Sterbyci v. Gonzales

220 F. App'x 42
Court of Appeals for the Second Circuit·Decided March 22, 2007·No. Nos. 06-2145-ag (L), 06-4167-ag (con)·Published

Opinion

SUMMARY ORDER

Petitioner Eduart Sterbyci, a native and citizen of Albania, seeks review of an April 6, 2006 order of the BIA affirming the December 17, 2004 decision of Immigration Judge (“IJ”) Roxanne C. Hladylowycz denying petitioner’s application for asylum, withholding of removal, and relief under [45]*45the Convention Against Torture (“CAT”). In Re Eduart Sterbyci, No. A97 831 730 (B.I.A. Apr. 6, 2006), aff'g No. A97 831 730 (Immig. Ct. N.Y. City Dec. 17, 2004). Sterbyci also seeks review of the August 14, 2006 decision of the BIA denying his motion to reopen. In Re Eduart Sterbyci No. A97 831 730 (B.I.A. Aug. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

A. Asylum, Withholding of Removal, and CAT Relief

Where, as here, the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, this Court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004).

Because the IJ’s past persecution finding involves the application of law to a particular set of facts, i.e., the definition of persecution, this Court reviews that finding de novo. See, e.g., Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir.2006). The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 216 (BIA 1985). This Court has clarified that a valid past persecution claim can be based on harm other than threats to life or freedom, including non-life-threatening violence and physical abuse. Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir.2006) (citing Tian-Yong Chen, 359 F.3d at 128). The harm must be sufficiently severe, rising above “mere harassment.” See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006). In addition, the agency must consider the context in which the harm occurs in order to determine whether it constituted persecution, as opposed to mere harassment. Beskovic, 467 F.3d at 226.

In this case, Sterbyci testified that he was struck with the butt of a gun when he attempted to defend his sister-in-law, and he was required to receive several stitches and was hospitalized for two days. Because this was the only incident of mistreatment he alleged, the IJ did not err in finding that this treatment was not so severe to constitute past persecution. See Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005). Although Sterbyci mentioned that he was beaten and tortured on one other occasion, he mentioned this incident only in passing and did not provide any information regarding the circumstances in which this occurred or the injuries he suffered. He does not rely on this alleged persecution in his brief to this Court, nor did he mention any other incidents in which he was physically assaulted or harmed in his asylum application. Lastly, the persecution suffered by his brother could not be considered persecution against Sterbyci. See Melgar de Torres v. Reno, 191 F.3d 307, 313 n. 2 (2d Cir.1999); cf. Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006) (remanding for a determination of whether a child who had seen the “bullet-ridden body” of his cousin and was aware of massacres occurring in his village suffered past persecution).

Even if the treatment Sterbyci alleged did constitute persecution, the IJ [46]*46also correctly determined that this incident did not occur on account of an enumerated ground. It was clear from Sterbyci’s testimony that the officers went to his family’s home in order to confront his brother;it did not appear that the police had any independent interest in Sterbyci. The IJ reasonably noted that it was only when Sterbyci attempted to interfere that he was injured. Accordingly, Sterbyci failed to demonstrate that “the persecutor’s motive to persecute [arose] from [his]political belief.” See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Thus, the agency did not err in concluding that Sterbyci failed to establish past persecution on account of a protected ground.

We do not agree with Sterbyci’s assertion that the IJ erred in requiring additional corroboration and erred in failing to provide him with an opportunity to remedy the lack of corroboration. However, even if we accepted Sterbyci’s argument, we would not need to remand because doing so would be futile. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006). As explained above, The IJ in this case reasonably determined that the facts as asserted failed to establish past persecution or a nexus to an enumerated ground. Accordingly, even if Sterbyci had provided additional corroboration of the events that occurred in Albania, that corroboration would not aid him in being able to meet his burden of establishing eligibility for asylum.

Nor do we agree with Sterbyci’s argument that the IJ applied the wrong standard in evaluating his well-founded fear of persecution claim.

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