                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0091n.06

                                           No. 09-3404

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                        FILED
SERGEY VASILEV,                                          )                          Feb 16, 2010
                                                         )                    LEONARD GREEN, Clerk
       Petitioner,                                       )
                                                         )
               v.                                        )         ON PETITION FOR REVIEW
                                                         )         OF AN ORDER OF THE
ERIC H. HOLDER, JR.,                                     )         BOARD OF IMMIGRATION
                                                         )         APPEALS
       Respondent.                                       )
                                                         )



BEFORE: MARTIN, ROGERS, and McKEAGUE, Circuit Judges.

       ROGERS, Circuit Judge. Sergey Vasilev, a Russian-born citizen of Krygyzstan, petitions

for review of a Board of Immigration Appeals decision denying him asylum, withholding of removal,

and protection under the Convention Against Torture. Vasilev asserts in his petition that the

Immigration Judge and Board of Immigration Appeals erred in determining that two racially

motivated attacks against him by ethnic Kyrgyz individuals and the failure of police to apprehend

the attackers did not establish persecution by persons the government of Kyrgyzstan was unable or

unwilling to control. The asylum petition was untimely. With respect to withholding of removal,

moreover, substantial evidence supports the determinations of the IJ and the BIA that Vasilev had

not established past persecution in Kyrgyzstan and that Vasilev could not meet his burden of

establishing a clear probability of future persecution. There is accordingly no basis for overturning

the BIA decision.
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        Vasilev claims that while living in Kyrgyzstan he was subject to discrimination and

persecution by ethnic Kyrgyz persons on account of his Russian origins. Before the IJ, Vasilev

testified that he was attacked on account of his Russian ethnicity on two occasions, once in 1998 and

again in 1999. In the first attack, Vasilev was approached in the early evening by three “young guys”

of Asian descent who asked him for a cigarette. When Vasilev, who speaks Russian, responded that

he did not speak the Kyrgyz language, the individuals threatened him, said that he should leave their

country, and called him a “damn occupant” and a “Russian invader.” As he was being insulted, one

of the individuals hit Vasilev on the head and an altercation followed, during which Vasilev was

stabbed several times with a knife. The attackers left Vasilev lying in the street until somebody

called an ambulance. Vasilev spent two or three days in the hospital, and he contacted the police

during this time. An investigator from the police visited Vasilev in the hospital on February 12,

1998, and filed paperwork opening an official criminal investigation. According to the investigator’s

report, the police concluded that there was sufficient evidence that a crime had occurred and the

investigator decided to establish an official criminal case, take control of the criminal investigation,

and notify the local district attorney. Vasilev testified that the police officer investigating the case

was an ethnic Kyrgyz and as far as Vasilev knew, nothing was ever done about the case.

        In October of 1999, Vasilev was again attacked on the streets. Vasilev testified that several

men approached him under circumstances similar to the first attack. When the individuals began to

insult Vasilev and call him an invader and a foreigner, Vasilev responded in a way that “wasn’t very

polite,” and a fight broke out. During the fight, Vasilev was hit several times with an unknown


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object and he eventually received a concussion. There were several witnesses to the fight, including

some Russian women who began to scream, but nobody attempted to intervene. Vasilev once again

received treatment at the hospital, where an investigator from the police interviewed Vasilev and

began an investigation. The investigator made a report, but when Vasilev tried later to follow up

about his case after nobody was arrested, the police told him that he “should just leave it alone.”

       In addition to his testimony about these two attacks, Vasilev stated that he experienced

difficulty as a result of his Russian nationality the entire time he lived in Kyrgyzstan. He testified

that in the months following the second attack before he left the country, there were problems for

him every day. When asked what kinds of problems he had, Vasilev testified that documents were

delayed, that he received denials of requests regarding “different issues,” and that it took him six

months to get a passport when the process usually took two weeks. He further testified that since

he left the country for the United States in 2000, his family and friends who had remained in

Kyrgyzstan told him that the situation had gotten worse, and he also claimed to have seen media

reports of “some kind of revolt by Russians” in which “quite a few” Russians were killed. Vasilev

testified that if he returned to Kyrgyzstan, he thought that he would either have to leave or he would

be killed by the local population.

       The IJ found Vasilev’s testimony to be credible, but held that Vasilev was ineligible for

asylum and denied Vasilev’s application for withholding of removal and protection under the CAT.

