Irina Luchina v. U.S. Attorney General , 687 F. App'x 907 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15069
Non-Argument Calendar
________________________
Agency No. A088-012-568
IRINA LUCHINA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 9, 2017)
Before MARTIN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Irina Luchina, a native and citizen of Moldova, petitions for review of the
Board of Immigration Appeals’s (“BIA”) dismissal of her appeal of the
Immigration Judge’s (“IJ”) denial of her application for withholding of removal
pursuant to the Immigration and Nationality Act (“INA”). Before the IJ, Luchina
contended that, because of her Romani (gypsy) ethnicity, she had been persecuted
in the past while living in Moldova and, if returned, she would be persecuted again.
The IJ found that Luchina’s testimony was not credible, that she had failed to
provide reasonably available corroborating evidence, and that she did not establish
either past persecution or a likelihood of future persecution. Luchina appealed the
IJ’s decision to the BIA, but, significantly, she did not challenge the IJ’s findings
as to her credibility or to the need for corroborating evidence. The BIA affirmed
and adopted the IJ’s decision.
In her petition for review before this Court, Luchina challenges each aspect
of the IJ’s decision. She contends that the adverse credibility determination was
not supported by specific, cogent reasons, that the IJ made unreasonable demands
for corroborating evidence, and that the evidence she produced was sufficient to
show both past persecution and a likelihood of future persecution on account of her
ethnicity. However, because she did not challenge before the BIA the findings as
to her credibility and to the need for corroboration, we lack jurisdiction to consider
these arguments on appeal. And because these findings are dispositive as to her
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claim of past persecution, we deny the petition as to this claim. With regard to
Luchina’s claim of future persecution, substantial evidence in the record supports
the IJ’s determination that there was not a clear probability that Luchina would
suffer persecution if returned to Moldova. Accordingly, we dismiss in part and
deny in part the petition for review.
I. Background
Luchina is a native and citizen of Moldova who entered the United States in
May 2009 with authorization to remain until September 2009. In August 2011, the
Department of Homeland Security (“DHS”) served her with a notice to appear,
charging that she was removable for having overstayed her visa.
Luchina conceded removability and, in October 2013, Luchina filed an
application for withholding of removal. 1 Luchina claimed that, as an ethnic
Romani in Moldova, she had faced discrimination, beatings, and threats by both
government agents and Moldovan citizens. She feared being harassed, raped,
abused, or killed if she returned to Moldova.
A. Luchina’s Application and Supporting Evidence
1
Luchina also applied for relief under the United Nations Convention Against Torture
(“CAT”), but she does not challenge the agency’s denial of CAT relief in this petition for review.
Accordingly, we deem Luchina’s claim for CAT relief abandoned. Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (issues not briefed on appeal are abandoned).
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At the merits hearing on her application in April 2014, Luchina, represented
by counsel, testified primarily through an interpreter. We first summarize this
testimony before discussing the other evidence she submitted.
Luchina was born in 1988 in a village on the eastern side of Moldova near
the border with Transnistria, a breakaway region of ambiguous legal status.
Luchina was considered to be of Romani ethnicity because her father is Roma,
while her mother is Moldovan. Luchina’s village was small, so everyone knew
that she and her father were Roma, and people in her village used derogatory
names towards her.
In the early 1990s, when she was five or six years old, Luchina and some
other children went to a river near the border with Transnistria where Moldovan
military personnel were present. One of the soldiers picked her up and threw her
into the river, stating, “Even if she’s going to drown, there’s not much of a loss.
One gypsy more, one gypsy less, that doesn’t count.” She did not know how to
swim, but she was able to make it back to the bank of the river. On other
occasions, military personnel would take her bicycle from her, push her to the
ground, and spit on her. Luchina explained that the soldiers knew her ethnicity
because they interacted with the villagers and because her physical appearance and
clothing made her recognizable as Roma anywhere in Moldova.
