Anisovich v. Atty Gen USA , 75 F. App'x 77 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-9-2003
Anisovich v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4377
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4377
YURIY VIKTOROVICH ANISOVICH,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
of the United States,
Respondent
On Appeal from an Order Entered in
The Board of Immigration Appeals
(No. A 71 214 854)
Submitted Under Third Circuit LAR 34.1(a)
July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges
(Opinion filed September 9, 2003)
OPINION
AMBRO, Circuit Judge
The Immigration and Naturalization Service (“INS”) began removal proceedings against
petitioner Yuriy Viktorovich Anisovich, who sought asylum and withholding of deportation
under the Immigration and Nationality Act (“INA”). Denied relief by the Immigration Judge
(“IJ”), Anisovich appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s
decision. Anisovich subsequently filed this petition for review, a petition that we dismiss.
I. Background
A. Facts and Procedural History
Anisovich is a native of the Ukraine who was admitted to the United States as a refugee
on September 8, 1994, and became a lawful permanent resident on October 4, 1995. On June 11,
1998, Anisovich pleaded guilty to one charge of illegal use of a credit card and was sentenced to
a three-year term of probation. On September 7, 1999, the INS1 initiated removal proceedings
against Anisovich under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), as an alien
convicted of a crime of moral turpitude. An IJ found Anisovich removable on March 23, 2001.
Anisovich applied for asylum, withholding of removal and protection under the
Convention Against Torture. A full merits hearing was held on April 10, 2002. Anisovich
described the persecution he had suffered in the Ukraine on account of his Jewish religion and
ethnicity. While the IJ found that Anisovich had suffered past persecution, he denied him relief
from removal. He noted that Anisovich’s testimony was credible and consistent with the written
statements submitted with his application and found that Anisovich had suffered past persecution
on account of his Jewish ethnicity and religion. However, the IJ also found that country
conditions in the Ukraine had changed. As a result Anisovich no longer had a well-founded fear
1
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice
and its enforcement functions have been transferred to the Department of Homeland
Security.
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of government-condoned persecution and was not, therefore, eligible for asylum. The IJ denied
him withholding of removal under the INA because, absent a well-founded fear of persecution,
Anisovich could not demonstrate a clear probability that he would be persecuted. Finally,
because there was no evidence that the Ukranian Government would torture or acquiesce in the
torture of Anisovich, the IJ denied him withholding of removal under CAT.
The BIA upheld the IJ’s decision on November 5, 2002. Based on the country condition
information in the record, it concluded that a preponderance of the evidence supported the IJ’s
finding that Anisovich did not have a well-founded fear of future persecution. This petition for
review followed.2
B. Statutory Scheme
1. Asylum
The Attorney General may grant asylum to an alien who demonstrates that he or she is a
refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A refugee is someone who is unable or
unwilling to return to his or her country because of a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political opinion. INA §
101(a)(42)(A), 8 U.S.C. § 1158(b)(1).
An applicant is eligible for asylum on the basis of past persecution if he or she can show:
“(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one
of the statutorily-protected grounds; and (3) is committed by the government or forces the
2
This Court has jurisdiction to review final orders of removal pursuant to 8 U.S.C. §
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001).
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government is either ‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). A showing of past persecution creates a rebuttable presumption of future persecution.
Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002) (citing 8 C.F.R. § 208.13(b)). That
presumption can be rebutted by the Government through the presentation of evidence that there
has been a fundamental change in circumstances in the country of persecution (generally referred
to as “changed country conditions”) such that an applicant no longer has a well-founded fear of
persecution, or that the alien could avoid future harm by relocating within the country. Id. at
126-27 (citing 8 C.F.R. §§ 208.13(b)(1)(i)(A)-(B), 208.16(b)(1)); In re N-M-A-, 22 I&N Dec.
312 (BIA 1998). If the Government meets this burden, the alien must establish a well-founded
fear of future persecution in order to be eligible for asylum. Id.An applicant is eligible for asylum because of his or her fear of future persecution upon
showing both that he or she possesses a genuine fear (the subjective test) and that a reasonable
person would fear persecution if returned to that country (the objective test). Gao, 299 F.3d at
272. Aliens bear the burden of supporting their asylum claims through credible testimony. Id.Testimony, if credible, is by itself sufficient to meet this burden. 8 C.F.R. § 208.13(a).
2. Withholding/Deferral of Removal
An alien is eligible for withholding of removal under the INA if he or she can provide
objective evidence demonstrating that it is more likely than not that he will face persecution.
Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997). That person also is eligible for withholding
or deferral of removal under CAT if he or she can demonstrate that “it is more likely than not that
he or she will be tortured if removed.” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002)
(quoting 8 C.F.R. § 208.16(c)(2))). Torture is defined as the “intentional infliction of severe
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mental physical or physical pain and suffering by a public official, a person acting in an official
capacity, or by a person acting with the consent or acquiescence of a public official.” 8 C.F.R. §
208.18.
II. Discussion
We review the BIA’s decision under the substantial evidence standard. Abdille v.
Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478 (1992)).
Findings of fact made by the IJ will be upheld to the extent that they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Elias-Zacarias, 502 U.S. at 481 n.1. Under this deferential standard, we may reverse only if we
conclude “that the evidence not only supports [the opposite] conclusion but compels it.” Elias-
Zacarias, 502 U.S. at 481 n.1 (emphasis in text).
It is this standard of review that dictates the outcome of this case. The BIA concluded
that a preponderance of the evidence supported the IJ’s finding that country conditions in the
Ukraine had changed, making Anisovich’s fear of future persecution at the hands of the
Government no longer well-founded. There is evidence in the record to support the IJ’s
conclusion that country conditions have changed in the Ukraine because the Government is no
longer condoning anti-Semitism. As noted in the Department of State Country Report on Human
Rights Practices for 2000, the judiciary has begun to award religious property restitution to the
Jewish community in Kiev and the Ukrainian central government actively discourages anti-
Semitism by, for example, prosecuting publishers for the dissemination of anti-Semitic material.
As the IJ pointed out in his oral opinion, there is also evidence to support Anisovich’s
argument that anti-Semitism is alive and well in the Ukraine: ultra-nationalist groups regularly
5
publish anti-Semitic materials, and acts of anti-Semitism have declined in recent years but do
continue to occur. Yet, as the IJ noted, there was no evidence that the Government currently
tolerated the persecution of Jews. And, as publishers who do disseminate anti-Semitic materials
are being prosecuted, there is no evidence that the Government is unable or unwilling to control
those groups that are committing anti-Semitic acts. Gao, 299 F.3d at 272 (persecution must
occur at hands of government or by forces government is unable or unwilling to control).
Under the deferential Elias-Zacarias standard of review, it is not enough that there is
some evidence to support Anisovich’s claims. Rather, we may only reverse “if a reasonable
factfinder would have to conclude that the requisite fear of persecution existed.” Chang, 119
F.3d at 1060. We cannot say, on this record, that a reasonable fact-finder could not conclude that
country conditions have changed. Nor has Anisovich met his burden of demonstrating that he
has a reasonable fear of future persecution from a new source. As a result, we must affirm the
decision of the BIA that Anisovich does not have a well-founded fear of future persecution.
Inasmuch as we affirm this conclusion, we also affirm the BIA’s conclusion that
Anisovich is not entitled to withholding of removal either under the INA or under CAT.
Thus, we dismiss Anisovich’s petition for review.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judge
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