Because Vasilev arrived in the United States on March 1, 2000, but did not apply for asylum until

March 22, 2001, the IJ held that Vasilev was time barred from filing an application for asylum. The


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IJ further held that Vasilev had not shown “that the harm inflicted on [him] was by the government

or government sponsored, or was carried out by individuals who the government is unable or

unwilling to control.” In classifying the violence against Vasilev as street crime, the IJ reasoned that

while there was evidence of discrimination against ethnic Russians in Kyrgyzstan, there was no

indication that the government sponsored or condoned the actions of Vasilev’s attackers, and when

Vasilev reported his attacks to the police, the police took official action in documenting the incidents

and opening investigations. The IJ stated that the fact that police never apprehended the people

responsible for either attack did “not equate to government inaction in its entirety.” The IJ thus

determined that Vasilev had failed to establish past persecution and further determined that because

Vasilev had failed to establish a clear probability of future persecution, he was not eligible for

withholding of removal. The IJ also denied Vasilev’s request for relief under the CAT after

determining that there was no evidence in the record that the “government would acquiesce in or be

complicit in any act of torture that might be alleged to befall [Vasilev] upon his return to the

country.”

       The BIA issued an opinion affirming the IJ’s decision in all respects. As to the statutory

untimeliness of Vasilev’s application for asylum, the BIA rejected Vasilev’s arguments, made for

the first time on appeal, that extraordinary circumstances justified the allowance of his application

because his previous counsel promised to file his application but failed to do so. The BIA also

affirmed the IJ’s conclusion that the attacks against Vasilev did not constitute past persecution

because Vasilev had failed to demonstrate that the government of Kyrgyzstan was unable or


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unwilling to protect Vasilev from such attacks. Finally, the BIA affirmed the IJ’s determination that

Vasilev was not entitled to relief under the CAT. Vasilev filed this timely petition for review.

       Because Vasilev has not addressed the issue of the statutory bar to his application for asylum

or the BIA’s denial of his request for relief under the CAT in his petition to this court, he has waived

those issues. See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005). Even if Vasilev had

raised the issue of the untimeliness of his application for asylum, this court’s jurisdiction over that

issue is limited to constitutional claims or claims involving statutory interpretation, El-Moussa v.

Holder, 569 F.3d 250, 255 (6th Cir. 2009), and no such issues have been raised. Therefore, the only

issue before this court is whether substantial evidence supports the BIA’s determination that Vasilev

is not entitled to withholding of removal.

       In order to meet his burden of showing before the agency that he is entitled to withholding

of removal, Vasilev had to establish a clear probability of persecution, meaning it was more likely

than not that Vasilev would be persecuted if he returned to Kyrgyzstan. See Al-Ghorbani v. Holder,

585 F.3d 980, 994 (6th Cir. 2009). Here, Vasilev attempted to meet that burden by establishing past

persecution by persons the government of Kyrgyzstan was unable or unwilling to control, or by

showing a pattern or practice of persecution against ethnic Russians in Kyrgyzstan. Because Vasilev

could show neither that the attacks against him were committed by persons the government was

unwilling or unable to control nor that ethnic Russians are subject to a pattern or practice of

persecution in Krygyzstan, the IJ and the BIA properly determined that Vasilev is not entitled to

withholding of removal.


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        Vasilev could not establish past persecution because he failed to show that the attacks against

him were made by individuals the government was unable or unwilling to control. “The regulations

governing the withholding of removal . . . [provide] that when ‘the applicant is determined to have

suffered past persecution in the proposed country of removal on account of [a protected ground], it

shall be presumed that the applicant’s life or freedom would be threatened in the future in the

country of removal on the basis of the original claim.’” Almuhtaseb v. Gonzales, 453 F.3d 743, 750

(6th Cir. 2006) (quoting 8 C.F.R. § 208.16(b)(1)(i)). Persecution is “the infliction of harm or

suffering by the government, or persons the government is unwilling or unable to control, to

overcome a characteristic of the victim.” Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2004). Here,

Vasilev claimed that he was attacked twice and that his ethnicity was the motivating factor in both

of those attacks. We have held previously that an individual who suffered harassment and two

attacks by private individuals did not establish past persecution when the individual offered “no

indication that the [] government condoned these attacks, or that it cannot protect him.” Rudzevich

v. Holder, 344 F. App’x 201, 207 (6th Cir. 2009). Vasilev argues that because the police who

investigated the attacks were also ethnic Kyrgyz and the attackers were never arrested, the

government was complicit in his persecution. However, the record shows that each time Vasilev was

insulted and later attacked on the street, a member of the police went to the hospital, opened an

investigation of the event, and notified the local district attorney. That the police failed to apprehend

the attackers did not compel the conclusion that the government was unwilling or unable to control

violence against ethnic Russians.