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In primary school, other kids often would push Luchina around, drag her by
her hair, trip her, and kick her after she fell, even though her teacher at the time
was a family friend who tried to protect her. When she transferred to middle
school, her teacher placed her in the last desk in the class because she was tall and
a gypsy, and she would be punished if she tried to talk to her classmates. Her
parents complained about the teacher’s treatment, and Luchina was transferred to a
different class because it had the fewest students in it. Also, when she was in
seventh grade, a classmate kicked her in the head during a game. Luchina and her
parents complained to the director of the school and her teacher, but the other child
was not disciplined in any way.
In May 2003, Luchina was attacked by a police officer while participating in
a 5K run with her classmates. As the class passed by a police station, one of the
officers, whom Luchina identified by name, grabbed her by the hair, threw her to
the ground, and began kicking her repeatedly. The officer hit or kicked her more
than five times, fracturing her collarbone, and then grabbed her from the ground
and threw her into the crowd of her classmates. The officer claimed that he had the
full right to do that to her because she was nobody. The officer said a slur that,
according to Luchina, roughly translated to “gypsy throwing,” “dirty blood,” or
“second-grade human being.” When she tried to file a police report, she was told
that she was young, would heal, and should just go home.
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Luchina attended the Technical University of Moldova in the capital city of
Chisinau. While in a park in Chisinau in December 2006, Luchina was approached
by two police officers who were on patrol. The officers checked Luchina’s
documents and then proceeded to beat her “quite severely,” causing big bruises on
the side of her body. The officers said that “dirty gypsies” had no place in the city
and that she should go back to her village and milk cows. She reported the
incident but she did not have the officers’ names, so the case was closed.
Luchina’s mother tried but was unable to obtain the police report.
In August 2008, a Moldovan SWAT team raided her family’s house in
search of guns left over from the 1992 war with Transnistria. The SWAT officers
said that her family, as gypsies, must have something hidden because gypsies
usually did. She stated that the officers hit her father and shut her and her brother
in a storage shed near the house. After the raid, Luchina’s father was fined $500
because the officers claimed to have found a bullet casing.
Luchina entered the United States in May 2009 on a J-1 non-immigrant
visitor visa. She was arrested in February 2011 and went to trial for participating
in a prostitution ring. She was acquitted on all charges, but she made the news
back in Moldova. In December 2013, her brother was beaten up by an officer of
the village who said it would not be good for Luchina to come back if she were a
“dirty gypsy prostitute.” Later, her father was beaten up by the same officer.
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Luchina stated that relocation within Moldova would not make much sense,
because the country was small, the people were all the same, and she would not be
able to hide. She feared that someone would kill her if she returned.
In addition to her own testimony, Luchina submitted the U.S. Department of
State’s 2013 Country Report on Human Rights Practices in Moldova (“State
Department report”), a Roma National Center report on Roma rights in Moldova,
and a BBC News article that described an Amnesty International report. She also
submitted her birth certificate, which states that she is Roma gypsy.
The State Department report stated that the Roma were one of the most
vulnerable minority groups in the country and often were subject to social
marginalization and societal discrimination, including denial of medical services
and discrimination in the job market. According to the report, the Roma had lower
levels of education, more limited access to healthcare, and higher rates of
unemployment. Further, the report noted that, consistent with Luchina’s
testimony, hazing and segregation of Roma students were problems in Moldovan
schools. The report stated that the government had approved a decision to
establish mediators within Roma communities who could improve communication,
mediate disputes, and facilitate access to public services for the Roma.
The Roma National Center report likewise described a range of hardships
suffered by Roma gypsies in Moldova, including: low levels of employment;
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inadequate housing; low scores on health indicators; inadequate social policies and
high dependence on state assistance; discriminatory attitudes among teachers; and
discrimination, hostility, and abusive behavior by law enforcement. The report
also noted that the Moldovan Constitution established the principle of equality
under the law without distinction to race, nationality, ethnic origin, or language,
and that the government had made some legislative efforts to combat
discrimination.
The Amnesty International report described in the BBC News article called
discrimination against the Roma in Europe “shocking” and found that racially
motivated crimes against the Roma were widespread. But the report also found
that governments throughout Europe had made efforts to improve the social
inclusion of the Roma.
