Matskiv v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROMAN B. MATSKIV,
Petitioner,
v. No. 03-9552
(No. A78-344-034)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner, Roman B. Matskiv, seeks review of respondent’s 1
determination
that he does not qualify for asylum. We dismiss the petition with respect to
Mr. Matskiv’s asylum claim and deny his petition with respect to his withholding
of removal claim.
Mr. Matskiv is a citizen and native of Ukraine. He is Jewish. He arrived in
the United States December 1998, as a visitor for pleasure with authorization to
remain until June 1999. He failed to depart and a notice to appear issued in June
2000, charging him with removability. He conceded the factual allegations of
removability, and requested asylum, withholding of removal, protection under the
Convention Against Terror, and voluntary departure.
At the hearing before the immigration judge (IJ), Mr. Matskiv testified as
to various incidents he had experienced allegedly because of his Jewish ethnicity,
including that he was not allowed to compete internationally as a speed skater,
although he was a Ukraine national champion; he was denied an apartment; and
he was subjected to ethnic comments. He testified that when he refused to assist
his boss, an active member of Rukh, an organization that supports anti-Semitism,
1
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.” Hang Kannha Yuk v.
Ashcroft, 355 F.3d 1222, 1224 n.3 (10th Cir. 2004).
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in an illegal business deal, he was threatened and a member of Rukh called him
and told him not to show up at work again.
He and a friend then went into business together reselling food products
they imported from Poland. Members of Rukh, including his former boss’s
nephew, told him to pay them $1000.00 a month in order to keep the business
operating. Before he decided whether to make the payments, members of Rukh
beat him, called him a Jew, and threatened to kidnap his child. Later, members of
Rukh beat him again seriously enough to cause him to be hospitalized, they also
told him to close his business and to leave Ukraine. Mr. Matskiv then sold his
house, got a passport from a tourist agency in Russia, and came to the United
States. After arriving in the United States, Mr. Matskiv learned that his friend
and business partner had been killed.
Mr. Matskiv testified that no governmental authorities will stop Rukh and
he is fearful that if he returns to Ukraine, he will be killed. He testified that if he
were to move to another part of Ukraine he would have to get officially signed
out of his current place of residence and officially signed into a new one, which
would permit Rukh to find him at his new address.
The IJ determined that Mr. Matskiv’s application for asylum was
time-barred as it was filed outside the one-year period allowed and that no
extraordinary circumstances excused the delay. The IJ also denied Mr. Matskiv’s
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application on the merits, noting that the documents Mr. Matskiv presented had
not been certified and, thus, had no indicia of authenticity. The IJ concluded that
only Mr. Matskiv’s passport appeared authentic, as supported by the fact that it
had been accepted by the United States Embassy. The IJ held that Mr. Matskiv’s
testimony was not credible as it was inconsistent and had shifted during the
course of the hearing regarding how he had obtained the Russian passport and his
manner of leaving Ukraine, thus defeating a finding that Mr. Matskiv had testified
credibly. The IJ further noted that Mr. Matskiv had acknowledged that it was
possible to move anywhere in Ukraine and he would be able to resettle. The IJ
also relied on the State Department’s Country Report which showed that (1) the
situation for Jews has improved considerably in Ukraine as the Jewish religion is
one of the three native religions recognized by the government; (2) the
government protects the rights of the Jewish community, and in fact, condemns
anti-Semitism; and (3) there has been a resurgence of Jewish religious and
cultural institutions.
On appeal, Mr. Matskiv first argues that the Board of Immigration Appeals
(BIA) improperly issued a decision without opinion by only one member of the
board, thus violating his due process rights. This court has already resolved this
issue adversely to him. In Hang Kannha Yuk, we held that “the summary
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affirmance procedures [employed by the BIA] do not violate principles of
administrative law or due process.” 355 F.3d at 1232.
Mr. Matskiv also contends that the IJ erred in denying him asylum as
(1) his documents were authentic and his Russian passport was not valid, (2) his
testimony was credible, (3) he did not leave Ukraine and come to the United
States for economic reasons, and (4) he cannot relocate to another area of Ukraine
and have appropriate protection from the government. Mr. Matskiv argues that he
established that he had been subjected to past persecution and had a well-founded
fear of future persecution, and he established his eligibility for withholding of
removal. Mr. Matskiv also asks that this court remand this case so that the BIA’s
order can be vacated and he can file a motion to amend his status based on the
fact that his employer is filing an I-140 petition for him as an alien worker.
Mr. Matskiv does not challenge the IJ’s determination that he did not qualify for
relief under the Convention Against Terror.
First, we must examine whether we have jurisdiction over this appeal. We
generally have jurisdiction to review the agency’s denial of a petition for asylum.
See 8 U.S.C. § 1252(a)(2)(B)(ii). However, under § 1158(a)(3), we may not
review the IJ’s determinations (1) that Mr. Matskiv’s asylum application was
untimely and (2) that changed circumstances do not excuse his untimely filing.
See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003). We therefore
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dismiss for lack of jurisdiction Mr. Matskiv’s challenge to the IJ’s denial of his
application for asylum.
