                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 10a0526n.06

                                                   No. 09-3844
                                                                                                            FILED
                                UNITED STATES COURT OF APPEALS                                         Aug 18, 2010
                                     FOR THE SIXTH CIRCUIT                                      LEONARD GREEN, Clerk



EMANOEL BIRIIAC,                                           )
                                                           )
        Petitioner,                                        )
                                                           ) ON PETITION FOR REVIEW FROM
v.                                                         ) ORDER OF THE BOARD OF
                                                           ) IMMIGRATION APPEALS
ERIC H. HOLDER, JR.,                                       )
                                                           )
        Respondent                                         )
                                                           )
                                                           )


Before: COLE and McKEAGUE, Circuit Judges; and MAYS, District Judge.*

        SAMUEL H. MAYS, JR., District Judge. Petitioner Emanoel Biriiac seeks review of the

Board of Immigration Appeals’ (the “Board”) Order adopting and affirming the Immigration Judge’s

denial of Biriiac’s request for asylum, withholding of removal, and relief under the Convention

Against Torture (the “CAT”). Petitioner challenges the IJ’s findings that he was not credible; did

not suffer past persecution; did not possess a well-founded fear of future persecution; was not

eligible for withholding of removal; and was not eligible for relief under the CAT. For the following

reasons, we DENY Biriiac’s petition.




        *
         The Honorable Samuel H. M ays, Jr., United States District Judge for the W estern District of Tennessee, sitting
by designation.
                                         BACKGROUND

       Emanoel Biriiac is a native and citizen of Romania. He last entered the United States without

inspection in 1994 as a stowaway on a cargo vessel. On August 19, 1994, Biriiac filed an

Application for Asylum with the Immigration and Naturalization Service. He appeared for an

interview on that application on September 6, 1995. The application was then referred to the

Immigration Court on September 11, 1995, and an Order to Show Cause was issued. Biriiac was

later placed in removal proceedings with the issuance of a Notice to Appear (“NTA”) on July 27,

2005, charging Biriiac with being present in the United States without having been admitted.

       At a Master Calendar Hearing on May 17, 2006, Biriiac admitted the allegations contained

in the NTA and conceded removability. On or about February 7, 2007, Biriiac renewed his

Application for Asylum and filed an Application for Withholding of Removal and for relief under

the CAT. An individual hearing on the merits was held on June 4, 2008.

       In support of his application, Biriiac testified that he was born in Todiresti, Romania, and

lived there for eighteen years. He first left Romania in February 1993 and went to Germany where

he applied for, but was denied, asylum. He unsuccessfully attempted to enter Germany on two other

occasions. In November 1993, Biriiac entered France and applied for asylum. In May 1994, before

receiving a decision on that application, he stowed away on a cargo ship and illegally entered the

United States without inspection. Biriiac admitted that it had always been his goal to get to the

United States. He filed an Application for Asylum on August 19, 1994.

       Biriiac testified that he practices the Pentecostal religion and regularly practices his religion

in the United States, where he attends the Romanian Pentecostal Church in Dearborn Heights,

Michigan. He testified that his entire family is active in the Pentecostal Church, and that his parents


                                                  2
and three youngest siblings live in Todiresti and regularly attend Pentecostal services. The

Pentecostal Church is one of 18 recognized churches in Romania, but Biriiac testified that he had

suffered because of his Pentecostal beliefs. He was harassed and insulted in school by other students

and by teachers because of his religion. He also had physical altercations with fellow students after

school, but was usually able to escape, sustained no or minimal injuries, and never required medical

treatment because of those altercations. Pentecostal prayer meetings are held in the private homes

of church members. Biriiac testified that neighbors and priests of the Romanian Orthodox Church

disrupt the mid-week meetings, claiming that the meetings are too loud.

