          United States Court of Appeals
                      For the First Circuit


No. 11-2171

                 OLENA REBENKO and OLEG REBENKO,

                           Petitioners,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Lynch, Chief Judge,
                Boudin and Lipez, Circuit Judges.



     Daniel D. Estrin and Sirota & Associates, P.C. on brief for
petitioners.
     Colin J. Tucker, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Tony West,
Assistant Attorney General, Civil Division, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.



                        September 4, 2012
           LYNCH, Chief Judge.         On January 4, 2010, an Immigration

Judge (IJ) denied petitioner Olena Rebenko's1              application for

asylum,   withholding       of   removal,    and   withholding   under     the

Convention Against Torture (CAT). The Board of Immigration Appeals

(BIA) affirmed this denial on September 8, 2011.            Rebenko timely

petitions for review of the BIA's decision.           We deny the petition.

                                       I.

           Rebenko is a native and citizen of Ukraine who entered

the United States on July 1, 2001, on a J-1 non-immigrant visa and

then, on September 14, 2004, obtained an F-1 student visa that

authorized her to remain in the United States until July 31, 2006.

On October 12, 2004, Rebenko filed an affirmative application for

asylum and withholding of removal with the Department of Homeland

Security (DHS).2    Following an interview, an asylum officer issued

a notice of intent to deny Rebenko's application on September 11,

2007.     DHS   initiated    removal    proceedings    against   Rebenko    on




     1
       Both Olena Rebenko and her husband, Oleg Rebenko, requested
asylum, withholding of removal, and protection under the CAT, but
Oleg's application was based on the persecution that Olena
allegedly suffered in Ukraine. The applicants appealed the IJ's
decision together and both now petition for review of the BIA's
decision.   However, given that Oleg's claims are derivative of
Olena's, we will discuss only Olena's entitlement to relief,
referring to her as "Rebenko."
     2
       Based on the government's concession, the IJ found that
extraordinary circumstances prevented Rebenko from applying for
asylum within one year of her arrival into the United States and
that her application for asylum was therefore timely.

                                       -2-
September 27, 2007, charging that she had remained in the United

States beyond the date her visa allowed.

          Rebenko appeared before an IJ on January 8, 2008, denied

that she was removable3 pursuant to 8 U.S.C. § 1227(a)(1)(B), and

again applied for asylum, withholding of removal, and protection

under the CAT, as well as voluntary departure in the alternative.

The IJ conducted a hearing on Rebenko's application on April 20,

2009, at which Rebenko testified.        We recount this testimony.

          Rebenko was then twenty-six years old and had been of the

Pentecostal faith since childhood.        She experienced problems while

living in Ukraine because of her faith.         In May of 1999, she had

gathered with her grandmother and "other religious brothers and

sisters" for a meeting when the police interrupted the meeting,

took the congregants to the police station, and detained them in a

cell. One of the guards took her to meet with an investigator, who

slapped her and told her that she should not follow in her

grandmother's   footsteps   and   that    "he   wouldn't   stand   for   any

Pentecostals living in the city."        The investigator threatened her

life for "spreading religious disease among his people."           Rebenko

conceded that it is not illegal to be Pentecostal in Ukraine and

that the worshipers secured their release by paying a bribe after

being detained for less than eight hours.



     3
      Despite this initial denial of removability, Rebenko has not
since pursued this issue and it is accordingly waived.

                                  -3-
            After this, Rebenko and her grandmother received about

five phone calls at their home from "nationalists" who told them

"that they would kill [them] and that they wouldn't be playing easy

games just like [the] police did with [them], and that they hated

Pentecostals and that Pentecostals would not live."                 Rebenko

"believe[d] that the police informed the nationalists."                   Her

grandmother reported a few of these calls to the police, but the

record does not reveal whether anything came of these reports.

