Serban Andrei Valcu v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Serban Andrei Valcu v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-2777 Document: 003110345654 Page: 1

Date Filed: 11/12/2010

NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 09-2777

SERBAN ANDREI VALCU, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent

On Petition for Review of an Order o f the Board of Immigration Appeals (N o . A097-902-790) Im m ig ra tio n Judge: Hon. R. K. Malloy

Submitted Under Third Circuit LAR 34.1(a) S e p te m b e r 17, 2010 B e f o re : SLOVITER, BARRY and SMITH, Circuit Judges (F ile d : September 20, 2010)

OPINION

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S L O V IT E R , Circuit Judge. S e rb a n Andrei Valcu ("Serban") has filed a petition for review of the order of the Board of Immigration Appeals ("BIA") denying his application for asylum under the Im m ig ra tio n and Nationality Act ("INA"), 8 U.S.C. § 1158(b). I. Serban, who was approximately seventeen or eighteen years old, entered the U n ite d States in September 2004 after paying to be smuggled over the Mexican border alon g with his older brother, Bogdan Daniel Valcu ("Bogdan"), and his brother's partner, G e o rg e Valentin Ionescu ("George"). All three were subsequently subject to removal p ro c e ed in g s . They conceded removability for entering the United States without having b e e n admitted or paroled, and each applied for asylum and withholding of removal under th e INA and the Convention Against Torture ("CAT"). A joint hearing was held and their a p p lic a tio n s were considered simultaneously by the Immigration Judge ("IJ"). Bogdan testified he had suffered past persecution, and feared future persecution, in R o m a n ia because he is gay. He described the "problems he had [in Romania as in c lu d in g ] beatings, cursings, [inability] to find a steady job, and . . . problems at school." A.R. at 108. George, Bogdan's partner, testified that he suffered similar assaults and poor tre a tm e n t. They stated that the police were unwilling to assist them, and in fact attacked b o th men on an occasion when they requested police help. Petitioner Serban testified that his father left Romania in 2001, that his mother left

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in 2003, and that both came to the United States. When his mother left, Bogdan was a w a y at college and would return home on the weekends, and Serban would take meals w ith neighbors and either stay with them or at his family home. Serban testified that he is n o t gay, but beginning in 1999, when he was twelve or thirteen years old, his classmates b e g a n beating him after learning that his brother Bogdan is gay. These beatings occurred b o th inside and outside of school, and continued until he left for the United States. Additionally, Serban's mother, who was a teacher at his school, told Serban that his te a ch e rs were giving him low grades because of Bogdan, and Serban's family had to bribe h is teachers in order for him to pass his classes. Serban testified that school officials were a p p a re n tly unwilling to help him, and that it would have been pointless to go to the p o lic e . Serban also testified that if he returned to Romania he would have the "[s]ame p ro b le m s " given that "everybody knows about me" in the town of Urzceni where he grew u p . A.R. at 260-61. When asked if he could move in with his grandparents, who resided in a different region of Romania than Serban's hometown, Serban answered, "[n]o," b e c au s e , "[t]he same mentality [towards gays] is everywhere throughout the country." A.R. at 261. However, in response to a question whether he preferred to be in Romania, h e replied, "[y]es, if my brother wasn't gay." A.R. at 274. T h e IJ found that Bogdan and George "testified credibly that they suffered b e a tin g s , cursings, humiliation, inability to find steady employment, and school

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p ro b lem s" because of their sexual orientation. A.R. at 148-49. The IJ determined that in lig h t of the serious levels of discrimination against gay persons in Romania, Bogdan and G e o rg e suffered past persecution and would likely suffer future persecution on account of th e ir sexual orientation if they returned, and thus granted their applications for asylum. In contrast, the IJ denied Serban's application, explaining that Serban had not " su f f ere d past persecution on account of his membership in a particular social group or a n y other grounds, . . . [and that] Serban [would not] . . . suffer future persecution on a c c o u n t of any of the enumerated grounds" because "[i]f Serban were to return alone to R o m a n ia , he should be able to escape the stigma of his brother's homosexual status." A.R. at 150. The IJ did not address Serban's applications for withholding of removal. T h e BIA dismissed Serban's appeal. Although the BIA assumed, without d e c id in g , that Serban's testimony was credible, and held that "[a] family may constitute a p a rtic u la r social group," 1 it held that Serban had failed to show either "[1] that other m e m b e rs of his family were targeted by his attackers on account of their relationship to h is brother or [2] that he himself was attacked due to his relationship to his brother rather than due to a desire on the part of the attackers to punish his brother." A.R. at 4-5 (c ita tio n omitted). Alternatively, the BIA held that even if it were to assume former p e rs e c u tio n , "any presumption of future persecution is rebutted by the fact that [Serban]

The Government does not contest on appeal that Serban's f a m ily constitutes a "social group" under 8 U.S.C. § 1 1 0 1 (a )( 4 2 )( A ). 4

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n o w would return to Romania without his brother." A.R. at 5 (citing 8 C.F.R. § 2 0 8 .1 3 (b )(1 )(i)(A ) (presumption of future persecution can be rebutted by showing of "a f u n d a m e n ta l change in circumstances")). Finally, the BIA held that Serban did not " o f f e r[ ] any information on appeal to establish that he was prejudiced by the lack of an e x p lic it determination on his eligibility for withholding of removal under the" INA or the C A T . A.R. at 5. Serban timely petitioned this court for review. II.2 "Because the BIA issued an opinion, rather than a summary affirmance, we re v ie w the BIA's (rather than the IJ's) decision." Espinosa-Cortez v. Att'y Gen., 607 F.3d 1 0 1 , 106 (3d Cir. 2010) (citation and internal quotation marks omitted). "We affirm any f in d in g s of fact supported by substantial evidence and are `bound by the administrative fin d ing s of fact unless a reasonable adjudicator would be compelled to arrive at a contrary co n clus ion .'" 3 Camara v. Att'y Gen., 580 F.3d 196, 201 (3d Cir. 2009) (quoting Yan Lan W u v. Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005)). "[W]e review the BIA's legal c o n c lu s io n s de novo, including both pure questions of law and applications of law to

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We have jurisdiction under 8 U.S.C. § 1252(a)(1).

