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


11-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2857




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                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2857


                     VASYL VOLODYMYROVYCH ILECHKO,

                                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent

                                       _______

        Petition for Review of Final Order of the Board of Immigration Appeals
                                   No A97-163-163
                     Immigration Judge: Honorable Henry S. Dogin


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 7, 2006

       Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges

                              (Filed: November 27, 2006)


                              OPINION OF THE COURT


ALDISERT, Circuit Judge

      Vasyl Volodymyrovych Ilechko, a native and citizen of Ukraine, petitions for

review of a final order of the Board of Immigrations Appeals (“BIA”), which affirmed the
Immigration Judge’s (“IJ’s”) order. The IJ and BIA determined that Petitioner did not

meet the burden of proof in his application for asylum, withholding of removal and relief

under the Convention Against Torture (“CAT”). We have jurisdiction to review the IJ’s

and BIA’s orders pursuant to 8 U.S.C. § 1252. We will deny the petition.

                                               I.

       While living in Ukraine, Ilechko resided in the western part of the of the country

where his church, the Ukranian Greek Catholic Church, predominates. In the eastern part

of the country, the dominant church is the Ukranian Orthodox Church. Each of these

churches, within its sphere of influence, pressures local officials to restrict the activities

of the other. Petitioner testified that he and a friend were beaten by three Orthodox men

while they were students at the Lviv University in June of 2000. He also testified that he

was attacked by six people on July 15, 2001, and that he and another friend were beaten

by men in military uniforms on January 13, 2002. He maintains that he will face further

persecution on the basis of his religion if forced to return to his country. The IJ rejected

his claims, and the BIA affirmed and adopted the IJ’s decision, adding four sentences of

its own analysis.

                                               II.

       In a case like that at bar, where “the BIA both adopts the findings of the IJ and

discusses some of the bases for the IJ’s decision, we have authority to review the

decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.



                                               2
2004). We review factual determinations of the IJ and BIA under the deferential

substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Under this standard, we will uphold factual determinations that are supported “by

reasonable, substantial and probative evidence on the record considered as a whole.” Guo

v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). Our review of a final order of removal is

based “only on the administrative record on which the order of removal is based,” and

“administrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B).

       The Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(A), authorizes the

Attorney General to grant asylum to an alien who demonstrates that he is a “refugee”

within the meaning of 8 U.S.C. § 1101(a)(42). Section 1101(a)(42) defines a “refugee” as

an alien who is “unable or unwilling to return to . . . [his 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 . . . .” Whether an alien has

established a well-founded fear of persecution turns on the “subjective mental state of the

alien” and on the objective nature of his reasons for fearing persecution. INS v. Cardoza-

Fonseca, 480 U.S. 421, 430-431 (1987). An alien’s credible testimony may be sufficient

evidence of a well-founded fear, “where the testimony is believable, consistent, and

sufficiently detailed to provide a plausible and coherent account of the basis for his fear.”

Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987). Testimony that is vague,



                                              3
implausible, incredible, conclusory or inconsistent with known country conditions,

however, does not satisfy this requirement. See Diaz-Escobar v. INS, 782 F.2d 1488,

1492 (9th Cir. 1986). The relief of asylum is not mandatory, but rather falls to the

discretion of the Attorney General. Cardoza-Fonseca, 480 U.S. at 428 n.1 (1987).

       One who seeks withholding of removal must show that his “life or freedom would

be threatened” on account of one of the five grounds enumerated in § 1101(a)(42)(A). To

show that his life or freedom would be threatened, the alien must establish a “clear

probability of persecution.” INS v. Stevic, 467 U.S. 407, 430 (1984). Under the clear

probability standard, an alien must prove that it is “more likely than not” that he would be

subject to persecution on account of one of the five statutory grounds. Id. at 424. The

clear probability standard requires a greater evidentiary showing than is needed to

establish a well founded fear—the requirement for asylum. Cardoza-Fonseca, 480 U.S. at

446. “Thus, if an alien fails to establish the well-founded fear of persecution required for

a grant of asylum, he or she will, by definition, have failed to establish the clear

probability of persecution” needed to qualify for withholding of removal. Zubeda v.

Ashcroft, 333 F.3d 463, 469-470 (3d Cir. 2003). Once an alien has established his

statutory eligibility, withholding of removal is mandatory. 8 U.S.C. § 1231(b)(3)(A).

                                              III.

       Substantial evidence supports the IJ’s and BIA’s determinations that Petitioner

failed to provide credible testimony in support of his asylum application, and thus failed



                                               4
to establish eligibility for relief. The IJ determined that the Petitioner was not eligible for

asylum because he “did not experience harm that rose to the level of persecution or

torture, nor does he have a well-founded fear of persecution. Similarly, it is not more

likely than not that the [Petitioner] will suffer future persecution or torture in Ukraine.”

(App. at 2.)

       The IJ and BIA were justified in treating Petitioner’s testimony as not credible.

Petitioner’s allegation of abuse at the hands of the Greek Orthodox group was

inconsistent with the State Department’s Country Reports, which state that the Greek

Catholic Church—Petitioner’s church—predominates in the western part of Ukraine

where the incidents of abuse allegedly occurred. Additionally, as the IJ noted, Petitioner

failed to explain satisfactorily why he did not seek medical attention after he was beaten

and why he did not report the incidents to the police, despite the fact that the Greek

Catholic Church predominates in the region of Ukraine where he was living. Finally, the

IJ was troubled that Petitioner traveled to Poland on numerous occasions before coming

to the United States. The IJ explained:

               [Petitioner] keeps coming back, over and over again, if you look at
       his passport, innumerable times to the scene of persecution, which leads me
       to believe there was never any persecution. This is a kid who has come to
       the United States with a J-1 visa, and he likes it here, and he doesn’t want to
       go back. None of this do [I] believe. It’s not consistent with country
       conditions. It’s not corroborated when all the story could [be] corroborated
       and [I] believe he is telling me nothing resembling the truth.

(App. at 55.)



                                               5
       As to Petitioner’s challenge to the evidentiary force of the Country Reports, this

Court has recognized that reliance on State Department reports is justifiable and that such

reports may constitute “substantial evidence” for the purposes of reviewing immigration

decisions. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004). If an

applicant for relief presents credible evidence contrary to that contained in the Country

Reports, we will consider it, but Petitioner has presented no such evidence.

       Because Petitioner failed to establish eligibility for asylum, it is not necessary to

consider whether he merits relief on the matter of removal. Given that he failed to meet

his burden on the asylum claim, it follows as a matter of law that he failed to meet the

higher standard of proof necessary for withholding of removal.

       Petitioner does not raise any issue on appeal regarding his CAT claim. It is

therefore deemed abandoned and waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d

Cir. 1993).

                                             IV.

       We have considered all the contentions presented by the parties and conclude that

no further discussion is necessary.

       The petition for review will be denied.




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