                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2004

Uselis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3986




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                                                                     NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                        No: 02-3986

                        LINAS USELIS, DAIVA USELIENE,
                    DEIMANTE USELYTE, and DEIVIDAS USELIS,
                                         Petitioners,

                                                   v.

                      JOHN ASHCROFT, ATTORNEY GENERAL
                                        Respondent

                     Appeal from the Board of Immigration Appeals
                    (Agency Nos. A75-986-708, -709, -710, and -711)

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 3, 2003

                                  (Filed: August 24, 2004)

                   Before: McKEE, SMITH, and WEIS, Circuit Judges.

                                          OPINION
McKEE, Circuit Judge.

       Linas Uselis and Daiva Useliene, and their children appeal the decision of the

Board of Immigration Appeals affirming the denial of their applications for asylum and

withholding of removal. Petitioners are Lithuanian nationals. For the reasons that

follow, we will affirm.

                                              I.

       Because we write only for the parties, it is not necessary to recite the facts of this

case in detail. The petitioners conceded that they were eligible for removal as they had
overstayed their temporary visitor visas, but they filed applications for political asylum

and withholding of removal. In support of those applications, they argued that they had

suffered persecution because of their religion, and because of their participation in a small

business group which protested heavy government taxes. The IJ denied their applications

after a hearing, and the BIA summarily affirmed. This appeal followed.

                                             III.

       The petitioners argue that the IJ abused his discretion and committed errors of law,

and that the BIA erred in summarily affirming the IJ’s decision pursuant to the BIA’s

streamlined procedures for handling appeals from Immigration Judges. Each issue will

be considered separately.1

                                             A.

       An IJ may grant asylum to an applicant who “is unable or unwilling to avail

himself or herself of the protection of [a] country because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion[.]” 8 U.S.C. §§ 1101(a)(42)(A), 1158.2


   1
     Because the BIA did not render its own opinion, we must review the decision of the
IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).
   2
     We review IJs’ judgments regarding asylum and withholding of removal for abuse of
discretion. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). We review IJs’ factual
determinations regarding whether an asylum applicant has demonstrated past persecution
or a well-founded fear of future persecution only to ensure there is substantial evidence
for their determinations, i.e., that their findings are “supported by reasonable, substantial
and probative evidence on the record considered as a whole.” INS v. Elias Zacarias, 502
U.S. 478, 480 (1992).

                                              2
Persecution includes “threats to life, confinement, torture, and economic restrictions so

severe that they constitute a threat to life or freedom” but excludes “generally harsh

conditions shared by many other persons[.]” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993). The alien has the burden of presenting evidence that he/she has suffered actual

past persecution, or that he/she has a well-founded fear of future persecution. Id.   An

application for withholding of removal is similar, but demands a higher burden of proof.

To succeed in an application for withholding of removal, the alien must establish a clear

probability that his/her life or freedom would be threatened in the proposed country of

removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991); see also 8 U.S.C. §§

1231(b)(3)(A).

       Petitioners’ claim for asylum based on political activity rests upon their assertion

that they have been subjected to past persecution due to Mr. Uselis’ statements in

Lithuania opposing high taxes. They alleged receiving daily telephone calls stating that

Mr. Uselis would “have bad luck” and go out of business unless he paid his taxes and

ceased his protests. They allege that the family’s residence and store were burglarized

and vandalized several times. They also allege that Mr. Uselis was beaten by three

unknown men who told him to stop protesting the high taxes or close his store. Mr.

Uselis did not go to the hospital because the men allegedly left him “black and blue” but

did not break anything. As a result, the petitioners state that they ultimately had to close

their store.



                                              3
       Petitioners also claim that they were persecuted due to their membership in their

church. However, the “persecution” they testified to amounted only to statements of the

owner of the private hall where they worshiped telling them they “‘could not’ allow

[petitioners] to meet there any more.” Appellants’ Br. at 15. The only testimony that they

offered to establish a discriminatory motive was their claim that “[t]he pressure

apparently built up for this landlord, since the new government was frightened by any

new religion in the newly independent nation.” Id.

