Nikolay Shvedko v. Eric Holder, Jr. ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0030n.06
No. 09-3980 FILED
Jan 12, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
NIKOLAY FRANTS SHVEDKO; and MARIKA
AVGUSTIN SVEDKO,
Petitioners,
ON PETITION FOR REVIEW OF AN
v. ORDER OF THE BOARD OF
IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General,
Respondent.
/
Before: BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Petitioners Nikolay Shvedko and Marika Svedko1
filed affirmative2 petitions for asylum, withholding of removal pursuant to section 241(b)(3) of the
Immigration and Nationality Act, and protection under the Convention Against Torture.3 An
immigration judge denied their applications, and the denials were affirmed by the Board of
Immigration Appeals. Nikolay and Marika now appeal the Board’s denial of their withholding
section 241(b)(3) and Convention claims.4 We DENY Nikolay’s and Marika’s petitions for review.
1
Because of the confusing similarity of Petitioners’ last names, they are referred to throughout this opinion by
their first names.
2
W ithholding proceedings had not yet been initiated against Nikolay or M arika.
3
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec.
10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U.N.T.S. 85; see 8 C.F.R. §§ 1208.16-.18 (2010).
4
Marika does not appeal her asylum claim even though it was timely filed and she would meet a lesser burden
than with her withholding claims.
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I. BACKGROUND
Nikolay was born in Soviet Russia, but moved at age eight to Estonia, another Soviet Union
member state. Marika was born in Estonia, where she and Nikolay met, married, and had two
children. After serving in the Soviet Army, Nikolay became a member of the KGB to investigate
criminal cases in Estonia. Unhappy as a KGB agent, Nikolay requested to be discharged from the
agency. That request was denied and viewed almost as a treasonous act. Nevertheless, Nikolay
again requested a discharge in 1990 and was granted walking papers.
When Estonia became an independent nation in 1991, Marika and the two children
automatically became citizens of the new Republic of Estonia because they were all born there.
Nikolay, however, did not automatically qualify for citizenship because he was born in Russia, and
never achieved full citizenship. Instead, he received multiple temporary permits allowing him to
reside in Estonia, but not to work there, and he obtained a passport from the new Russian Federation.
Nikolay began commuting to Russia for small jobs after leaving the KGB, but sometime near
the beginning of 1997, he accepted a position with the Estonian secret police, who contacted him
because of his old KGB position. He continued working with the secret police until early 1999 when
he began working in Russia for a man exporting lumber from there to Estonia.
In 2002, Nikolay arrived in the United States and has remained here since. Marika joined
him in 2004. Their children, then sixteen and eighteen, remained in Estonia living in the family
apartment. In 2004, after both Nikolay’s and Marika’s departure times had passed, they filed
affirmative petitions with the Department of Homeland Security for asylum, withholding of removal,
and protection under the Convention claiming that they feared future persecution and torture at the
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hands of the Estonian and Russian secret police. Their petitions were referred to an immigration
judge, who found Nikolay and Marika to be credible, but denied their petitions on grounds that
Nikolay’s was untimely, neither established past persecution, and neither established beyond
speculation that they would be persecuted or tortured when removed. The immigration judge
ordered Nikolay removed to Russia or alternatively to Estonia and Marika to Estonia. They appealed
the decisions to the Board of Immigration Appeals, but the Board denied their appeals, finding that
the immigration judge’s decisions were not clearly erroneous.
II. DISCUSSION
Nikolay and Marika assert that, if returned to their countries of removal, they would be
persecuted and tortured because Nikolay’s past affiliations with the KGB and Estonian secret police
place them in persecuted social groups, and because membership in those groups imputes to them
certain political opinions. Also, they cite human rights problems and police and prison brutality in
both countries as further evidence. However, a series of events occurring between 1992 and 2004
constitute the bulk of reasons that they fear future persecution and torture.
The first event occurred sometime between 1992 and 1995 when Marika found crosses
affixed to their apartment with the initials “KGB” and their names written on them. She also
suspected that she was being followed, but she does not allege by whom. Additionally, a local
daycare refused to admit their son, hinting that the reason was the family’s former Soviet affiliation.
When Nikolay began working with the Estonian secret police around 1997, Nikolay believes
that their apartment was under audio and video surveillance because bushes and trees were cut down
in front of the apartment. Additionally, an Estonian secret police agent named Marko Reinhardt
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contacted the home and knew information that only could have been obtained from listening to
family conversations inside the apartment. Also, former KGB contacts began visiting the family
without invitation.
A few years later, former KGB agents contacted Nikolay asking to be put in contact with his
employer. Shortly thereafter, in 2002, his employer told him that agents from the new Russian
Federal Security Bureau had come to his office wanting to “detain” Nikolay in order to “clarify”
some things. Afraid for his safety, Nikolay fled Russia and came to the United States in 2002.
The last events cited by Nikolay and Marika occurred around 2004 after Marika had come
to the United States. While the children lived alone in the apartment, Reinhardt contacted them
multiple times looking for Nikolay and knew things about them “from their recent past.” Nikolay
telephoned Reinhardt from the United States at which time Reinhardt told him that Nikolay would
be back in Estonia within a year and that Reinhardt would know about it and be in touch with him.
A. Standard of Review
We have jurisdiction to review final orders of removal issued by the Board. See 8 U.S.C. §
1252(a) (2006); Urbina-Mejia v. Holder, 597 F.3d 360, 364 (6th Cir. 2010). When the Board’s
decision “adopts the immigration judge’s reasoning and supplements [it],” as the Board did here, we
review that opinion as supplemented. Urbina-Mejia, 597 F.3d at 364 (citing Zhao v. Holder, 569
F.3d 238, 246 (6th Cir. 2009)).
