Sersnova v. Gonzales

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-1983
NATALJA SERSNOVA
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
Reynold E. Finnegan and Finnegan & Diba on brief for
petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Lowell R. Stern, Attorney, U. S. Department of
Justice, on brief for respondent.
June 20, 2007
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
JOHN R. GIBSON, Senior Circuit Judge. Natalja Sersnova,
a noncitizen resident of Latvia, seeks review of a final order of
the Board of Immigration Appeals denying her application for asylum
and withholding of removal. We deny review.
Sersnova contends that she has a well-founded fear of
future persecution in Latvia on account of her Russian ethnicity.
She testified that she was born in the Ukraine of a Ukrainian
mother and a Russian father, but that she grew up in Latvia in an
area populated mostly by ethnic Russians. Her early schooling was
conducted in Russian, although she studied Latvian and took Latvian
language exams in 1997 and 1999, testing at the average level.
After graduating from high school in 1998, she was admitted to the
Latvian University of Agriculture, where the instruction was in
Latvian. She performed well there. She worked as a census taker
in Latvia. Her parents and her brother continue to live in Latvia,
where her father and brother are both employed. Neither Sersnova
nor her brother has ever been arrested in Latvia.
Sersnova testified that she never had applied for Latvian
citizenship because she had not achieved the highest level on the
Latvian language tests, which she said was a pre-requisite for
citizenship. Sersnova apparently did not retake the Latvian exam
in 2000 after she finished two years of university level coursework
conducted in Latvian.
She testified that she had been subjected to
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discrimination on the basis of her Russian ethnicity when people
cursed at her on the street, threw rocks and bottles at the
building where she lived, and refused to come to the door when she
was working as a census taker. She said that her math teacher at
the university had been hostile to her and refused to help her
because she was Russian. She also said that one of her friends had
been hit in the head with a bottle thrown from a bus because the
friend had been speaking Russian.
Sersnova offered into evidence the State Department's
2002 Country Report on Latvia, which indicated that the Latvian
language requirement for citizenship has been liberalized so that
a high school language certificate now suffices. The same report
indicated that the government has facilitated the naturalization
process so that 95% of applicants now pass the exams on the first
try.
The IJ found that none of the incidents recounted by
Sersnova "come close" to establishing past persecution and that she
did not establish a well-founded fear of future persecution. The
IJ therefore denied her application for asylum, withholding of
removal, and relief under the Convention Against Torture. He held
that she could be removed to Latvia, and if Latvia would not accept
her, she could be removed to Ukraine.
Sersnova appealed to the Board of Immigration Appeals.
Her brief to the BIA included a request to the BIA to receive new
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evidentiary materials not a part of the record before the IJ. The
BIA summarily affirmed the IJ’s order without mentioning Sersnova’s
request to receive the new evidence.
On petition for review of the BIA’s summary affirmance,
we review the IJ’s decision as if it were the decision of the BIA.
Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005). We review
the IJ’s findings of fact for substantial evidence, upholding them
unless the record evidence would compel any reasonable factfinder
to make a contrary determination. Id.The IJ’s findings that Sersnova has not suffered past
persecution or shown a well-founded fear of future persecution are
well supported by the record. Sersnova’s description of her
personal experiences does not show either that she has been
subjected to treatment severe enough to constitute persecution or
that she has reason to fear she would be subjected to such
treatment if she returned to Latvia. At most, she described a
"general climate of discrimination," which does not suffice to
establish persecution. See Attia v. Gonzales, 477 F.3d 21, 23-24
(1st Cir. 2007)(per curiam). Her testimony that she would not be
able to pass the Latvian language requirements for citizenship
after having completed two years of college-level studies conducted
in Latvian was contrary to the evidence in the State Department
country report that she introduced. We easily uphold the IJ's
findings.
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Sersnova also contends that the BIA erred in issuing its
summary affirmance without noting specifically that it denied the
"motion to expand record" included in her BIA appeal brief. The
BIA does not find facts in the course of deciding appeals, except
"for taking administrative notice of commonly known facts." 8
C.F.R. § 1003.1(d)(3)(iv). The BIA therefore need not consider
evidence presented for the first time on administrative appeal.
Bhanot v. Chertoff, 474 F.3d 71, 74 (2d Cir. 2007)(per curiam). "A
party asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion for remand." 8
C.F.R. § 1003.1(d)(3)(iv). Sersnova did not file such a motion,
and therefore the BIA was not obliged to remand. Ye v. Dep't of
Homeland Security, 446 F.3d 289, 296 (2d Cir. 2006).
Although the BIA arguably erred by not mentioning the
request to expand the record in its summary affirmance, we conclude
remand would be futile because the additional documents offered
would not change the result. See Bhanot, 474 F.3d at 74; see also
Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007); see
generally NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)
(SEC v. Chenery Corp., 318 U.S. 80 (1943), does not require remand
where it would be "an idle and useless formality."). Sersnova
could have received a remand or reopening only if she had shown a
prima facie case that she was eligible for the relief sought and if
the evidence she sought to introduce was material and unavailable
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during the earlier proceedings. Falae v. Gonzales, 411 F.3d 11, 14
(1st Cir. 2005). Dates on three of the documents Sersnova offered
show they were publicly available in November 2003 during the
hearing before the IJ, and a fourth is undated, but contains no
information about events later than 1998. The other news articles
submitted have to do with protests over proposed measures such as
limiting the amount of school instruction conducted in the Russian
language, which does not threaten Sersnova personally since she
successfully performed university studies with instruction in
Latvian. The 2003 State Department country report was consistent
with the 2002 report before the IJ, except that the 2003 Report
shows that an additional 10,403 non-citizens were naturalized
during the intervening year, which of course undermines Sersnova's
claim that she would not be able to become a citizen. Because it
is evident that the documents attached to Sersnova's BIA brief
would not have been a basis for reopening her case, we decline to
order a futile remand.
We deny review.
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