Radjabov v. Holder, Jr. , 492 F. App'x 126 ( 2012 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
_____________________
No. 11-2055
MAKHMUDBEK TAHIROVICH RADJABOV,
Petitioner,
v.
ERIC HOLDER JR., United States Attorney General,
Respondent.
______________________
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
_______________________
Before
Boudin, Hawkins,* and Thompson,
Circuit Judges.
______________________
Saher Macarius, Philip H. Mantis, and Audrey Botros, on brief
for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Jennifer Paisner Williams, Senior Litigation Counsel, and Tiffany
L. Walters, Attorney, Civil Division, U.S. Department of Justice,
Office of Immigration Litigation, on brief for Respondent.
______________________
August 30, 2012
______________________
*
Of the Ninth Circuit, sitting by designation.
HAWKINS, Circuit Judge. Makhmudbek Tahirovich Radjabov
(“Radjabov”) seeks review of a final order from the Board of
Immigration Appeals (“BIA”) denying his application for asylum,
withholding of removal, and protection under the Convention Against
Torture (“CAT”). Radjabov alleges that he faces persecution and
torture in his native Tajikistan at the hands of Tajik nationalists
and the Tajik government because he is an ethnic Uzbek whose family
members participated in a 1997 Uzbek uprising. The BIA rejected
this contention, adopting in part the conclusions of the
Immigration Judge (“IJ”), holding that the incidents of abuse
Radjabov suffered were either not directed at him on a statutorily
protected ground, or were not shown to be the result of government
action or inaction.
This court has jurisdiction pursuant to section 242 of
the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1252(a)(1)(4) (2006). Although the IJ’s and BIA’s analysis of the
case is troubling, under the stringent standard of review we employ
on such petitions, we deny relief.
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I. Background
Radjabov was admitted to the United States in July 2003,
with a nonimmigrant exchange visitor visa authorizing him to remain
here until October 2003. Radjabov overstayed his visa and remained
in the United States because his family warned him of the
conditions in Tajikistan. In July 2004, Radjabov filed an asylum
application which was referred to an IJ after an interview with an
asylum officer. In August 2004, the Department of Homeland
Security commenced removal proceedings, charging Radjabov with
removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as
a nonimmigrant who remained in the United States for a time longer
than permitted. Radjabov conceded removability but sought asylum
and related relief. Although finding him credible, the IJ denied
Radjabov’s applications and granted voluntary departure. The BIA
dismissed Radjabov’s appeal, and he timely sought relief here.
Radjabov’s father, a well-known proponent of Uzbek
rights, was the head of the Tajikistan “National Front Movement.”1
1
Radjabov has referred to the group as the “National Front
Movement” in his testimony, but elsewhere in the record and in his
brief he refers to the group as the “Popular Front” which appears
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The Front defended the ruling political party led by President
Emomali Rahmon, who remains in power, against strong opposition by
Islamists. Radjabov’s brother also served in the National Front
Movement. When President Rahmon made efforts to appease the
Islamists, Radjabov’s brother and father became “active
participants” in a 1997 Uzbek uprising against the Rahmon
government.
The year of the uprising, Radjabov’s family began
encountering abuse. In January and March 1997, several individuals
in military uniforms, whom Radjabov identified as police officers,
came to the family’s house and took his father. On both occasions,
Radjabov’s father returned the next day beaten and bloody, but did
not tell Radjabov what had happened. Radjabov’s family tried to
find out what had happened by going to the police, who denied
having had custody of the father.
When Radjabov’s father was taken a second time, Radjabov
tried to help but was kicked and hit. After the second incident,
Radjabov’s family took his father to the hospital. In April 1997,
to be how the group is more commonly known in English.
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Radjabov’s father was taken for a third time by individuals in
paramilitary uniforms. His family found his father in a hospital,
where he died the next day. Radjabov’s mother and brother filed
complaints with many offices, which were never pursued.
In June 1997, individuals came to Radjabov’s house and
threatened the family that if they filed more complaints, they
would face the same fate as the father. They pushed Radjabov and
his family to the ground, beat them, and put knives to them. They
set fire to Radjabov’s kitchen with gasoline, which the fire
department came to extinguish. Radjabov’s mother then demanded
that his brother leave Tajikistan. Radjabov believed his brother
took refuge in either Russia or a central Asian country. When he
last heard from his brother in 2007, Radjabov’s brother told him
that he was going to Tajikistan from Uzbekistan, but the brother
disappeared.
Radjabov believes his father was targeted because his
views on democracy and Uzbek culture differed from the local Tajik
government and that his father was taken and beaten by the ruling
political party led by President Rahmon. He believes his brother
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went missing because of fear resulting from the abuses suffered by
his family.
