United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 16, 2015

Decided March 29, 2016

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 15-2099

ANDREI DAVIDESCU,

Petitioner,

v.

LORETTA E. LYNCH,

Attorney General of the United States,

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals.

No. A205-556-102

O R D E R

Andrei Davidescu, a 27-year-old Moldovan citizen, sought asylum, withholding 

of removal, and protection under the Convention Against Torture, based on harm he 

suffered on account of his Roma ethnicity. In his testimony he described numerous 

attacks at the hands of classmates and neighbors while he was growing up in Moldova. 

The immigration judge, however, noted significant inconsistencies in his hearing 

testimony, found him not credible, and concluded that he had not sufficiently 

corroborated his claim. Because these conclusions are supported by substantial 

evidence, we deny the petition for review.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-2099 Page 2

Davidescu was admitted into the United States in June 2010 with permission to 

participate in an exchange-worker program. He was authorized to stay for a temporary 

period not to exceed September 11, 2010, but he overstayed. In September 2012 he 

applied for asylum affirmatively with U.S. Citizenship and Immigration Services, which 

generally has initial jurisdiction over asylum applications filed by aliens who are 

physically present in the United States and not already in removal proceedings. 

See 8 C.F.R. § 208.2(a). Because more than one year had elapsed since his entry, 

however, the asylum officer determined the application to be untimely. See 8 U.S.C. 

§ 1158(a)(2)(B). Davidescu received a notice to appear before an immigration judge, 

charging him as removable for having remained in the country longer than permitted.

See 8 U.S.C. § 1227(a)(1)(B). In removal proceedings, Davidescu renewed his application 

for asylum, withholding of removal, and protection under CAT.

Davidescu testified that he grew up in Chioselia Rusa, a town of approximately 

2,000 people. His father is Roma, but his mother is Moldovan. Despite his mother’s 

heritage, he was considered Roma because of the color of his skin and because his father 

was known by other villagers to be Roma (and Davidescu self-identified with this 

group as well).

In his testimony Davidescu described several instances of being bullied at school 

for being Roma. First, in 2001, when he was in seventh grade, a schoolmate pushed and 

hit him a couple times while using anti-Roma slurs. Then in 2003 schoolmates again

pushed and hit him—causing a cut to his chest, bruises, and a broken finger. They told

him that he was not welcome in the village or school because he was Roma. And in 

2006, after a banquet for his high school graduation, two young men beat him because 

he defied their warnings that he was not welcome at the gathering. Davidescu received

bruises on his ribs, legs, and torso. He testified that he did not report this beating to the 

police. He also wrote in his affidavit (but omitted from his hearing testimony) that he

was beaten generally by fellow university dorm-mates, who said they were tired of 

“misborn” Roma.

Davidescu recounted two incidents that occurred in 2009. In April he was 

assaulted by two people on his way home from his university in Chisinau, Moldova’s 

capital. The attackers knocked him down and told him that, as a Roma, he had no right 

to be there. His injuries, which included a concussion and bruises, required him to be 

hospitalized for ten days. Then in August 2009, he again was beaten in a Chisinau park

by a group of people who insulted him for being Roma.
No. 15-2099 Page 3

In June 2012, while Davidescu was still in the United States, his father in 

Moldova was kicked and knocked unconscious in an attack by a group of drunk 

neighbors. His father was taken to the hospital and diagnosed with a concussion. 

Davidescu says this attack led him to apply for asylum.

Without addressing the timeliness of the asylum application, the IJ denied 

Davidescu’s applications for all relief from removal because she found him not credible 

and his claim insufficiently corroborated. She concluded that there were major 

inconsistencies in Davidescu’s account concerning central aspects of his claim. For 

instance, regarding the 2006 beating, Davidescu stated in his affidavit that he suffered a 

nose fracture and a torn lip and that afterwards he had called the police, but in his 

testimony he denied these details. When asked to clarify, Davidescu was unable to

explain the different accounts, and he compounded the confusion about the police’s 

involvement, saying first that someone else had called the police and later that he 

stopped at a police station on the way home. In addition, Davidescu testified 

inconsistently about his interactions with the police after the April 2009 attack. On 

direct examination he said that he reported the incident to police and was never again 

contacted. But on cross-examination he stated that the police detained him at the scene 

of the beating, blamed him for the attack, and, after taking him to the police station, 

struck him on the head with a rubber baton. Davidescu also testified he then went to a 

hospital on his own power, but the hospital records reflect that only after being 

hospitalized did he regain consciousness. Finally, his testimony about being beaten in a 

park in August 2009 was contradicted by a police notice and a letter from his lawyer in 

Moldova stating that he merely had been insulted. The IJ concluded that Davidescu’s

corroborating evidence was insufficient to clarify his inconsistent testimony or meet his 

burden of proof.

