Edmond Cenolli v. U.S. Attorney General, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 29, 2006

THOMAS K. KAHN

N o . 06-12366

CLERK

N o n - A r g u m e n t Calendar

B IA No. A79-433-272

E D M O N D CENOLLI,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(November 29, 2006)

B efo re TJOFLAT, BIRCH and FAY, Circuit Judges.

P E R CURIAM:

E d m o n d Cenolli, a native and citizen of Albania, petitions for review of the B o ard of Immigration Appeals' ("BIA") denial of asylum, withholding of removal, an d relief under the United Nations Convention Against Torture and Other Cruel, In h u m an or Degrading Treatment or Punishment ("CAT"). Cenolli challenges the B IA 's denial of his claims and also argues that he was denied a fair review of his ap p eal from the Immigration Judge's ("IJ") decision. For the reasons set forth m o re fully below, we deny the petition.

C en o lli, a member of the opposition democratic party, alleged persecution b y the police and members of the socialist party on account of political opinion.

Cenolli testified that the only problem he had in Albania occurred during the June 2 4 , 2001 election. He explained that, during the election, he was an observer for th e democratic party and, while waiting in line to vote, a socialist party member ap p ro ach ed him and tried to convince him to change his vote. When he refused, th e socialist party member called two members of the police, who hit and kicked h im . Cenolli left Albania the next day.

In addition to this incident, Cenolli testified that his father, a party member an d local spokesman, was arrested three times by the police and socialist party su p p o rters because of his support for the democratic party. On October 19, 1998, h is father was detained for a week, mistreated, and not fed. In June 1999, he was d etain ed for four days. In September 2001, he was detained for over a week.

T h e IJ denied asylum, withholding of removal, and CAT relief and ordered C e n o lli removed to Albania and the BIA dismissed Cenolli's appeal. The BIA fo u n d that the Cenolli's encounter during the election did not amount to past p e r se cu tio n because he reported no significant injuries or the need for medical treatm en t, and was not subject to any harm or threats apart from this incident. The B I A further found that neither this incident, Cenolli's father's arrests, nor evidence o f continuing human rights problems in Albania established a well-founded fear of p ersecu tio n . The BIA also found that Cenolli did not meet his burden to establish elig ib ility under the CAT because he did not establish that he would more likely th an not be tortured upon his return.

Cenolli argues that, based on his beating at the election, his father's arrests, an d evidence of country conditions in Albania, the BIA erred in finding that he failed to establish past persecution, a well-founded fear of persecution, and elig ib ility for withholding of removal. He also argues that the BIA erroneously co n clu d ed that one incident alone does not establish past persecution. As to his C A T claim, Cenolli argues that the BIA erred by not independently reviewing his c la im , as it failed to engage in a separate analysis of his testimony and evidence as to this claim.

Because the BIA did not expressly adopt the IJ's opinion and made its own fin d in g s, we review the BIA's decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1 2 8 4 (11th Cir. 2001). We review factual determinations using the substantial ev id en ce test. Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).

We will affirm if the decision "is supported by reasonable, substantial, and p ro b ativ e evidence on the record considered as a whole." Id. (citation and q u o tatio n marks omitted). We review the record evidence in the light most fav o rab le to the agency's decision and draw all reasonable inferences in favor of th a t decision. Id. To conclude that the BIA should be reversed, we "must find that th e record not only supports that conclusion, but compels it." Fahim v. U.S. Att'y G en ., 278 F.3d 1216, 1218 (11th Cir. 2002) (citation and quotation marks omitted).

"[T]he mere fact that the record may support a contrary conclusion is not enough to ju stify a reversal of the administrative findings." Adefemi v. Ashcroft, 386 F.3d 1 0 2 2 , 1027 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). Legal an d constitutional challenges are reviewed de novo. Lonyem v. U.S. Att'y Gen., 3 5 2 F.3d 1338, 1341 (11th Cir. 2003); (constitutional challenges); Mohammed v. A sh cro ft, 261 F.3d 1244, 1247-48 (11th Cir. 2001) (legal challenges).

The Attorney General or the Secretary of Homeland Security has discretion to grant asylum if an alien meets the INA's definition of a "refugee." See 8U.S.C.

§ 1158(b)(1)(A), INA § 208(b)(1)(A). The asylum applicant carries the burden of p r o v in g statutory "refugee" status. Al Najjar, 257 F.3d at 1284. In order to carry th is burden, the applicant must, with specific and credible evidence, establish ( 1 ) past persecution on account of a statutorily listed factor, or (2) a "well-founded fear" that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Ruiz v. U.S. Att'y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).

P ersecu tio n is "an `extreme concept,' requiring `more than a few isolated incidents o f verbal harassment or intimidation,' and . . . `[m]ere harassment does not amount to persecution.'" Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1231 (11th Cir. 2 0 0 5 ) (citing Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)).

Furthermore, "[n]ot all exceptional treatment is persecution." Gonzalez, 212 F.3d at 1355.

In the absence of past persecution, "the petitioner must demonstrate a w ell-fo u n d ed fear of future persecution that is both subjectively genuine and o b je ctiv e ly reasonable." Ruiz, 440 F.3d at 1257. "The subjective component can b e proved `by the applicant's credible testimony that he or she genuinely fears p ersecu tio n ,' while the objective component `can be fulfilled either by establishing p ast persecution or that he or she has a good reason to fear future persecution.'" Id.

(citatio n omitted). The applicant must present "specific, detailed facts showing a g o o d reason to fear that he or she will be singled out for persecution on account of" a protected ground. Al Najjar, 257 F.3d at 1287 (quotation marks and citation o m itted ). An applicant who fails to establish eligibility for asylum on the merits n ecessarily fails to establish eligibility for withholding of removal or CAT relief.