Although we lack jurisdiction to review Mr. Matskiv’s asylum claim, we
must still consider the merits of his claim for withholding of removal. Id. To
establish eligibility for withholding of removal, Mr. Matskiv must show “a clear
probability of persecution attributable to race, religion, nationality, membership in
a particular social group, or political opinion.” Id. (quotation omitted). He can
meet this burden in one of two ways. First, he can demonstrate that he suffered
past persecution in Ukraine based on any of the foregoing five factors, thus
raising a presumption that his life or freedom would be threatened in the future.
8 C.F.R. § 208.16(b)(1). Second, if he cannot show past persecution, he can
establish that his life or freedom would be threatened in the future by
demonstrating that it is more likely than not that he would be persecuted on
account of a protected ground. Id. § 208.16(b)(2). If Mr. Matskiv establishes
either of these two factors, the INS may rebut them by showing, by a
preponderance of the evidence, either (1) a fundamental change in the
circumstances in Ukraine so that Mr. Matskiv’s life or freedom would no longer
be threatened as a result of any of the factors, or (2) that it would be reasonable
for Mr. Matskiv to relocate to another part of Ukraine and, thus, avoid future
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threats. Id. § 208.16(b)(1)(A), (B); see also id. § 208.16(b)(3) (addressing
reasonableness of internal relocation).
In reviewing this issue, “[w]e may not weigh the evidence, and we will not
question the immigration judge’s . . . credibility determinations as long as they
are substantially reasonable.” Woldemeskel v. INS , 257 F.3d 1185, 1192 (10th
Cir. 2001). The IJ gave valid reasons for his decisions regarding the validity of
Mr. Matskiv’s documents. He also explained why he found Mr. Matskiv to be
less than fully credible in his testimony. As the IJ’s decisions were substantially
reasonable, we may not reverse his determination as to the validity of
Mr. Matskiv’s documents, his credibility, his reasons for leaving Ukraine, or that
he can relocate to another area of Ukraine where he will have appropriate
governmental protection.
Mr. Matskiv maintains that he established that he was persecuted by
members of Rukh on account of his Jewish ethnicity. Defining “persecution” is
“a most elusive and imprecise task.” Balazoski v. INS , 932 F.2d 638, 641 (7th
Cir. 1991). It is, however, “an extreme concept that does not include every sort
of treatment our society regards as offensive.” Ghaly v. INS , 58 F.3d 1425, 1431
(9th Cir. 1995) (quotation omitted). “Mere generalized lawlessness and violence
between diverse populations, of the sort which abounds in numerous countries
and inflicts misery upon millions of innocent people daily around the world,
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generally is not sufficient to permit the Attorney General to grant asylum . . . .”
Singh v. INS , 134 F.3d 962, 967 (9th Cir. 1998). Rather, “persecution requires
the infliction of suffering or harm upon those who differ (in race, religion, or
political opinion) in a way regarded as offensive and requires more than just
restrictions or threats to life and liberty.” Hang Kannha Yuk , 355 F.3d at 1233(quotations omitted). Accordingly, we have held that “a cts of common
criminality or personal hostility . . . do not implicate asylum eligibility.” Vatulev
v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003) . Nor do threats alone generally
constitute actual persecution. Hang Kannha Yuk , 355 F.3d at 1234.
“Discrimination on the basis of race or religion, as morally reprehensible as it
may be, does not ordinarily amount to ‘persecution’ within the meaning of the
Act.” Ghaly , 58 F.3d at 1431.
Mr. Matskiv has not met the high standard for withholding of removal.
Although he testified that he was threatened and beaten because of his Jewish
ethnicity, Mr. Matskiv has failed to show that the actions of Rukh are condoned
by the state or are the prevailing social norm. Ghaly , 58 F.3d at 1431. In fact,
according to the country report reviewed by the IJ, the Ukrainian government
actively protects the rights of the Jewish community.
As to Mr. Matskiv’s final issue that we should remand this case for possible
reopening by the BIA, we are unable to do so. See Ortiz v. INS , 179 F.3d 1148,
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1152 (9th Cir. 1999) (“[W]hen an alien discovers new information after the BIA
has finalized deportation proceedings, the proper procedure is for the alien to
move the BIA to reopen proceedings, not to petition this court to compel the BIA
to reopen.”) (quotation omitted); 8 C.F.R. § 1003.2(c); see also Nguyen v. INS ,
991 F.2d 621, 623 n.3 (10th Cir. 1993) (failure to raise issue to agency constitutes
failure to exhaust administrative remedies and deprives this court of jurisdiction
to address that issue).
Upon approval of his labor certification and approval by the Department of
Homeland Security, Mr. Matskiv must file a properly supported motion to reopen.
See 8 C.F.R. § 1003.2, but see , id. § 1252b(e)(2)(A) (alien who is granted
voluntary departure and remains in the United States after his scheduled departure
date is eligible for adjustment of status only upon showing of exceptional
circumstances excusing his failure to depart).
The petition for review is DISMISSED IN PART and DENIED IN PART.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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