Radjabov left Tajikistan in August 1998 for Turkey where
he attended university until 2003. During that time, he visited
Tajikistan in 1999 and 2003, hoping that things had calmed there.
In 1999, he stayed with his mother for one month without incident.
In January 2003, Radjabov again returned to Tajikistan
for about a month, but this time faced trouble. He was soon mugged
by Tajik nationalists who demanded money for the “right to walk in
their territory.” When he refused, they beat him, but he managed
to escape them on a passing tram. Then, in February 2003, Radjabov
was again beaten by a group of Tajik nationals who were speaking
Farsi near a local bus station. The group told him “You Uzbeks
should not stay here. And you Uzbeks should pay for staying here.”
Radjabov did not report the incident to the police. Radjabov
testified that police officers were standing fifty to sixty meters
away and believes even though they surely heard the ethnic insults,
they did not intervene. Radjabov’s injuries left him hospitalized
for ten days. After his release, he returned to Turkey.
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Radjabov again visited Tajikistan for two days in June
2003. During this visit, a group stopped him while he was with his
Tajik girlfriend. The group insulted him for a dating a Tajik girl
and demanded that he kneel and give up his money, Radjabov
complied, and the group laughed and left. He then returned to
Turkey before traveling to the United States.2
II. Discussion
A. Standard of Review and Legal Standards
In this case, the stringency of the standard of review
matters greatly. We must uphold the BIA's asylum determination if
it is “‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks
2
As discussed further below, there is confusion in the record
as to the number of incidents of abuse Radjabov suffered in 2003.
Radjabov’s brief, as well as the BIA and IJ opinions cite to only
two incidents: the winter 2003 beating which resulted in Radjabov’s
ten-day hospitalization, and the summer 2003 humiliation in front
of his Tajik girlfriend. Radjabov’s asylum application, and the
Government’s brief, both cite to all three of the incidents listed
here. Because under our standard of review, we look to the entire
record to see if it compels granting Radjabov relief, we include
all three events in our analysis.
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omitted). We may reverse the BIA's findings of fact only if the
evidence presented by the petitioner was such that “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B); see also Vanchurina v. Holder, 619 F.3d 95,
99 (1st Cir. 2010). The court reviews the BIA's conclusions of law
de novo, “with appropriate deference to the agency's interpretation
of the underlying statute in accordance with administrative law
principles.” Manzoor v. INS, 254 F.3d 342, 346 (1st Cir. 2001).
Where the BIA deferred to or adopted the IJ's reasons for denying
Radjabov's claims, the court reviews those portions of the IJ's
decision as part of the final decision of the BIA. See Gourdet v.
Holder, 587 F.3d 1, 5 (1st Cir. 2009).
To establish eligibility for asylum, an alien must
demonstrate he is a refugee. See 8 U.S.C. § 1158(b)(1); 8 C.F.R.
§ 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63 (1st
Cir.2004). A refugee is a person unable or unwilling to return to
his home country “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.
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§ 1101(a)(42)(A); see also Laurent, 359 F.3d at 63-64. Once an
alien proves past persecution, he creates a rebuttable presumption
that his fear of future persecution is well-founded. See 8 C.F.R.
§ 208.13(b)(1); see also Fergiste v. INS, 138 F.3d 14, 18 (1st
Cir.1998). Where an applicant has not shown past persecution, he
may still demonstrate that his fear of future persecution is
well-founded, albeit unaided by any presumption, if the fear is
both subjectively genuine and objectively reasonable. See Da Silva
v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2003).
B. Past Persecution
Radjabov presents a strong claim that he suffered past
persecution, but under our exacting standard, as well as the
deference we accord to BIA determinations, we cannot say that the
record compels a conclusion in his favor.
Radjabov first argues that we should overturn the BIA
decision because the BIA and the IJ both utilized the wrong
standard for the level of government involvement necessary to
establish past persecution. The IJ indeed utilized an incorrect
conceptual framework, analyzing whether the abuse suffered by
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Radjabov was “with the consent or at the direction of the
Government of Tajikistan,” finding that it was not. Under that
standard, Radjabov’s testimony as to the policemen’s failure to
respond during his 2003 beating was not relevant, and the IJ did
not take it into account.
However, the BIA did cite the correct, broader standard,
recognizing that “persecution implies some connection to
governmental action or inaction, related to a protected ground for
asylum.” A.R. 3 (citing Orelien v. Gonzales, 467 F.3d 67, 72 (1st
Cir. 2006); Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.