Whether, for asylum purposes, a petitioner has proven that h e or she has a well-founded fear of persecution "is a question of f a ct . . . ." Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 340 (3d C ir. 2008) (citing Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2 0 0 3 )). Similarly, a determination of the future probability of p e rs e c u tio n is also a fact. Cf. Kaplun v. Att'y Gen., 602 F.3d 260, 2 7 1 (3d Cir. 2010). 5

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u n d is p u te d facts." Rranci v. Att'y Gen., 540 F.3d 165, 171 (3d Cir. 2008) (citing F r a n c o is v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006)). A n applicant can qualify for asylum as a refugee if he or she proves "past p e rse c u tio n . . . ." 8 C.F.R. § 208.13(b); see also id. § 208.13(a). If an applicant does so, a presumption arises that if returned to his or her country of origin, the applicant will a g a in be persecuted. See id. § 208.13(b)(1). The Government can rebut that presumption b y showing by a preponderance of the evidence that "[t]here has been a fundamental c h a n g e in circumstances such that the applicant no longer has a well-founded fear of p e rs e c u tio n in the applicant's country of nationality . . . ." Id. § 208.13(b)(l)(i)(A); see a ls o id. § 208.13(b)(1)(ii). T h e BIA's conclusion that Serban failed to establish a nexus between the attacks o n him and his brother's sexual orientation because Serban did not testify that his a tta c k ers targeted his other family members is not supported by substantial evidence.4

The Government argues that Serban failed to establish a n e x u s between his familial membership and his persecution "absent . . . any indication that the students [who attacked Serban] m e n tio n e d Serban's brother, let alone his brother's sexuality, when h e was harmed." Appellee's Br. at 24-25. However, neither the IJ n o r the BIA employed this rationale. Serban ­ who apparently was n e v e r asked by the Government if his attackers made such re p re se n ta tio n s ­ has consistently asserted conclusive knowledge th a t he was attacked because of his brother's sexual orientation. As th e BIA assumed Serban's credibility, we have little basis to q u estio n that assertion, which was corroborated by Bogdan's te s tim o n y, see A.R. at 203, was supported by statements Serban a ttr ib u te d to his mother, see A.R. at 254-55, and which flows 6

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S e rb a n testified that it was his classmates who attacked him. It is unsurprising that S e rb a n 's classmates, who during the relevant times would have been from about thirteen ye a rs of age to about seventeen years of age, would not have attacked Serban's father w h o was a grown man, Serban's mother, who was a teacher at Serban's school, or S e rb a n 's brother, who was older. Indeed, Serban's mother and brother were harassed by th e ir own peer groups, as Serban was by his. We are unpersuaded by the BIA's reasoning that because Serban failed to present e v id e n c e that the beatings he suffered were committed out of anything other than a " d e sire on the part of the attackers to punish" Bogdan, A.R. at 5, Serban failed to show th a t the beatings were "on account of" Serban's membership in the family group, 8 U .S .C . § 1101(a)(42)(A). Such attacks were obviously committed "due to [Serban's] re latio n sh ip to his brother." A.R. at 4-5. Indeed, the familial relationship was the basis f o r the attacks. Neither the BIA nor the Government has offered a principled explanation f o r the BIA's contrary conclusion. On the other hand, we conclude that there is ample basis to uphold the BIA's f in d in g that the presumption arising from Serban's past persecution was rebutted by the f a ct that, as Bogdan testified, Serban would be returning to Romania alone, as Bogdan te stif ie d he would not return if granted asylum. Thus, there has been a "fundamental

logically from the description provided by Serban and Bogdan of th e conditions in their small town, as well as the country conditions th a t the IJ found exist in Romania generally. 7

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c h a n g e in circumstances" within the meaning of 8 C.F.R. § 208.13(b)(1)(i)(A). Serban h a s graduated from high school and when he returns to Romania he will be about twenty f o u r years old. There was no evidence presented that as an adult Serban will suffer the s a m e level of persecution that he did as a child. These facts, without countervailing ev iden ce submitted by Serban, constitute sufficient evidence to support the BIA's d e te rm in a tio n that the presumption of future persecution has been rebutted. Although the IJ did not reach Serban's other claims, the BIA held that this same re a so n in g precludes withholding relief under both the INA, which requires a higher s ta n d a rd of proof than a grant of asylum, and under the CAT, which requires a finding of a future probability, i.e., over a fifty percent chance, of torture. See Gambashidze v. A sh c ro ft, 381 F.3d 187, 191 (3d Cir. 2004); 8 C.F.R. § 208.16(c)(2); Auguste v. Ridge, 3 9 5 F.3d 123, 149 (3d Cir. 2005). S e rb a n 's due process claim fails because in cases other than those implicating f u n d a m e n ta l rights, an appellant must show prejudice in order to establish a violation. See Leslie v. Att'y Gen., --- F.3d ----, 2010 WL 2680763, at *2 (3d Cir. 2010) (" a lle g a tio n s of due process violations must ordinarily be accompanied by an initial s h o w in g of substantial prejudice . . . ." (citation and internal quotation marks omitted)). Serban has failed to do so here. III. Conclusion

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For the reasons set forth above, we will deny Serban's petition for review.

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