           Case: 11-15703   Date Filed: 10/09/2012   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15703
                         Non-Argument Calendar
                       ________________________

                        Agency No. A087-380-029




ION ZAPOROJAN,

                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       ________________________

                            (October 9, 2012)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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       Petitioner Ion Zaporojan seeks review of the Board of Immigration

Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings, filed

pursuant to 8 C.F.R. § 1003.2(c). After review, we deny the petition for review.1

                              I. BACKGROUND FACTS

A.     Asylum Proceedings

       Petitioner Zaporojan is a native of Moldova and a citizen of Moldova and

Romania. In 2006, Zaporojan entered the United States and then overstayed his

visitor’s visa. In 2009, Zaporojan filed an application for asylum, withholding of

removal and relief under the Convention Against Torture (“CAT”). Shortly

thereafter, Zaporojan was placed in removal proceedings, where he conceded his

removability.

       Zaporojan’s asylum application alleged past persecution and a well-founded

fear of future persecution in Moldova based on his political opinion and his

membership in a particular social group, specifically his father’s family.

Zaporojan’s father was a businessman and local politician in Soroca, Moldova. In

2005, Zaporojan’s father was killed just before he was to testify against a local



       1
         We review the denial of a motion to reopen for abuse of discretion. Jiang v. U.S. Att’y
Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to determining whether there
has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).

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mafia member about extortion and public corruption. Thereafter, a journalist

delivered a cassette tape to Zaporojan’s mother containing taped conversations

between Zaporojan’s father and Moldovan officials. Zaporojan claimed that the

Moldovan mafia and police had targeted, and would continue to target, Zaporojan,

his mother and his brother in an effort to obtain the incriminating cassette tape.

      After a hearing, the Immigration Judge (“IJ”) denied all requested relief.

The IJ concluded, among other things, that Zaporojan was statutorily ineligible for

asylum and withholding of removal because: (1) Zaporojan did not show a nexus

between the harm he had suffered in Moldova and a statutorily protected ground;

and (2) Zaporojan, as a Romanian citizen, could live in another country within the

European Union (“E.U.”) and avoid harm by the Moldovan mafia.

      In a May 19, 2011 decision, the BIA agreed with the IJ and dismissed

Zaporojan’s appeal. The BIA concluded that Zaporojan had not shown that his

attackers were motivated by his familial relationship to his father or his political

opinion. Rather, Zaporojan’s attackers were motivated by a desire to obtain the

cassette tape containing incriminating evidence, which was not a statutorily

protected ground. As to future persecution, the BIA agreed that Zaporojan had not

shown a likelihood of harm given that: (1) the Moldovan mafia had little influence

outside Moldova and Romania; (2) Zaporojan could live anywhere in the E.U.;

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and (3) his mother lived unharmed in Italy. This Court denied Zaporojan’s

petition for review. Zaporojan v. U.S. Att’y Gen., 450 F. App’x 904 (11th Cir.

2012).

B.     Motion to Reopen

       On August 10, 2011, Zaporojan filed a timely motion to reopen with the

BIA.2 Zaporojan’s motion to reopen claimed that he had new evidence that the

Moldovan government continued to seek him internationally to arrest him on

fabricated charges. Zaporojan attached: (1) a February 7, 2011 document issued

by the Soroca Police Department stating that Zaporojan “was announced in the

international search, as well as participated in founding and organizing the

manifestation of popular movement against the leadership state” and “[a]gainst

him extent of arrest was chosen”; (2) a May 24, 2011 statement from Alexandru

Sirbu, Zaporojan’s tenant at the family home in Soroca, stating that, in January

2011, police came to the house and asked Sirbu where Zaporojan, his mother and

his brother were and told Sirbu that if he wanted to have a normal life, he must let

them know if he found out something about the Zaporojan family, and, on



       2
         Zaporojan also moved for reconsideration of the BIA’s final order of removal. In his
petition for review, Zaporojan does not challenge the BIA’s denial of that motion. Thus, we do
not address it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(stating that when petitioner fails to offer argument on an issue, that issue is abandoned).

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February 9, Sirbu found a letter from the police department in the mailbox, which

he gave to Mihai Prepelita, Zaporojan’s uncle; and (3) a May 26, 2011 statement

by Mihai Prepelita stating that Prepelita received the police department letter from

Sirbu, opened it and found two documents stating that Zaporojan and his brother

“are in International search,” and that Prepelita then called Zaporojan’s mother to

warn them and sent the documents to the brothers in the United States.

      The BIA denied Zaporojan’s motion to reopen. The BIA concluded that

Zaporojan’s “limited evidence proffered with the request for reopening has not

been shown to meet the requirements for reopening the respondent’s removal

proceedings.” The BIA elaborated that the evidence did not “sufficiently reflect

that there exists a reasonable possibility that the respondent would be targeted for

harm rising to the level of persecution on account of his membership in a

particular social group or other protected ground.” The BIA also determined that

the evidence did not “make a prima facie showing that the government of Moldova

would torture or acquiesce in the torture of the respondent.”

