United States Court of Appeals
For the First Circuit
No. 10-1309
JULIA V. VANCHURINA AND SVETOMIR RADISAVLEVIC,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Stanley H. Cooper was on brief for petitioners.
Melissa Neiman-Kelting, Senior Litigation Counsel, Office of
Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, Leslie McKay, Assistant Director, Office of
Immigration Litigation, and Anthony J. Messuri, Trial Attorney,
were on brief for respondent.
September 8, 2010
LYNCH, Chief Judge. Julia Vanchurina, a native and
citizen of Russia, and her husband Svetomir Radisavlevic, a native
of Yugoslavia and citizen of Serbia, seek review of a final order
of removal of the Board of Immigration Appeals ("BIA"). The BIA
upheld an Immigration Judge's ("IJ") denial of Vanchurina's request
for asylum, of which Radisavlevic would be a derivative
beneficiary, and Vanchurina's request for withholding of removal.
We deny their petition.
I.
Vanchurina and Radisavlevic entered the United States on
May 17, 2006, as non-immigrant visitors. On October 30, 2006,
prior to the expiration of their visas, Vanchurina filed an
affirmative asylum application with the Department of Homeland
Security on the basis of past persecution, with Radisavlevic listed
as a derivative beneficiary. An asylum officer found that
Vanchurina failed to establish that she was a refugee and referred
the case to an IJ. On February 5, 2007, Vanchurina and
Radisavlevic were served with a Notice to Appear charging each of
them with removability, which they conceded.
On June 5, 2008, Vanchurina and Radisavlevic testified
before an IJ at a hearing on Vanchurina's petition for asylum and
withholding of removal. As a spouse cannot be a derivative
beneficiary of withholding of removal, and Radisavlevic did not
file an independent application, the only relief he requested was
-2-
asylum. Neither petitioner requested relief under the Convention
Against Torture.
We briefly summarize their testimony, which the IJ found
credible.
In 1998, Vanchurina started a small internet business in
Moscow. The company was successful, with revenues of $10,000 per
month, and governmental monitoring organizations--the Internal
Revenue Service and Ministry of Communications--soon began to make
weekly "inspections" of her business premises. She started to
receive phone calls stating that she needed to pay a price to stop
the inspections, but she refused to pay and told the police about
the incidents. Although the police refused to take a report, they
told her that if anyone threatened her life, they would intervene.
At approximately the same time, Radisavlevic was
subjected to separate economic coercion. He was the head of a
construction crew building a hotel in Russia, and when he sought
payment of $20,000 for work that his crew had done, he was forced,
at gunpoint, to sign a promissory note to instead pay this sum to
the company. He went to the police but they refused to take a
report, so Vanchurina and Radisavlevic paid the sum in $1,000
monthly installments, at one point under threat that their visiting
grandson would be taken if they did not pay.
In November of 2000, Vanchurina's place of business was
raided by the police, who seized her office equipment and called
-3-
her in for questioning. The police told her that they would plant
narcotics and weapons in her office if she did not pay them $2,000
per month. When she refused, she was subjected to questioning
every morning for five days in a row, which ended only when she
threatened to have her son file suit against them in an
international court. The phone calls then stopped, but only
temporarily, and at the end of 2001, Vanchurina and Radisavlevic
received a phone call threatening to kidnap their grandson.
In response to these threats, which Vanchurina
characterized as "scary," she sold her internet business for
$20,000--one fifth of the value that she estimates it was worth--
and moved to the suburbs of Moscow, where she and Radisavlevic
began construction on a house. Soon thereafter, local police
commenced frequent inspections of the house, and Vanchurina was
told that she needed to pay them $500 per month for protection from
further inspections and coercion. After she refused to pay, a
container of waste was set on fire close to their house on three
occasions; each occasion was followed by a phone call asking
whether she was frightened and whether she realized that she needed
to pay for protection. During the winter of 2005, the electricity
and gas service to their house was cut several times; Vanchurina
attributed this to the extortion attempts, but did not provide
evidence that the cuts were intentional.
-4-
Vanchurina and Radisavlevic did not attempt to avoid the
threats by changing phone numbers or leaving the Moscow area.
Vanchurina explained that the reason they refused to pay on the
threats to their house was that she did not want to "play along"
with the corrupt system--that doing so was against her conscience
and Christian beliefs. In 2006, they moved to the United States to
escape the threats and demands. Vanchurina believes that the
threats and demands will resume if they return to Russia and that
the only way to avoid them would be to "give everything away and be
. . . poor."
In an oral decision dated June 5, 2008, the IJ found
their testimony credible, but denied Vanchurina's petition for
asylum and withholding of removal, concluding that Vanchurina and
Radisavlevic "were subjected to extortion and it was no doubt an
unpleasant and frightening experience, but the experiences
described . . . do not rise to the level of persecution." The IJ
further held that even if this extortion constituted persecution,
"the basis for the victimization . . . was economic and at no point
does the evidence reveal that respondents were victimized on
account of one of the five protected areas." See 8 U.S.C.
