Citizens of Ukraine seek asylum

United States 11th Circuit Court of Appeals Reports

Unpublished

NIFTALIEV v. U.S. ATTY GEN., 06-12708 (11th Cir. 1-8-2007)
VYACHESLAV NIFTALIEV, LYUDMILA NIFTALIEVA, DMITRO NIFTALIEV,
Petitioners, v. U.S. ATTORNEY GENERAL, Respondent. No.
06-12708 Non-Argument Calendar, Agency No. A97-201-911.
United States Court of Appeals, Eleventh Circuit. January
8, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Petition for Review of a Decision of the
Board of Immigration Appeals.

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Vyacheslav Niftaliev, on behalf of his wife, Lyudmila, and
his son, Dmitro, petitions this court for review of the
final order of the Board of Immigration Appeals (BIA). The
BIA’s order affirmed the Immigration Judge’s (IJ) denial of
his application for withholding of removal under the
Immigration and Nationality Act (INA). Because the IJ’s
decision is supported by substantial evidence, we deny
Niftaliev’s petition.

I. Background

Niftaliev and his family are citizens of Ukraine and
entered the United States in February 2001 on non-immigrant
visas. They overstayed their visas, and the INS[fn1] issued
notices to appear, charging them with removability under
INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

After conceding his eligibility for removal, Niftaliev
sought asylum and requested withholding of removal. The IJ
found Niftaliev’s application for asylum untimely and heard
testimony on the question of withholding of removal under
both INA § 241(b)(3) and the Convention against
Torture (CAT).[fn2]

In his application for asylum and in testimony at the
hearing, Niftaliev alleged that he had suffered from
discrimination and harassment because of his mixed ancestry
(his mother was Ukranian and his father was Azerbaijani)
from childhood until he left Ukraine in 1996. As a child,
teachers and classmates belittled his mixed ethnicity.
During his military service, Niftaliev stated that he and
other ethnic minorities were subject to harassment and
mistreatment by superiors and peers including beatings,
ethnic slurs, and menial assignments. After his military
service, Niftaliev moved to Estonia to attend Tallin
Polytechnical Institute where, according to his testimony,
he was also subject to mistreatment from students and
faculty because of his ethnicity. Niftaliev was eventually
expelled from the Institute because of his protests against
his mistreatment.

Niftaliev returned to Ukraine in 1987 and had difficulty in
securing employment because of his mixed ethnicity. After
the dissolution of the Soviet Union, Niftaliev’s
difficulties increased because he does not speak or write
Ukranian well. He did, however, receive a correspondence
degree from the Polytechnic Institute in Kiev and was able
to find some temporary jobs.

In response to this constant discrimination, Niftaliev and
three other individuals formed an unofficial political
group to protest and boycott the 1994 elections because
neither of the candidates supported minority rights.
Niftaliev testified that the group organized rallies and
printed and distributed pamphlets, posters, and newspapers.
Niftaliev described in his asylum declaration that members
of a nationalist party, the Ukranian National
Assembly-Ukranian National Self-Defense Organization
(UNA-UNSO) beat him for his protests in early 1995, but his
complaints to the police went unheeded.

In early 1995, Lavrenty Malazoniya, a member of the protest
group and television reporter, hired Niftaliev to be his
assistant. Together, they reported on “government
corruption and racist attitudes.” That June, Niftaliev was
summoned to the Security Services of Ukraine (SBU) where he
was interrogated by Major Igor Konovalov about his
activities with Malazoniya. Although the Major was friendly
at first, when Niftaliev refused to cooperate, he was
beaten and threatened not to “undermine his country.” At
the hearing, Niftaliev testified that the detention lasted
between two and four hours.

Despite the threats, Niftaliev participated in a protest in
July 2005 that was broken up by police. Niftaliev was
detained briefly by the police and they took his name. The
next month, SBU agents, including Major Konovalov, searched
Niftaliev’s house and took him into custody where he was
beaten and called an “Azeri dog” even though he told them
information to avoid being hurt. The detention also lasted
between two and four hours.

In October 1995, Vadim Kofman, another member of the
protest group, was beaten by the UNA-UNSO and, again, the
police did nothing. The group planned a rally to protest
the police’s inaction, but on the day of the rally, the
police raided Niftaliev’s home and found picket signs and
other protest material. The police beat him and demolished
much of his apartment.

Niftaliev and his group filed complaints with the police
and the Attorney General but heard nothing. In December,
the group decided to attempt to speak to the Attorney
General directly but were apprehended by the SBU at the
Attorney General’s office.

Niftaliev testified that he was held by the SBU for fifteen
days during which he was placed in solitary confinement,
beaten, given little or no food, and threatened. On his
final day of detention, Major Konovalov held a pistol to
his head and said he was sick of seeing his “ugly Azeri
face.” Niftaliev pleaded for his life and promised to leave
the country if he was allowed to live.