       Biriiac’s grandmother converted from Orthodoxy to Pentecostalism when she married his

grandfather. His grandmother’s family from her first marriage remained Orthodox. When his

grandmother was eighty-three years old, her daughter from her previous marriage took her to an

Orthodox monastery where she was re-baptized in the Orthodox religion. His grandmother’s son

from her previous marriage was an Orthodox priest who lived at or near the monastery. Biriiac’s

grandmother died two weeks after she was re-baptized and was buried during the night in an

Orthodox cemetery without the knowledge or consent of his grandfather.

       Biriiac’s grandfather was the first Presbyter in their area of Romania. A Presbyter approves

the members in the church and confirms that they are “good Pentecostal Christian[s].” Biriiac’s

grandfather served in that position until he married his second wife, when he was no longer eligible

because those who marry more than once cannot serve in positions of authority in the Pentecostal

Church.

       Pastor Iaon Buia of the Romanian Pentecostal Church of God in Dearborn Heights,

Michigan, where Biriiac worships, testified in support of Biriiac’s application. Buia testified that


                                                 3
he founded the Evangelists for Eastern Europe, which preaches the gospel and spreads the

Pentecostal faith in five eastern European countries, including Romania. He testified that the

organization has approximately seventy-five evangelical ministers working in Romania. Buia

testified that he last traveled to Romania in late July and August 2007 for an annual conference with

his organization’s evangelical ministers. According to Buia, it is difficult to find a venue for

Pentecostal revivals in Romania, particularly in rural areas, so he often is forced to hold those events

outside. Buia testified that there is a “mob mentality” in Romania and that members of the Orthodox

religion hit Pentecostal worshipers, slash their car tires, and break their car windows while yelling

and screaming insults. Buia also testified, however, that members of the Pentecostal community

have “no problem” assembling for worship services on Sunday if they “have a building, and [they]

have a name on the building, and [they are] in the city – even in the villages.” Buia testified that in

metropolitan areas it is not “that hard” for Pentecostals.

       After the hearing, the IJ rendered her opinion, denying Biriiac’s applications and ordering

him removed to Romania. The IJ found that Biriiac’s testimony was not credible based on

inconsistencies between his asylum application and his testimony about the conversion of his

grandmother and the persecution of his grandfather. The IJ also found that Biriiac had failed to

demonstrate past persecution or a well-founded fear of future persecution. Specifically, she found

that the alleged incidents involving Biriiac’s grandmother constituted a familial dispute; that the

harassment Biriiac experienced from teachers, fellow students and neighbors did not rise to the level

of persecution; and that his claim of a well-founded fear of future persecution was undercut because:

(1) the Pentecostal Church is recognized in Romania; (2) Biriiac’s parents and three siblings attend

Pentecostal services in their Romanian village; and (3) members of the Pentecostal Church in


                                                   4
metropolitan areas of Romania are not subject to the same harassment as those in rural areas.

Finally, the IJ denied Biriiac’s application for protection under the CAT because he submitted no

evidence of past torture, there was “little or no evidence” of torture by the Romanian government,

and discrimination by members of the Romanian Orthodox Church did not constitute torture.

         On June 29, 2009, the Board adopted and affirmed the IJ’s decision and dismissed Biriiac’s

appeal. The Board found that the IJ’s credibility findings were not clearly erroneous based solely

on discrepancies concerning the harm his grandmother allegedly suffered. The Board also found that

Biriiac’s testimony about his grandmother and his harassment by students, teachers, and Orthodox

neighbors did not show past persecution or a well-founded fear of future persecution. Finally, the

Board found that the evidence was inadequate to show that it was more likely than not that Biriiac

would face torture if he returns to Romania.

