Alexandrescu v. Mukasey , 537 F.3d 22 ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-2732
JAN-VINICIUS ALEXANDRESCU, LUMINITA ALEXANDRESCU,
BOGDAN ALEXANDRESCU,
Petitioners,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Patrick D. O'Neill, Jason P. Ramos, and O'Neill & Gilmore,
P.S.C. on brief for petitioner.
Erica B. Miles, Attorney, Office of Immigration Litigation,
Janice K. Redfern, Attorney, Office of Immigration Litigation, and
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Department
of Justice, on brief for respondent.
August 7, 2008
LYNCH, Chief Judge. Jan-Vinicius Alexandrescu
("Alexandrescu") is a citizen and native of Romania, as are his
wife Luminita Alexandrescu ("Luminita") and son Bogdan
Alexandrescu. Alexandrescu petitions this court for review of the
denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). An
immigration judge ("IJ") denied the application but granted
voluntary departure, and the Board of Immigration Appeals ("BIA")
affirmed. We deny the petition for review.
I.
Alexandrescu first entered the United States in January
1993 on a crewman's visa while working on a cruise ship. He stayed
past the visa's expiration in February 1993 and filed an
application for asylum in May 1993, listing his wife and son as
derivative applicants. His wife came to the United States on a
visitor's visa in June 1993, which expired in December 1993. Their
son did not arrive in the United States until June 1994; he also
entered on a visitor's visa, which expired in December 1994. All
overstayed.
The U.S. Department of Homeland Security issued Notices
to Appear to each family member on December 1, 2005. At a
preliminary hearing before an IJ on March 14, 2006, they conceded
their removability. On June 6, 2006, Alexandrescu filed an updated
asylum application, again listing his family as derivative
-2-
applicants. We summarize Alexandrescu's statement in his asylum
application and the testimony received by the IJ on October 30,
2006.
Alexandrescu graduated as a lieutenant from the Romanian
military's Air Force Academy and flew MIG-16s from 1982 to 1984.
He was then assigned to fly more advanced aircraft in an elite
squadron, in which he remained until he was transferred to the
reserves in 1990.
As a military officer, Alexandrescu was required to join
the Communist Party and to espouse the party's ideology, even
though he privately disagreed with it. At a high-level Communist
Party meeting in 1987, he complained that the emphasis on politics
and ideology in the Air Force was preventing sufficient training
and resulting in unnecessary accidents. After a superior warned
him that such statements could hurt his career, he recanted them.
Alexandrescu met Luminita in 1988. She lived in Macesti,
a village near the Yugoslav border, and is of Yugoslav descent. To
leave his base and visit her, Alexandrescu needed the permission of
his superiors; they granted the requests even though they were
uneasy because the Yugoslav border was a high-traffic avenue for
escape from Romania.
That December, Alexandrescu requested permission to marry
Luminita. His superiors warned him against the marriage because of
her Yugoslav descent, yet he was granted the necessary permission.
-3-
Shortly thereafter, he was again called before the base's Communist
Party Secretary, Gheorge Pasc, and the base's intelligence officer,
Ion Rusu; they interrogated him about his marriage and asked him to
divorce his wife because of her ethnic origin, but he refused.
That same day, Alexandrescu was told he would not fly
again until further notice, and for the next six months he claims
he "suffer[ed] the persecutions" of his superiors. He had to
report on his daily activities, and he concluded that his telephone
was bugged and his mail checked by the Securitate (the Romanian
secret police). For example, when his mother received a phone call
in April 1989 from her brother (who had emigrated legally to West
Germany) wishing her a happy Easter, then a prohibited holiday in
Romania, Alexandrescu was summoned to Rusu's office to explain the
call and answer questions about his uncle. In September 1989, his
mother sought permission to travel to West Germany to visit this
same brother; Alexandrescu testified that if he had not been an
officer in the Air Force and had not signed for her as a sort of
guarantor, she would never have been allowed to leave the country.
He also testified that she left and returned without further
difficulties.
During this time he was also tasked with manual labor
that he considered beneath his "quality as an officer," including
agricultural work and cleaning toilets. Alexandrescu felt that
this "denigrate[d" his "rank and . . . position" and made him an
-4-
"inferior human being." However, in June 1989, he was allowed to
resume his flight duties.
In October 1989, Alexandrescu was told that he would be
moved to the Air Force reserves "through the back door," which
meant that he would not be eligible for "qualified positions"
(professional placements) in civilian life. Around the same time,
Alexandrescu raised the training issue again at a big party
meeting. Pasc, the Communist Party representative on the base,
told him that his remarks at the party meeting "signed [the]
decision" to move him into the reserves and that in civilian life,
Alexandrescu would "not be more than a Garbage Man."
Alexandrescu remained in the Air Force's employ, however,
during the Romanian democratic revolution from December 1989 to
March 1990. He claims his formal transfer to the reserves in April
1990 occurred shortly after he spoke out again about inadequate
training. As for why the government would wish to keep him in the
reserves if it was so displeased with his criticisms, Alexandrescu
surmised that the military had invested millions of dollars in his
training and that by keeping him "next to them" they could
"persecute [him] more for what [he] did in the past."
In civilian life, Alexandrescu obtained a commercial
pilot license and a job with the government-run airline. That job
was short-lived, an outcome which Alexandrescu blames on Pasc, who
had become the human resources office manager for the airline: when
-5-
Alexandrescu was forced to resign, Pasc told Alexandrescu that
because Alexandrescu had been unwilling to support the old regime
during the revolution, he would "suffer for the rest of [his] life
even in Democratic Romania." The government-issued commercial
pilot's license, however, was never revoked.