       The harm alleged here clearly falls short of “persecution.” Under Fatin,

“persecution” for purposes of asylum requires such harm as detention, torture or life-

threatening injury. There is no allegation of detention, torture or similar harm as a result

of petitioners’ religion or political activities. Mr. Uselis did testify that he had been

beaten. However, even if the government was responsible for that beating Mr. Uselis

testified it did not result in hospitalization.

       Similarly, although the store closing may well have created economic hardships,

there is no suggestion that it threatened petitioners’ lives. We do not doubt that the

economic situation in Lithuania was difficult, as Mr. Uselis testified. However, the IJ did

not abuse his discretion in concluding that “there were certainly other avenues for the

family to earn a livelihood.” R. at 59.

       Finally, there is no evidence that the Uselis family suffered religious persecution.

Even if we accept their testimony regarding their “eviction” from the hall where they



                                                  4
worshiped, there is nothing to suggest government involvement or that they could not find

another “hall” or apartment to hold religious meetings in. Moreover, the testimony does

not even establish that they were denied access because of their religion. M r. Uselis

admitted he was assuming that the decision to deny access was based on his religion but

this assumption was only based on the fact that the building manager refused to continue

renting the space to his group. R. at 89-90.

       Accordingly, petitioners have not provided sufficient evidence of past persecution

or objective support for a well-founded fear of future persecution and we must affirm the

BIA’s affirmance of the IJ’s denial of their asylum claim. Since they were unable to

establish their eligibility for asylum, they clearly could not satisfy the higher burden

necessary for withholding of removal. See Chang v. INS, 119 F.3d 1055, 1059 (3d

Cir.1997).

                                               B.

       Petitioners next assert that the IJ violated their Fifth Amendment due process

rights during their hearing because he did not permit their counsel to ask leading

questions, did not allow their expert to testify, and the IJ repeatedly interrupted

petitioners’ testimony.3

       To prove a due process violation, the petitioners must show that the alleged denial



   3
     We review an alleged due process violation based upon the manner in which an IJ
conducts a deportation hearing de novo. Lee Moi Chong v. INS, 264 F.3d 378, 386 (3d
Cir. 2001).

                                               5
of due process substantially prejudiced their case. This means that petitioners must

“produce some concrete evidence to show that the alleged due process violation had the

potential for affecting the outcome of [their] case.” Id. (internal quotation marks and

citation omitted).

       Even if we accept the rather remarkable proposition that the failure to allow

leading questions can somehow rise to the level of a due process violation, petitioners can

still not establish the necessary prejudice. Their remaining evidentiary attacks are equally

devoid of merit.4

                     C. The BIA’s Streamlined Appellate Procedure

       The petitioners also argue that the BIA violated their due process rights by

summarily affirming the IJ’s decision pursuant to 8 C.F.R. § 3.1(a)(7) (2002). R. at 2.

However, we have already upheld the BIA’s “streamlined” summary affirmance

procedures and we therefore must reject petitioners’ challenge to them. See Dia v.

Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc).

                                            III.


   4
     They argue the IJ erred in not allowing their expert witness to testify. However, they
state only that the expert would have testified regarding “his familiarity with modern
evangelical religious movements in post-communist countries.” Appellants’ Br. at 36.
That, of course, was not the issue because petitioners had not established that they were
persecuted in the first place.
  Petitioners also argue that the IJ repeatedly interrupted their counsel and prevented him
from presenting their case. They do not, however, cite to any specific instances in the
record to support this claim, nor do they show how their case was compromised because
of the alleged interruptions. We will not reverse the decision of the IJ based only upon
unsupported allegations of error.

                                             6
For the above reasons, we will affirm the ruling of the BIA.




                                     7
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