[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 18, 2008
No. 07-14813 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-129-627
MICHAEL V. GORODETSKIY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 18, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Michael Gorodetskiy, a native and citizen of Russia, petitions this Court for
review of the denial of his application for asylum and withholding of removal
under the Immigration and Nationality Act and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment. 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c). The immigration
judge found that Gorodetskiy was not credible and failed to establish that he either
suffered “past prosecution” or faced the probability of future persecution in Russia,
and the Board of Immigration Appeals affirmed. We deny the petition.
I. BACKGROUND
Gorodetskiy attempted to enter the United States by using a false passport
and was denied entry. In a statement provided at the Miami International Airport,
Gorodetskiy stated that he left Russia under threat that he would be harmed if he
did not alter the statement he gave authorities involving a car accident that he
witnessed. Gorodetskiy said that he was divorced and did not have any children.
Gorodetskiy later told immigration officials that he was divorced and had
one son, Vitaly, who was living in Russia. Gorodetskiy explained that he sought
asylum because of his membership in a particular social group comprised of
individuals who were “material witness[es] to a crime.” He provided immigration
officials with the same version of events to explain his decision to leave Russia.
Later the same year, Gorodetskiy filed an application for asylum,
withholding of removal, and relief under the Convention. Gorodetskiy sought
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relief based on his membership in a particular social group who refused to comply
with government corruption. Gorodetskiy stated on his application that he was
married and had two sons.
At his removal hearing, Gorodetskiy testified about the incidents that led
him to leave Russia. Gorodetskiy testified that, as he drove home one evening, a
Mercedes passed him on a two-lane road. The Mercedes caused a vehicle in the
oncoming lane to slide on the icy road and turn over. Gorodetskiy stopped to see if
he could render assistance and thought that all three occupants of the vehicle were
dead. Gorodetskiy observed the Mercedes stop, well-dressed occupants climb out
of the car, observe the scene, write down Gorodetskiy’s license plate number, then
leave. Gorodetskiy called the militia and gave a statement about the accident.
Two weeks later, Gorodetskiy received a call from an individual who
identified himself as an “investigator.” The next day, two men came to
Gorodetskiy’s house and questioned him about the accident. The men told
Gorodetskiy that the Moscow Chief Prosecutor caused the accident and would
make life very hard if Gorodetskiy did not change his statement. The next day,
Gorodetskiy drove to the militia office and submitted a new statement that blamed
the damaged vehicle for the accident.
One of the occupants of the vehicle survived and told the police that an
expensive vehicle with unusually bright blue headlights caused the accident. The
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two men returned to Gorodetskiy’s house, brandished weapons, and threatened
harm to Gorodetskiy and his family if he failed to testify consistent with his second
statement. Gorodetskiy relocated his wife and older son, who were Russian
nationals, in St. Petersburg, and sent his younger son, a Ukrainian national, to live
with his parents in Ukraine.
Gorodetskiy testified that he provided false statements about his family to
immigration authorities because he feared that the interpreters might disclose the
location of his family to Russian authorities. Gorodetskiy explained that he later
disclosed the location of his younger son because he thought the child was safe in
Ukraine. He stated that his wife had been asked about Gorodetskiy and threatened,
but not harmed. Gorodetskiy stated that he would be killed if he returned to
Russia.
The immigration judge found that Gorodetskiy was not credible based on the
inconsistencies about his family in his statements to authorities and his application
for asylum. The judge found that Gorodetskiy “proffer[ed] an explanation” for his
inconsistencies “that . . . appear[ed] reasonable,” but was inconsistent with his
decision to disclose the name and location of his younger son. The judge found
that the single incident reported by Gorodetskiy was not sufficiently severe or
pervasive to constitute persecution; Gorodetskiy was not a member of an
identifiable social group; Gorodetskiy did not have a well-founded basis to fear
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countrywide prosecution; and Gorodetskiy had not established that he “suffered
past persecution or [had] a well-founded fear of future persecution.” The judge
rulrd that Gorodetskiy was not eligible for asylum or withholding of removal. The
Board of Immigration Appeals affirmed without opinion.
II. STANDARD OF REVIEW
When the Board of Immigration Appeal affirms the decision of the
immigration judge without an opinion, the decision of the immigration judge is the
final removal order subject to review. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1230 (11th Cir. 2005). We review the decision to determine whether it is
“‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Id. (quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001)). To reverse those factual findings, we must find that the record
“compels” reversal. Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112
S. Ct. 812, 815 n.1 (1992)).
III. DISCUSSION
Gorodetskiy challenges the decision of the immigration judge to deny his
applications for asylum and withholding of removal. Gorodetskiy objects to the
finding that he was not a member of a particular social group. Gorodetskiy also
argues that substantial evidence does not support the findings that he was not
credible and failed to establish either past persecution or a well-founded fear of
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future persecution.
Substantial evidence supports the finding that Gorodetskiy is not a member
of a particular social group. To be a member of a “particular social group,” an
alien must establish that he is part of a “group of persons who share a common
characteristic” that is “innate, unchangeable, or . . . fundamental to identity . . .
other than [the] risk of being persecuted” or he is part of an association “that is
perceived as a group by society.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d
1190, 1195 (11th Cir. 2006) (quoting United Nations High Commissioner for
Refugees, Guidelines on International Protection: “Membership of a particular
social group” within the Context of Article 1A(2) of the 1951 Convention and/or
its 1967 Protocol relating to the Status of Refugees, ¶ 11, U.N. Doc.
HCR/GIP/02/02 (May 7, 2002)). Gorodetskiy described his social group as
individuals who faced persecution because of their refusal to conceal firsthand
knowledge about a crime committed by a public official of Moscow. None of
these characteristics are immutable, and Gorodetskiy’s proposed group would not
be readily recognized by society.
Substantial evidence also supports the finding that Gorodetskiy was not
credible. See Al Najjar, 257 F.3d at 1283–84. The immigration judge provided
specific and cogent reasons to support the adverse credibility determination. Chen
v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006). Gorodetskiy attempted
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to enter the country with a falsified document and provided inconsistent
information to immigration officials about his marital status and children.
Gorodetskiy also failed to establish that he suffered past persecution or faces future
prosecution. According to Gorodetskiy, he was threatened twice to exculpate the
Moscow Chief Prosecutor, but threats and harassment do not constitute
persecution. See Sepulveda, 401 F.3d at 1231 (“[M]ere harassment does not
amount to persecution.” Persecution requires “more than a few isolated incidents
of verbal harassment or intimidation.” Id. (internal quotation marks omitted)).
Gorodetskiy alleged that his intimidators once displayed weapons, but he was
never physically harmed. Gorodetskiy also failed to establish that he faces harm
on a countrywide basis because he was threatened by local Moscow officials and
no harm has come to his wife and son, who have relocated to St. Petersburg.
Gorodetskiy’s petition for review is DENIED.
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