                                 II. DISCUSSION

      An alien’s motion to reopen “shall state the new facts that will be proven at

a hearing to be held if the motion is granted, and shall be supported by affidavits

or other evidentiary material.” Immigration and Nationality Act (“INA”)

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§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). The BIA may grant the motion if the

alien presents new evidence that is material and could not have been discovered or

presented at the removal hearing. Id. § 240(c)(7)(C)(ii), 8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(1). An alien moving to reopen

bears “a heavy burden” with respect to materiality in that he must show “that, if

the proceedings were opened, the new evidence would likely change the result in

the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-67 (11th Cir. 2009); Ali

v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). Thus, the BIA may deny a

motion to reopen if the new evidence does not establish prima facie eligibility for

relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).

       To establish prima facie asylum eligibility,3 an applicant must show past

persecution or a fear of future persecution on account of a protected ground, which

includes political opinion or membership in a particular social group.4 INA

§ 101(a)(42), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1230-31 (11th Cir. 2005). Under the REAL ID Act of 2005, an asylum


       3
         Similarly, to be eligible for withholding of removal, an alien must show it is more likely
than not that he will be persecuted on account of a protected ground. INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). Because this standard is higher than the standard for asylum, an alien who fails to
show asylum eligibility also cannot show eligibility for withholding of removal. Sepulveda, 401
F.3d at 1232-33.
       4
         The INA does not define “particular social group.” However, because the parties do not
dispute that a family is a “particular social group,” we do not address this issue.

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applicant must show that a protected ground “was or will be at least one central

reason” for the persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).5

       Evidence of acts of private violence or criminal activity, however, do not

demonstrate persecution on account of a protected ground. Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Additionally, where an asylum

applicant can avoid the feared persecution by relocating, and it would be

reasonable to expect the applicant to do so, he cannot establish a well-founded fear

of persecution. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir.

2009); 8 C.F.R. §§ 1208.13(b)(2)(ii), 208.16(b)(3)(i).

       Here, the BIA did not abuse its discretion in denying Zaporojan’s motion to

reopen. Zaporojan’s original asylum application was denied on the ground that he

was statutorily ineligible for relief because he had not shown the required nexus to

a protected ground. Specifically, Zaporojan’s evidence at the initial removal

hearing did not show that the Moldovan police and mafia had targeted him

because of his imputed political opinion or because he was his father’s son.

Rather, it was undisputed that the Moldovan police and mafia were interested in

Zaporojan because they believed he had an audio cassette containing incriminating



       5
        Because Zaporojan’s 2009 asylum application was filed after May 11, 2005, the REAL
ID Act provisions apply to his case. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 302, 305-06.

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evidence, which they wanted to recover. Zaporojan also had not shown: (1) that

he risked harm outside of his hometown of Soroca, where all of the threats and

attacks occurred; or (2) that he, as a Romanian citizen, could not avoid the harm

by living elsewhere within the E.U.

      Zaporojan’s newly proffered evidence would be unlikely to change that

result. Zaporojan contends that his new evidence shows that the Soroca police

department fabricated a criminal charge against him and seeks him as an

international fugitive. The problem for Zaporojan is that his new evidence still

does not show a motive that implicates a protected ground. Indeed, the new

evidence provides no explanation for why the Soroca police department would

fabricate a charge and continue to hunt for Zaporojan. The only motive Zaporojan

has ever given is the cassette tape of incriminating evidence, which the BIA

already concluded was not “on account of” a protected ground.

      Zaporojan’s new evidence also does not establish a well-founded fear of

persecution. As a Romanian citizen, Zaporojan still has the ability to live and

work anywhere in the E.U. Zaporojan’s appeal brief claims the Moldovan

government “has taken steps to hunt him internationally on Interpol,” but his new

evidence does not support this statement. First, the document does not mention

Interpol, much less state that the Moldovan government has taken whatever steps

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are necessary for Zaporojan to be “hunted” through Interpol. Second, it is not

clear from the translation of the Soroca police department’s document exactly

what steps, if any, the Soroca police department took against Zaporojan. A

generous reading suggests that Zaporojan was charged with an offense, a warrant

was issued for his arrest and an “international search” then “was announced.”

Zaporojan submitted no other evidence as to the meaning of this document and

whether it could be used to harm him outside of Soroca or elsewhere in the E.U.

      In addition, Zaporojan’s new evidence does not make a prima facie showing

that Zaporojan is eligible for relief under CAT. To establish eligibility for CAT

relief, an applicant must demonstrate that it is more likely than not that he would

be tortured by, or with the acquiescence of, the government, if he is removed to

the designated country of removal. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1).

Zaporojan’s evidence does not show that the Moldovan government is likely to

torture him or acquiesce in his torture.

      Finally, we find no merit to Zaporojan’s argument that the BIA failed to

adequately consider his new evidence. The BIA is not required to address each

piece of evidence individually, so long as it considered the issues raised in the

motion and announced its decision in a way that demonstrates it “heard and

thought and not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948

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(11th Cir. 2010) (quotation marks omitted); Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1374 (11th Cir. 2006).

      Here, the BIA referred to Zaporojan’s new evidence, which it (correctly)

described as “limited,” and concluded that it did not show a “reasonable

possibility” that Zaporojan “would be targeted” on account of a protected ground

or “make a prima facie showing” for CAT relief. Thus, Zaporojan’s evidence “did

not meet the requirements” for reopening, i.e. would not change the outcome of

his removal proceedings. The BIA’s explanation, though brief, was sufficient to

allow for appellate review of its decision.

      For all these reasons, we cannot say the BIA abused its discretion in

denying Zaporojan’s motion to reopen.

      PETITION DENIED.




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