2005))(emphasis added)). It is also true, though, that the BIA,
like the IJ, failed to note that Radjabov had testified that during
the 2003 beating, police had stood by, had been aware that he was
being beaten for his Uzbek ethnicity, but failed to intervene. Id.
Radjabov’s testimony on this point should have been taken into
account. The IJ had found Radjabov credible, and Radjabov’s
testimony that on one occasion he had been abused due to government
inaction would have lent support to his past persecution claim.
Yet, even if this evidence had been taken into account
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explicitly, we still cannot say that the record compels the
conclusion that Radjabov suffered abuse due to governmental action
or inaction. As to the 1997 abuses Radjabov suffered, while
possibly at the hands of the government, the record does not
indicate that these were directed at him due to a protected ground,
as opposed to just his father. While we have held that “‘[a]n
imputed political opinion, whether correctly or incorrectly
attributed, may constitute a reason for political persecution
within the meaning of the [INA],’” Vasquez v. INS, 177 F.3d 62, 65
(1st Cir. 1999) (quoting Ravindran v. INS, 976 F.2d 754, 760 (1st
Cir. 1992)), the petitioner must show that such an imputation
actually occurred. Id.; see also Singh v. Mukasey, 543 F.3d 1, 6
(1st Cir. 2008) (no persecution when petitioner was harmed during
attack against father, but failed to establish that the attack was
motivated by his own political opinions). Here, Radjabov has not
shown that during the 1997 incidents, he was targeted as a result
of his own status, or because his father’s activities or political
beliefs were imputed to him. As such, a rational finder of fact
would not have to conclude that the 1997 incidents should be
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considered as part of the basis of Radjabov’s own persecution
claim.
The record similarly does not force the conclusion that
the 2003 incidents that were actually directed at Radjabov occurred
due to government action or inaction. With respect to the winter
2003 mugging and the June 2003 humiliation in front of Radjabov’s
girlfriend, there is absolutely no evidence of government action or
inaction—not even Radjabov’s own testimony. Nor is there testimony
that Radjabov reported the incidents to police, which we have held
is enough to prevent the incidents from qualifying as
“persecution.” See, e.g., Castillo-Diaz v. Holder, 562 F.3d 23,
27-28 (1st Cir. 2009) (no past persecution where petitioner had not
reported incidents of mistreatment to police).
Thus, the only incident that could possibly substantiate
a past persecution claim is the winter 2003 incident when Radjabov
was beaten as a result of his Uzbek ethnicity, while police
officers stood in the distance, which resulted in Radjabov’s
injuries and hospitalization. As the Government points out,
however, Radjabov has not shown that the police actually saw the
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incident or actually heard the ethnic insults hurled at him; he
concludes these facts based on how far he alleges them to have been
from him. This is unfortunately insufficient to clear our legal
hurdles.
Moreover, even if it was obvious from the record that the
2003 incident resulted from government inaction, an isolated
incident of mistreatment due to government action or inaction does
not necessarily give rise to a viable past persecution claim. It
is true, as Radjabov argues, that individual incidents of abuse
taken together can rise to the level of persecution, but here, the
record does not compel the conclusion that they do.
First, it is not clear that the abuse Radjabov suffered
was serious enough. There is no statutory definition of
"persecution" and so the question is answered on a case-by-case
basis. See Orelien, 467 F.3d at 71. Persecution “requires that
the totality of a petitioner's experiences add up to more then mere
discomfiture, unpleasantness, harassment, or unfair treatment.”
Nikijuluw, 427 F.3d at 120. The mistreatment complained of must
have "reached a fairly high threshold of seriousness, as well as
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some regularity or frequency." Butt v. Keisler, 506 F.3d 86, 90
(1st Cir. 2007).
Though we do not minimize Radjabov’s past treatment, we
cannot say that his claim survives this exacting standard. First,
this court has determined that claims citing abuse as much if not
more egregious did not cross the “threshold of seriousness”
necessary to overturn the BIA’s denial of relief. For example,
this court has upheld BIA determinations that a petitioner failed
to establish past persecution where the petitioner was arrested,
beaten, and detained by police seven times over a two-year period
for participating in political demonstrations. See Topalli v.
Gonzales, 417 F.3d 128, 132 (1st Cir. 2005); see also Bocova v.
Gonzales, 412 F.3d 257, 261, 263 (1st Cir. 2005) (two incidents of
arrest and severe beatings, as well as death threats), Nelson v.
INS, 232 F.3d 258, 264 (1st Cir.2000)(three incarcerations in
solitary confinement, plus physical abuse).