            On June 23, 2000, at Rebenko's high school graduation,

"students   called   [her]   names    and   basically   yelled    out    that

Pentecostals did not deserve to get [an] education."             Though the

principal tried to calm the students, Rebenko "could tell that [the

principal] enjoyed the mockings [sic] because she was also Orthodox

Christian."

            On the way home from the graduation ceremony "a bunch of

skinheads" followed Rebenko; when she attempted to run from them,

they caught up to her, knocked her to the ground, and beat her,

causing injuries to her face and "the sides of [her] body."             One of

the attackers put a knife to Rebenko's throat, threatened to rape

and kill her, and said "this would not happen to [her], again, if

[she] weren't Pentecostal."    When passers-by approached, Rebenko's

assailants left and Rebenko ran home, crying, to her grandmother,

who took her to the police station to file a report; the police

then sent Rebenko to the hospital for medical attention.                After


                                     -4-
receiving no word as to the progress of the case, Rebenko and her

grandmother inquired with the police, who told them that the case

had not yet been resolved.        Though Rebenko did not specifically

identify her attackers to the police, their identities were well-

known within the community, and she "believe[d] the investigator

just didn't like [her] because [she] was Pentecostal and didn't do

anything to pursue the case."

            About a year later, Rebenko left Ukraine for the United

States; she testified that she "left Ukraine because [she] was

afraid for [her] life" and that she had not since returned.

Rebenko acknowledged that since her departure from Ukraine, the

Ukrainian authorities had not contacted her in any way.            Rebenko

asserted, however, that were she to return to Ukraine, would-be

persecutors would recognize that she was Pentecostal because she

would have to register with the police, she would dress and behave

differently than the rest of the population on account of her

religion, and everyone within her community knew each other.

            Rebenko also presented testimony from Igor Kotler, a

professor   of   history   at   the   University   of   Phoenix   whom   she

proffered as an expert on religious minorities in Ukraine.          The IJ

qualified Kotler as an expert due to his authorship of an article

on non-Orthodox Christian denominations in Russia. Kotler conceded

that he had not been to Ukraine since 2002, that he had not written




                                      -5-
or published any works regarding Pentecostals in Ukraine, and that

his education had not focused on the Pentecostal faith.

          Kotler testified that the Pentecostal religion was viewed

in Ukraine as having "invaded" the country about 200 years ago and

that were Rebenko to return to Ukraine, she would be at grave risk

of persecution from nationalists.          Kotler added that the Ukrainian

government does not protect minorities and agreed with Rebenko that

a person returning to Ukraine from the United States might have to

register with the local authorities. Kotler admitted that while he

had testified as an expert in other immigration proceedings, he had

never reached any conclusion other than that an alien would be

harmed if returned to his or her country.                He suggested that this

was because he only agreed to testify in meritorious cases.

          The   record    before     the     IJ    included      the     U.S.    State

Department's 2007 and 2008 International Religious Freedom Reports.

Both reports stated that "[t]he Constitution and the law on freedom

of conscience provide for freedom of religion" and that "the

Government   generally        respected    this      right      in     practice"     or

"religious   freedom     in     practice";        both   also        suggested     that

government laws and policies "contribute[d] to the generally free

practice of religion."        The 2007 report documented that Protestant

churches had grown "rapidly" since independence, including "growing

communities" of Pentecostals.




                                     -6-
            On January 4, 2010, the IJ issued a decision denying

Rebenko's applications but granting voluntary departure.          Though

the IJ found Rebenko's testimony to be credible, he determined that

her experiences in Ukraine, "while no doubt terrifying, do not rise

to   the   level   of   'persecution.'"   As   for   Rebenko's   fear   of

persecution, the IJ noted that according to the 2007 International

Religious Freedom Report, the government of Ukraine generally

respected freedom of religion, Protestant churches were growing

rapidly within the country, and the Pentecostal community within

Ukraine was growing.        The IJ concluded that Rebenko's fear of

persecution upon returning to Ukraine -- and Kotler's opinion as to

the likelihood of such persecution -- were inconsistent with

country conditions.      Because Rebenko had demonstrated neither past

persecution nor a well-founded fear of future persecution, the IJ

determined that she was not a refugee eligible for asylum and

denied her application for withholding of removal.          The IJ also

denied Rebenko's application under the CAT.