                                          STANDARD OF REVIEW

         Where the Board adopts the IJ’s decision and provides additional commentary, the Court

reviews the IJ’s decision, as supplemented by the Board, as the final order. Ceraj v. Mukasey, 511

F.3d 583, 588 (6th Cir. 2007); Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005). This Court

reviews factual findings, including adverse credibility determinations, using the “substantial

evidence” standard. Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007). Because all four

issues raised by Petitioner challenge factual findings, the “substantial evidence” standard applies to

each.1 Under that standard, factual findings “must be upheld if supported by reasonable, substantial,


         1
          Petitioner’s Standard of Review section notes that the “substantial evidence” standard applies to credibility
determinations, his asylum claim, his withholding of removal claims, and his CAT claim. (See Petitioner’s Memo at 13-
14.) However, throughout his memorandum, Petitioner refers to an abuse of discretion standard and to a clear error
standard. (See id. at 15, 18, 20, 25, and 16.) Neither standard applies here. As the Petitioner correctly states in his
standard of review section, the substantial evidence standard applies to all four issues.

                                                            5
and probative evidence on the record considered as a whole.” Mikhailevitch v. INS, 146 F.3d 384,

388 (6th Cir. 1998) (citation and internal quotation marks omitted). This is a “deferential standard

which ‘plainly does not entitle a reviewing court to reverse . . . simply because it is convinced that

it would have decided the case differently.’” Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir. 1992)

(citations omitted; omissions in original). To hold contrary to the IJ’s factual findings, “the

reviewing court must find that the evidence not only supports a contrary conclusion, but indeed

compels it.” Id. at 152 (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (emphasis in

original); See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary”).

                                                      ANALYSIS

I. Credibility Finding

         Biriiac argues that the IJ erroneously2 determined that he lacked credibility and failed to

provide sufficient corroborating evidence. (Petitioner’s Brief on Appeal at 16.) (“Pet.’s Brief”) He

asserts that the IJ based her credibility finding predominantly on slight discrepancies between his

application and his testimony about his grandmother’s death, and that “in general,” he testified

consistently with the information contained in his written application. (Id. at 16.)

         The IJ and the Board determined that the REAL ID Act of 2005, 8 U.S.C. §

1158(b)(1)(B)(iii), credibility standards applied to Biriiac’s asylum application, which he initially

filed with an asylum officer on August 19, 1994. See Kaba v. Mukasey, 546 F.3d 741, 749 n.1 (6th

Cir. 2008) (noting that the REAL ID Act applies only to applications for asylum filed after May 11,



         2
          As discussed above, despite Petitioner’s assertion that the IJ “clearly erred,” (see Pet.’s Brief at 15.), the Court
applies the substantial evidence standard, as opposed to a clearly erroneous standard, to the IJ’s credibility findings.

                                                              6
2005); see also Camara v. Holder, 349 F. App’x 86, 89 (6th Cir. 2009) (where initial application is

filed before May 11, 2005, Real ID Act does not apply). The REAL ID Act allows credibility

determinations to be based on a variety of factors, including demeanor, candor, and inherent

plausibility, see 8 U.S.C. § 1158(b)(1)(B)(iii), whereas the prior standard required that credibility

determinations “be based on issues that go to the heart of the applicant’s claim.” Pergega v.

Gonzales, 417 F.3d 623, 627 (6th Cir. 2005). Biriiac did not challenge the credibility standard

applied by the IJ when Biriiac appealed to the Board. Therefore, this Court lacks jurisdiction to

consider the issue. See 8 U.S.C. § 1252(d)(1); see also Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th

Cir. 2006) (“Only claims properly presented to the BIA and considered on their merits can be

reviewed by this court in an immigration appeal.” (quoting Ramani v. Ashcroft, 378 F.3d 554, 559

(6th Cir. 2004)). Although the IJ asserted that the REAL ID Act credibility standards applied to

Biriiac’s application, her analysis of his credibility was essentially a “heart of the claim” analysis.

She noted that the primary event to which Biriiac testified as evidence of persecution, the alleged

abduction of his grandmother, was the main source of inconsistency. In affirming the IJ’s finding,

the Board specifically concluded that the inconsistencies and omissions in Biriaac’s testimony

concerned a “central aspect of his past persecution claim.”