§ 1101(a)(42)(A). Finding Vanchurina ineligible for asylum, the IJ
found that she could not meet the more stringent standard for
withholding of removal.
-5-
The BIA affirmed the IJ's denial of Vanchurina's
application for asylum and withholding of removal on the grounds
that "the nature and context of the respondents' claim--one that
entails criminal extortion and threats--does not implicate an
enumerated protected ground." The BIA found that because the
respondents did not qualify for asylum, they failed to meet the
higher burden for withholding of removal.
II.
No pure question of law is presented by this petition.
We review the BIA's findings under the substantial evidence
standard. Matovu v. Holder, 577 F.3d 383, 386 (1st Cir. 2009).
"Under this deferential standard, we accept these findings so long
as they are grounded in reasonable, substantial, and probative
evidence on the record considered as a whole," id. (quoting Sharari
v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005)) (internal quotation
marks omitted), and grant a petition only "if the record compels a
conclusion contrary to that reached by the agency," Lopez Perez v.
Holder, 587 F.3d 456, 460 (1st Cir. 2009).
An applicant for asylum must demonstrate past
persecution, or a well-founded fear of future persecution, on
grounds of "race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).
A showing of past persecution gives rise to a rebuttable
presumption of future persecution. Anacassus v. Holder, 602 F.3d
-6-
14, 19 (1st Cir. 2010). Otherwise, a petitioner must provide
"specific proof" that his or her fear of future persecution "is
both subjectively genuine and objectively reasonable." Decky v.
Holder, 587 F.3d 104, 110 (1st Cir. 2009) (quoting Castillo-Diaz v.
Holder, 562 F.3d 23, 26 (1st Cir. 2009)) (internal quotation marks
omitted).
An alien's experiences "must add up to more than ordinary
harassment, mistreatment, or suffering" to meet the requirement of
"persecution." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217
(1st Cir. 2007). Persecution need not be physical, see Un v.
Gonzales, 415 F.3d 205, 210 (1st Cir. 2005), but economic extortion
does not rise to the level of economic persecution unless it
involves the "deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment, or other
essentials of life," Kadri v. Mukasey, 543 F.3d 16, 22 (1st Cir.
2008) (quoting In re T-Z, 24 I & N. Dec. 163, 171 (BIA 2007))
(internal quotation mark omitted).
Substantial evidence supports the BIA's finding that "the
nature and context of the respondents' claim--one that entails
criminal extortion and threats"--did not establish grounds for
asylum. The fact that the police threatened to plant narcotics or
weapons in Vanchurina's office if she did not pay them was a threat
and did not itself cause a deprivation of liberty. Likewise, the
weekly governmental "inspections" of Vanchurina's business and the
-7-
burning of trash near her house did not deprive her of housing or
employment. She did sell her business, Moscow apartment, and
country house to escape from these threats, but she was not coerced
to do so; in fact, this result was contrary to the wishes of those
making the threats, who wanted money. Of the numerous threats that
Vanchurina and Radisavlevic received, they paid money in response
to one--the 1998 threat to Radisavlevic at work--and failed to
specify how these payments imposed a "severe economic
disadvantage." On the contrary, they testified to facts--such as
their construction of a "large house" in a "nice neighborhood" in
the Moscow suburbs--that could lead the BIA reasonably to conclude
otherwise.
Substantial evidence also supports the finding that
Vanchurina was not subjected to extortion on account of a protected
ground. Vanchurina contends that "small business owners" should be
treated as a "social group" under the Immigration and Nationality
Act on the grounds that the group has particular and well-defined
boundaries that would be generally recognized by others in the
community. However, in evaluating claims for asylum on grounds of
membership in a social group, "the key is whether the claimed
persecution is aimed at an individual because of his or her
affiliation with a group of persons, all of whom share a common,
immutable characteristic." Silva v. Ashcroft, 394 F.3d 1, 5 (1st
Cir. 2005). The IJ and BIA were not compelled to conclude on these
-8-
facts that the individual economic extortion of Vanchurina was on
protected grounds. Cf. López-Castro v. Holder, 577 F.3d 49, 54
(1st Cir. 2009) ("A country-wide risk of victimization through
economic terrorism is not the functional equivalent of a
statutorily protected ground, and hostile treatment based on
economic considerations is not persecution.").
Furthermore, even if "small business owners" were a
"social group" within the meaning of the statute, Vanchurina would
need to establish that she was persecuted "on account of" her
membership in this group. Vanchurina did not provide any evidence
that she was being targeted because she was a small business owner,
rather than merely because she had money. Because the "facts
invite the inference that whoever was threatening the petitioner
targeted her because of greed, not because of her political opinion
or membership in a particular social group," Lopez de Hincapie, 494
F.3d at 219, the BIA did nor err in finding that Vanchurina did not
satisfy the statutory criteria.
The petition is denied.
So ordered.
-9-