Ivan Shchelkunov v. Eric Holder, Jr.

Case: 12-60311 Document: 00512203032 Page: 1 Date Filed: 04/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2013
No. 12-60311
Summary Calendar Lyle W. Cayce
Clerk
IVAN SHCHELKUNOV,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 131 416
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner Ivan Shchelkunov, a native and citizen of Russia, petitions for
review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal
of the Immigration Judge’s (IJ) order that denied his application for asylum and
withholding of removal and protection under the Convention Against Torture
(CAT) as well as his motion to remand. He claims that his deportation
proceeding was conducted in violation of the Due Process Clause and the IJ’s and
that the BIA’s findings that he was not persecuted on account of a protected
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-60311
ground or that he does not have a well-founded fear of future persecution for
purposes of asylum are not supported by substantial evidence. When we review
an order of the BIA, we consider the underlying decision of the IJ only to the
extent it affected the BIA’s ruling. Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
348 (5th Cir. 2002).
In his petition to us, Shchelkunov does not challenge the denial of
withholding of removal or protection under the CAT. He has therefore waived
any such challenges. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th
Cir. 1986).
Shchelkunov contends that the IJ violated his Due Process rights by
conducting the merits hearing in English and not using a Russian interpreter.
As Shchelkunov failed to exhaust his remedies before the BIA, we do not have
jurisdiction to consider this issue. 8 U.S.C. § 1252 (d)(1); Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001).
Next, Shchelkunov asserts that his due process rights were violated
because the record on appeal is incomplete and inadequate and thus prevents a
fair review of his asylum application. In his brief in support of his petition,
however, Shchelkunov fails to identify specific, material facts that are missing
from the transcript and would support his application (despite the fact that the
missing portions of the transcript consist almost exclusively of his own
testimony). Neither does he point to a single argument that he was unable to
make before the BIA or this court because of the incomplete transcript. Thus,
Shchelkunov has not identified how the “indiscernible” notations in the
transcript substantially prejudiced his ability to perfect and present an appeal.
See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) (“Due process challenges to
deportation proceedings require an initial showing of substantial prejudice.”).
Accordingly, he has not demonstrated a Due Process violation during the
deportation proceeding. See id.2
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The Attorney General has discretion to grant asylum to an alien who is a
“refugee.” 8 U.S.C. § 1158(b)(1). A refugee is a person who is outside of his
country and is “unable or unwilling to return ‘because of persecution or a
well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.’” Jukic v. INS, 40
F.3d 747, 749 (5th Cir. 1994) (quoting 8 U.S.C. § 1101(a)(42)(A)). The alien has
the burden of showing “some particularized connection” between the feared
persecution and one of those five exclusive grounds. Faddoul v. INS, 37 F.3d
185, 188 (5th Cir. 1994).
“Although we review the legal conclusions of the BIA and the IJ de novo,
. . . we review their factual findings for substantial evidence.” Majd v. Gonzales,
446 F.3d 590, 594 (5th Cir. 2006). Under the substantial evidence standard,
“reversal is improper unless we decide ‘not only that the evidence supports a
contrary conclusion, but [also] that the evidence compels it.’” Zhang v. Gonzales,
432 F.3d 339, 344 (5th Cir. 2005) (quoting Zhao v. Gonzales, 404 F.3d 295, 306
(5th Cir. 2005)). “The alien bears the burden of proving the requisite compelling
nature of the evidence.” Majd, 446 F.3d at 594.
The evidence in this record does not compel a conclusion different from
that reached by the BIA and the IJ. Assuming arguendo that the act of whistle
blowing can constitute political activity sufficient to form the basis of persecution
on account of political opinion, Shchelkunov has failed to show that the evidence
compels a conclusion that the purported corruption was inextricably intertwined
with governmental operation. See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th
Cir. 2004). Moreover, the evidence does not compel a finding that Shchelkunov
was persecuted because he blew the whistle on his alleged persecutors. Rather,
it supports a conclusion that the persecution, if any, was based on a personal
dispute. Additionally, at the merits hearing, Shchelkunov testified that he
resided in Russia for nine months following the incidents of which he complains
without his experiencing any harassment. Thus, a reasonable factfinder would
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not be compelled to find that Shchelkunov has a well-founded fear of future
persecution. See Jukic, 40 F.3d at 749. Accordingly, Shchelkunov did not make
the showing required to establish eligibility for asylum. See id.The petition for review is DENIED IN PART and DISMISSED IN PART
FOR LACK OF JURISDICTION.
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