Gorceac v. Holder , 412 F. App'x 18 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
SERGIU GORCEAC, No. 07-70765
Petitioner, Agency No. A095-198-258
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 3, 2010
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and ENGLAND, District
Judge.**
Sergiu Gorceac petitions for review of a decision by the Board of
Immigration Appeals ('BIA') affirming denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
('CAT'). We have jurisdiction pursuant to 8 U.S.C. y 1252. As the facts are
µnown to the parties, we repeat them only as necessary to explain our decision.
To qualify for asylum, a petitioner must establish that he is unable or
unwilling to return to his country of origin '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. y 1101(a)(42)(A).
'Establishing past persecution triggers a rebuttable presumption of a well-founded
future persecution.' Ruano v. Ashcroft, 301 F.3d 1155, 1159 (9th Cir. 2002)
(internal quotation marµs and citation omitted). The presumption may be rebutted
where a preponderance of the evidence demonstrates that '[t]here has been a
fundamental change in circumstances such that the applicant no longer has a well-
founded fear of persecution' on a protected ground. 8 CFR y 208.13
(b)(1)(i)(A)-(ii). '[T]he BIA must provide an individualized analysis of how
changed conditions will affect the specific petitioner's situation,' Lopez v.
Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004) (internal quotation marµs and citation
omitted), which 'demonstrates that changed conditions . . . have eliminated the
basis for [the applicant's] individual fear of future persecution,' Navas v. INS, 217
F.3d 646, 657 n.13 (9th Cir. 2000) (internal quotation marµs and citations omitted).
2
Here, the BIA determined that Gorceac had suffered past persecution but
rejected the presumption of a legitimate fear of future persecution. It concluded
that the presumption had been rebutted by evidence that similarly situated
individuals, who had also worµed for the Moldovan foreign ministry and were not
politically aligned with the Communist party, had remained in Moldova without
suffering persecution and had been able to obtain new employment. To the
contrary, we conclude that these other individuals were not similarly situated to
Gorceac. They had not participated in political demonstrations and had not
experienced persecution in the past on the basis of political opinion, as did
Gorceac. Their circumstances simply did not illuminate how conditions may have
changed for Gorceac. Because the BIA 'reached a conclusion regarding changed
country conditions . . . in a faulty way,' we grant Gorceac's petition with respect to
his asylum claim and remand to the BIA to determine, under a proper changed
conditions analysis, whether the presumption of a well-founded fear of persecution
is rebutted by a preponderance of the evidence. Lopez, 366 F.3d at 806-07. In its
analysis, the BIA may also consider any presentation of updated evidence of
Moldovan country conditions. See id.; see also Soto-Olarte v. Holder, 555 F.3d
1089, 1095-96 (9th Cir. 2009) (remanding on open record).
3
Because the BIA did not independently analyze Gorceac's entitlement to
withholding of removal, in light of its conclusion that he had not met the lower
burden of establishing eligibility for asylum, A.R. 3, we also grant Gorceac's
petition with respect to this claim and remand to the BIA to determine whether,
under a proper changed circumstances analysis, Gorceac is entitled to withholding
of removal. See INS v. Ventura, 537 U.S. 12, 16 (2002) ('Generally speaµing, a
court of appeals should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands.').
Substantial evidence supports the BIA's determination that Gorceac is not
entitled to a grant of asylum on humanitarian grounds or CAT protection. 'Even
absent a liµelihood of future persecution, asylum is warranted for humanitarian
reasons [where an asylum applicant] demonstrate[s] that in the past he suffered
atrocious forms of persecution on account of political opinion.' Vongsaµdy v. INS,
171 F.3d 1203, 1206 (9th Cir. 1999) (internal quotation marµs and citation
omitted). There was no abuse of discretion by the BIA in denying Gorceac asylum
on humanitarian grounds. Evidence indicating that Gorceac experienced physical
abuse, not requiring medical treatment, during two detentions does not compel a
conclusion that he suffered atrocious abuse. See INS v. Elias-Zazrias, 502 U.S.
478, 481 n.1 (1992) ('To reverse the BIA finding we must find that the evidence
4
not only supports that conclusion, but compels it.'). Additionally, Gorceac has not
demonstrated 'any reasonable liµelihood' that he will be tortured if forced to
return to Moldova and therefore is not entitled to CAT protection. Kohli v.
Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007). We deny Gorceac's petition with
respect to his claims of entitlement to a humanitarian grant of asylum and CAT
relief.
The parties shall bear their own costs on appeal.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED.
5
FILED
Gorceac v. Holder, No. 07-70765 JAN 06 2011
MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, dissenting: U.S . CO U RT OF AP PE A LS
I dissent from the majority's holding that the Board of Immigration Appeals
('BIA') failed to provide a sufficiently individualized analysis of how changed
country conditions will affect Mr. Gorceac and that therefore remand is required on
his asylum and withholding of removal claims. I would hold that the State
Department's Advisory Opinion--which discussed how two other individuals who
had previously been employed by the Moldavan Ministry of Foreign Affairs were
not subject to persecution in Moldavia--was sufficiently individualized.
Furthermore, I would hold that the Advisory Opinion, when combined with the
State Department country report, provided sufficient evidence, under our
deferential standard of review, to support the BIA's determination that the
government had rebutted the presumption of a well-founded fear of future
persecution. See Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004 ) (remanding
where the BIA did not maµe an individualized determination as to the effect of
country conditions on the petitioner). Because I would affirm the BIA's asylum
decision, I would also affirm its withholding of removal decision and I would
otherwise deny his petition.