We cannot say that the three incidents of abuse directed
specifically at Radjabov—the mugging, the beating, and the
humiliation—together compel the conclusion that he has suffered
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abuse of the requisite “severity, duration, and frequency.”3
Second, the record does not compel the conclusion that
the incidents of Radjabov’s abuse were connected enough to
constitute persecution. Where multiple incidents give rise to an
asylum petitioner's claim, this court determines whether the
incidents were the result of “systematic mistreatment” or were
rather “isolated incidents.” Khan v. Mukasey, 549 F.3d 573, 576
(1st Cir. 2008). Here, where there is only evidence of government
action or inaction as to one of the incidents of abuse targeted
directly at Radjabov, there is no way to connect the incidents to
one another in a manner that satisfies the past persecution
standard.
C. Well-Founded Fear of Future Persecution
Because we must affirm the BIA on its past persecution
determination here, Radjabov’s asylum claim rests on whether he has
indisputably demonstrated that he has a well-founded fear of future
3
Again, the IJ and BIA did not take into account the evidence
of the first incident, Radjabov’s mugging—nor does Radjabov cite it
in his brief. It is not clear why this is so. Yet, although it
perhaps renders a close case closer, it does not change our
conclusion.
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persecution. Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir.
2009); see also 8 C.F.R. § 208.13(b)(2). To do so, Radjabov must
satisfy a subjective requirement—that he “genuinely fears
persecution”—and an objective requirement—by “showing an
objectively reasonable basis for that fear.” Lopez Perez, 587 F.3d
at 461–62. The latter test is satisfied “if a reasonable person in
the petitioner's circumstances would fear persecution based on a
statutorily protected ground.” Nikijuluw, 427 F.3d at 122. It
appears that both the BIA and IJ found that Radjabov had not
provided evidence sufficient to meet either the subjective or
objective requirements. Multiple factors weigh against us
determining otherwise.
For one, Radjabov returned voluntarily to Tajikistan
three times since he left the country for university in Turkey.
Although on two of these visits home he encountered violence, the
fact of these visits alone undercuts his claims to having an
objective or subjective fear of persecution upon return. See
Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 161 (1st Cir. 2006)
(determining an alien's two voluntary returns to her home country
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to be a strong indication that she harbored no subjective fear).
Additionally, the Country Report from February 2009 upon which the
IJ relied in making his determination demonstrated that neither
discrimination against Uzbek minorities, nor police harassment were
common. Radjabov takes issue with the IJ’s and BIA's reliance on
the Report, but this was entirely permissible: the regular Country
Reports produced by the U.S. State Department are generally
persuasive of country conditions. See, e.g., Zarouite v. Gonzales,
424 F.3d 60, 63 (1st Cir. 2005). Finally, Radjabov's mother,
sisters, and one brother continue to live in Tajikistan without
incident. Relatives’ safety in the petitioner’s native country,
while not conclusive, is relevant in determining the likelihood of
his persecution upon return and the reasonableness of his fear.
See Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)(“[T]hat
close relatives continue to live peacefully in the alien's homeland
undercuts the alien’s claim that persecution awaits his return”);
In re A-E--, 21 I. & N. Dec. 1157, 1160 (BIA 1998) (en banc)
(holding that the reasonableness of an alien’s fear of persecution
is reduced when his family remains in his native country unharmed
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for a long period of time after his departure). Unfortunately,
Radjabov’s close case is not close enough to win him asylum on
appellate review.
D. Withholding of Removal and CAT Relief
To be eligible for withholding of removal, the petitioner
must satisfy an even more demanding requirement: that there is a
clear probability, or that it is “more likely than not,” that he
would be persecuted should he return to his home country. See,
e.g., Singh, 543 F.3d at 7; Guillaume v. Gonzales, 504 F.3d 68, 71
n. 2 (1st Cir. 2007). Thus, because Rajabov's claim for asylum
fails, so too does his claim for withholding of removal. See,
e.g., Guillaume,504 F.3d at 71 n. 2; Palma-Mazariegos v. Gonzales,
428 F.3d 30, 37 (1st Cir. 2005).
Radjabov also argues for CAT relief, but offers no more
than a few conclusory statements in his brief as to the basis of
his claim. Thus, it appears that this claim fully relies on
conceptualizing the incidents underlying his persecution claim as
torture. As with his claim for withholding of removal, because the
abuse he suffered does not rise to the level of persecution, it
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cannot rise to the requisite level for CAT relief. See, e.g.,
Barsoum v. Holder, 617 F.3d 73, 81 (1st Cir. 2010); Singh, 543 F.3d
at 7.
On the basis of the foregoing, Radjabov’s petition for
review is DENIED.
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