                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-1820
                                     ___________

                  SERGEY VLADIMIROVICH LUKVANCHIKOV,
                                              Petitioner
                                  v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A071-228-773)
                    Immigration Judge: Honorable Andrew Arthur

                     ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 7, 2010
       Before: MCKEE, Chief Judge, HARDIMAN and COWEN, Circuit Judges

                             (Opinion filed: July 27, 2010)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Sergey Vladimirovich Lukvanchikov petitions for review from a decision of the

Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition

for review.
       Lukvanchikov entered the United States in 1993 as a refugee from the former

Union of Soviet Socialist Republics. In 1996, he became a permanent resident. After

being convicted of several crimes, Lukvanchikov was charged as removable in 2006 as an

aggravated felon, for his conviction of two crimes involving moral turpitude, and for his

conviction for violating a law relating to a controlled substance. Lukvanchikov applied

for withholding of removal and relief under the Convention Against Torture (CAT). He

argued that he would be denied a residence permit and dialysis in the Ukraine based on

his membership in the social group of those who had left the Ukraine and given up their

residence and citizenship rights. He asserted that he requires dialysis three times a week

and that without dialysis he will die. The IJ found Lukvanchikov removable as an

aggravated felon and for the controlled substance violation. The IJ concluded that

Lukvanchikov had not shown that he would be denied medical treatment based on his

membership in the social group of refugees who surrendered their rights to live in the

Ukraine. The IJ also determined that Lukvanchikov had not shown it was more likely

than not that he would be tortured if removed to the Ukraine. The IJ denied relief and

ordered Lukvanchikov removed to the Ukraine.

       The BIA agreed with the IJ that the evidence indicated that returning refugees are

not treated adversely in the Ukraine based on their refugee status. It concluded that there

was no nexus between Lukvanchikov’s potential inability to obtain dialysis and a

statutorily-protected ground. The BIA also determined that any problems due to a lack of

medical care would not be based on any intent to torture Lukvanchikov. Thus, the BIA


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affirmed the denial of withholding and CAT relief.

       We have jurisdiction pursuant to 8 U.S.C. § 1252. Because Lukvanchikov is an

aggravated felon, our review of the BIA’s denial of relief is limited to constitutional

claims or questions of law. 8 U.S.C. § 1252(a)(2)(C). This includes “issues of

application of law to fact, where the facts are undisputed and not the subject of

challenge.” Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).

       To establish eligibility for withholding of removal, Lukvanchikov needed to

demonstrate that it was more likely than not that his life would be threatened in the

Ukraine on account of race, religion, nationality, membership in a particular social group,

or political opinion. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C.

§ 1231(b)(3)(A). To be eligible for withholding of removal under the Convention

Against Torture, Lukvanchikov needed to demonstrate that it is more likely than not that

he would be tortured if removed to the Ukraine. 8 C.F.R. § 208.16(c)(2). We review the

BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft,

353 F.3d 228, 249 (3d Cir. 2003) (en banc). The BIA’s findings are considered

conclusive unless “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal

decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir. 2006).

       Lukvanchikov argues that he will be denied access to dialysis in the Ukraine

because he forfeited his residence rights, which are required for medical treatment, when

he left. To support his argument, he points to the testimony of his witness, Yury Shvets,


                                              3
who investigated the availability of dialysis in the Ukraine. Shvets stated that eighty

percent of those in the Ukraine who do have a residence permit and need dialysis do not

receive it due to limited resources. He opined that Lukvanchikov’s leaving the Ukraine

would be a negative factor with respect to whether he received treatment because it would

be seen as a betrayal of the country. He suggested that one would need a job and a

registered living space in order to get a residence permit and that obtaining both would

take time. The BIA agreed with the IJ that the evidence in the record did not indicate that

refugees returning to the Ukraine are treated adversely based on their former refugee

status. While we are sympathetic to Lukvanchikov’s medical condition, he has not

demonstrated that the record compels a finding that it is more likely than not that he will

be denied medical treatment based on a statutory ground.

       Lukvanchikov also argues that he is entitled CAT relief. Citing Pierre v. Attorney

General, 528 F.3d 180 (3d Cir. 2008) (en banc), the BIA concluded that the officials in

Ukraine did not have the specific intent to torture Lukvanchikov. In Pierre, we

determined that an alien was not entitled to CAT relief because he had not shown that the

Haitian authorities had the specific intent to torture him by imprisoning him. Pierre

required a feeding tube and argued that he required daily medical care. We concluded

that the pain Pierre would experience from the poor conditions and lack of medical care

in detention was the unintended result of Haiti’s extreme poverty. Id. at 189. We noted

that in order to obtain relief under the CAT, an alien must show that the torturer has the

goal or purpose of inflicting severe pain or suffering. Id. at 190. Under Pierre,


                                             4
Lukvanchikov fails to qualify for relief under the CAT. The record does not compel a

finding that officials in the Ukraine will deny him medical care with the specific intent to

inflict severe pain and suffering.

       For the above reasons, we will deny the petition for review.




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