B. The IJ’s Decision
The IJ denied Luchina’s application for withholding of removal and ordered
her removed to Moldova. After summarizing Luchina’s testimony, the IJ made an
adverse credibility determination. The IJ stated that there were “significant
internal inconsistencies” in her testimony but gave just one clear example.
Specifically, the IJ found that Luchina’s testimony was inconsistent about whether
the injury she suffered in 2003 was to her arm or her collarbone. The IJ also
discounted Luchina’s testimony because the connection to her ethnicity for some
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of the later attacks, “particularly the most recent ones,” was supplied only after her
attorney asked her leading questions. Finally, the IJ suggested that the lack of
evidence corroborating Luchina’s testimony, such as letters from family members,
medical records, or Moldovan news articles regarding her prostitution arrest,
undermined her credibility.
The IJ went on to conclude that Luchina’s claim of past persecution still
would be denied even if her testimony were credible.2 The IJ found that the
mistreatment Luchina described was not severe enough to qualify under the
standard for “persecution.” The IJ determined that the past events discussed in
Luchina’s testimony “were relatively minor except for the broken arm.”
Acknowledging that being thrown into a river could potentially be fatal, the IJ
found that, in light of Luchina’s “scarce testimony” about this event, it was
difficult to tell how serious the act was. Regarding the abuse she suffered from her
classmates in school, the IJ found that “the teachers were willing to help her” and
that she had been moved to a more favorable class when she complained about
mistreatment. Apparently referencing Luchina’s encounter with police officers in
the capital city of Chisinau, the IJ found that this was a “relatively minor” incident
causing only “some bruises.” Moreover, the IJ stated, Luchina did not describe
2
The IJ also appears to have found that Luchina’s testimony failed to establish a nexus,
or “tie-in,” between the past incidents and her Roma ethnicity. But, assuming her credibility,
Luchina’s testimony established a nexus between the attacks and her ethnicity for the vast
majority of incidents, even if there was some doubt as to a few of them.
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any additional incidents after the 2008 SWAT raid, apart from the attacks on her
brother and father, which appeared to be tied to her arrest for prostitution, not her
ethnicity.
The IJ also concluded that Luchina had not met her burden of establishing
future persecution. Giving great weight to the State Department report, which the
IJ found consistent with the other reports submitted by Luchina, the IJ stated that
there was widespread discrimination in Moldova against the Roma, who were
among the most vulnerable minorities in Moldova and often subjected to social
marginalization and discrimination. But the IJ found that the level of
discrimination did not amount to a pattern or practice of persecution in which the
government was complicit, nor did the evidence show that the government was
unwilling or unable to protect Luchina. The IJ noted that the country-conditions
evidence indicated that the government had taken steps to improve relations
between Roma communities and local public authorities, and that there was
national legislation prohibiting discrimination. The IJ further explained that he
“d[id] not doubt that there is discrimination and life may not be pleasant there, but
it does not rise to the level of persecution as described in the Eleventh Circuit.”
The fact that her family has continued to live in Moldova since at least 2003
“without incident,” other than the one incident in 2008 involving the search of their
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home for weapons and ammunition, was “evidence that she could return there,” the
IJ concluded.
Noting that it was Luchina’s burden to show by “clear probability that her
life would be threatened on account of one of the five protected grounds,” the IJ
found that Luchina had not carried her burden to establish withholding under the
Act “due to her lack of credibility, her testimony, which was not detailed or
specific, including the fact that there was a lack of nexus to her Roma origins until
let on by her attorney, her lack of corroboration, [and] the long time that her family
has lived there without significant harm.”
Luchina appealed the IJ’s decision to the BIA, contending that her testimony
and the country-conditions evidence were sufficient to establish both past
persecution and future persecution. The BIA adopted and affirmed the IJ’s
decision and dismissed Luchina’s appeal, stating that Luchina had “not pointed to a
clear factual or legal error in the Immigration Judge’s decision beyond stating that
she ha[d] met her respective burden of proof.” Luchina now petitions this Court
for review of the denial of her application for withholding of removal.
