                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2576




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                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                  Nos. 05-2576 and 05-2577


                                 IRINA SOLOVYEVA and
                                STANISLOV SOLOVYEVA,

                                                            Petitioners,
                                               v.

                           ALBERTO GONZALES,
                  ATTORNEY GENERAL OF THE UNITED STATES,

                                                           Respondent.


                      PETITION FOR REVIEW OF A DECISION OF
                       THE BOARD OF IMMIGRATION APPEALS
                        Agency Nos. A 95 479 071 and A 95 479 072


                        Submitted Under Third Circuit LAR 34.1(a)
                                     June 28, 2006

           Before: BARRY, VAN ANTWERPEN, and SILER * , Circuit Judges.

                              (Opinion Filed: August 15, 2006)
                                            ____

                                           OPINION
                                            ____




       *
         The Honorable Eugene E. Siler, Jr., Circuit Judge, United States Court of Appeals for the
Sixth Circuit, sitting by designation.
SILER, Circuit Judge

       Irina and Stanislov Solovyeva, mother and son, petition this court for a review of a

Board of Immigration Appeals (“BIA”) order affirming a prior order of an immigration judge

(“IJ”) denying their claims for asylum and withholding of removal. We will deny the petition

for review.

       Petitioners are ethnic Russian citizens of Kazakhstan. They arrived in the United

States on non-immigrant visas in 2001, which they overstayed. During joint removal

proceedings under 8 U.S.C. § 1227(a)(1)(B), they conceded removability but applied for

asylum under 8 U.S.C. § 1101 et seq., withholding of removal under 8 U.S.C. § 1231 et seq.,

and for protection under the Convention Against Torture (“CAT”), 8 C.F.R. § 208.16 et seq.,

on the basis of their status as members of an ethnic minority. The IJ found parts of Irina’s

testimony incredible, that Stanislov had not demonstrated past persecution, and that neither

had demonstrated a well-founded fear or probability of future persecution.

       Petitioners appeal only the denial of their asylum and withholding of removal claims.

We review the BIA’s decision for substantial evidence, upholding it “unless the evidence not

only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001). Here, the IJ’s determination that Stanislov had not been persecuted in the

past and that neither Petitioner had demonstrated a well-founded fear or likelihood of future

persecution was supported by substantial evidence.

       To prevail on a claim for asylum, an applicant has to demonstrate an inability or



                                             2
unwillingness to return to one’s 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. . . .” Id. at 482. To prevail on a claim for withholding of removal, the

applicant must establish that he more likely than not will be persecuted in the country of

deportation because of his “race, religion, nationality, membership in a particular social

group or political opinion.” Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003). An

applicant who fails to prove that he has a well-founded fear of future persecution necessarily

fails to prove the likelihood of future persecution. See Zubeda v. Ashcroft, 333 F.3d 463, 469

(3d Cir. 2003).

       To establish eligibility for asylum on the basis of past persecution, an applicant must

show (1) one or more incidents that rise to the level of persecution; (2) which occurred

because of his membership in a statutorily-protected class; and (3) is committed by the

government or by forces that the government is either unable or unwilling to control. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). Here, the IJ correctly found that

Stanislov’s isolated beating by a small group of Kazakh children, and the harassment

allegedly suffered by his family thereafter, did not amount to past persecution. Actions that

rise to the level of persecution include “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d

1233, 1240 (3d Cir. 1993). Stanislov’s beating was not life-threatening, as the record shows

that he was able to leave the hospital and return to the care of his parents just hours after



                                              3
treatment. Moreover, the record shows that the students responsible for his beating were

investigated and sent to juvenile detention.

       The IJ also found that Petitioners failed to demonstrate a well-founded fear of, or

likelihood of, future persecution based upon the country reports from the U.S. Department

of State, which are typically referenced in cases such as this. See, e.g., Lie v. Ashcroft, 396

F.3d 530, 537 (3d Cir. 2005). While the reports did discuss preferential treatment for ethnic

Kazakhs for the highest level government positions, there were no other reports of economic

discrimination. The reports also noted heightened nationalism, but there were no discussions

of extra-judicial killings, kidnappings, violence or systematic harassment of ethnic Russians.

Moreover, Petitioners conceded that their Russian relatives, including Irina’s husband and

parents, still live in Kazakhstan and have not suffered ill treatment. Therefore, nothing in

the record compels a result different from the IJ’s. See Abdille, 242 F.3d at 483-84.1

       Petition DENIED




       1
          This conclusion also precludes the need for us to address the IJ’s adverse credibility finding
as to Irina’s past persecution. See Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003) (affirming
BIA’s determination that country reports provided substantial evidence of lack of probability of
future persecution, despite the presumption created by evidence of past persecution).
                                                  4
