Lebedev v. Garland ( 2023 )

Case: 22-60174 Document: 00516608977 Page: 1 Date Filed: 01/12/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-60174
FILED
January 12, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Ivan Lebedev,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 243 381
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Ivan Lebedev, a native and citizen of Russia, petitions for review of a
decision of the Board of Immigration Appeals (BIA) dismissing his appeal
and affirming the immigration judge’s (IJ’s) denial of his application for
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-60174 Document: 00516608977 Page: 2 Date Filed: 01/12/2023
No. 22-60174
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT).
On review of an order of the BIA, this court examines “the BIA’s
decision and only consider[s] the IJ’s decision to the extent that it influenced
the BIA.” Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). Because the
BIA agreed with the IJ’s analysis and conclusions, we review both decisions.
See id.This court reviews the BIA’s factual findings for substantial evidence,
and it will not reverse such findings unless the petitioner shows that “the
evidence was so compelling that no reasonable factfinder could conclude
against it.” Wang v. Holder, 569 F.3d 531, 536-37 (5th Cir. 2009). Among
the findings that this court reviews for substantial evidence are the factual
conclusions that an alien is not eligible for asylum, withholding of removal,
or relief under the CAT. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005).
Lebedev first argues that the BIA erred in finding that he failed to
show past persecution based on his religious beliefs. He points to his
testimony about being ridiculed and physically abused by his classmates in
Russia because he was Baptist.
This court has previously held that substantial evidence supported a
finding of no past persecution where the mistreatment described consisted of
“mere denigration, harassment, and threats.” Eduard v. Ashcroft, 379 F.3d
182, 188 (5th Cir. 2004). As such, the BIA reasonably found that Lebedev
had failed to demonstrate past persecution. See Wang, 569 F.3d at 537.
Lebedev also argues that the BIA erred in adopting the IJ’s
determination that his subjective fear of persecution, which was confirmed
by the IJ’s credibility finding, was not objectively reasonable. See Zhao v.
Gonzales, 404 F.3d 295, 307 (5th Cir. 2005). Citing INS v. Cardoza-Fonseca,
2
Case: 22-60174 Document: 00516608977 Page: 3 Date Filed: 01/12/2023
No. 22-60174
480 U.S. 421, 431 (1987), Lebedev argues that even a 10% chance of
persecution in Russia is sufficient to establish the reasonableness of his fear.
In this court’s post Cardoza-Fonseca decisions, however, we have
“applied a reasonable person standard when making well-founded fear of
persecution determinations.” Mikhael v. INS, 115 F.3d 299, 305 & nn.6-7
(5th Cir. 1997); see also Qorane v. Barr, 919 F.3d 904, 910 n.2 (5th Cir. 2019)
(reading Cardoza-Fonseca as stating simply that the requisite “reasonable
possibility” of harm need not be “more likely than not”). In Lebedev’s case,
the BIA reasonably concluded that Lebedev failed to show a “reasonable
possibility” that he would suffer persecution in Russia based on his Baptist
faith. See Qorane, 919 F.3d at 910 n.2.
Lebedev’s remaining arguments on the issue of his well-founded fear
of future persecution are essentially a disagreement with how the BIA
weighed the IJ’s factual findings. 1 “The BIA may not overturn an IJ’s factual
findings simply because the Board would have weighed the evidence
differently or decided the facts differently had it been the factfinder.”
Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir. 2009) (internal
quotation marks and citation omitted).
The BIA’s determination that Lebedev is not eligible for asylum or
withholding of removal because he did not establish past persecution or a
well-founded fear of future persecution in Russia is supported by substantial
1
Lebedev also claims that the IJ violated his due process rights and substantially
prejudiced his case by failing to make factual findings related to the prevalence of
“dedovshchina” or hazing in the Russian military. Though the IJ did not specifically
reference the term dedovshchina, the IJ acknowledged the existence of hazing in the
Russian military, and it is clear from the IJ’s decision that he considered the relevant
documentary evidence regarding the practice. Because the IJ’s decision reflects a
“meaningful consideration” of Lebedev’s claims of hazing in the military, Lebedev’s due
process argument is without merit. Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996).
3
Case: 22-60174 Document: 00516608977 Page: 4 Date Filed: 01/12/2023
No. 22-60174
evidence. See Wang, 569 F.3d at 536. Because those findings are dispositive,
this court need not consider Lebedev’s remaining challenge to the BIA’s
nexus analysis. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
Finally, Lebedev argues that this court should take into account the
international condemnation of the Russian Army’s actions in its current war
in Ukraine and its actions in eastern Ukraine since 2014, contending that his
refusal to join such an army constitutes an exception to the general rule that
military conscription cannot serve as the basis for an asylum claim. To the
extent Lebedev seeks consideration of events occurring before the current,
ongoing war, he did not exhaust his contention, and this court lacks
jurisdiction to consider it. See Martinez-Guevara v. Garland, 27 F.4th 353,
359-60 (5th Cir. 2022). To the extent he relies on events during the current
war, the proper vehicle for his argument is a motion for the BIA to reopen his
proceedings. Faddoul v. INS, 37 F.3d 185, 190 (5th Cir. 1994).
The petition for review is DENIED in part and DISMISSED in
part.
4