Viktors Ginters v. Alberto Gonzales ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1036
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Viktors Ginters, *
*
Petitioner, *
*
v. * Petition for Review of an
* Order of the Board of
Alberto Gonzales, Attorney General * Immigration Appeals.
of the United States of America, *
* [UNPUBLISHED]
Respondent. *
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Submitted: May 12, 2005
Filed: November 3, 2005
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Before BYE, RILEY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Viktors Ginters, a Latvian citizen, petitions for review of an order of the Board
of Immigration Appeals (BIA) affirming without opinion a decision of an
Immigration Judge (IJ) to deny his application for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). Having carefully reviewed
the record, we deny the petition.
Ginters does not appear to challenge the IJ’s conclusion that his asylum
application was untimely and that he did not demonstrate extraordinary circumstances
relating to his delay in seeking asylum, but in any event, we would lack jurisdiction
to consider such a challenge. See 8 U.S.C. § 1158(a)(3); Ngure v. Ashcroft, 367 F.3d
975, 988-89 (8th Cir. 2004). As to the withholding claim, although the record
contains some disturbing testimony, we nevertheless believe a reasonable fact-finder
could conclude that Ginters – who speaks Russian and is of mixed Russian ethnicity,
and who came to the United States hoping to evade mandatory service in the Latvian
Army – failed to establish it is more likely than not he would be persecuted if he
returned to Latvia. See 8 U.S.C. § 1231(b)(3); Tawm v. Ashcroft, 363 F.3d 740, 744
(8th Cir. 2004) (for withholding, alien must establish it is more likely than not he
would be persecuted); Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004)
(to overturn administrative findings, appeals court “must conclude not only that a
persuasive case has been made for the opposite position, but that any reasonable
fact-finder would be persuaded by it”).
Specifically, we note the following considerations. First, the 1998 State Report
for Latvia, which is included in the record of the 1999 proceedings, indicates that
Latvia had taken energetic steps to stop hazing in the military and that hazing had
declined to the point where no incidents had been reported in 1997. See Navarijo-
Barrios v. Ashcroft, 322 F.3d 561, 564 (8th Cir. 2003) (BIA may reasonably rely on
State Department’s assessment of current country conditions as they relate to
likelihood of future persecution). Second, fear of military service alone is insufficient
as a matter of law to support a well-founded fear of persecution. See Habtemicael v.
Ashcroft, 370 F.3d 774, 780 (8th Cir. 2004) (fear of mandatory military service
cannot form basis for asylum claim unless service requirement is based on political
beliefs). Third, there was no evidence that Latvia had passed its conscription laws
to persecute persons of Russian ethnicity. Cf. Nyonzele v. INS, 83 F.3d 975, 983 (8th
Cir. 1996) (fear of punishment based on military desertion is insufficient to establish
well-founded fear absent evidence that punishment would be disproportionately
severe and based upon alien’s religious or political beliefs). Further, the IJ was
entitled to find the testimony of Ginters’s mother – that Latvian police had detained
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and assaulted her because she was hiding Ginters – to be incredible, particularly
given that Ginters had no difficulty getting a passport and leaving Latvia, see Nyama
v. Ashcroft, 357 F.3d 812, 817 (8th Cir. 2004) (per curiam) (IJ’s credibility findings
will not be disturbed if supported by specific, cogent reasons); cf. Mwangi v.
Ashcroft, 388 F.3d 623, 628 (8th Cir. 2004) (IJ’s decision was supported in part by
evidence showing that Kenyan government had freely issued travel documents to
asylum applicant). The IJ also was entitled to discount the testimony of Ginters’s
cousin – that he had been severely beaten while serving in the Latvian Army based
on his Russian ethnicity – as reflecting the isolated acts of two drunk Latvian officers.
See Nyonzele, 83 F.3d at 983 (although acts of violence against alien family members
may demonstrate well-founded fear of future persecution despite lack of persecution
against petitioner, isolated acts of violence are insufficient). These considerations
also support the denial of Ginters’s claim for asylum, even assuming the denial was
based on grounds other than the untimeliness of the application. See Kasnecovic v.
Gonzales, 400 F.3d 812, 814-15 (9th Cir. 2005).
We also uphold the IJ’s denial of relief under the Convention Against Torture,
as Ginters’s claim under the CAT paralleled his unsuccessful claim for withholding
of removal. See 8 C.F.R. § 208.16(c)(2) (2004) (under CAT, applicant has burden to
show it is more likely than not that he would be tortured if removed to proposed
country of return); Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005)
(independent analysis of CAT claim is unnecessary where alien claims torture would
occur for no reason other than one of the statutory grounds for refugee status).
Accordingly, we deny the petition for review.
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