Alexandrescu testified that he "was surprised in the
beginning how easy [he] got the [government airline] job knowing
[his] record." He could not explain why he was hired and allowed
to work without harassment for the first few months if his record
was indeed ruined, guessing that maybe it was because Romania was
a "free country now and more democratic," or because "they play[ed]
a game," or because he was only flying domestic, not international,
flights.
Between 1991 and 1993, Luminita worked for an independent
newspaper opposed to the administration, which was still controlled
by former Communist Party members. Meanwhile Alexandrescu worked
odd jobs as a security guard. Alexandrescu's last job in Romania
was with Air Antares, a new private airline.
In January 1993, Alexandrescu took a job as a waiter with
a cruise line and freely left Romania on a Romanian passport.
Alexandrescu considered returning to Romania in April 1993 after
his father-in-law's death, but Luminita begged him not to return
because people whom she assumed were associated with the military
had contacted her about his whereabouts and she feared for his
-6-
safety. He testified that as a member of the reserves, he is
required to report any changes in address to the military, which he
has not done. He also claimed that these visitors had told his
wife they knew he had applied for political asylum in the United
States, even though that knowledge would appear to predate his
actual application.
He fears now that on return to Romania, he will be
prosecuted for failing to report his whereabouts to the military,
which would result in his imprisonment. He testified that his
parents told him that people from the military had come by their
house in 2003 or 2004 looking for him, though he had not asked them
to send a corroborating letter to the court and he had not
mentioned this fact in his revised asylum application.
The IJ issued her oral decision on October 30, 2006. The
IJ found no persecution in this case and enumerated many
inadequately explained and uncorroborated elements of
Alexandrescu's story. The IJ also concluded that Alexandrescu had
totally failed to establish a well-founded fear of future
persecution, noting that it was unclear who the feared persecutor
was and why, fifteen years later in a democratic Romania, the same
people would be willing and able to persecute him if he returned.
On appeal, the BIA affirmed, emphasizing that Alexandrescu had not
alleged events amounting to persecution. This petition followed.
-7-
II.
We start with Alexandrescu's asylum claim. To establish
his eligibility for asylum, Alexandrescu must establish that he
either suffered past persecution (which creates a rebuttable
presumption of future persecution) or has a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b). We must accept the
administrative findings of fact "unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B). "When the BIA adopts the IJ's opinion and
discusses some of the bases for the IJ's decision, we have
authority to review both the IJ's and the BIA's opinions." Ouk v.
Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). The BIA's and IJ's
conclusion that Alexandrescu suffered no persecution is amply
supported by the record.
Assuming without deciding that all other considerations
are resolved in petitioner's favor -- that his complaints about
insufficient training constituted political speech and were the
cause of his poor treatment, that his testimony was credible and
fully corroborated, and that asylum can be granted on the basis of
economic persecution -- Alexandrescu simply has not alleged conduct
severe enough to constitute persecution. There is no serious
economic deprivation here: Alexandrescu lost his job, not his
ability to make a living. See Khalil v. Ashcroft, 337 F.3d 50, 53,
55 (1st Cir. 2003) (denying petition where asylum applicant
-8-
described economic hardship not amounting to persecution); see
also, e.g., Zhuang v. Gonzales, 471 F.3d 884, 890 (8th Cir. 2006)
("Fears of economic hardship or lack of opportunity do not
establish a well-founded fear of persecution."); Musabelliu v.
Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (denying asylum where
applicant was discharged from military for opposing corruption
because "[l]osing a job is not persecution" and "[a]sylum is not a
form of unemployment compensation"). Further, as both the BIA and
the IJ emphasized, Alexandrescu was granted permission for his
every request: to visit and then marry Luminita despite her ethnic
background, to allow his mother to travel to West Germany, and to
leave Romania to work abroad on a cruise ship.
Because Alexandrescu has failed to establish past
persecution, he does not benefit from a presumption of future
persecution and must offer specific proof that his fear of future
persecution is well-founded. 8 C.F.R. § 208.13(b)(1). He argues
that he will face legal prosecution and imprisonment upon return
because he has failed to inform the military of his whereabouts and
will thus be considered a deserter. Generally, a sovereign
nation's normal penalties for avoiding military service are not
considered persecution. Mekhoukh v. Ashcroft, 358 F.3d 118, 126
(1st Cir. 2004). While there are some exceptions to this general
rule of thumb, none of them apply here. See id. Further,
Alexandrescu has provided no information about the current
-9-
practices of the Romanian military, making it impossible to tell
whether he would be punished for not reporting his movements,
especially as he has never been called up for duty. Cf. Mojsilovic
v. INS, 156 F.3d 743, 747-48 (7th Cir. 1998) (finding no well-
founded fear of persecution where asylum applicant failed to
demonstrate that he would in fact be punished for refusing to serve
in Yugoslav army).
Nor has he clarified who would seek to persecute him on
a protected ground: not only could he provide no specifics
regarding which of his former alleged persecutors still hold
positions of power, but he also failed to explain how punishment
for disobeying a military law could be connected to his political
views. See Foroglou v. INS, 170 F.3d 68, 71 (1st Cir. 1999)
(punishment for refusing to serve in a military is generally not
persecution on account of membership in a protected group).
Because the standard for withholding of removal is more
difficult to meet than the asylum standard, Alexandrescu's failure
to satisfy the asylum standard means that his withholding of
removal claim must also fail. Khalil, 337 F.3d at 56. We also
deny the petition as to the CAT claim because Alexandrescu has not
alleged any past or potential future treatment that could possibly
be considered torture.
The petition is denied.
-10-