II. Standards of Review
We review only the BIA’s decision except to the extent that the BIA
expressly adopts the IJ’s opinion or reasoning. Seck v. U.S. Att’y Gen., 663 F.3d
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1356, 1364 (11th Cir. 2011). Here, the BIA adopted and affirmed the IJ’s decision,
so we review the decisions of both the BIA and the IJ.
We review factual determinations, including adverse credibility
determinations, under the substantial evidence test. Xiu Ying Wu v. U.S. Att’y
Gen., 712 F.3d 486, 492–93 (11th Cir. 2013). “Under that standard, we must
affirm if the [agency’s] decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. at 492 (internal
quotation marks omitted). We “view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc). Findings of fact may be reversed only when the record compels a contrary
conclusion; “the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Id.We review our subject-matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We are obligated to inquire
into our subject-matter jurisdiction whenever it may be lacking. Lenis v. U.S. Att’y
Gen., 525 F.3d 1291, 1292 (11th Cir. 2008).
III. Discussion
To be eligible for withholding of removal under the INA, the applicant must
show that her life or freedom would be threatened in the proposed country of
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removal on account of her race, religion, nationality, membership in a particular
social group, or political opinion. 8 C.F.R. § 208.16(b). The applicant bears the
burden of showing that she would more likely than not be persecuted or tortured
upon return to her country. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003). This burden may be met in two ways: (1) establishing past persecution
in her country based on a protected ground, which creates a rebuttable presumption
of future persecution or (2) demonstrating a future threat to her life or freedom in
her country based on a protected ground. Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1375 (11th Cir. 2006); Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir.
2004); see 8 C.F.R. § 208.16(b)(2).
In determining whether an applicant has satisfied her burden of proof, the IJ
must “weigh the credible testimony along with other evidence of record.” 8 U.S.C.
§ 1158(b)(1)(B)(ii).3 An applicant’s testimony alone may establish her claim for
withholding of removal, but only if it is credible and persuasive, and it references
specific facts that are sufficient to show that she is a refugee. 8 U.S.C.
§ 1158(b)(1)(B)(ii). Conversely, a denial of withholding of removal can be
supported solely by an adverse credibility determination when the applicant fails to
produce corroborating evidence. Xiu Ying Wu, 712 F.3d at 493
3
The standards for evaluating evidence and credibility in asylum cases, 8 U.S.C. § 1158,
also apply to applications for withholding of removal. See 8 U.S.C. § 1231(b)(3)(C)
(incorporating § 1158(b)(1)(B)(ii)–(iii)); see also Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211,
1215 (11th Cir. 2007).
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If the IJ determines that an applicant is not credible, “the IJ must make an
explicit adverse credibility finding and offer ‘specific, cogent reasons’ for the
finding.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 (11th Cir. 2009). Once
an adverse credibility determination is made, the applicant must demonstrate that
the finding was not supported by “specific, cogent reasons” or was not based on
substantial evidence. Id.Where the IJ determines that the applicant should provide evidence that
corroborates otherwise credible testimony, the applicant must provide such
evidence unless she cannot reasonably obtain it. See 8 U.S.C. § 1158(b)(1)(B)(ii).
A failure to provide reasonably available corroborating evidence may lead to a
finding that the applicant failed to meet her burden of proof. See id.A. Adverse Credibility Determination
Luchina first challenges the IJ’s adverse credibility determination. She
contends that the three reasons offered by the IJ in support of that determination—
(1) “significant internal inconsistencies” in her testimony, (2) leading questions
from her attorney about the nexus to her ethnicity for some of the attacks, and (3)
the lack of corroborating evidence—are not “specific, cogent reasons” supported
by substantial evidence in the record.
