Nicolay Vasilchuk v. Eric H. Holder Jr. , 439 F. App'x 607 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NICOLAY ROMANOVICH No. 08-74823
VASILCHUK,
Agency No. A076-076-428
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Nicolay Romanovich Vasilchuk, a native and citizen of Moldova, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum, withholding of removal, and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006),
and we dismiss in part and deny in part the petition for review.
Substantial evidence supports the IJ’s finding that the discrimination
Vasilchuk suffered in Soviet Moldova and later in Transnistria, did not rise to the
level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003)
(“two occasions where [petitioner] was ‘pushed’ while attending church services
interrupted by government officials does not compare to the severity of physical
abuse that in other cases we have deemed persuasive to show persecution”).
Substantial evidence also supports the IJ’s finding that Vasilchuk did not
establish a well-founded fear of future persecution based on his Pentecostal
religion. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002) (“[T]he
IJ and the BIA are entitled to rely on all relevant evidence in the record, including
a State Department report, in considering whether the petitioner has demonstrated
that there is good reason to fear future persecution.”). We lack jurisdiction to
review Vasilchuk’s claim based on incidents related to his family’s emigration to
the United States because he did not raise it before the BIA. See Velasco-
Cervantes v. Holder, 593 F.3d 975, 978 n.3 (9th Cir. 2010). Accordingly,
Vasilchuk’s asylum claim fails.
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Because Vasilchuk did not establish eligibility for asylum, it necessarily
follows that he did not satisfy the more stringent standard for withholding of
removal. See Zehatye, 453 F.3d at 1190.
Finally, substantial evidence supports the IJ’s denial of Vasilchuk’s claim
for CAT relief because he failed to show it is more likely than not he will be
tortured if returned to Transnistria. See Wakkary v. Holder, 558 F.3d 1049, 1067-
68 (9th Cir. 2009).
PETITION FOR REVIEW DENIED, in part; DISMISSED, in part.
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