Sadulaeva v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3879
___________
MARINA SADULAEVA,
a/k/a Marina Movsarovna Sadulaeva,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A93 409 850)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2011
Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed January 13, 2011)
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OPINION
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PER CURIAM
Marina Sadulaeva, a citizen of Kyrgyzstan (officially the Kyrgyz Republic), was
admitted to the United States in February 2004 with authorization to remain for six
months. She overstayed her period of admission and, in 2007, was charged with
removability pursuant to Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8
U.S.C. § 1227(a)(1)(B)]. Sadulaeva conceded that she was removable as an overstay, but
sought asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”).
Sadulaeva testified that she was persecuted on account of her mixed ethnicity; her
father is Chechnyan and her mother is Russian. Sadulaeva claimed that, as a result, her
entry into medical school was delayed, she did not regularly receive financial aid, she had
limited access to library books, she was denied a dorm room, and she had difficulty
finding a position as a medical resident upon graduation. Sadulaeva also claimed that she
was persecuted on account of her religion; she is an evangelical Christian. Although she
was able to worship in other parishioners’ homes, her neighbors became irritated when
she hosted prayer groups at her house. In the summer of 2002, a rock was thrown
through her window with a note calling her “Christian dirt” and telling her to get out of
Kyrgyzstan. In addition, someone tampered with her apartment keyhole, left a burned
copy of a Christian magazine under her door, and urinated on her doormat. Later that
year, Sadulaeva was assaulted on the street. One of the assailants rubbed her chest and
pushed her. During the attack, she was warned, “If you won=t stop delivering your
witchcraft religion, next time we will have [a] different . . . talk with you.” Sadulaeva did
not report the incident to the police because she believed they would not help her and
because she did not want her work colleagues to learn about the incident. In May 2003,
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Sadulaeva was participating in an evangelical music concert when young ethnic Kyrgyz
arrived, broke the performers’ instruments, verbally assaulted them, and punched and
kicked Sadulaeva. The most serious attack occurred in July 2003, when Sadulaeva and
other Christians had gathered to conduct baptisms. Kyrgyz assailants grabbed
Sadulaeva’s face, tore her Bible, and hit her back. She claimed that she could not walk
for one month, but there is no indication that she sought medical treatment. The police
refused to investigate. Since arriving in the United States, Sadulaeva has learned of
incidents in Kyrgyzstan where a Baptist Church was set on fire, where religious literature
was burned, and where missionaries were prevented from operating freely.
The Immigration Judge (“IJ”) denied Sadulaeva’s requests for relief, concluding
that the incidents she described did not rise to the level of persecution and that evidence
of current country conditions undermined her claimed fear of future persecution.1 The
Board of Immigration Appeals (“BIA”) agreed that Sadulaeva’s experiences were not
sufficiently severe to constitute past persecution. The Board also concluded that she had
not established an objectively reasonable fear of future persecution, in part because the
State Department’s International Religious Freedom Report indicated that Sadulaeva’s
church is the largest Protestant church in Kyrgyzstan and that religious groups operate
with little interference from the government or each other.
1
Although Sadulaeva’s asylum application was filed more than one year after her
arrival in the United States, see INA § 208(a)(2)(B), the IJ concluded that it was timely
pursuant to a statutory exemption for changed country conditions. See INA
§ 208(a)(2)(D).
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Sadulaeva filed a timely petition for review.2 We have jurisdiction pursuant to
INA § 242 [8 U.S.C. § 1252]. Because the BIA adopted the findings of the IJ and also
commented on the sufficiency of the IJ’s determinations, this Court will review the
decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.
2004). Review of these decisions is for substantial evidence, considering whether they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(citations omitted). The decisions must be affirmed “unless the evidence not only
supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F. 3d 463, 471
(3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)).
An applicant for asylum has the burden of establishing that she is unable or
unwilling to return to her home country “because of [past] persecution or a well-founded
fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion[.]” INA § 101(a)(42)(A). Persecution
“connotes extreme behavior, including threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,
341 F.3d 214, 217 (3d Cir. 2003) (internal quotations and citation omitted). Mere threats
generally do not amount to persecution unless “they are of a highly imminent and
menacing nature.” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005).
2
Sadulaeva originally filed the petition for review in the Court of Appeals for the Second
Circuit. By order dated September 29, 2009, the Second Circuit transferred the petition
4
On appeal to the BIA, Sadulaeva conceded that none of the incidents described
above individually constitute persecution. The BIA properly explained that, even
considered cumulatively, Sadulaeva’s experiences represent merely the kind of
generalized criminal conduct, harassment, and intimidation that does not rise to the level
of persecution. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008); Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Notably, the threat to “have [a] different . . .
talk with you,” issued after Sadulaeva was groped and pushed, was not especially
menacing. See Chavarria v. Gonzales, 446 F.3d 508, 518 (3d Cir. 2006). None of the
injuries she received were particularly severe. See Voci v. Gonzales, 409 F.3d 607, 615
(3d Cir. 2005). Furthermore, she ultimately was able to overcome her difficulties in
medical school and graduate without harm. Cf. Abdelmalek v. Mukasey, 540 F.3d 19,
23-24 (1st Cir. 2008) (concluding that ability to graduate from medical school
undermined claim of persecution on account of religion).
Sadulaeva also failed to show a well-founded fear of future persecution. In
support of her claim, Sadulaeva pointed to three news articles and the 2007 State
Department Religious Freedom Report. The articles, from 2006 and 2007, reference an
arson attack on a Baptist Church, quote a pastor who asserted that intolerance of
Christians in south Kyrgyzstan is growing, and report the murder of an ethnic Kyrgyz
convert to Christianity. The State Department Report indicates that Kyrgyzstan’s largest
Protestant Church had complained of government attempts to hamper its activities in the
for review to this Court.
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past. We conclude that this evidence does not compel the conclusion that Sadulaeva
faces an individualized risk of persecution or that there is a pattern or practice of
persecution in Kyrgyzstan on account of ethnicity or religion. Lie, 396 F.3d at 537(holding that, in order to constitute a “pattern or practice,” the persecution of a group
must be “systemic, pervasive, or organized.”).
For the above reasons, we will deny the petition for review.
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