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       As Vasilev sees it, the Ninth Circuit’s decision in Singh v. INS, 94 F.3d 1353 (9th Cir. 1996),

supports the conclusion that the failure of the police to apprehend the attackers shows that the

government condoned and encouraged the harassment and violence Vasilev experienced. In that

case, the Ninth Circuit held that a family of ethnic Indian citizens of Fiji had established past

persecution by persons the government was unwilling or unable to control when the family

experienced several episodes of violence perpetrated by ethnic Fijians and the ethnic Fijian police

failed to take any action. Id. at 1361. However, the evidence of police inactivity in Singh was much

greater than in the present case; the police took no action to investigate the violence in Singh despite

the fact that the victim reported each attack to the police and even provided the names of his

attackers. Id. at 1358. Here, by contrast, the only identifying information Vasilev was able to

provide to police was the fact that the attackers were of Asian descent. Moreover, the record in

Singh was replete with evidence of official persecution against Indo-Fijians by the government of

Fiji, which had recently taken power through a series of coups designed to regain “Fiji for the

Fijians,” and the record also contained evidence of commonplace brutal attacks and episodes of

violence against Indo-Fijians. Id. at 1357. Substantial evidence supports the determinations of the

IJ and BIA that Vasilev had not established past persecution.

       Having failed to show clear probability of future persecution by establishing past persecution,

Vasilev next argues that ethnic Russians are subject to a pattern or practice of persecution by ethnic

Kyrgyz. The Government responds that Vasilev waived this argument by failing to present it before

the IJ and the BIA. The law requires that an applicant exhaust all administrative remedies prior to


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appealing a final order of removal to a federal court. 8 U.S.C. § 1252(d)(1). We have held that this

exhaustion requirement applies not only to avenues of appeal, but also to claims presented on appeal.

Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004). Before the IJ, Vasilev did present

evidence of discrimination against ethnic Russians in Kyrgyzstan in an attempt to show that the

government was unable or unwilling to control ethnic Kyrgy people who persecuted ethnic Russians,

and to show that Vasilev would be persecuted if he returned to Russia. Although he never

specifically mentioned a pattern or practice of persecution, Vasilev argued before the BIA that the

“Immigration Judge erred in finding that the respondent did not establish a well-founded fear of

persecution in the future . . . .” Even if we assume that this was sufficient to preserve Vasilev’s

pattern and practice argument for appeal, Vasilev is not entitled to withholding of removal based on

a pattern or practice of persecution against ethnic Russians because he has not presented evidence

sufficient to establish that ethnic Russians are systematically persecuted in Kyrgyzstan.

       An applicant for withholding of removal can show entitlement to relief by establishing “a

pattern or practice of persecution of a group of persons similarly situated . . . on account of race,

religion, nationality, membership in a particular social group or political opinion,” and by showing

the applicant’s “own inclusion in and identification with such group of persons such that it is more

likely than not that his or her life or freedom would be threatened . . . .” 8 C.F.R. § 1208.16(b)(2).

Here, Vasilev provided evidence that Russians are subject to some discrimination in Kyrgyzstan, but

this evidence of discrimination does not support a finding of persecution. Persecution is an “extreme

concept that does not include every sort of treatment that our society regards as offensive.” Gulezian


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v. Mukasey, 290 F. App’x 888, 895 (6th Cir. 2008). The articles and information Vasilev submitted

to the IJ discuss discrimination in employment and “occasional indignities such as verbal taunting

from Kyrgyz youth.” This is similar to the information contained in the 2005 State Department

Country Report, which found that ethnic minorities reported some discrimination in hiring,

promotion, and housing, and noted that “Russian speaking citizens alleged that a ceiling precluded

promotion beyond a certain level in government service.”           However, we have held that

“‘[d]iscrimination alone ‘does not rise to the level of persecution.’” Gulezian, 290 F. App’x at 895

(quoting Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998)). Although Vasilev has presented

some evidence of discrimination against ethnic Russians in Kyrgyzstan, substantial evidence

supports the decisions of the IJ and BIA finding that Vasilev has failed to meet his burden of

showing a clear probability of persecution should he return to Kyrgyzstan.

       Because substantial evidence supports the decisions of the IJ and BIA that Vasilev was not

entitled to withholding of removal, his petition is DENIED.




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