After spending two months in the hospital recovering from
injuries suffered in detention, Niftaliev and his family
emigrated from Ukraine to Argentina. They lived there for
almost five years before entering the United States.
Although Niftaliev gained permanent residency in Argentina,
he left the country for the United States after claiming to
have been approached by an SBU agent seeking information
about the chemical plant where Niftaliev worked. Niftaliev
initially refused to help, but the agent informed Niftaliev
that his parents, who still lived in Ukraine, would be
harmed if Niftaliev did not cooperate. He then agreed to
help but instead went into hiding in Argentina and
subsequently entered the United States. His parents do not
appear to have been harmed.

Although Niftaliev provided extensive documentation
regarding the general status of human rights in Ukraine and
the plight of ethnic minorities in particular, he did not
offer any corroborating evidence regarding any of his
political activities or instances of detention and physical
abuse.

In his oral decision, the IJ denied Niftaliev’s application
despite acknowledging the consistency of Niftaliev’s
testimony with his written declaration and the fact that
the cross-examination “did not reveal anything material or
pertinent enough that would lead me to conclude that
[Niftaliev] would have been [sic] an incredible witness.”
The IJ also noted that the State Department’s Country
Reports broadly supported the claims of police abuse
against ethnic minorities but the IJ was careful to state
that the abuses in the Reports did not necessarily amount
to persecution.

The IJ concluded, however, that Niftaliev did not meet his
burden of proof to establish eligibility for withholding of
removal because the lack of detail in his testimony and
lack of documentary corroboration. The IJ also concluded
that Niftaliev had not been tortured even assuming that he
had been denied food for fifteen days while in detention and
that it was not more likely than not that Niftaliev would
be subject to persecution should he return to Ukraine.

The BIA dismissed Niftaliev’s appeal in a two paragraph
order. The BIA found no “reversible error” regarding the
IJ’s finding that the asylum application was untimely and
found no “clear error” in the IJ’s determination that
Niftaliev failed to meet his burden of proving that it was
more likely than not that he would suffer persecution in
Ukraine. The BIA noted that persecution under the INA “does
not encompass all treatment that society regards as unfair,
unjust, or even unlawful or unconstitutional.” (Quoting
Matter of V-T-S, 21 I&N Dec. 792 (BIA 1997)).

II. Standard of Review

Although the BIA did not expressly adopt the IJ’s opinion,
the BIA did affirm the IJ’s decision without analysis and
so we review both the BIA’s order and the IJ’s
determination. See Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001) (“Insofar as the Board adopts the IJ’s
reasoning, we will review the IJ’s decision as well.”). We
review the BIA’s legal conclusions de novo. D-Muhumed v.
U.S. Att’y Gen., 388 F.3d 814. 817 (11th Cir. 2004). We do
not review the factual record anew; rather, we are
obligated to review factual determinations under the
deferential substantial evidence test and will affirm its
decision “if it is supported by reasonable, substantial,
and probative evidence on the record considered as a
whole.” Id. at 817-18 (11th Cir. 2004) (quoting Al Najjar,
257 F.3d at 1283-84) (quotations omitted). “Under the
substantial evidence test, we view the record evidence in
the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004).
“To reverse the IJ’s fact findings, we must find that the
record not only supports reversal, but compels it.” Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

III.

The issue in this case is whether the evidence compels the
conclusion that BIA erred in upholding the IJ’s
determination that Niftaliev did not meet his statutory
burden under INA § 241(b)(3); 8 U.S.C. §
1231(b)(3). To be entitled to withholding of removal, an
alien “must show that his life or freedom would be
threatened on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437
(11th Cir. 2004). “An alien bears the burden of
demonstrating that he more-likely-than-not would be
persecuted or tortured upon his return to the country in
question.” Id.

An applicant for withholding of removal may satisfy his
burden in either of two ways. Tan v. U.S. Att’y Gen., 446
F.3d 1369, 1375 (11th Cir. 2006). First, an alien may
establish “past persecution . . . based on a protected
ground.” Id. (citing Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003)). If an alien establishes “past
persecution,” a rebuttable presumption arises that he has a
“well-founded fear of future persecution,” and the burden
shifts to the DHS to show that the conditions of the
country have changed or the alien could avoid a future
threat through relocation. Id.

Second, an alien is entitled to withholding of removal if
he establishes “that is it more likely than not that [he]
would be persecuted on account of race, religion,
nationality, membership in a particular social group, or
political opinion upon removal to that country.” 8 C.F.R.
§ 208.16(b)(2). “An alien cannot demonstrate that
[he] more-likely-than-not would be persecuted on a
protected ground if the [IJ] finds that the alien could
avoid a future threat by relocating to another part of
[his] country.” Tan, 446 F.3d at 1375. The well-founded
fear inquiry contains both an objective and subjective
component; the petitioner must be genuinely afraid and that
fear must be objectively reasonable. Al Najjar, 257 F.3d at
1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear
that [he] will be singled out for persecution.” Id. at 1287
(internal quotation, emphasis, and citation omitted).

