Minaylova v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13788 APR 13, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-642-925
VALENTINA NIKOLAYEVNA MINAYLOVA,
IGOR VLADIMIROVICH TOKAREV,
llllllllllllllllllllllllllllllllllllllllPetitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 13, 2011)
Before CARNES, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Valentina Nikolayevna Minaylova and her husband, Igor Vladimirovich
Tokarev,1 petition for review of the order of the Board of Immigration Appeals
(“BIA”), affirming the Immigration Judge’s (“IJ”) denial of Minaylova’s
application for asylum under 8 U.S.C. § 1158(a), withholding of removal under
8 U.S.C. § 1231(b)(3), and withholding of removal under the United Nations
Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c).2 On appeal,
Minaylova argues that the immigration court clearly erred when it concluded that
she had not established a well-founded fear of persecution in Russia on account of
her religious practices. Minaylova is an Evangelical Baptist, and she contends that
the objective evidence in the record compels the conclusion that she will be unable
to freely practice her religion if forced to return to Russia. After thorough review,
we deny Minaylova’s petition for review.
We review the decision of the BIA as well as any portions of the IJ’s
opinion that the BIA expressly adopted. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). We review de novo the BIA’s conclusions of law but
review factual findings under the substantial evidence test. Id.1
Tokarev was a derivative beneficiary on Minaylova’s application.
2
Minaylova does not challenge the BIA’s denial of CAT relief, and therefore we do not
review that finding in this proceeding. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (claims not challenged on appeal are deemed abandoned).
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“Our review for substantial evidence is highly deferential.” Id. at 1351. We
view the evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision, and we will reverse findings of fact
made by the BIA or the IJ only when the record compels such reversal. Id. Thus,
“[t]he mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id. (quotation marks mitted).
Furthermore, although the agency is required to consider all of the applicant’s
evidence, we do not require it to specifically address each piece of evidence that
the applicant presented. See Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th
Cir. 2006); see generally 8 C.F.R. § 208.12(a).
Minaylova conceded that she was not persecuted before coming to the
United States, and she therefore must show that she has a well-founded fear of
future persecution to gain asylum. She can satisfy this burden by showing (1) a
reasonable possibility of personal persecution that cannot be avoided by relocating
within the subject country, or (2) a pattern or practice in the subject country of
persecuting members of a statutorily defined group of which the applicant is a
member. 8 C.F.R. §§ 208.13(b)(2), (b)(3)(i); see Yang v. U.S. Att’y Gen., 418
F.3d 1198, 1202 (11th Cir. 2005). This fear must be “both subjectively genuine
and objectively reasonable.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th
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Cir. 2006). The petitioner can satisfy the subjective component through credible
testimony that she genuinely fears persecution on the basis of the grounds alleged
and the objective component by showing that she has a “good reason to fear future
persecution.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289-90 (11th Cir. 2001).
Upon review, we conclude that substantial evidence supports the BIA’s
order of removal. First, we cannot agree with Minaylova that the agency failed to
consider all of the evidence before it. Her argument depends on drawing an
inference from the BIA’s failure to discuss all of the evidence presented, but we
have held that neither the BIA nor the IJ has such an obligation. See Tan, 446
F.3d at 1374. Additionally, both the BIA and the IJ drew much of their
information from reports issued by the State Department, which they are entitled
to do. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008).
Finally, while Minaylova argues that the agency was “cherry-picking” portions of
the State Department reports, the substantial evidence test precludes us from re-
weighing the importance attributed to a particular piece of information. See id.;
see also Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291–92 (11th Cir. 2006).
Second, the record does not compel a contrary result in this case. “The
statutes governing asylum and withholding of removal protect not only against
persecution by government forces, but also against persecution by
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non-governmental groups that the government cannot control. . . .” Ruiz, 440 F.3d
at 1257. Thus, Minaylova would be entitled to asylum and withholding of
removal if either the government is actually engaged in persecution, or if it was
unable to prevent persecution by non-governmental groups. Yet the evidence she
has submitted demonstrates neither.
To begin, the record shows that the Russian government does not persecute
Evangelical Baptists. To be sure, there are indications in the record that the
Russian government has perpetrated some harassment against religious minorities.
However, we have held that harassment does not equate to persecution. See
Sepulveda, 401 F.3d at 1231 (explaining that persecution is an “extreme
concept”). More importantly, Minaylova’s expert witness testified that the
Russian government was not attacking religious minorities. As a result, no
evidence shows that the government’s actions support an objective fear of future
prosecution.
Nor does the evidence compel the conclusion that the government cannot
control persecution by non-government groups. For example, the 2008 Human
Rights Report states that “[c]onditions improved for some minority religious
groups while remaining largely the same for most, and government policy
continued to contribute to the generally free practice of religion for most of the
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population.” Moreover, the Report specifically states that “harassment of
evangelicals and Pentecostals . . . decreased during the year,” which supports the
BIA’s conclusion that the Russian government is willing and able to protect an
Evangelical Baptist such as Minaylova. The State Department’s 2008
International Religious Freedom Report about Russia in turn echoes these
findings.
The testimony of Minaylova’s expert witness also supports the BIA’s
conclusion. The expert testified that the Russian government has prosecuted
incidents of hate crimes and spoken out against those who commit them.
Moreover, although he opined that conditions are deteriorating for Evangelical
Baptists, the expert did not provide data to contradict the State Department’s
contrary findings that conditions are improving. As a result, the BIA did not err in
relying on the State Department reports to the extent there was any conflict
between the two sources of evidence. See Djonda, 514 F.3d at 1175 (explaining
that Court will not second guess agency’s reasonable weighing of competing
evidence). Thus, substantial evidence supports the BIA’s findings.
For these reasons, we conclude that Minaylova’s evidence does not compel
the conclusion that she is entitled to asylum and withholding of removal, and
accordingly we deny her petition for review.
PETITION DENIED.
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