            The BIA agreed that the incidents Rebenko described did

not amount to persecution and that, in light of the International

Religious Freedom Report, Rebenko had not demonstrated a well-

founded fear of future persecution.       It thus dismissed Rebenko's

appeal.4



      4
       As the BIA noted, Rebenko did not contest the denial of her
application for protection under the CAT.

                                   -7-
                                 II.

          Rebenko   asserts   that   the   IJ   and   BIA   erred   by   (1)

concluding that Rebenko's past treatment in Ukraine did not rise to

the level of persecution; (2) requiring Rebenko, in support of her

claim for asylum, to show evidence that she was singled out for

persecution in the past; and (3) failing to analyze Rebenko's claim

under the CAT separately.

          Where the BIA affirms an IJ's ruling while analyzing the

bases offered for that ruling, we review the IJ's and BIA's

opinions as a unit.   Hussain v. Holder, 576 F.3d 54, 57 (1st Cir.

2009).   In reviewing an order of removal, we consider only the

record upon which the order is based, 8 U.S.C. § 1252(b)(4)(A)-

(B),5 and accept administrative findings of fact so long as they

are "supported by reasonable, substantial, and probative evidence

on the record considered as a whole."      Seng v. Holder, 584 F.3d 13,

17 (1st Cir. 2009) (quoting INS v. Elias-Zacarias, 502 U.S.              478,

481 (1992)).   We may overrule the BIA's decision only if there is

an error of law or "the evidence 'points unerringly in the opposite

direction.'"   Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.

2005) (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.


     5
       Because Rebenko submitted her application for asylum and
withholding of removal on October 12, 2004, the REAL ID Act of 2005
(which became effective on May 11, 2005) does not apply to her. See
8 U.S.C. § 1158 note (Effective Date of 2005 Amendment); Díaz-
García v. Holder, 609 F.3d 21, 27 (1st Cir. 2010). In any event,
the amendments the REAL ID Act of 2005 introduced would not affect
our resolution of Rebenko's petition for review.

                                 -8-
2004)).     We     review      the   BIA's     conclusions     of    law    de   novo,

Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010), and we

need not consider any argument that was not squarely presented to

the BIA, Butt v. Keisler, 506 F.3d 86, 90 (1st Cir. 2007).

            Under 8 U.S.C. § 1158(b)(1)(A), an alien may be eligible

for asylum if she is a refugee.              An alien can carry her burden of

showing this by demonstrating either past persecution or a well-

founded fear of future persecution, Nelson v. INS, 232 F.3d 258,

263 (1st Cir. 2000), on account of, inter alia, religion. 8 U.S.C.

§ 1101(a)(42)(A). An applicant may demonstrate a well-founded fear

indirectly, by relying on a rebuttable presumption arising from a

showing of past persecution, or directly, by showing that "(1) she

has a fear of persecution in her country of origin; (2) there

exists a reasonable probability that she will suffer persecution if

she returns; and (3) she is unable or unwilling to return to her

country   due      to   that    fear."       Nelson,     232   F.3d    at    264.

            "To qualify as persecution, a person's experience must

rise above unpleasantness, harassment, and even basic suffering."

Id. at 263.      "[F]or purposes of establishing the right to asylum,

the discriminatory experiences must have reached a fairly high

threshold     of    seriousness,      as     well   as    some      regularity      and

frequency."        Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir.

2006). Importantly, persecution "always implies some connection to

government action or inaction," Harutyunyan v. Gonzales, 421 F.3d


                                         -9-
64, 68 (1st Cir. 2005), and "violence by private citizens .                    .    .,

absent proof that the government is unwilling or unable to address

it, is not persecution," Butt, 506 F.3d at 92.

