Third Circuit disposition — 091031np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1031
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MENDERIM BIBOSKI,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-309-825)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 12, 2010
Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges
Opinion filed: January 14, 2010
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OPINION
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PER CURIAM.
Petitioner Menderim Biboski is an ethnic Albanian and a citizen of
Macedonia. He petitions for review of the Board of Immigration Appeals’s (“BIA”)
decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for
asylum, withholding of removal, and protection under the United Nations Convention

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Against Torture (“CAT”). For the following reasons, we will deny Biboski’s petition for
review.
I.
Biboski entered the United States and filed an affirmative application for
asylum and related relief in April 2001. He claimed that he had been persecuted in
Macedonia due to his Albanian ethnicity and due to his and his father’s activities with the
Albanian Democratic Party (“PPD”). On June 14, 2001, Biboski was charged as
removable under 8 U.S.C. § 1182(a)(6)(A)(I).
Biboski’s claim of past persecution was based in large part on two incidents
that occurred immediately before he came to the United States. At his removal
proceedings, he asserted that, on March 30, 2001, he participated in a large demonstration
organized by the PPD to protest the alleged killing of three people who were being held in
police custody. Biboski testified that 2,000–3,000 people participated in the
demonstration and that the police attempted to disperse the protestors by shooting guns in
their direction. He also stated that the police were beating people, including him, who
were located at the front of the protesters’ line. Biboski was able to escape, and testified
that he did not seek medical attention for his injuries.
Then, on April 2, 2001, five police officers came to Biboski’s house and
held a gun to his head while they beat his parents. Biboski testified that the police
officers sought to arrest him and his brother primarily because they had not responded to

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the conscription notices that they had received. He also contended that they wanted to
arrest him due to his participation in the March 30th protest. Biboski managed to escape
without injury and entered the nearby forest and walked to the next village. The next day,
he entered Albania and from there traveled to the United States.
Biboski submitted an affidavit from his father in support of his claims. The
affidavit does not, however, corroborate Biboski’s assertion that the police sought to
arrest him because of his or his father’s activities with the PPD, as it states that the police
“came physically looking for our two sons . . . to take them to complete their military
duties. They would enter our homes looking for weapons and would physically beat us
repeatedly.” According to Biboski, the police routinely visit his parents looking for him,
and he believes that if he returns to Macedonia, he will be arrested or killed because of
his participation in the 2001 protest and his failure to serve in the military.
The IJ denied all Biboski’s claims, determining that the “alleged acts
committed against [him] do not fit within the meaning of persecution.” The IJ found that
Biboski suffered no critical injuries from the March 30, 2001 beating and noted that he
did not claim that he was injured during the April 2nd incident. As such, the acts were
not sufficiently “severe to amount to persecution.” The IJ also concluded that, even if the
incidents were sufficiently severe and frequent, Biboski had not established that his
alleged persecutors were motivated by his ethnicity or political opinion, imputed or
otherwise. Thus, he could not qualify as a refugee. See 8 U.S.C. § 1231(b)(3)(A);

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Gomez-Zuluaga v. Att’y Gen., 526 F.3d 330, 344-45 (3d Cir. 2008) (explaining that one
may qualify for asylum based on an imputed political opinion). As to Biboski’s fear of
future persecution, the IJ explained that he had not submitted objective evidence
corroborating his PPD membership, that the United States Department of State country
reports did not contain conclusive findings that PPD members were systematically
targeted, and that possible arrest for failing to enlist in the army “does not give rise to a
well-founded fear of future persecution.”
The BIA affirmed the IJ’s decision, agreeing that “the two described
incidents do not amount to persecution based on a protected ground.” Because Biboski
did not establish that he was subjected to past persecution, the BIA did not apply the
presumption that Biboski would more likely than not be persecuted if he returned to
Macedonia and found that he had not “set forth any specific facts” supporting such a
claim. The BIA then determined that because Biboski did not establish his eligibility for
asylum, he necessarily failed to satisfy the higher standard required for withholding of
removal, and had not presented any credible evidence establishing that someone in his
situation would be tortured in Macedonia.
Through counsel, Biboski now petitions for review of the BIA’s final order
of removal.

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II
We have jurisdiction to review the BIA’s final order of removal under 8
U.S.C. § 1252(a). The BIA’s decision is reviewed under the substantial evidence
standard and will be upheld “unless the evidence not only supports a contrary conclusion,
but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation
omitted). Here, the BIA’s conclusions concerning Biboski’s failure to meet his burden of
proof regarding past persecution or a well-founded fear of future persecution are
supported by substantial evidence. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.
2003).
The BIA determined that neither of the two-described incidents, considered
alone or cumulatively, amounted to persecution. It explained that, while Biboski may
have been beaten by police officers during the March 2001 demonstration, he admitted
that they had not specifically targeted him or arrested him, and that he did not receive
substantial injuries requiring medical attention. The BIA thus affirmed the IJ’s finding
that the harm that Biboski suffered was not so severe as to rise to the level of persecution.
See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005); cf. Voci v. Gonzales, 409 F.3d
607, 615 (3d Cir. 2005) (finding that multiple severe beatings and intimidation tactics
rose to the level of persecution).
As to the April 2001 incident at Biboski’s home, the BIA agreed that
Biboski had not established that the alleged persecutors were motivated by one of the

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statutorily-protected grounds: race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); INS v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992). Although Biboski testified that the police officers’ actions
were, at least in part, based on his and his father’s activities with the PPD, his father’s
affidavit does not support this contention. See Elias-Zacarias, 502 U.S. at 483-84
(requiring at least some proof that the persecutor was motivated in part by the petitioner’s
protected status). Further, as the BIA determined, even if the police sought to arrest
Biboski for failing to comply with his military duties, sovereign nations have the right to
enforce their conscription laws, and “penalties for evasion are not considered
persecution.” Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir. 2003) (internal
citation and quotation omitted). Exceptions arise only in rare cases where, on account of
one of the five statutorily- protected grounds, a petitioner faces disproportionately severe
punishment. Kibinda v. Att’y Gen., 477 F.3d 113, 121 (3d Cir. 2007). Here, while the
Macedonian police officers’ tactics may have been deplorable, Biboski has not shown
that his treatment was particularly harsh due to his political opinion—imputed or
otherwise—or his Albanian ethnicity. The BIA’s decision that Biboski did not establish
past persecution is thus supported by substantial evidence.
As to Biboski’s fear of future harm, the BIA properly agreed with the IJ that
Biboski did not establish a likelihood of future persecution based on his political opinion
or ethnicity—or that a pattern or practice of persecution exists against ethnic-Albanians or

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PPD members. See Lie, 396 F.3d at 536. And, although Biboski may be conscripted into
the military or prosecuted for failing to complete his military duties, fear of prosecution
for violating “fairly administered laws” generally does not qualify one as a refugee unless
the punishment is severe and is motivated by one of the statutorily-enumerated factors.
See Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Biboski has not demonstrated
that such punishment is likely if he returns to Macedonia.
In sum, the evidence does not compel us to overturn the BIA’s decision to
deny the petitioner’s claims, and for the foregoing reasons, we deny Biboski’s petition for
review.

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