       The IJ’s finding that Biriiac was not credible was based primarily on Biriiac’s account of the

harm his grandmother allegedly suffered. In his asylum application, Biriiac stated that his

grandmother “was abducted by an Orthodox priest.” At the hearing, he testified that his grandmother

was actually taken by her daughter to a Romanian Orthodox monastery and re-baptized in the

Orthodox Church. After further cross-examination, Biriiac testified that the priest in question was

his grandmother’s son. Biriiac asserts that any inconsistency is explained because the Orthodox


                                                  7
priest was in fact the grandmother’s son. This fact, revealed only after thorough cross-examination,

does not resolve the inconsistency. Although the application stated that his grandmother was

abducted by an Orthodox priest, in his testimony Biriiac explained that what had actually occurred

was that his grandmother had been taken by her daughter to a monastery where or near where her

son was a priest and re-baptized in the Orthodox church. This discrepancy could reasonably be

viewed as an attempt to “enhance his claims of persecution” and found to go to the heart of the

matter at issue in Biriiac’s hearing. Pergega, 417 F.3d at 627. Substantial evidence supports the IJ’s

finding that Biriiac’s explanation of his grandmother’s abduction was “disingenuous and less than

straightforward.” In affirming the adverse credibility finding, the Board focused exclusively on the

inconsistencies and omissions about the “harm allegedly suffered by his grandmother,” and

concluded that this inconsistency alone was sufficient to find Biriiac not credible.

        Biriiac also challenges the IJ’s finding of inconsistencies in his account of the burial of his

grandmother. In her Order, the IJ discusses the burial of Biriiac’s grandmother in an Orthodox

cemetery and notes inconsistencies between the application and his testimony. The IJ’s Order states

that the application said the grandmother was buried “over the objections” of his family, but Biriiac

testified that she was buried without the family’s knowledge. Biriiac asserts that his application

stated, “we were not allowed to bury her in our cemetery,” a statement consistent with his testimony

on this issue. (Pet.’s Brief at 17.) The statements that “the family did not know about the burial until

after the fact” and “we were not allowed to bury her in our cemetery” are not the same. The latter

implies that the family attempted to bury her and was denied that right, or, as the IJ stated, that she

was buried “over the objections” of the family. Although this is a minor inconsistency, substantial




                                                   8
evidence supports the IJ’s finding of a discrepancy between the application and Biriiac’s testimony

on this issue.

        Biriiac finally asserts that the IJ’s determination was improper because he provided

documentary evidence supporting his claims about his grandmother’s death. The IJ stated that she

could give little or no weight to the document Biriiac presented because the knowledge of the

individuals who provided the document is not set forth in Biriiac’s application; the individuals are

describing events that occurred 14 years before the document was created; and the document

provides no evidence about whether those individuals were privy to events or how they obtained the

information. Even so, the document provides no support for Biriiac’s argument that he was

improperly found not credible. The document does not support the statement that his grandmother

was abducted by an Orthodox priest or that there was a forced conversion. Although the IJ properly

assigned little or no weight to this document, its consideration does not support a finding that Biriiac

was credible.

        Although Biriiac does not raise the issue on appeal, the IJ also found that there was reason

to question Biriiac’s credibility based on his failure to testify about the alleged persecution of his

grandfather. Biriiac’s application stated that his grandfather was a target of persecution, but Biriiac

did not testify to any such persecution. Biriiac has failed to address this omission in his appeal to

the Board or to this Court. See 8 U.S.C. § 1252(d)(1). Biriiac’s failure to testify about the alleged

persecution of his grandfather gives substantial support to the adverse credibility finding. In addition

to his allegations about the abduction and forced conversion of his grandmother and his harassment

at school, Biriiac’s past persecution claim was based on the alleged persecution of his grandfather.




                                                   9
Biriiac’s failure to testify about any harm befalling his grandfather reasonably caused the IJ to

question his credibility.

