Viktor Palka v. Eric Holder, Jr. , 507 F. App'x 499 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1249n.06
No. 11-4335 FILED
Dec 04, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
VIKTOR IVANOVICH PALKA; JEVGENIA )
ALEKSEEVNA POLENOVA, )
)
Petitioners, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: MARTIN and BOGGS, Circuit Judges; COLLIER, District Judge.*
PER CURIAM. Viktor Ivanovich Palka and Jevgenia Alekseevna Polenova, husband and
wife, petition for review of an order by the Board of Immigration Appeals dismissing their appeal
of a decision from an immigration judge (IJ), who denied their claims for asylum, withholding of
removal, and protection under the Convention Against Torture.
The petitioners were born in Estonia when it was part of the Soviet Union. However, they
are ethnically Russian. They entered the United States in 2008 and applied for the above-mentioned
relief. At a hearing before an IJ, the petitioners testified that they have not been granted full
citizenship in Estonia, despite being born there, because they have not passed the required Estonian
language test. They also stated that they cannot receive a higher education in Estonia because they
*
The Honorable Curtis L. Collier, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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do not speak Estonian. Therefore, they are limited to unskilled work. Palka claimed to have suffered
past persecution when he was arrested at a demonstration where ethnic Russians were protesting the
removal of a statue of a Russian World War II soldier and ethnic Estonians were supporting the
removal. He stated that police pushed him to the ground and dragged him two hundred yards to a
van, causing bruising and abrasions on his back. Palka was held with a large number of other
arrestees in a shipping terminal for several hours. He was forced to kneel on the floor until his name
was called and he was released. Palka stated that he lost his job at a warehouse the next week, but
that he was not told why. He claimed that he had been able to find only occasional work in
construction after that. Palka presented medical records showing that he had been treated for a back
strain six months later, which he claimed was related to his arrest.
Both petitioners’ main source of trouble, however, allegedly came from three ethnically
Russian men who believed that Palka had been released comparatively quickly after his arrest
because he informed the police who the organizers of the demonstration were. Petitioners testified
that these men came to their apartment and called Palka outside, where they engaged in a shouting
match. A neighbor called the police. Palka testified that the police declined to do anything about
the matter and that they stated that it would be best if the Russians “just killed each other.”
Petitioners claimed that these three men came to their apartment on other occasions, threatening
them for being traitors to their fellow ethnic Russians. Petitioners moved into Palka’s mother’s
apartment on the outskirts of Tallinn. However, the men came to this location, threw rocks at the
windows, and stuffed burning rags under the front door. Petitioners testified that the harassment by
these men was the main motivation for their decision to come to the United States.
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The IJ found that the petitioners’ testimony was not credible and that they had not established
past persecution or a well-founded fear of future persecution. All claims for relief were therefore
denied. The Board dismissed their appeal. The petitioners argue before us that the IJ erred in
finding that their testimony was not credible and in finding that they did not suffer persecution for
their Russian ethnicity, particularly economic persecution.
We review an IJ’s credibility finding to determine whether it is supported by substantial
evidence. See Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). The IJ’s adverse-credibility finding
is supported by the record. Palka testified that he was pushed to the ground by the police. However,
in his written statement in support of his asylum application, he claimed to have been clubbed.
Statements from his mother and brother were also inconsistent on this issue. Palka’s mother stated
that Palka was mistreated after his arrest. His brother stated that Palka was brutally beaten and his
back was broken. Additionally, his brother claimed that the three Russian men had beaten Palka,
while Palka testified only to threats. Palka claimed to have been able to find only sporadic
construction work, but Polenova testified that he had to take off work to visit the doctor six months
later. Palka also claimed, without support, that his diagnosis of lumbar strain was related to his
arrest and not to his work as a warehouseman and construction laborer. Thus, there were sufficient
inconsistencies and gaps in the evidence to support the IJ’s conclusion that the petitioners were not
credible.
Moreover, the IJ also found that the petitioners had failed to establish past persecution. To
the extent Palka relied on his arrest as past persecution, the IJ correctly noted that force used against
a crowd of demonstrators on both sides of an issue does not demonstrate that Palka was specifically
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targeted for abuse based on a protected ground. See Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.
2005). To the extent that the petitioners relied on their claim of economic persecution, Palka’s
unexplained loss of his job, inability to attend Estonian universities, and the difficulty in advancing
to high levels of employment does not constitute persecution. See Japarkulova v. Holder, 615 F.3d
696, 700 (6th Cir. 2010). Moreover, it appears that Palka’s mother and brother were all gainfully
employed. See Pascual v. Mukasey, 514 F.3d 483, 489 (6th Cir. 2007) (holding that family
remaining in country unpersecuted undercuts claim). The record also shows that nearly one-third
of the Estonian population is Russian speaking, and that there are areas outside the capital where
Russian speakers are the majority. Finally, to the extent that the petitioners claimed persecution by
the three Russian men, they did not show that the Estonian government was unwilling or unable to
control these men. See Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). Although
a neighbor called the police due to noise when the men first came to the apartment of Palka’s mother
and the police did not file a report, Palka never spoke to those policemen and never called the police
again, even when the men threw rocks at the apartment windows and tried to set the door on fire.
For the same reasons, the IJ did not err in concluding that the petitioners failed to establish
a well-founded fear of future persecution. See Ali v. Ashcroft, 366 F.3d 407, 410-11 (6th Cir. 2004).
Because the petitioners failed to meet the standard of eligibility for asylum, they necessarily failed
to meet the higher standard for withholding of removal. See Kaba v. Mukasey, 546 F.3d 741, 751
(6th Cir. 2008). They also failed to establish that it is more likely than not that they will be tortured
if they return to Estonia. Thus, they are not entitled to protection under the Convention Against
Torture. See Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004).
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The petition for review is denied.
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