Luchina asserts that the one inconsistency in her testimony identify by the
IJ—whether the police officer fractured her “arm” or her “collarbone”—was
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immaterial given that she testified through an interpreter, she clarified her
testimony by pointing to the location of the fracture, and she was never asked to
explain the purported inconsistency. Additionally, Luchina contends that her
attorney’s supposed leading questions did not provide a cogent reason for the
adverse finding because the vast majority of her testimony established the nexus to
her ethnicity without assistance, the leading question on one occasion actually
came from the IJ, and the IJ never adequately admonished her attorney to avoid
asking such questions. Finally, Luchina argues that the lack of corroborating
evidence alone is not a sufficient basis to make an adverse credibility
determination because such a finding is inconsistent with the standard that
uncorroborated testimony may be sufficient to meet her burden of proof.
The problem with these arguments, however, is that Luchina never raised
them or anything like them before the BIA. Petitioners challenging a final order of
removal must exhaust “all administrative remedies available to [them] as of right.”
8 U.S.C. § 1252(d)(1). And “we lack jurisdiction to consider a claim raised in a
petition for review unless the petitioner has exhausted [her] administrative
remedies with respect thereto.” Amaya–Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250–51 (11th Cir. 2006). That means that where, as here, a petitioner “fails
to challenge an adverse credibility determination in [her] appeal to the BIA, we
lack jurisdiction to consider such a challenge in [her] petition for review.” Id.15
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In order to exhaust a claim before the BIA, the petitioner must raise the
“core issue” before the BIA and present “any discrete arguments he relies on in
support of that claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir.
2016). “While exhaustion does not require a petitioner to use precise legal
terminology or provide well-developed arguments to support his claim, it does
require that the petitioner provide information sufficient to enable the BIA to
review and correct any errors below.” Id. (internal quotation marks omitted).
Thus, a petitioner must present more than unadorned, conclusory statements and
“must do more than make a passing reference to an issue.” Id. “These
requirements further the purpose of exhaustion: to give the agency a full
opportunity to consider the petitioner’s claim and to compile a record that will be
adequate for future judicial review.” Id.; see Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1298 (11th Cir. 2015) (“Unless a petitioner raises a purely legal
question, the BIA cannot review and correct errors without the petitioner first
providing her argument’s relevant factual underpinnings.”).
Here, Luchina failed to challenge the IJ’s adverse credibility determination
in both her notice of appeal and brief before the BIA. Her brief to the BIA makes
two passing, contradictory references to the adverse credibility determination.
Compare Administrative Record at 16 (“In his oral decision the Immigration Judge
found that Respondent’s testimony was not credible.”), with Administrative Record
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at 22 (“Nowhere in his decision did the Immigration Judge state that Respondent’s
testimony was not credible.”). Her brief then characterizes her testimony as
“credible” and argues that it was sufficient, along with the other record evidence,
to establish both past and future persecution on account of her ethnicity. But the
brief fails to address the reasons given by the IJ for making the adverse credibility
determination or whether those reasons were supported by the evidence. As a
result, the BIA never had an opportunity to consider the “relevant factual
underpinnings” of the arguments she raises in her briefing to this Court. See
Indrawati, 779 F.3d at 1298. Accordingly, we conclude that Luchina’s conclusory
and passing references to her credibility and the IJ’s credibility finding are
insufficient to her current challenge to the IJ’s adverse credibility determination.
See Jeune, 810 F.3d at 801 (“We therefore conclude that the conclusory statement
in Petitioner’s notice of appeal indicating that he had suffered past persecution ‘as
a gay man’ was insufficient to exhaust (and thereby preserve) the specific and
discrete arguments that he now makes in attacking the immigration judge’s
conclusion concerning the absence of a showing of past persecution.”).
The fact that the BIA sua sponte addressed the adverse credibility
determination does not cure the lack of exhaustion. Amaya-Artuanduaga, 463 F.3d
at 1250. Reviewing issues that the BIA addresses sua sponte still frustrates the
purposes of exhaustion. See id. at 1250–51. For instance, in this case, the BIA
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addressed the credibility determination only in generic and vague terms. The BIA
was not presented with, and we do not know how it would have resolved, the
specific arguments Luchina now raises in her petition for review. See id.For these reasons, we are constrained to conclude that Luchina failed to
exhaust her challenge to the adverse credibility determination by raising the issue
before the BIA. See id. at 1250. “[T]herefore, we lack jurisdiction to consider it
under the clear dictates of circuit precedent.” Id. Although the government did not
press for dismissal on this basis, we have an obligation to consider our subject-
matter jurisdiction whenever it may be lacking. See Lenis, 525 F.3d at 1292.