       The IJ provides specific reasons for finding Biriiac not credible. See Pergega, 417 F.3d at

628 (Although the Court must afford “substantial deference” to an IJ’s adverse credibility

determination, the determination “must be supported by specific reasons.”) Her decision is

“supported by reasonable, substantial, and probative evidence on the record considered as a whole.”

Mikhailevitch, 146 F.3d at 388. Therefore, we affirm the IJ’s determination that Biriiac was not

credible.

II. Eligibility for asylum

       An alien who seeks asylum must establish that he is a “refugee.” See 8 C.F.R. § 1208.13(a);

see also Koliada v. INS, 259 F.3d 482, 486-87 (6th Cir. 2001). The Immigration and Nationality Act

defines a refugee as a person unable or unwilling to return to his or her country “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. § 1101(a)(42)(A).

Persecution “requires more than a few isolated incidents of verbal harassment or intimidation,

unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”

Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (citation omitted). Actions that may rise above

mere harassment to the level of persecution include “detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” Gilaj,

408 F.3d at 285 (citation omitted).

       To establish past persecution, an alien must show harm rising to the level of persecution,

based on a statutorily enumerated ground, that is committed by the government or by forces the


                                                 10
government is unable or unwilling to control. 8 C.F.R. 1208.13(b)(1); Khalili v. Holder, 557 F.3d

429, 436 (6th Cir. 2009). Where the applicant establishes past persecution, there is a rebuttable

presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).

        Absent a finding of past persecution, to establish a “well-founded fear” of future persecution,

an alien must show that his fear is genuine and “he must present evidence establishing an ‘objective

situation’ under which his fear can be deemed reasonable.” Perkovic v. INS, 33 F.3d 615, 620-21

(6th Cir. 1994) (citation omitted). An applicant does not have a well-founded fear of persecution

if he could relocate to another part of his country of nationality to avoid persecution if, under all of

the circumstances, it would be reasonable to expect him to do so. 8 C.F.R. § 1208.13(b)(2)(C)(ii).

        In establishing eligibility for asylum, an alien’s own testimony may be sufficient when it is

believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the

basis for the fear. See Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987). The weaker the

applicant’s testimony, the greater the need for corroboration. Pilica, 388 F.3d at 954.

        A. Past Persecution

        Biriiac asserts that the IJ and the Board failed to evaluate the events as a whole, and, although

the events individually might not constitute persecution, taken together they demonstrate that Biriiac

and his family suffered past persecution. (Pet.’s Brief at 20.) He also asserts that the IJ’s statement

that “a family dispute and harassment from other students unaccompanied by physical violence do

not rise to the level of persecution” is a “gross misinterpretation” of the events to which Biriiac

testified. (Id. at 19.) To support these arguments, Biriiac merely recounts the events to which he

testified and that the IJ weighed in making her determination that he presented no evidence of

behavior rising to the level of persecution. (See id. at 19-20.) Specifically, he notes he testified that


                                                   11
he was harassed and threatened at school by students and teachers because of his religion; that he

would run away from other students to avoid involvement in physical altercations; that Pentecostal

prayer meetings were interrupted by neighbors; and about the circumstances surrounding his

grandmother’s “kidnaping,” forced conversion, and burial. (Id. at 19-20.)

       As to the harassment and insults from other students and teachers, Biriiac testified that he

was insulted and harassed by fellow students and teachers and that he got into some fights with other

students at school. He also testified, however, that he suffered no injury or only minimal injuries

from these fights and never needed medical treatment as a result of a fight. This evidence does not

compel a finding of past persecution. See Gilaj, 408 F.3d at 285.

       Biriiac also has offered no evidence compelling the conclusion that the incidents involving

his grandmother constituted persecution as opposed to “interfamilial problems” or a “family

dispute.” Biriiac testified that his grandmother was taken by her daughter to a monastery, where she

was re-baptized in the Orthodox religion, and that she later died and was buried in an Orthodox

cemetery without the knowledge of her family. Biriiac presented no evidence that the Romanian

government, or anyone outside of the family, was involved in his grandmother’s abduction or

conversion or that the government was unable or unwilling to control his grandmother’s daughter.

