                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 06 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



SERGIU GORCEAC,                                  No. 07-70765

              Petitioner,                        Agency No. A095-198-258

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 3, 2010
                            San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and ENGLAND, District
Judge.**

       Sergiu Gorceac petitions for review of a decision by the Board of

Immigration Appeals ('BIA') affirming denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
('CAT'). We have jurisdiction pursuant to 8 U.S.C. y 1252. As the facts are

µnown to the parties, we repeat them only as necessary to explain our decision.

      To qualify for asylum, a petitioner must establish that he is unable or

unwilling to return to his country of origin '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. y 1101(a)(42)(A).

'Establishing past persecution triggers a rebuttable presumption of a well-founded

future persecution.' Ruano v. Ashcroft, 301 F.3d 1155, 1159 (9th Cir. 2002)

(internal quotation marµs and citation omitted). The presumption may be rebutted

where a preponderance of the evidence demonstrates that '[t]here has been a

fundamental change in circumstances such that the applicant no longer has a well-

founded fear of persecution' on a protected ground. 8 CFR y 208.13

(b)(1)(i)(A)-(ii). '[T]he BIA must provide an individualized analysis of how

changed conditions will affect the specific petitioner's situation,' Lopez v.

Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004) (internal quotation marµs and citation

omitted), which 'demonstrates that changed conditions . . . have eliminated the

basis for [the applicant's] individual fear of future persecution,' Navas v. INS, 217

F.3d 646, 657 n.13 (9th Cir. 2000) (internal quotation marµs and citations omitted).




                                           2
      Here, the BIA determined that Gorceac had suffered past persecution but

rejected the presumption of a legitimate fear of future persecution. It concluded

that the presumption had been rebutted by evidence that similarly situated

individuals, who had also worµed for the Moldovan foreign ministry and were not

politically aligned with the Communist party, had remained in Moldova without

suffering persecution and had been able to obtain new employment. To the

contrary, we conclude that these other individuals were not similarly situated to

Gorceac. They had not participated in political demonstrations and had not

experienced persecution in the past on the basis of political opinion, as did

Gorceac. Their circumstances simply did not illuminate how conditions may have

changed for Gorceac. Because the BIA 'reached a conclusion regarding changed

country conditions . . . in a faulty way,' we grant Gorceac's petition with respect to

his asylum claim and remand to the BIA to determine, under a proper changed

conditions analysis, whether the presumption of a well-founded fear of persecution

is rebutted by a preponderance of the evidence. Lopez, 366 F.3d at 806-07. In its

analysis, the BIA may also consider any presentation of updated evidence of

Moldovan country conditions. See id.; see also Soto-Olarte v. Holder, 555 F.3d

1089, 1095-96 (9th Cir. 2009) (remanding on open record).




                                          3
      Because the BIA did not independently analyze Gorceac's entitlement to

withholding of removal, in light of its conclusion that he had not met the lower

burden of establishing eligibility for asylum, A.R. 3, we also grant Gorceac's

petition with respect to this claim and remand to the BIA to determine whether,

under a proper changed circumstances analysis, Gorceac is entitled to withholding

of removal. See INS v. Ventura, 537 U.S. 12, 16 (2002) ('Generally speaµing, a

court of appeals should remand a case to an agency for decision of a matter that

statutes place primarily in agency hands.').

      Substantial evidence supports the BIA's determination that Gorceac is not

entitled to a grant of asylum on humanitarian grounds or CAT protection. 'Even

absent a liµelihood of future persecution, asylum is warranted for humanitarian

reasons [where an asylum applicant] demonstrate[s] that in the past he suffered

atrocious forms of persecution on account of political opinion.' Vongsaµdy v. INS,

171 F.3d 1203, 1206 (9th Cir. 1999) (internal quotation marµs and citation

omitted). There was no abuse of discretion by the BIA in denying Gorceac asylum

on humanitarian grounds. Evidence indicating that Gorceac experienced physical

abuse, not requiring medical treatment, during two detentions does not compel a

conclusion that he suffered atrocious abuse. See INS v. Elias-Zazrias, 502 U.S.

478, 481 n.1 (1992) ('To reverse the BIA finding we must find that the evidence


                                          4
not only supports that conclusion, but compels it.'). Additionally, Gorceac has not

demonstrated 'any reasonable liµelihood' that he will be tortured if forced to

return to Moldova and therefore is not entitled to CAT protection. Kohli v.

Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007). We deny Gorceac's petition with

respect to his claims of entitlement to a humanitarian grant of asylum and CAT

relief.

          The parties shall bear their own costs on appeal.

          PETITION GRANTED IN PART, DENIED IN PART, AND

REMANDED.




                                             5
                                                                           FILED
Gorceac v. Holder, No. 07-70765                                               JAN 06 2011

                                                                       MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, dissenting:                                     U.S . CO U RT OF AP PE A LS




      I dissent from the majority's holding that the Board of Immigration Appeals

('BIA') failed to provide a sufficiently individualized analysis of how changed

country conditions will affect Mr. Gorceac and that therefore remand is required on

his asylum and withholding of removal claims. I would hold that the State

Department's Advisory Opinion--which discussed how two other individuals who

had previously been employed by the Moldavan Ministry of Foreign Affairs were

not subject to persecution in Moldavia--was sufficiently individualized.

Furthermore, I would hold that the Advisory Opinion, when combined with the

State Department country report, provided sufficient evidence, under our

deferential standard of review, to support the BIA's determination that the

government had rebutted the presumption of a well-founded fear of future

persecution. See Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004 ) (remanding

where the BIA did not maµe an individualized determination as to the effect of

country conditions on the petitioner). Because I would affirm the BIA's asylum

decision, I would also affirm its withholding of removal decision and I would

otherwise deny his petition.
