                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2801




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Prokopets v. Atty Gen USA" (2008). 2008 Decisions. Paper 625.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/625


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 07-2801
                                  ________________

                     VALENTIN MIKAILOVICH PROKOPETS,

                                                      Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                            ________________

                          On Review of a Decision of the
                           Board of Immigration Appeals
                   Immigration Judge: Honorable Walter A. Durling
                                 (No. A44-817-459)
                                 ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 20, 2008

                Before: AMBRO, FISHER and JORDAN, Circuit Judges

                                (Filed: August 26, 2008)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Valentin Mikailovich Prokopets, a Ukranian native and citizen, petitions for

review of a final order of the Board of Immigration Appeals (“BIA”) vacating the
Immigration Judge’s grant of relief under the Convention Against Torture (“CAT”).

       Prokopets was admitted to the United States on a visa in September 1996. The

Government subsequently charged him as removable for having been convicted of

possession of a controlled substance and for two or more crimes involving moral

turpitude. He conceded removability, but sought asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).

       Initially, the IJ declined to grant any relief and ordered Prokopets removed.

Prokopets appealed to the BIA, which directed the IJ to reissue his order to correct

inadequacies in the earlier decision. The IJ took additional evidence, then issued a new

ruling denying the asylum and withholding claims but granting relief under the CAT. The

Government appealed to the BIA. The BIA sustained the appeal, holding that Prokopets

was not entitled to withholding under the CAT because he had not shown that it was more

likely than not that he would be singled out for harm in Ukraine.1 Prokopets appealed the

BIA’s decision to this court.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the basis for

removal is Prokopets’ conviction for an aggravated felony, our jurisdiction is limited to

“constitutional claims or questions of law.” Id. § 1252(a)(2)(C)-(D). We review the

BIA’s findings under the substantial evidence standard. Yu v. Att’y Gen., 513 F.3d 346




       1
       Before the BIA, Prokopets did not challenge the IJ’s finding on the asylum or
withholding of removal claims and does not raise those issues on appeal.

                                            -2-
(3d Cir. 2008).

       To obtain relief under the CAT, an applicant must establish that it is more likely

than not that he would be tortured if removed. Toure v. Att’y Gen., 443 F.3d 310, 317

(3d Cir. 2006). Prokopets left the Ukraine when he was approximately twelve years old

and has not returned since. Prokopets’ essential claim is that his status as a returning

criminal to the Ukraine would mark him as an easy target for a corrupt national police

force with a history of singling out and torturing known criminals to obtain false

confessions. Prokopets also argues that he would be a target based on his wife’s Judaism

and his perceived wealth as an immigrant returning from the United States. He fears

imprisonment, abuse, torture, and possible death.

       The BIA’s determination that Prokopets’ fear of detention upon his return to the

United States was too speculative to warrant relief under the CAT is supported by

substantial evidence. “The burden of proof is on the applicant . . . to establish that it is

more likely that not that he or she would be tortured if removed to the proposed country

of removal.” 8 C.F.R. § 208.16(c)(2). While Prokopets provided voluminous evidence

on the pervasiveness of police corruption and torture in the Ukraine, he did not show that

it is likely that he would be subject to such torture. Prokopets provided only the affidavit

and testimony of Nickolai Butkevich, a scholar who studies former Soviet republics,

stating that it was possible that police in the Ukraine would mark him as “the perfect

usual suspect to hang an unsolved case on.” As the Government points out, however,



                                              -3-
Butkevich was unable to state with any certainty whether it was likely that Prokopets

would be detained and tortured. Further, no evidence was presented as to how the

Ukranian government or local police would become aware that Prokopets was removed

from the United States for criminal activity. Finally, none of the documents he submitted

mention or allude to the detention and torture of Ukranian nationals removed from the

United States. Thus, Prokopets’ belief that he could be perceived as wealthy or could be

tortured in order to confess to a crime he did not commit was, without further proof,

plausibly rejected by the BIA. See Savchuck v. Mukasey, 518 F.3d 119, 124 (2d Cir.

2008).

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




                                              -4-
