United States Court of Appeals
For the First Circuit
No. 08-1774
VYACHESLAV TELYATITSKIY,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Matthew D. Levitt, with whom Susan J. Cohen, Andrew Nathanson
and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on
brief, for petitioner.
Shahrzad Baghai, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
with whom Tony West, Assistant Attorney General and Greg D. Mack,
Senior Litigation Counsel were on brief, for respondent.
January 14, 2011
HOWARD, Circuit Judge. Vyacheslav Telyatitskiy, a native
and citizen of Ukraine, petitions for review of the Board of
Immigration Appeals' (BIA) denial of his motion to reconsider its
earlier affirmance of an Immigration Judge's (IJ) removal order.
Telyatitskiy argues that the BIA and IJ erred in finding him
ineligible for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A) and deferral of removal under the Convention
Against Torture (CAT). For the reasons set forth below, the
petition is dismissed.
I.
Fleeing anti-Semitic violence in Ukraine, Telyatitskiy
came to the United States as a refugee in 1995 and subsequently
attained lawful permanent resident status. He placed that status
in jeopardy, however, when in 2006 he was convicted in a
Massachusetts court for assault and battery with a dangerous
weapon. Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), the Department
of Homeland Security initiated removal proceedings against him
later that year based on his conviction for an aggravated felony.
Telyatitskiy parried with applications for asylum, withholding of
removal, and deferral of removal under the CAT.
After a hearing, an IJ concluded that Telyatitskiy was
removable. The IJ also rejected each of Telyatitskiy's claims for
relief. First, the IJ determined that the aggravated felony
conviction rendered Telyatitskiy ineligible for asylum under 8
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U.S.C. § 1158(b)(2)(B)(i).1 The IJ next found that, should
Telyatitskiy be deported to Ukraine, he would likely be persecuted
for his religion and nationality. Normally, this finding would
have qualified him for withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(A). Nevertheless, the IJ found that Telyatitskiy's
conviction constituted a particularly serious crime under the
standard set forth in Matter of Frentescu, 18 I & N Dec. 244 (BIA
1982), rendering him ineligible for that relief. See 8 U.S.C.
§ 1231(b)(3)(B)(ii). Finally, the IJ denied Telyatitskiy's CAT
claim on the merits, finding that despite Ukraine's status as "a
seriously antisemitic country," there was still insufficient
evidence that any harm to Telyatitskiy "would be inflicted by or
with the acquiescence of a public official or other person acting
in an official capacity," as required by the treaty's implementing
regulations.
Telyatitskiy appealed the IJ's decision to the BIA, and
the BIA affirmed. Although that affirmance constituted a final
order that would have been subject to our circumscribed review,
see 8 U.S.C. § 1252(a)(1), Telyatitskiy did not petition this court
to review it. Instead, he moved the BIA to reconsider its order,
asking it to revisit some -- but not all -- of the matters that it
had originally addressed. The BIA denied the motion to reconsider.
1
Telyatitskiy has not challenged this denial of asylum.
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It is that denial that Telyatitskiy has petitioned us to review,
and to which we now turn.
II.
Because Telyatitskiy was deemed removable by reason of
his conviction of an aggravated felony, our jurisdiction is limited
to a "review of constitutional claims or questions of law raised
upon a petition for review." 8 U.S.C. § 1252(a)(2)(D); see Larngar
v. Holder, 562 F.3d 71, 75 (1st Cir. 2009).
Telyatitskiy first claims that the IJ's withholding of
removal analysis was erroneous as a matter of law because it
considered improper factors in determining what constitutes a
particularly serious crime. In Matter of Frentescu, the BIA held
that the question of whether a given crime was a particularly
serious one turned on "the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of
sentence imposed, and whether the type and circumstances of the
crime indicate that the alien will be a danger to the community."
Id. at 247. Some courts have interpreted this standard to preclude
consideration of information unrelated to the crime of conviction.
See, e.g., Alaka v. Att'y Gen., 456 F.3d 88, 109 (3d Cir. 2006);
Yousefi v. INS, 260 F.3d 318, 329–30 (4th Cir. 2001).