Accordingly, we dismiss Luchina’s petition for review as to this issue.
B. Lack of Corroboration
Luchina next argues that the IJ made an unreasonable demand for
corroboration and inappropriately evaluated the corroborating evidence that she did
submit. She notes that she provided her birth certificate as well as evidence of
country conditions, which was consistent with her testimony about her experiences
in Moldova. Additionally, she contends that she sufficiently explained the lack of
medical records and police reports.
Again, however, Luchina failed to raise these arguments in her notice of
appeal and brief to the BIA. Before the BIA, she did not cite the corroboration
requirement; she did not argue that the IJ unreasonably demanded corroborating
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evidence; and she not contend that the IJ improperly assessed the corroborating
evidence she did provide, apart from undeveloped assertions that the IJ selectively
evaluated the evidence. Accordingly, as with her challenge to the adverse
credibility determination, we must conclude that we lack jurisdiction to review
Luchina’s current arguments regarding the need for corroborating evidence. See
Amaya-Artuanduaga, 463 F.3d at 1250.
C. Past Persecution
Luchina contends that she established past persecution and was entitled to a
presumption—which the government did not rebut—that her life and freedom
would be threatened if she returned to Moldova. She asserts that the IJ
“mischaracterized or downplayed the incidents” in her testimony, failed to consider
her claims as a whole, and inappropriately placed the burden on her to show that
internal relocation was not reasonable.
However, because we lack jurisdiction to review the IJ’s adverse credibility
determination and his finding that corroborating evidence was required, substantial
evidence supports the denial of Luchina’s claim of past persecution. Luchina’s
claim of past persecution depended almost entirely upon her own testimony.
Luchina offered no evidence to corroborate her account of the mistreatment to
which she had been subjected while in Moldova, even if the country-conditions
evidence was broadly consistent with her account. Accordingly, the IJ’s adverse
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credibility determination alone is sufficient to support the denial of Luchina’s
petition for review as to her claim of past persecution. See Xiu Ying Wu, 712 F.3d
at 493; Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287–88 (11th Cir. 2005). We
therefore do not address the IJ’s alternative determination that, assuming her
credibility, the mistreatment Luchina testified that she received in Moldova did not
rise to the level of persecution.
D. Future Persecution
Finally, Luchina contends that she established a clear probability that her life
or freedom would be threatened on account of her Roma ethnicity, if she is forced
to return to Moldova. She contends that her testimony and the country-conditions
evidence demonstrated systematic and pervasive abuse against the Roma
population, which the Moldovan government is unwilling or unable to prevent.
“Our case law establishes that persecution is an extreme concept that does
not include every sort of treatment our society regards as offensive.” Shi v. U.S.
Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013) (internal quotation marks
omitted). We have held that “persecution” means something “more than a few
isolated incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y
Gen, 401 F.3d 1226, 1231 (11th Cir. 2005). (quotation marks omitted). “Mere
harassment does not amount to persecution.” Id. (alteration omitted) (quotation
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marks omitted). Thus, simple threats generally do not compel a finding of
persecution. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006).
Substantial evidence supports the finding that Luchina failed to establish a
clear probability of future persecution based on her ethnicity. As discussed above,
the record does not compel a finding of past persecution. Therefore, Luchina had
the burden to demonstrate a future threat to her life or freedom if she returned to
Moldova. See Sanchez, 392 F.3d at 437. She could meet that burden in two ways:
showing (1) “that there is a reasonable possibility he or she would be singled out
individually for persecution, or [(2)] that [s]he is a member of, or is identified with,
a group that is subjected to a pattern or practice of persecution.” Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (internal quotation marks
omitted). The record does not compel a conclusion that she has made either
showing.
