                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 12-4451
                                      ___________

                                   YURIY FAUSTOV,
                                              Petitioner

                                              v.

               ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                           Respondent
                    ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A089-243-104)
                      Immigration Judge: Honorable Andrew Arthur
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    October 15, 2013
               Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

                             (Opinion filed: October 16, 2013)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Yuriy Faustov, proceeding pro se, petitions for review of an order of the Board of

Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) decision

denying his applications for asylum, withholding of removal, and protection under the


                                          1
Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition

for review.

      Faustov, a native of the former Soviet Union and citizen of the Ukraine, entered the

United States in 1998 as a visitor. In 2009, the Department of Homeland Security issued a

notice to appear charging that Faustov is subject to removal because he remained in the United

States longer than permitted. Through counsel, Faustov conceded that he is removable. He

applied for asylum, withholding of removal, and relief under the CAT.

      In support of his applications, Faustov, who is 37 years old, testified that he suffers from

diabetes and that he requires a specific form of insulin called Humulin 70/30. Faustov fears

that Humulin 70/30 is not available in the Ukraine and that he will die or lose a limb or his

sight if he does not have the medication. Faustov’s mother, who once worked in the medical

field in the Ukraine, testified that Faustov is treated with Humulin 70/30, that the Ukrainian

government provides medical care to its citizens, and that individuals with diabetes are not

adequately treated.

      Faustov further testified that he fears returning to the Ukraine because, when he left in

1998, the “Mafia” was extorting money from him and had burglarized his home. Faustov

explained that these criminals had extorted money from his father, who made a good living,

until his father came to the United States. The criminals then turned to Faustov. Faustov

stated that the men look for people with money and that they watch who comes from the

United States. Faustov testified that he reported the burglary to the police but the police did

not help. He stated the police and the Mafia are the same. Faustov’s mother also testified that


                                            2
people had demanded money and clothes from Faustov and that the family home had been

burglarized. Faustov’s father is now a lawful permanent resident of the United States and his

mother and brother are United States citizens.

      The BIA affirmed the IJ’s ruling that Faustov is ineligible for asylum because he failed

to file a timely asylum application and he had not shown that he qualified for an exception to

the deadline. The BIA also concluded that Faustov did not meet his burden of proof for

withholding of removal. The BIA found that Faustov did not show that he faces a clear

probability of persecution by criminals or the Ukrainian government on account of a

statutorily-protected ground. The BIA also ruled that the IJ did not err in denying relief under

the CAT because Faustov had not shown that the government is unwilling to provide Humulin

70/30 or intentionally withholds Humulin 70/30 in order to inflict suffering. This petition for

review followed.1

      We have jurisdiction pursuant to 8 U.S.C. § 1252(a).2 “We review the BIA’s legal

determinations de novo, subject to established principles of deference.” Demandstein v. Att’y

Gen., 639 F.3d 653, 655 (3d Cir. 2011) (citation omitted). We review the BIA’s findings of

fact for substantial evidence. Id. Under this standard, we will depart from factual findings

only where a reasonable adjudicator would be compelled to reach a contrary conclusion. Id.



1
 The BIA also denied Faustov’s request for humanitarian relief and for a stay pending the
resolution of an appeal of a criminal conviction. These rulings are not at issue.
2
 The BIA remanded this matter to the IJ to grant a new period of voluntary departure because
the IJ had granted voluntary departure without advising Faustov that he must submit proof of
posting a bond. This remand does not affect our jurisdiction because it will not affect the
removal determination. Yusupov v. Att’y Gen., 518 F.3d 185, 195-96 (3d Cir. 2008).
                                           3
       We agree with the BIA that Faustov’s claim for withholding of removal based on harm

by criminals fails because he did not show a clear probability of persecution on account of a

statutorily-protected ground, in this case his membership in a “particular social group.”3 We

have adopted the BIA’s construction of a “particular social group” in Matter of Acosta, 19 I. &

N. Dec. 211 (BIA 1985), which explained that members of such a group share a common,

immutable characteristic that group members either cannot change or should not have to

change because the characteristic is fundamental to their individual identities. Valdiviezo-

Galdamez v. Att’y Gen., 663 F.3d 582, 594-98 (3d Cir. 2011). As the BIA concluded,

Faustov’s perceived wealth is not such an immutable, fundamental characteristic. If it were,

almost any victim of extortion or burglary would belong to a “particular social group.”

Faustov appears to fear general conditions of crime in the Ukraine, which the BIA correctly

stated do not provide a basis for withholding of removal. See Abdille v. Ashcroft, 242 F.3d

477, 494 (3d Cir. 2001) (“ordinary criminal activity does not rise to the level of persecution

necessary to establish eligibility for asylum”).4

       The BIA also rejected Faustov’s claim for withholding of removal based on an inability

to obtain Humulin 70/30 in the Ukraine because Faustov did not show that Humulin 70/30 is

withheld from those who need it as a means of persecution. The BIA noted that Humulin

3
  Faustov also appears to contest the denial of asylum, but, as noted above, the BIA found his
application untimely. Faustov does not address the timeliness of his application in his opening
brief . Even if we were to consider the arguments raised in his reply brief, our jurisdiction is
limited to constitutional claims and questions of law, Sukwanputra v. Gonzales, 434 F.3d 627,
633-34 (3d Cir. 2006), and Faustov does not raise such a claim or question.
4
  To the extent Faustov claims that criminals will target him because he has Western ties, the
BIA stated that, even if people with Western ties might be deemed a “particular social group,”
Faustov did not show that he has been targeted on this basis. The record does not compel a
contrary conclusion.
                                             4
70/30 is not available in the Ukraine, but found no evidence showing that the government is

unwilling to offer the treatment to a specific group and thus concluded that Faustov did not

show that he faces a clear probability of persecution on account of a protected ground. We

agree. See Khan v. Att’y Gen., 691 F.3d 488, 499 (3d Cir. 2012) (lack of access to mental

health treatment alone does not create a well-founded fear of persecution); Ixtlilco-Morales v.

Keisler, 507 F.3d 651, 655-56 (8th Cir. 2007) (alien did not show that inadequate healthcare

for HIV-positive individuals in Mexico was an attempt to persecute those with HIV). Because

we agree that Faustov’s claim fails on this basis, we need not address the BIA’s additional

conclusion that persons with diabetes who require Humulin 70/30 are not a “particular social

group.”

      The BIA also did not err in upholding the denial of relief under the CAT. The BIA

found that Faustov had not shown that the Ukrainian government intentionally withholds

Humulin 70/30 in order to inflict suffering for a proscribed purpose. Faustov has not shown

that the record compels a contrary conclusion. See also Pierre v. Att’y Gen., 528 F.3d 180,

189 (3d Cir. 2008) (stating the CAT requires a petitioner to show that his prospective torturer

will have the motive or purpose to cause him pain or suffering).

      Finally, Faustov asserts in his brief that he will be tortured by police and mafia members

if removed, but he did not challenge the IJ’s decision to the contrary in his appeal to the BIA.

We thus may not consider this claim. See Lin v. Att’y Gen., 543 F.3d 114, 119-21 (3d Cir.

2008) (addressing requirement under 8 U.S.C. § 1252(d)(1) that aliens exhaust administrative

remedies).


                                            5
      Accordingly, we will deny the petition for review.5




5
 In his reply brief, Faustov asks this Court to reopen his immigration proceedings based on the
ineffective assistance of counsel, but such a request is not properly before us.
                                              6
