Constantin Afanasie Rotaru v. U.S. Attorney General
704 F. App'x 875
| 11th Cir. | 2017Background
- Constantin Afanasie Rotaru (and wife Alina) appealed the BIA’s affirmance of the IJ’s denial of asylum, withholding of removal, and CAT relief; only asylum arguments were pursued on appeal.
- The BIA agreed with the IJ’s adverse credibility finding but the panel assumed, arguendo, credibility was not supported by substantial evidence.
- Rotaru reported a single physical assault in Moldova: struck from behind between the neck and shoulder, then kicked, treated by a family doctor with medication and bed rest.
- The IJ and BIA found the incident did not rise to the level of past persecution and thus Rotaru could not claim the rebuttable presumption of a well-founded fear of future persecution.
- Rotaru did not meaningfully challenge the BIA’s alternative ruling that he lacked a well-founded fear of future persecution, so that issue was deemed abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA gave specific, cogent reasons for adverse credibility finding | Rotaru: BIA erred by failing to provide specific, cogent reasons for adverse credibility determination | Government: BIA’s credibility determination was supported by IJ’s findings and REAL ID Act factors | Court assumed, arguendo, credibility not supported but declined to reverse on that ground because asylum denied on alternative basis (lack of past persecution) |
| Whether single assault constituted past persecution | Rotaru: the assault and beating amounted to past persecution supporting asylum | Government: the incident was an assault/harassment but did not meet the extreme threshold for persecution | Court held record did not compel finding of past persecution; single incident insufficient |
| Whether failure to show past persecution entitles applicant to presumption of future fear | Rotaru: argued for well-founded fear based on political opinion/past harm | Government: without past persecution, no rebuttable presumption; applicant must show independent objective fear | Held that without past persecution Rotaru was not entitled to presumption and he abandoned independent challenge to future fear finding |
| Jurisdictional/Procedural issues: exhaustion and abandonment | Rotaru: (implicit) challenges to all relief | Government: issues not raised before BIA or not argued on appeal are abandoned | Court enforced exhaustion rules and deemed withholding/CAT and some asylum arguments abandoned; limited review accordingly |
Key Cases Cited
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (standard for reviewing BIA decisions and adopted IJ reasoning)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (substantial-evidence test and affirming agency findings)
- Delgado v. U.S. Att’y Gen., 487 F.3d 855 (11th Cir. 2007) (consider cumulative effect when assessing past persecution)
- Djonda v. U.S. Att’y Gen., 514 F.3d 1168 (11th Cir. 2008) (minor beating and threats may not compel finding of persecution)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005) (persecution requires more than isolated harassment)
- Cole v. U.S. Att’y Gen., 712 F.3d 517 (11th Cir. 2013) (issues not clearly raised on appeal are abandoned)