Svistun v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 08-60700
Summary Calendar Charles R. Fulbruge III
Clerk
SERGEY SEMEOVICH SVISTUN; TATYANA ALEXANDROVNA SVISTUN,
Petitioners
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98 602 423
Before JOLLY,WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Sergey Semenovich Svistun, a native and citizen of Russia, petitions for
review of the Board of Immigration Appeals’s (BIA) dismissal of his appeal of the
Immigration Judge’s order denying his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Svistun’s wife,
Tatyana Alexandrovna Svistun, also a native and citizen of Russia, seeks relief
as a derivative beneficiary of her husband’s applications.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5th Cir. R. 47.5.4.
No. 08-60700
This court reviews the Immigration Judge and BIA’s rulings of law de novo
and their findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d
588, 594 (5th Cir. 2007). Under the substantial evidence standard, reversal is
improper unless this court decides “not only that the evidence supports a
contrary conclusion, but also that the evidence compels it.” Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006) (internal quotation and citation omitted).
The Immigration Judge and BIA concluded that Svistun’s asylum
application was statutorily barred as untimely. To be eligible for asylum, an
alien must file an application within one year of his latest arrival in the United
States, 8 U.S.C. § 1158(a)(2)(B), which Svistun did not do. However, this one-
year filing deadline may be excused if the alien shows, “to the satisfaction of the
Attorney General,” that there are “changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the [one-year] period.”
8 U.S.C. § 1158(a)(2)(D). After the passage of the REAL ID Act, this court has
jurisdiction to review a determination of timeliness that turns on a
constitutional claim or question of law, but lacks jurisdiction to review
determinations of timeliness that are based on findings of fact. Zhu, 493 F.3d
at 594–95; Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007).
Svistun argues that the timeliness of his asylum application is reviewable
because it involves a constitutional claim and a question of law. As to the
constitutional claim, he contends that the Immigration Judge violated his due
process rights by failing to determine whether extraordinary circumstances
warranted an exception to the one-year deadline. To the contrary, we conclude
that the Immigration Judge considered and rejected Svistun’s argument that his
unsuccessful attempt to extend his legal status supported a finding of
extraordinary circumstances overcoming the statutory bar. Because the district
court addressed the exception, there is no basis for Svistun’s due process claim.
Svistun further asserts that the Immigration Judge applied an incorrect legal
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No. 08-60700
standard to the changed circumstances determination, by requiring him to file
his application within a reasonable time of discovering the changed
circumstances, and suggesting six months as a reasonable time. We conclude
that the Immigration Judge applied the correct legal standard, and that, as in
Zhu, the Immigration Judge’s rejection of Svistun’s arguments “was based on an
evaluation of the facts and circumstances of [his] case,” and therefore that we “do
not have jurisdiction to review the Immigration Judge’s determination.” See 493
F.3d at 596.
Svistun also challenges the rejection of his claim for withholding of
removal. “To be eligible for withholding of removal, an alien must demonstrate
an objective ‘clear probability’ of persecution in the proposed country of removal.”
Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (citation omitted).
Persecution has been defined as “[t]he infliction of suffering or harm, under
government sanction, upon persons who differ in a way regarded as offensive
. . . in a manner condemned by civilized governments.” Zhao v. Gonzales, 404
F.3d 295, 307 (5th Cir. 2005) (internal quotation and citation omitted). An alien
may prove the objectivity of his persecution claim by showing that there is a
“pattern or practice” of persecution of a group of persons in which he is a
member on account of an enumerated ground. Id.Svistun argues that it is more likely than not that he will be persecuted
if he returns to Russia. He argues that he has a well founded fear, because in
his former professional life in Russia, he disclosed to private parties economic
information that has since become classified, and other individuals dealing with
classified and newly-classified information in Russia have been persecuted.
While Svistun points to evidence that some individuals in somewhat comparable
circumstances to his have been subjected to persecution in Russia, the evidence
does not rise to the level of compelling a conclusion contrary to that of the
Immigration Judge and BIA. See Chen, 470 F.3d at 1134; Majd, 446 F.3d at 595.
We accordingly find no reversible error.
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No. 08-60700
Svistun likewise fails to surmount the onerous standard of review with
respect to his claim under the Convention Against Torture. To receive protection
under the CAT, Svistun had to establish that it was “more likely than not” that
he would be tortured if removed to his home country. Efe v. Ashcroft, 293 F.3d
899, 907 (5th Cir. 2002). Svistun has not asserted that he was tortured in the
past, and has not provided evidence that would compel the conclusion that it is
more likely than not that he will be subjected to torture based on his activities
in prior employment or for any other reason.
Finally, Mrs. Svistun joined in her husband’s application for withholding
of removal, but did not file an independent application or assert an independent
basis for obtaining that relief. The statute authorizing withholding of removal
does not afford derivative relief to members of the alien’s family unless there is
an independent ground for granting the family member such relief. Arif v.
Mukasey, 509 F.3d 677, 681–82 (5th Cir. 2007). Because Mrs. Svistun did not
file an independent application for withholding of removal nor assert an
independent basis for obtaining such relief, her application for withholding is
denied. See id.The joint petition for review is DENIED.
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