Here, the IJ appeared to rely not only on the nature of
the crime itself, but also on Telyatitskiy's post-conviction
behavior during his period of incarceration; a previous, unrelated
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assault charge; and other charges, ultimately dismissed, that were
brought alongside the charge on which he was convicted. By relying
in part on these additional factors, Telyatitskiy now claims, the
IJ acted beyond the scope of its authority.
Were this claim properly before us, it might constitute
a reviewable question of law. See Lumataw v. Holder, 582 F.3d 78,
85 (1st Cir. 2009). But the claim is not properly before us. To
begin with, Telyatitskiy has sought judicial review not of the
BIA's underlying withholding decision, but only of the denial of
his motion for reconsideration. That motion confined itself to his
CAT claim. Accordingly, we have no jurisdiction to consider the
BIA's treatment of the withholding of removal claim. Liu v.
Mukasey, 553 F.3d 37, 39 (1st Cir. 2009). Telyatitskiy argues that
we ought to recognize an exception that would allow us to review
the BIA's underlying decision. Yet even if Telyatitskiy had
preserved a withholding claim, a second jurisdictional impediment
would remain. Although Telyatitskiy's original administrative
appeal did allege error in the IJ's application of the Frentescu
standard, that allegation concerned the IJ's failure to consider
all of the evidence. It was, in other words, an argument that the
IJ looked at too little; it is only now that Telyatitskiy has begun
to argue that the IJ looked at too much. Where a petitioner fails
to exhaust administrative remedies on a claim by presenting it to
the BIA, judicial review is precluded. 8 U.S.C. § 1252(d)(1);
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Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir. 2008). Thus, both
because of the limited nature of the motion to reconsider and
because of his complete failure to argue the scope of relevant
evidence issue to the BIA, Telyatitskiy's withholding of removal
claim is not reviewable here.
This leaves Telyatitskiy's claim that the BIA committed
constitutional or legal error in rejecting his motion to reconsider
the denial of his CAT claim. He first argues that by failing to
reference record evidence of police brutality against Jews in
Ukraine, the IJ must have failed to consider that evidence
entirely. A full and fair reading of Telyatitskiy's briefs,
however, suggests that this is argument is little more than a
thinly disguised claim concerning evidentiary weight, which we are
statutorily barred from reviewing. See Larngar, 562 F.3d at 75;
Jimenez v. Gonzales, 215 F. App'x 8, 9 (1st Cir. 2007). But even
if reviewable, the argument fails. An IJ does not err merely by
failing to address specifically each piece of evidence the
petitioner presented. Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir.
2009); Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000). The
record reveals that the IJ considered the totality of the evidence
presented, even if it did not recite that evidence in all its
detail.2
2
Similarly, the BIA is not required to detail exhaustively its
reasons for affirmance. Where, as here, the BIA's decision
"illuminate[s] the path of its reasoning," no more is necessary.
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Telyatitskiy also contends that even if the IJ considered
the evidence of police brutality, he must have done so under a
legally erroneous definition of torture. To be actionable under
the CAT, torture must be both likely to occur after removal and
"inflicted by or at the instigation of or within the consent or
acquiescence of a public official or other person acting in an
official capacity." 8 C.F.R. § 208.18(a)(1). While acknowledging
popular anti-Semitism in Ukraine, the IJ found that Telyatitskiy
had not presented sufficient evidence to establish that the state
action requirement would likely be satisfied. Telyatitskiy posits
that this finding is fundamentally incompatible with the record,
which included studies documenting human rights abuses in Ukrainian
pretrial detention facilities as well as his own account of abuse
at the hands of the Ukrainian police during his youth. Again, this
appears to be little more than a weight-of-the-evidence argument.
Telyatitskiy points to no error of law, but merely expresses
incredulity that the IJ could have rejected a proffer as strong as
he believed his to be. Judicial review of such claims is not
permitted under § 1252.
III.
The petition for review is dismissed.
Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir. 2009).
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