First, the record does not compel a conclusion that Luchina would be singled
out for future persecution on the basis of ethnicity. See 8 C.F.R. § 208.16(b)(2).
The only incidents from her testimony that suggested she might be personally
targeted upon her return were the attacks on her brother and father. But the
attacker’s threat—that it would not be good for her if she returned—was vague,
and the IJ found that the attacker was motivated by her prostitution arrest, not her
ethnicity. Cf. Djonda, 514 F.3d at 1174 (holding that verbal threats combined with
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a minor beating did compel a conclusion that the petitioner suffered persecution).
Besides her discredited testimony regarding past instances of persecution, Luchina
identifies no evidence that would compel a conclusion that she would be singled
out for persecution based on her ethnicity if returned to Moldova.
Second, the record does not compel a finding that Luchina established that
there is a pattern or practice of persecution against the Roma in Moldova. See 8
C.F.R. § 208.16(b)(2). A pattern or practice claim generally requires a showing
that there is “a systematic, pervasive, or organized effort to kill, imprison, or
severely injure members of the protected group, and this effort must be perpetrated
or tolerated by state actors.” Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.
2005) (internal quotation marks omitted).
In determining whether a pattern or practice of persecution exists, an IJ may
rely heavily on the State Department country report. See Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1354 (11th Cir. 2009). As the IJ recognized, the State
Department report, like the other country conditions evidence, reflected that the
Roma, who were among the most vulnerable minorities in Moldova, faced
widespread discrimination in nearly all aspects of civil life and were occasionally
targets of violence. Nevertheless, substantial evidence supports the IJ’s finding
that the level of discrimination did not rise to the level of a pattern or practice of
persecution against all Roma in Moldova. For instance, the IJ’s conclusion is
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supported by the fact that Luchina’s family remained in Moldova with no
indication of persecution on account of their ethnicity after she left and that they
were making at least enough money to send her to school and the United States.
See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (stating that the
petitioner’s claim of future persecution “was contradicted by his testimony that his
son and his parents have remained unharmed in the region of Colombia where [the
petitioner] allegedly was threatened”).
Moreover, substantial evidence supports the IJ’s finding that the Moldovan
government is not complicit in a pattern or practice of persecution. The report
from the Roma National Center noted that the Moldovan constitution prohibited
discrimination based on race or ethnicity, and that efforts had been made in
legislation to foster equality and combat discrimination, although those efforts
faced difficulties in practice. The State Department report described efforts by the
Moldovan government to improve Roma access to public services by establishing
mediators to serve Roma communities. And the BBC News article noted that most
countries and the European Union as a whole had drawn up strategies to improve
social inclusion for gypsies. In short, the record evidence does not compel a
conclusion contrary to the IJ’s.
We note that the IJ’s conclusion on Luchina’s pattern-or-practice claim is
consistent with the holdings of other circuits to have addressed similar claims. See
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Gilca v. Holder, 680 F.3d 109, 117 (1st Cir. 2012) (holding that the record
supported the agency’s finding that there was “no universal and systematic
mistreatment” of the Roma in Moldova); see also Georgieva v. Holder, 751 F.3d
514, 523 (7th Cir. 2014) (upholding the agency’s finding of no pattern or practice
of discrimination against the Roma in Bulgaria, despite similar evidence that the
Roma were “victims of pervasive discrimination in employment, education, health
care, and housing, and are occasionally the targets of violence”).
In sum, substantial evidence supports the agency’s findings that Luchina did
not establish a clear probability that she would be singled out for persecution or
that there was a pattern or practice of persecution of the Roma in Moldova.
Therefore, we deny her petition for review as to this claim.
IV. Conclusion
For the reasons stated, we dismiss Luchina’s petition for review as to her
challenges to the adverse credibility determination and the need for corroborating
evidence. We deny the petition as to her challenge to the agency’s denial of her
application for withholding of removal.
PETITION DISMISSED IN PART; DENIED IN PART.
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