See Khalili, 557 F.3d at 436.

       As to the interruptions of the prayer meetings, Biriiac testified that, when prayer meetings

are held during the week in homes, neighbors and members of the Orthodox Church disrupt the

meetings because they think that they are too loud. Such evidence does not compel a finding of

persecution.




                                                 12
        In concluding that Biriiac had failed to demonstrate past persecution, the Board specifically

considered his “testimony and evidence regarding his grandmother’s alleged forced conversion to

the Orthodox faith and being harassed by students, teachers, and neighbors of the Orthodox religious

faith.” The IJ also cited in her Order all of the incidents that Biriiac cites to this court. Taking these

incidents individually or as a whole, the record evidence does not compel the conclusion that Biriiac

suffered harm rising to the level of persecution. Substantial evidence supports the finding that

Biriiac did not suffer past persecution.

        B. Well-founded Fear of Future Persecution

        Biriiac also challenges the IJ’s finding that he did not possess a well-founded fear of future

persecution and that, even if he did, he could relocate within Romania to avoid any potential

persecution. (Pet.’s Brief at 22.) First, Biriiac argues that he established past persecution and, thus,

is entitled to the presumption of a well-founded fear of future persecution. (Id.) As discussed above,

substantial evidence supports the finding that Biriiac failed to show past persecution. Therefore, he

is not entitled to the presumption of a well-founded fear of persecution. The burden remains with

Biriiac to show that he has a well-founded fear of persecution on the basis of one of the five

protected categories if he returns to Romania. 8 C.F.R. § 1208.16(b)(2); see also 8 U.S.C. §

1101(a)(42)(A). He also bears the burden of establishing that it would not be unreasonable for him

to relocate. Id. § 1208.13(b)(3)(I). To demonstrate a well-founded fear, the fear of future harm must

not only exist for the applicant subjectively, but must also be objectively reasonable. Allabani v.

Gonzales, 402 F.3d 668, 674 (6th Cir. 2005).

        Biriiac asserts that he established a well-founded fear of future persecution by testifying to

the difficulties his family members continue to face in practicing their religion in Romania; through


                                                   13
the testimony of Buia about the difficulties Pentecostals endured throughout Romania; and based on

documentary evidence, specifically the Department of State’s International Religious Freedom

Reports on Romania and other articles discussing the mistreatment of minority groups, including

Pentecostals. (Pet.’s Brief at 24.) Biriiac’s contention that these factors “clearly establish” a well-

founded fear of future persecution is not supported by the testimony of Biriiac or Buia. Biriiac

testified that his family attends religious services in their village on a regular basis and has never

been physically harmed. His family members merely argue with Orthodox neighbors. Buia testified

that Pentecostals in cities and villages have no problem assembling for Sunday Services if they have

a building. Buia also stated that the situation for Pentecostals was better in the metropolitan areas

of Romania.

        The documentary evidence to which Biriiac refers does not compel a finding of a well-

founded fear of future persecution. He cites more than 100 pages of the record, but does not

specifically refer to any evidence in those 100 pages. (Id. at 24.) Within the pages cited are articles

discussing country conditions and the Pentecostal Church’s position as one of the eighteen

recognized religions in Romania. There are assertions that Romanian Orthodox Church authorities

often are intolerant of other religious groups and criticize those groups’ “aggressive proselytizing,”

leading to “conflicts in some cases.” Evidence of discriminatory treatment of minority religions does

not compel the conclusion that Biriiac has a well-founded fear of future persecution on account of

his religion. The IJ considered Biriiac’s documentary evidence of harassment by the Orthodox

majority and stated “[i]t is well-settled that, while discrimination is an unfortunate byproduct in

many societies, it does not establish persecution in and of itself unless it rises to that level.” Biriiac

cites nothing in the documentary evidence that compels a finding of future persecution.