            Substantial evidence supports the BIA's determination

that Rebenko failed to show past persecution. As outlined earlier,

Rebenko testified that she experienced mistreatment in Ukraine on

account of her Pentecostal faith on four occasions: (1) her arrest

in May of 1999; (2) her receipt of threatening phone calls from

nationalists     following     her    arrest;     (3)    the    "mockings"         she

experienced during her graduation in June of 2000; and (4) her

beating at the hands of "skinheads."             Rebenko did not report any

significant mistreatment before May of 1999 or after June of 2000,

though    she   had   practiced      Pentecostalism     since    childhood         and

continued to live in Ukraine until July of 2001.               The IJ thus could

have reasonably concluded that the mistreatment Rebenko described

was not "systematic" but rather was "reflective of a series of

isolated incidents" over the course of a particularly unpleasant

year.    Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting

Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005)).

            Beyond that, Rebenko describes no nexus between her

harassment at her graduation and any government action or omission.

Her   speculation     that   the   police     caused    nationalists      to   make

threatening phone calls to her home is not supported by any

evidence.        As   for    Rebenko's        suggestion   that     the    police


                                       -10-
intentionally failed to bring her "skinhead" assailants to justice,

the failure of the police to resolve this case by the time Rebenko

inquired about it does not support the inference that they were

"unwilling or unable to address" the incident.    Butt, 506 F.3d at

92.   Though the IJ found Rebenko credible, "[t]reating an alien's

factual testimony as credible does not entail acceptance of [her]

conclusions as to causation." Morgan v. Holder, 634 F.3d 53, 59-60

(1st Cir. 2011).

           While Rebenko's May 1999 arrest is clearly attributable

to the Ukrainian government, this was a single incident in which

Rebenko was detained for less than eight hours and suffered no

injuries requiring medical treatment.      A reasonable adjudicator

would not be compelled to find that this incident rose to the level

of persecution.    Indeed, even if we accept Rebenko's invitation to

attribute the threatening phone calls and assault to the Ukrainian

government, we have found more severe harassment not to constitute

persecution.      See, e.g., Morgan, 634 F.3d at 58; Susanto v.

Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006); Topalli v. Gonzales,

417 F.3d 128, 132 (1st Cir. 2005); Nelson, 232 F.3d at 264.

           We construe Rebenko's second argument as claiming that in

considering whether she had demonstrated a well-founded fear of

persecution, the IJ and BIA incorrectly required her to show that




                                 -11-
she experienced persecution in the past.6              This misreads the

analysis.    The IJ explicitly stated that if "the Court finds no

past persecution, respondent can still obtain relief based on a

fear of future persecution if the respondent can show, on a

subjective basis, genuine fear of persecution plus, on an objective

basis, that a reasonable person in respondent's circumstances would

fear persecution on account of one of the above-mentioned protected

grounds."     In   light   of   the    State   Department's   International

Religious Freedom Report, the IJ concluded that Rebenko had failed

to establish the requisite objective basis, and the BIA agreed. We

find no error in the IJ's statement of the law or in the BIA's

adoption of the IJ's analysis.

            As for Rebenko's third argument, concerning the IJ's and

BIA's failure to independently analyze her request for relief under

the CAT, Rebenko did not challenge the IJ's denial of this request

before the BIA.    She has thus forfeited this issue.         In any event,

Rebenko's attack on the IJ's analysis of her claim for protection

under the CAT is utterly without merit.

            We deny Rebenko's petition for review.




     6
       To the extent Rebenko also suggests that the IJ and BIA
erred by crediting the State Department's International Religious
Freedom Reports instead of Kotler's contrary testimony, the task of
weighing such conflicting evidence is committed to the IJ, Negeya
v. Gonzales, 417 F.3d 78, 84 (1st Cir. 2005), and substantial
evidence supports the findings that the IJ and BIA drew from these
reports.

                                      -12-