F o rg u e, 401 F.3d at 1288 n.4.

A s to past persecution, the BIA did not rely on the proposition that a single in cid en t could not amount to persecution, but reasoned that this particular incident d id not result in significant injuries or the need for medical treatment and that, a sid e from this incident, Cenolli had no other problems. This finding is supported b y substantial evidence. Cenolli's only problem was the incident during the electio n . Cenolli was not the only person asked to vote for the socialists; he te stif ie d that the person who approached him also approached "many other people" ab o u t changing their votes.

Cenolli testified that he was beaten by the police after his refusal. At some u n sp ecified point, eight democratic party members came to his aid. As a result of th e altercation, he received a cut lip and "different marks on [his] body" that were n o longer visible. Cenolli did not require any medical treatment or go to a doctor as a result of his injuries. Based on this evidence, we cannot conclude that the reco rd compels the conclusion that this single beating rose to the level of p ersecu tio n . See, e.g, Tawm v. Ashcroft, 363 F.3d 740, 742-43 (8th Cir. 2004) (fin d in g no persecution where the petitioner was detained and beaten "lightly" in 1 9 9 4 and detained and beaten in 1998, after which he received an ointment for sw ellin g and recovered fully within a week); Dandan v. Ashcroft, 339 F.3d 567, 5 7 3 -7 4 (7th Cir. 2003) (holding that the record did not compel a finding of p e r se cu tio n where petitioner was detained for three days during which time he was b eaten , resulting in a "swollen" face).

The BIA's finding that Cenolli did not have a well-founded fear of p ersecu tio n based on either his or his father's support for the democratic party is also supported by substantial evidence. Cenolli became involved with the d em o cratic party in 1996, but did not have any problems due to his party m e m b e r sh ip until the June 24, 2001 elections. Although Cenolli's father was a rr es te d two times while Cenolli was still living in Albania, there is no evidence th at he had any problems due to these arrests or his father's political activity.

Cenolli's only problem occurred within the context of election violence. Cenolli d escrib ed a situation where a socialist party member was asking many people to v o te for his party; Cenolli was not specifically sought out for this purpose. The r ec o r d does not compel the conclusion that the police or socialist party supporters w o u ld still be interested in Cenolli as a result of this incident and, given that C en o lli had no other problems due to his or his father's political activity or his fa th er 's arrests, the last of which occurred almost three years before Cenolli's h e a rin g before the IJ, the record likewise does not compel the finding that his fear o f being singled out for persecution on these grounds is objectively reasonable. Cf.

S ep u lv ed a, 401 F.3d at 1231-32 (finding that the record did not compel conclusion th at petitioner had a well-founded fear of being singled out for persecution b ecau se, although she exercised leadership in the nonviolence movement, the e v id e n c e did not indicate that her notoriety as an activist would outlast her fouryear absence from Colombia).

While the background reports document abuses by the police and, despite some improvements, report continued serious problems with the government's h u m an rights record, they do not compel a finding that Cenolli has an objectively reaso n ab le well-founded fear of being singled out for persecution on account of his p o litical opinion. There were no political killings or confirmed cases of strictly p o litical detention in 2003. As of the 2001 Profile, all political parties were active in most of the country without a pattern of mistreatment. Furthermore, the October 2 0 0 3 elections were an improvement over previous elections, with only a few iso lated incidents of irregularities and violence, and campaigns were generally calm and conducted without the heated rhetoric that characterized past campaigns.

While Cenolli may subjectively fear returning to Albania, substantial evidence su p p o rts the finding that Cenolli's fear of being singled out for persecution on acco u n t of his or his father's political opinion is not objectively reasonable.

Because Cenolli failed to establish eligibility for asylum on the merits, he also failed to establish eligibility for withholding of removal and relief under the C A T .1 Forgue, 401 F.3d at 1288 n.4.

I n addition to challenging the merits of the BIA's decision, Cenolli argues th a t he did not receive a fair review of his appeal by the BIA because the BIA f aile d to consider the Department of Homeland Security's ("DHS") failure to file a rep ly brief. He reasons that, because DHS's failure to file a reply brief waived any o b je ctio n s to the issues he raised in his appeal, the BIA should have considered D H S 's failure to file a brief as non-opposition to these issues.

We disagree. The regulations do not require DHS to file a reply brief on a p p e a l to the BIA. 8 C.F.R. § 1003.38(f) ("Briefs may be filed by both parties[.]") (em p h asis added). Moreover, subject to the standards governing its determination o f cases, the BIA is instructed to resolve cases based on its independent judgment an d discretion. Id. § 1003.1(d)(1)(ii). Nor did the BIA violate Cenolli's due p ro cess rights, as he was afforded notice and an opportunity to be heard.

Sebastian-Soler v. U.S. Att'y Gen., 409 F.3d 1280, 1287 n.14 (11th Cir. 2005), cert. denied, 126 S.Ct. 1662 (2006). In light of the foregoing, the petition for review is D E N IE D .

1 We find the BIA's analysis of Cenolli's CAT claim sufficient and, thus, do not remand for additional findings. Not only does the failure to establish asylum on the merits necessarily result in a failure to establish eligibility for CAT relief, Forgue, 401 F.3d at 1288 n.4, but Cenolli based his CAT claim on the same arguments and evidence as his asylum claim and we have found a similar finding sufficient to permit review. See Huang v. U.S. Att'y Gen., 429 F.3d 1002, 1007 (11th Cir. 2005) (holding that BIA's finding that, "[e]ven accepting the respondent's claim as credible, she still would not meet her burdens of proof for asylum, withholding of removal, or protection under the Convention Against Torture[,]" was sufficient to permit review).

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