Davidescu appealed to the Board of Immigration Appeals, challenging the IJ’s 

adverse-credibility finding. He argued, without elaboration, that he had established a 

pattern or practice of persecution of Roma in Moldova. The Board upheld the IJ’s 

decision. It agreed that Davidescu failed to explain major inconsistencies in his account

and he did not sufficiently corroborate events forming the basis of his claim. The Board 

also concluded that Davidescu did not substantiate his pattern-or-practice argument or 

otherwise demonstrate that he has a well-founded fear of persecution.

Now represented by new counsel, Davidescu challenges the IJ’s finding that his 

testimony regarding past incidents of harm was not credible. He claimed that the

inconsistencies in his testimony, written submissions, and corroborating evidence were 
No. 15-2099 Page 4

minor and did not go to the heart of his claim. Inconsistencies need not go to the heart 

of an applicant’s claim to support an adverse-credibility finding, see 8 U.S.C. 

§ 1158(b)(1)(B)(iii), but they must be more than trivial, see Hassan v. Holder, 571 F.3d 631, 

637 (7th Cir. 2009).

The IJ’s adverse-credibility finding was proper, however, because the 

inconsistencies she identified were not trivial and concerned an important aspect of his 

claim: the severity of the mistreatment he suffered and his interactions with the police. 

The particulars of the beatings Davidescu experienced and the injuries he sustained 

were at the heart of his contention that he suffered persecution rather than mere

harassment or discrimination. See Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011). 

And the inconsistencies regarding his interactions with the police—notably including 

an allegation that the police hit him in the head with a baton at the police station—were 

material to assessing the government’s willingness and ability to prevent attacks by 

private actors. See Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (“Persecution is 

something a government does, either directly or by abetting (and thus becoming 

responsible for) private discrimination.”)

Davidescu also makes a two-pronged challenge to the Board’s determination that 

he did not adequately corroborate his claim. He first asserts that the IJ did not give him 

enough time to gather the necessary evidence to support his claim. But, as the 

government explains, Davidescu waived this argument by failing to present it first to 

the Board. See 8 U.S.C. § 1252(d)(1); Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008).

Second, Davidescu disputes the IJ’s conclusion that his supporting documents 

were insufficient to corroborate his testimony or otherwise carry his burden of proof. 

Davidescu also failed to raise this argument before the Board, but waiver is not at issue 

here because the Board independently addressed the sufficiency of his corroborating 

documents. See Arobelidze v. Holder, 653 F.3d 513, 516–17 (7th Cir. 2011). As the Board 

noted, however, this case is governed by the REAL ID Act, which justified the IJ in 

requiring additional documents to clarify the inconsistencies in his testimony.

See 8 U.S.C. § 1158(b)(1)(B)(ii). The Board properly noted that Davidescu’s submissions 

hardly corroborated the incidents of harm described in his testimony. The medical 

report from his April 2009 hospitalization contradicts his testimony that he never lost 

consciousness. And a letter from his lawyer and a police notice both state that he was 

pushed and insulted in the August 2009 incident, not beaten as he testified. The other 

significant inconsistencies are not addressed at all by the documents he submitted.
No. 15-2099 Page 5

But even if the IJ had accepted Davidescu’s testimony as credible and sufficiently 

corroborated, he has not presented evidence from which to infer the requisite 

involvement of state actors to establish past persecution. The attacks that Davidescu 

and his father suffered were at the hands of classmates and neighbors, not state actors, 

and he has not shown that the government would be unable or unwilling to protect him 

from harm if he were to return to Moldova. See Vahora v. Holder, 707 F.3d 904, 908 (7th 

Cir. 2013).

Finally Davidescu challenges the Board’s determination that he did not establish 

a pattern or practice of persecution against Roma in Moldova, see 8 C.F.R. 

§ 1208.13(b)(2)(iii)(A), or otherwise demonstrate a well-founded fear of future 

persecution. He did not present any evidence that he would be singled out for 

persecution, but he argues that Roma face a pattern or practice of persecution in 

Moldova, as evidenced by the denial of education, adequate medical care, employment 

opportunities, and other public services. A pattern or practice of persecution, however,

requires “a systematic, pervasive, or organized effort to kill, imprison, or severely injure 

members of the protected group, and this effort must be perpetrated or tolerated by 

state actors,” Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir. 2006) (internal quotation 

marks omitted), and the Board properly concluded that Davidescu’s evidence did not 

show this. The Roma are victims of deprivations, discrimination, and social 

marginalization, but these conditions—while deplorable—are not “extreme” enough to 

qualify as a pattern or practice of persecution sanctioned by the Moldovan government. 

See Georgieva v. Holder, 751 F.3d 514, 523 (7th Cir. 2014). And Davidescu’s own 

experience successfully completing secondary school and some college undermines his 

assertion that upon return he would be subjected to deprivation extreme enough to rise 

to the level of persecution.

Because the IJ’s findings of adverse credibility and insufficient corroboration 

were not clearly erroneous and the Board properly concluded that Davidescu did not 

establish the existence of a pattern or practice of persecution of Roma in Moldova, we 

deny the petition for review.