to Moldova’s small size, it would be impossible for him to
avoid persecution by relocating to a safer area of the country. Id. at 103-04.
The IJ issued an oral decision finding that while Bubulici’s testimony was
credible, he had not met his burden of proving that he suffered past persecution, or
had an objective basis for fearing future persecution, on account of a protected
ground if he returned to Moldova. Id. at 73-77. The IJ denied relief and ordered
Bubulici removed. Id. at 77-78.
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On appeal, the BIA found that Bubulici’s April 2006 beating and the
subsequent threatening phone calls, even taken together, did not rise to the level of
past persecution. Id. at 2-3. The BIA further concluded that Bubulici had not
established a well-founded fear of future persecution because he failed to show
that the attacks on his parents or his mother’s arrest and trial were on account of
his parents’ political opinions. Id. at 3. Specifically, the BIA found that the
“attacks, which occurred on the street, at night, and by people his parents did not
know, appear[ed] to be random acts of violence.” Id. The BIA thus concluded
that Bubulici had not shown a reasonably possibility of suffering persecution if
returned to Moldova, and dismissed his appeal accordingly. Id. at 4. Bubulici
now petitions us for review.
II. DISCUSSION
Where, as here, the BIA issues its own opinion and does not adopt the IJ’s
decision, we review the BIA’s decision only. Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 890 (11th Cir. 2007) (per curiam). We review the BIA’s legal
conclusions de novo and its factual findings under the substantial evidence test,
which requires us to affirm the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation marks and
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citation omitted). Under this highly deferential standard, we view the record in the
light most favorable to the BIA’s decision and are bound by that decision “unless
[a] reasonable adjudicator would be compelled to conclude to the contrary.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc) (citing 8
U.S.C. § 1252(b)(4)(B)). Accordingly, “even if the evidence could support
multiple conclusions, we must affirm the agency’s decision unless there is no
reasonable basis for that decision.” Id. at 1029.
To establish asylum eligibility, the petitioner bears the burden of proving
with “credible, direct, and specific evidence in the record” that he suffered past
persecution, or has a “well-founded fear” of future persecution, on account of
“race, religion, nationality, membership in a particular social group, or political
opinion.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (2005) (citation
omitted); 8 C.F.R. § 208.13(b).
A. Past Persecution
“To establish asylum based on past persecution, the applicant must prove
(1) that [he] was persecuted, and (2) that the persecution was on account of a
protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
Although the INA does not expressly define “persecution,” we have repeatedly
stated that “persecution is an extreme concept, requiring more than a few isolated
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incidents of verbal harassment or intimidation, and that mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231; see also Silva, 448 F.3d at
1237 (threatening phone calls are mere harassment or intimidation rather than
persecution); Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (persecution “must
rise above unpleasantness, harassment, and even basic suffering”). Moreover,
“[n]ot all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338,
1355 (11th Cir. 2000). For example, we have upheld a finding of no persecution
where an alien was detained for thirty-six hours and beaten so severely that he was
hospitalized for two days. Djonda v. U. S. Att’y Gen., 514 F.3d 1168, 1171, 1174
(11th Cir. 2008). See also Zheng v. U. S. Att’y Gen., 451 F.3d 1287, 1289-91
(11th Cir. 2006) (per curiam) (no persecution where petitioner was dragged by his
arms to a detention yard, detained for five days, and forced to watch reeducation
videos, stand in the sun for two hours, and sign pledge not to practice his religion);
but see Mejia, 498 F.3d at 1255, 1257 (finding of persecution where petitioner was
struck in the face with the butt of a rifle and suffered a broken nose).
Because no adverse credibility determination was made in this case, we
must accept Bubulici’s testimony as true. See id. at 1257. Bubulici testified that
as a result of his attack he suffered bruises on his face, chest, and abdomen as well
as a concussion and digestive problems. Although he went to the hospital, he was
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not admitted for any significant length of time and his injuries did not require
extensive treatment. In light of the foregoing, we agree with the BIA that the
beating Bubulici suffered, even when considered together with the telephone
threats, was neither sufficiently severe nor pervasive to constitute persecution.
The record thus does not compel a conclusion contrary to that reached by the BIA
in this case.
B. Well-founded Fear of Future Persecution
An alien who has not shown past persecution may still be entitled to asylum
if he can prove that he has “(1) a subjectively genuine and objectively reasonable
fear of persecution that is (2) on account of a protected ground.” Silva, 448 F.3d
at 1236 (quotation marks and citation omitted). The alien may satisfy the
subjective component by offering credible testimony that he genuinely fears
persecution and may satisfy the objective component by presenting “specific,
detailed facts showing a good reason to fear that he . . . will be singled out for
persecution” on account of a statutorily listed factor. Al Najjar v. Ashcroft, 257
F.3d 1262, 1289-90 (quotation marks, alteration, and citation omitted) (11th Cir.
2001); 8 C.F.R. § 208.13(b)(2); see Mejia, 498 F.3d at 1256 (alien “need only
show that there is a reasonable possibility of suffering such persecution if he or
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she were to return to that country”) (quotation marks, alteration, and citation
omitted).2
An applicant’s credible testimony may be sufficient, without corroboration,
to sustain this burden. See INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii); 8
C.F.R. § 208.13(a). Where the applicant is deemed credible, the BIA may not
discount the evidence provided by the applicant in order to conclude that he has
not met his burden of proof as to issues about which he about which he testified.
See Mejia, 498 F.3d at 1257; Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005).
In this case, the BIA found that Bubulici failed to demonstrate a reasonable
probability that he would suffer persecution if he was returned to Moldova
because he had not established that the attacks on his parents or his mother’s arrest
and trial were politically motivated. Bubulici testified, however, that his father’s
attackers warned his father to cease his political activities and demanded to know
Bubulici’s whereabouts and that the men who attacked his parents in May 2007
To qualify for withholding of removal under the INA, an applicant must show that it is2
“more likely than not” that he will be persecuted or tortured upon returning to his home country.
Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (per curiam); see 8 C.F.R.
§ 208.16(b)(2). Because “[t]his standard is more stringent than the ‘well-founded fear of future
persecution’ required for asylum,” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006),
an applicant who fails to establish eligibility for asylum cannot make out a claim for withholding
of removal.
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also demanded to know Bubulici’s whereabouts. In concluding that these attacks
were “random acts of violence,” AR at 3, the BIA failed to credit this testimony.
Therefore, we REMAND to the BIA to consider whether Bubulici’s credible
testimony concerning the harm suffered by his parents after his departure from
Moldova establishes that he has a well-founded fear of persecution if he is
returned to Moldova.
PETITION DENIED IN PART, GRANTED IN PART; DECISION
VACATED AND REMANDED.
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