Although the INA does not expressly define “persecution,”
see INA § 101(a)(42), 8 U.S.C. § 1101(a)(42),
this court has held that persecution is “an extreme
concept, requiring more than a few isolated instances of
verbal harassment or intimidation[.]” Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).

The BIA has defined persecution to mean “a threat to the
life or freedom of, or the infliction of suffering or harm
upon, those who differ in a way regarded as offensive.”
Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). However,
the BIA also has stated that “persecution [does] not
encompass all treatment that society regards as unfair,
unjust, or even unlawful or unconstitutional.” In re V-T-S,
21 I&N Dec. 792, 798 (BIA 1997).

A petitioner’s credible testimony can be sufficient to meet
his burden of proof without corroboration. 8 C.F.R.
§§ 208.16(b); Tan, 446 F.3d at 1376. Although
the IJ found Niftaliev’s testimony to be consistent with
his application and declaration, he held that Niftaliev’s
testimony was insufficiently detailed to meet his burden of
proof. The IJ does not explicitly discount Niftaliev’s
credibility, but he repeatedly refers to the lack of any
supporting evidence regarding the existence of Niftaliev’s
small political group, the detentions, or any medical
treatment received after the alleged mistreatment. The IJ’s
emphasis on the absence of documentation supporting
Niftaliev’s testimony suggests that the IJ did not fully
credit Niftaliev’s testimony. But an explicit credibility
determination was not made.

Our review of the factual record is significantly hampered
when the IJ does not make a credibility determination. See
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005). Because, as in Yang, the IJ’s analysis focused on
the insufficiency of the evidence, we will assume that any
implicit credibility decision was not dispositive to the
outcome of the case. Id.

Our standard of review governs our reading of the record in
this case. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237
(11th Cir. 2006). We do not substitute our analysis of the
evidence for the IJ’s but instead look to see if the IJ’s
decision was reasonable and based on substantial evidence.
Id.

The standard governing what constitutes past persecution is
high. This court has held that detentions based on a
protected ground do not necessarily rise to the level of
persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287
(11th Cir. 2006) (“Although under certain circumstances
detention may rise to the level of persecution, Zheng’s
five-day detention during which he was not harmed does not
compel the conclusion that he experienced past
persecution.” (emphasis in the original)).[fn3]

Other circuits also have held that cases involving
detentions do not compel a contrary finding of persecution.
See Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003)
(three-day detention where suspect was denied food and was
given a “swollen” face did not compel a finding of
persecution); Fesseha v. Ashcroft, 333 F.3d 13 (1st Cir.
2003) (holding that several twenty-four hour detentions
were not sufficient to count as persecution); Nelson v.
INS, 232 F.3d 258 (1st Cir. 2000) (describing multiple
cases across the circuits where detentions with beatings
were not found to be past persecution).

Under our case law, only Niftaliev’s last detention even
approaches the level of mistreatment that can fairly be
characterized as past persecution. The other incidents,
while unfortunate, are best characterized as mere
harassment. See Sepulveda, 401 F.3d at 1231. And although
Niftaliev certainly suffered during the fifteen-day
detention, the facts do not compel a conclusion of past
persecution.

IV. Conclusion

The record in this case does not compel a finding of past
persecution given the deferential standard of review and
the standard of proof necessary to show past persecution.
Accordingly, we DENY Niftaliev’s petition.

[fn1] On November 25, 2002, President Bush signed into law
the Homeland Security Act of 2002, Pub.L. No. 107-296, 116
Stat. 2135. The act created a new Department of Homeland
Security, abolished the INS, and transferred its functions
to the new department. Because this case began before the
transfer, this opinion refers to the INS.

[fn2] The BIA affirmed the IJ’s determination that
Niftaliev’s application for asylum was untimely, and
Niftaliev does not appeal that decision nor does he appeal
the decision he was ineligible for relief under CAT.

[fn3] Two unpublished opinions of this court, although not
binding precedent, are persuasive here. In Gebremarian v.
U.S. Att’y Gen., this court held that a fourteen-day
detention “suffered under hostile conditions” did not rise
to the level of persecution. 126 Fed. Appx. 934, 936 (11th
Cir. 2005) (unpublished). And in Arbeleaz v. U.S. Att’y
Gen., this court held that being threatened, beaten, and
actually shot in the leg, while serious, did not constitute
persecution. 181 Fed. Appx. 926 (11th Cir. 2006)
(unpublished).