Zviagilsky v. INS

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

BORIS ZVIAGILSKY,

Petitioner,

v. No. 98-9528
(BIA No. A70 574 282)
IMMIGATION & (Petition for Review)
NATURALIZATION SERVICE,

Respondent.

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

Boris Zviagilsky petitions this court to review the final deportation order of

the Board of Immigration Appeals (BIA) which denied his requests for asylum

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and for withholding of deportation. 1
We exercise jurisdiction under 8 U.S.C.

§ 1105a(a) 2
and deny the petition.

Petitioner was born on May 28, 1933 in Kiev, Ukraine. With the exception

of a few years during World War II, he lived in Kiev until the age of fifty-nine.

On November 20, 1992, petitioner entered the United States on business. He

rejoined his wife, who had previously emigrated to the United States, and, five

days later, he applied for asylum. Petitioner claimed that he had suffered

persecution in Ukraine on account of his Jewish religion and nationality. The INS

denied his application and placed him in deportation proceedings. Petitioner

conceded deportability and again requested asylum, as well as withholding of

deportation.

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
2
Section 1105a was repealed by § 306(b) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009, which alters the availability, scope, and nature of judicial review
in INS cases. Because petitioner’s deportation proceedings commenced before
April 1, 1997, IIRIRA’s permanent “new rules” do not apply to this case. See id.
§ 309(a), (c)(1). However, IIRIRA’s “transitional rules” do apply, because in this
case the agency’s final order was filed more than thirty days after IIRIRA’s
September 30, 1996 date of enactment. See id. § 309(c)(4). The repeal of
§ 1105a is not effective in cases such as this one where the transitional rules are
in effect. See id. § 309(c)(1).

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 The Attorney General has discretion to grant asylum to an otherwise

deportable alien who qualifies as a “refugee” within the meaning of

8 U.S.C. § 1101(a)(42)(A). See id. § 1158(b)(1). “[A] grant of asylum requires

two steps.” Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). At the first step,

the alien must establish that he is eligible for refugee status. See id. ; 8 C.F.R.

§ 208.13(a) (placing burden of proof on asylum applicant to establish refugee

status). If the alien establishes his statutory eligibility as a refugee, then in the

second step the Attorney General applies her discretion to grant or deny asylum.

See Kapcia , 944 F.2d at 708.

To establish refugee status, an asylum applicant must present specific facts

establishing either that he previously was persecuted in his native country or that

he has a genuine and reasonable fear of being persecuted if he returns there. Id.

at 707. Further, the persecution must be “on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42). If the applicant establishes that he is a victim of past persecution,

then a presumption arises that the applicant has a genuine and reasonable fear of

future persecution. See 8 C.F.R. § 208.13(b)(1)(i). The INS can rebut this

presumption only “if a preponderance of the evidence indicates that since the time

the persecution occurred, country conditions have changed such that the

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applicant’s fear is no longer well-founded.” Nazaraghaie v. INS , 102 F.3d 460,

462 (10th Cir. 1996).

To be eligible for withholding of deportation, an applicant must satisfy

a higher standard than that for asylum. The alien must “demonstrate a clear

probability of persecution with objective evidence that it is more likely than not

that . . . [the alien] will be subject to persecution upon deportation.” Baka v. INS ,

963 F.2d 1376, 1380 (10th Cir. 1992) (quotations omitted). Because the asylum

standard is more lenient that the withholding of deportation standard, we will first

consider whether the BIA erred in not granting petitioner asylum.

At the hearing before the immigration judge (IJ) in December 1994,

petitioner testified through an interpreter about the mistreatment he suffered in

Ukraine both as a child and an adult. He testified that he was verbally abused by

students and some teachers while in grade school and was later denied admission

to several institutions of higher learning because he is Jewish. During his three

years in the Soviet Army in the late 1950s, petitioner was singled out for extra

verbal and physical harassment because he is Jewish.

Despite the anti-Semitism inherent in the communist regime, petitioner was

able to secure a job with a company called Rele and Automatic Systems before he

was drafted into the army, and he was able to get his job back after he completed

his military service. Once petitioner attained his degree from a technical school

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he attended at night, the company promoted him to a technician and then to an

engineer. Petitioner was not able to be promoted any further however, because he

was unable to obtain the necessary security clearance. Petitioner testified that the

paperwork for security clearances had to go through officials at the KGB and, as

the head of the company’s security office explained to him, they would never

approve his clearance because he is Jewish. Petitioner was still working for Rele

and Automatic Systems in November 1992, when the company arranged for him

to come to the United States on a business visa to try to establish ties with

American businesses.