This Court reviews questions of law de novo, but factual findings by the Board and the
immigration judge are reviewed for “substantial evidence.” Shaya v. Holder, 586 F.3d 401, 405 (6th
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Cir. 2009). “These findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
B. Withholding of Removal
Withholding of removal pursuant to section 241(b)(3) of the Immigration and Nationality Act
“is not discretionary, but rather is mandatory if the alien establishes that his ‘life or freedom would
be threatened in the proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion.’” Urbina-Mejia, 597 F.3d at 364-65
(quoting Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009)). To satisfy this burden, the applicant
must establish a “clear probability” that he will be persecuted upon return to the country of removal.
Id. at 365 (quoting Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)). An applicant may establish
a threat of persecution by showing past persecution on a protected ground or that there is more likely
than not a future threat of persecution on a protected ground. 8 C.F.R. § 1208.16(b) (2010); see
Thap v. Mukasey, 544 F.3d 674, 681 (6th Cir. 2008). 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.’” Urbina-Mejia, 597 F.3d at 365 (quoting Khalili, 557 F.3d
at 436).
Importantly for purposes of section 241(b)(3), Nikolay and Marika do not allege past
persecution. Therefore, to establish eligibility for withholding of removal pursuant to section
241(b)(3), they must show that it is more likely than not that they would suffer future persecution
if returned to their countries of removal. Although Nikolay and Marika do not allege that the events
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they experienced in the past were “past persecution,” those events still form much of the basis for
their fear of future persecution.
Nikolay believes that he will persecuted by the Russian secret police if returned to Russia,
but out of all the past events he cites as reasons supporting his fear, the only one that is relevant to
the Russian secret police is the time that they attempted to “detain” him at work to “clarify” some
things. Even though he worked in Russia for approximately three years from the time he stopped
working with the Estonian police until he fled to the United States, this is the lone event from that
time period to which he points as proof that he will be persecuted in the future. Since that single
instance in 2002, the Russian secret police have not attempted to contact him or his family.
Additionally, Nikolay does not know what the police wanted, much less whether they intended to
harm him. Even though he “guesses” that they are concerned with his past involvement with the
Estonian secret police, he admits that his work did not conflict with Russian interests.
The only other bases that Nikolay cites for this fear are country reports stating that Russia
has problems with human rights as well as police and prison brutality. However, “‘feared
persecution must relate to the alien individually, not to the population generally.’” Harchenko v.
I.N.S., 379 F.3d 405, 410 (6th Cir. 2004) (citation omitted). These alleged problems have nothing
to do with his individualized status as a former member of the KGB and Estonian secret police.
Therefore, Nikolay has failed to establish that it is more likely than not that he would be persecuted
if returned to Russia.
Nikolay’s and Marika’s fear of persecution upon returning to Estonia is based upon the
remainder of the past events, but they are less compelling. Nikolay and Marika cite evidence of
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inscribed crosses attached to their apartment, Marika’s belief that she was followed, Nikolay’s belief
that their apartment was under surveillance, phone calls from the Estonian secret police looking for
Nikolay, Reinhardt’s assertion that he would know when Nikolay was in Estonia and would be in
touch with him then, and a daycare’s refusal to admit their son. To be sure, it would be undesirable
and unfortunate for Nikolay and Marika to return to Estonia and experience similar events.
However, assuming those types of events would continue, they would more closely resemble
harassment than persecution. Cf. Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010) (quoting
Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998)) (“Persecution ‘requires more than a few
isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.’”). Furthermore, the nature of these events
does not indicate that any future events would escalate to persecution. What is more, Nikolay’s and
Marika’s children have continued to reside in the family apartment without being harmed since their
parents came to the United States. This fact undercuts Nikolay’s and Marika’s fear of persecution.
See In re A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998) (noting that the applicant’s fear of
persecution was undercut by the fact that his family members remained in Peru unharmed for four
years after he left).
Nikolay and Marika also cite country reports identifying Estonia as a place where human
rights problems and police and prison brutality occur, but as with Russia, this generalized evidence
does not relate to them. See Harchenko, 379 F.3d at 410. Therefore, Nikolay and Marika have failed
to establish that it is more likely than not that they would be persecuted if returned to Estonia.
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C. Convention Against Torture
Eligibility for withholding of removal under the Convention Against Torture requires the
applicant “to establish that it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see Shkulaku-Purballori v. Mukasey,
514 F.3d 499, 503 (6th Cir. 2007). Torture is defined as “‘any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted’ to extract information, punish, intimidate,
coerce, or otherwise discriminate.” Haider, 595 F.3d at 289 (quoting 8 C.F.R. § 1208.18(a)(1)).
Relief under the Convention is quite similar to withholding of removal under section 241(b)(3), but
does not require the applicant to link the harm that he will face with any of the five protected
grounds for asylum—race, religion, nationality, membership in a particular social group, or political
opinion. See Castellano-Chacon v. I.N.S., 341 F.3d 533, 551-52 (6th Cir. 2003).
Nikolay and Marika base their claims for withholding pursuant to the Convention on the
same evidence cited for their section 241(b)(3) claims. However, because they have failed to
establish that it is more likely than not that they would suffer persecution, they have neither
established that they would more likely than not be tortured. Compare Thap, 544 F.3d at 681
(definition of persecution), with Haider, 595 F.3d at 289 (definition of torture).
IV. CONCLUSION
For the foregoing reasons, we DENY Nikolay’s and Marika’s petitions for review.