Sergey Makarov v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4152
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Sergey Makarov, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board of
* Immigration Appeals
John Ashcroft, *
* [UNPUBLISHED]
Respondent. *
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Submitted: March 2, 2004
Filed: March 19, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Sergey Makarov, a citizen of Kazakhstan, petitions for review of an order of
the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s)
denial of his application for asylum, withholding of removal, and relief under the
Convention Against Torture. For reversal, Makarov argues that the evidence showed
he suffered past persecution on account of either his Russian ethnicity or an imputed
political opinion, and that he has a well-founded fear of future persecution. For the
reasons discussed below, we deny the petition.
Initially, we decline to consider Makarov’s argument that he was persecuted
because of an imputed political opinion. He did not claim on his asylum application
that he was persecuted for his political opinion, he offered no testimony as to his
political opinion (imputed or otherwise), and the IJ did not address such a claim. See
Afolayan v. INS, 219 F.3d 784, 788 (8th Cir. 2000) (“We lack jurisdiction to review
claims that were not presented to the BIA in the first instance.”).
We conclude that the denial of Makarov’s application is supported by
substantial evidence. See Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 562 (8th Cir.
2003) (standard of review). Specifically, we agree with the IJ that Makarov did not
show past persecution on account of his Russian ethnicity, as a 1996 beating that he
suffered was a single act of violence by persons whom Makarov characterized as
drunken students, see Fisher v. INS, 291 F.3d 491, 497-98 (8th Cir. 2002) (one
episode of threats and physical roughness was insufficient to show past persecution),
and the threats Makarov received during subsequent anonymous phone calls could
not be linked to any person or group or to Makarov’s ethnicity, and the threats were
not fulfilled, see Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (unfulfilled threats
alone do not constitute past persecution, unless threats are so menacing as to cause
significant actual suffering or harm). While we are sympathetic to the experiences
of Makarov’s wife (fired from her job) and son (beaten at school by fellow students),
we conclude that the evidence relating to these experiences does not compel reversal.
We also agree with the IJ that Makarov did not show a well-founded fear of
future persecution, as he failed to show that the threat to ethnic Russians is
countrywide and that relocation in Kazakhstan is not reasonable, or that he faces a
particularized fear separate from that of the general ethnic minority population. See
Melecio-Saquil v. Ashcroft, 337 F.3d 983, 987-88 (8th Cir. 2003) (countrywide
threat); Safaie v. INS, 25 F.3d 636, 641 (8th Cir. 1994) (particularized fear); 8 C.F.R.
§ 208.13(b)(3)(i) (2003) (relocation). Last, because Makarov failed to meet the lower
burden of proof on the asylum claim, he failed to meet the higher burdens for
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withholding of removal and relief under the Convention Against Torture. See
Kratchmarov v. Heston, 172 F.3d 551, 555 (8th Cir. 1999) (withholding of removal);
8 C.F.R. § 208.16(c)(2) (2003) (Convention).
Accordingly, we deny the petition.
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