Petitioner testified that under the communist regime, all religion in Ukraine

was repressed. He said he could not worship openly or he would lose his job.

During the break-up of the Soviet Union, Ukranian nationalism was on the rise

and various organizations surfaced that openly campaigned against Jews and other

nonethnic Ukrainians. Petitioner testified that after Ukraine gained its

independence in 1989, the situation worsened. He began receiving harassing

telephone calls from people in his huge apartment complex who told him he

should leave Ukraine and leave his apartment for Ukrainians. Petitioner also had

his mailbox vandalized; it was painted with anti-Semitic graffiti and set afire

several times.

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 During 1992, petitioner was involved in several incidents in which he was

verbally or physically assaulted. The first incident began with someone knocking

on his apartment door and yelling at him and calling him names. The man was

joined by others, who continued the tirade. Petitioner called the police, but when

they arrived forty minutes later everyone had gone away. After the police left, the

people returned and continued their harassment. One man eventually managed to

break into petitioner’s apartment, where he grabbed petitioner, forced him to his

knees, and told him all Jews should be on their knees before Ukrainians.

Petitioner fled into the hall, where he encountered an angry group of people who

tried to hit him. Petitioner was able to get away and run to the police station. He

prepared a written report of the incident for the police, but he was not able to

identify the man who had broken into his apartment or provide any additional

information about him. When petitioner returned to his apartment, he found that

it had been vandalized in his absence. For the next few days, petitioner stayed

with a friend of his who lived elsewhere in the city. Some time later, a police

officer came to petitioner’s apartment and told him he had been assigned to the

case. The officer said he had not been able to discover the identity of the people

involved and he asked petitioner to submit a written request that the case be

closed. Petitioner refused.

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 In late August 1992, while on his way home from work, petitioner was

accosted by two men outside his apartment building. Petitioner said he thought

they lived in his apartment complex and he had seen them participating in

political demonstrations for the RUKH party. The men began verbally harassing

petitioner, telling him he should leave Ukraine because he was a Jew. Petitioner

tried to walk away, but the men started to fight with him. Some people passing by

pulled petitioner away from the men and he was able to escape.

Another incident occurred shortly before petitioner left Ukraine. He was

riding on a bus when a woman asked him to move aside so she could get off.

When petitioner failed to hear her request, she shoved petitioner, which caused

him to fall into another passenger. The woman and the other passenger then

berated petitioner for being a Jew and told him he should leave Ukraine. When

petitioner got off the bus, he found a policeman and told him about the incident,

but the policeman said his radio was broken and he could not call anyone.

Finally, a few days before he left Ukraine, petitioner received a threatening

letter purporting to be from his “apartment building neighbors.” Admin. R. at

100. The letter stated that they would continue to harass petitioner until he left

the building and Ukraine and went “to your kikes in Israel.” Id. The letter ended:

“Didn’t Bogdan Khmelnitsky and Hitler kill enough of you? Let Ukraine be

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liberated! Dearth [sic] to kikes and communists! This is a final verdict without

the right of appeal!” Id.

In addition to his testimony, petitioner presented a lengthy affidavit from

William Cohen, an attorney who is an expert on Soviet Jewry. The INS, in turn,

submitted a copy of the Country Reports on Human Rights Practices for 1993

relating to Ukraine, as well as a profile of asylum claims from Ukrainians, both of

which were prepared by the Department of State.

Based on the evidence before him, the IJ concluded that petitioner failed to

establish his statutory eligibility as a refugee. Although the IJ found petitioner to

be credible, he did not find the evidence established that petitioner had been

persecuted in Ukraine or that he had a well-founded fear of being persecuted if he

returned. “[T]he discrimination and mistreatment he complains of are at the

hands of private individuals and exist in all societies. . . . The failure of a

government to stop acts of hatred before they occur can hardly be viewed as

persecution.” Admin. R. at 36. The IJ also found that although petitioner had

been “victimized by hooligans on isolated occasions” since the break-up of the

Soviet Union, “he had a long, stable career,” his company sent him to the United

States to do business on its behalf, and “[i]n recent years there has been no

restriction on his ability to worship as he sees fit.” Id. The IJ concluded that “if

he returns to Ukraine, he has absolutely nothing to fear from the government.

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He may have a fear of random violence (as do some residents of the United

States). I do not believe the asylum laws are designed to grant refugee status

under these circumstances.” Id. Therefore, the IJ denied petitioner’s requests for

asylum and withholding of deportation, but granted him voluntary departure on or

before April 1, 1995.