                                                   14
       Biriiac did not meet his burden of showing past persecution or a well-founded fear of future

persecution. Substantial evidence supports the IJ’s conclusion that Biriiac failed to establish

eligibility for asylum.

III. Withholding of Removal

       Biriiac argues that he has met his burden of proof for withholding of removal because he has

established his eligibility for asylum based on past persecution and a well-founded fear of future

persecution. (Id. at 26.) For the reasons discussed above, we reject that argument and conclude that

substantial evidence supported the IJ’s finding that Biriiac did not demonstrate that he suffered past

persecution or possesses a well-founded fear of future persecution.

       To establish entitlement to withholding of removal, the applicant has the burden of proving

a “clear probability” that upon removal he would face future persecution based on protected statutory

grounds. Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003). The “clear probability”

standard is more difficult to satisfy than the “well-founded fear of persecution” standard in asylum

cases. Kaba, 546 F.3d at 751. Thus, an applicant who fails to establish a well-founded fear of

persecution for asylum purposes necessarily cannot meet the more onerous burden for withholding

of removal. Id. Because the evidence in this case does not compel a finding of past persecution or

a well-founded fear of future persecution, it necessarily forecloses eligibility for withholding of

removal.

IV. Convention Against Torture

       Biriiac asserts he has established that it is more likely than not that he would be tortured if

removed to Romania. (Pet.’s Brief at 27.) In support, he argues he has demonstrated that the

government does not interfere with, attempt to prevent, or punish the actions of Orthodox


                                                 15
community members, who at times gather as mobs to attack Pentecostals practicing their religion,

and he cites the Department of State’s reports in the record as confirmation that the Romanian

government is unwilling or unable to prevent members of the Orthodox community from harming

members of the Pentecostal faith. (Id. at 27.)

       To qualify for protection under the CAT, an applicant has the burden of showing it is “more

likely than not that he or she would be tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(1) & (2). In assessing whether that standard has been met, “all evidence

relevant to the possibility of torture shall be considered,” including evidence of past torture of the

applicant, “[e]vidence that the applicant could relocate to a part of the country of removal where he

or she is not likely to be tortured,” and “[e]vidence of gross, flagrant or mass violations of human

rights within the country of removal.” Id. § 16(c)(3).

       Biriiac claims it is more likely than not that he will be attacked by mobs of Orthodox

community members in Romania. (Pet.’s Brief at 27.) However, he fails to demonstrate that any

such attack is more likely than not, or that it would constitute torture. See 8 C.F.R. § 1208.18(a)(2)

(“Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of

cruel, inhuman or degrading punishment that do not amount to torture.”); see also Bassam v. Holder,

No. 08-3924, 2009 WL 2170106, at *6 (6th Cir. July 21, 2009) (torture “involves more severe

treatment than persecution”). Biriiac testified that he had altercations with other classmates as a

student. That is the only physical violence or assault he or his family experienced. Buia testified

that there is a mob mentality in some rural areas of Romania, but stated that it does not affect

Pentecostals who have a building and is not a problem in metropolitan areas. Biriiac has not offered

evidence of any behavior rising to the level of torture.


                                                 16
       Biriiac again cites more than 100 pages of the record discussing country conditions, the same

section of the record cited to support his asylum claim. (Pet.’s Brief at 27.) As discussed above and

by the IJ, this information includes evidence of discrimination against Pentecostals by members of

the Romanian Orthodox Church, but does not describe any behavior rising to the level of torture.

Biriiac fails to demonstrate that evidence in the record would compel any reasonable adjudicator to

conclude that it is more likely than not he would be tortured if returned to Romania. Substantial

evidence supports the IJ’s and the Board’s conclusion that Biriiac failed to meet his burden under

the CAT.

                                         CONCLUSION

       For the foregoing reasons, Biriiac’s petition for review is DENIED.




                                                 17