The BIA reviewed the record de novo, concluded that the IJ correctly

analyzed the case, and adopted the IJ’s decision as its own. Therefore, the sole

basis for our review is the decision of the IJ. See Panrit v. INS , 19 F.3d 544, 546

(10th Cir. 1994). We review the IJ’s determination of refugee status under a

substantial evidence standard, which is extremely deferential. See INS v.

Elias-Zacarias , 502 U.S. 478, 481 (1992); Ghaly v. INS , 58 F.3d 1425, 1431

(9th Cir. 1995). Petitioner bears a very heavy burden. To obtain a reversal, he

must establish that the evidence not only supports a conclusion that he suffered

persecution or has a well-founded fear of persecution, but compels it. See

Elias-Zacharias , 502 U.S. at 481 & n.1. In other words, petitioner’s evidence

must be “so compelling that no reasonable factfinder” could find against him.

Id. at 484.

As with many asylum cases, this one hinges on the question whether the

mistreatment petitioner suffered in Ukraine arose to the level of persecution.

Defining what constitutes “persecution” is, as one circuit has described it, “a most

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elusive and imprecise task.” Balazoski v. INS , 932 F.2d 638, 641 (7th Cir. 1991).

We know that “persecution is an extreme concept that does not include every sort

of treatment that our society regards as offensive.” Ghaly , 58 F.3d at 1431

(quotation omitted); see also Fatin v. INS , 12 F.3d 1233, 1240 (3d Cir. 1993).

Thus, “[d]iscrimination on the basis of race or religion, as morally reprehensible

as it may be, does not ordinarily amount to ‘persecution’ within the meaning of

the Act.” Ghaly , 58 F.3d at 1431. Likewise, “persecution means more than

harassment.” Balazoski , 932 F.2d at 642. “[I]n order to be an act of persecution,

the behavior in question must threaten death, imprisonment, or the infliction of

substantial harm or suffering.” Sharif v. INS , 87 F.3d 932, 935 (7th Cir. 1996).

“Mere generalized lawlessness and violence between diverse populations, of the

sort which abounds in numerous countries and inflicts misery upon millions of

innocent people daily around the world, generally is not sufficient to permit the

Attorney General to grant asylum . . . .” Singh v. INS , 134 F.3d 962, 967

(9th Cir. 1998).

The IJ found that the discrimination and harassment petitioner suffered did

not arise to the level of persecution. We recognize, as petitioner argues, that

shortly before the final agency decision was entered here, the BIA found that the

various incidents related by another Ukranian Jew and his son “constitute[d] more

than mere discrimination and harassment” and that “[i]n the aggregate, they

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[arose] to the level of persecution as contemplated by the Act.” In re O-Z & I-Z ,

Interim Dec. 3346 (BIA Apr. 2, 1998) (1998 WL 177674). The BIA’s decision in

that case is not inconsistent with the decision here, however, because the asylum

applicants in In re O-Z & I-Z suffered more egregious treatment at the hands of

their tormentors than petitioner has related here. We conclude that the IJ’s

finding that petitioner did not suffer persecution in Ukraine is supported by

substantial evidence.

Likewise, the IJ’s determination that petitioner does not have a

well-founded fear of future persecution if he returns to Ukraine is supported by

substantial evidence. The State Department reports submitted by the INS reflect

that “[o]n the whole, Ukraine has handled potential inter-ethnic friction

remarkably well.” Admin. R. at 155. “Anti-Semitism has ceased to be

government policy,” id. at 156, and “Jews in Ukraine have expanded opportunities

to pursue their religious and cultural activities,” id. at 147. Admittedly, “the

relaxation of controls over expression and behavior has led to some increase in

popular manifestations of anti-Semitism,” id. at 156, and many Jews have

emigrated from Ukraine to Israel and the United States, but “Ukranian Jewish

leaders have described the basic motivation for this exodus as economic,” id.

As we note above, Elias-Zacarias imposes a heavy burden on appellants,

under that jurisprudence we cannot say that the evidence before us compels a

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conclusion that petitioner has a well-founded fear of being persecuted, as that

term is defined by the cited precedents, if he returns. Therefore, we must uphold

the agency’s denial of petitioner’s request for asylum.

Because petitioner was not able to establish a reasonable possibility of

persecution under the more lenient standard for asylum, he cannot satisfy the

more stringent standard required for withholding of deportation. See Castaneda

v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994). Therefore, we also uphold the

agency’s denial of petitioner’s request for withholding of deportation.

The petition for review is DENIED.

ENTERED FOR THE COURT

Carlos F. Lucero
Circuit Judge

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