Kazakova v. U.S. Attorney General

425 F. App'x 837
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 29, 2011
Docket10-13199
StatusUnpublished

This text of 425 F. App'x 837 (Kazakova v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kazakova v. U.S. Attorney General, 425 F. App'x 837 (11th Cir. 2011).

Opinion

PER CURIAM:

Natalia Kazakova, a native and citizen of Estonia, seeks review of the Board of Immigration Appeals’s (“BIA”) order reversing the Immigration Judge’s (“IJ”) grant of asylum. Kazakova argues on appeal that she and her family experienced past persecution on account of their Russian heritage, and that the BIA impermissibly engaged in de novo fact finding. After thorough review, we deny the petition.

We review only the BIA’s decision, except to the extent that the BIA expressly adopts the IJ’s opinion. Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). We review questions of law de novo, with appropriate deference to the BIA’s reasonable interpretations of the Immigration and Nationality Act (“INA”). Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir.2003). We defer to the agency’s “interpretation of its own regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.” Id. (quotation omitted). We review the BIA’s factual determinations under *839 the substantial evidence test. D-Mu-humed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir.2004). Under the substantial evidence test, we must affirm the BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quotation omitted). We will not reverse a factual determination unless “the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc). Whether an alien has proved persecution is a factual determination that we review under the substantial evidence test. Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001).

Under 8 C.F.R. § 1003.1(d)(3)(i), the BIA shall not “engage in de novo review of findings of fact determined by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)(i). The BIA may only review the IJ’s factual determinations to assess whether those determinations were clearly erroneous. Id. Furthermore, except for taking administrative notice of commonly known facts, the BIA is not permitted to engage in factfinding in the course of deciding appeals. Id. § 1003.1(d)(3)(iv). However, the BIA “may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.” Id. § 1003.1(d)(3)(h). The BIA reviews de novo whether the established facts amount to past persecution or a well-founded fear of persecution. Matter of A-S-B-, 24 I. & N. Dec. 493, 496 (BIA 2008). In determining whether established facts are sufficient to meet a legal standard, the BIA “is entitled to weigh the evidence in a manner different from that accorded by the [IJ], or to conclude that the foundation for the [IJ’s] legal conclusions was insufficient or otherwise not supported by the evidence of record.” Id. at 497.

An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily protected ground, or (2) a “well-founded fear” that the statutorily protected ground will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An applicant for asylum who has established past persecution on a protected ground is presumed to have a well-founded fear of future persecution on the basis of the original claim. 8 C.F.R. § 208.13(b)(1).

If the alien “cannot show past persecution, then the petitioner must demonstrate a well-founded fear of future persecution that is both subjectively genuine and objectively reasonable.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.2006). “The subjective component can be proved by the applicant’s credible testimony that he or she genuinely fears persecution, while the objective component can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Id. (citation and internal quotations omitted).

The term persecution is not defined in the INA or accompanying federal regulations, but we have stated that “persecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (quotation omitted). We have held that “[mjinor physical abuse” does not amount to persecution. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir.2009). However, we also have rejected a rigid physical injury requirement, noting *840 that we will consider the cumulative impact of mistreatment, which considered alone, may not amount to persecution. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir.2008). “[E]vidence that either is consistent with acts of private violence or the petitioner’s failure to cooperate with guerrillas, or that merely shows that a person has been the victim of criminal activity, does not constitute evidence of persecution based on a statutorily protected ground.” Ruiz, 440 F.3d at 1258. In addition, “employment discrimination which stops short of depriving an individual of a means of earning a living does not constitute persecution.” Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir.2001) (holding that, although petitioner suffered employment discrimination, lost his job as a taxi driver, and was forced to take menial work, he was not persecuted).

In this case, the BIA considered the evidence submitted in support of Kazakova’s asylum application and found that she had failed to present facts that legally amounted to past persecution or a well-founded fear of future persecution. As the record shows, the BIA did not engage in factfinding but, rather, considered de novo

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A-S-B
24 I. & N. Dec. 493 (Board of Immigration Appeals, 2008)

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Bluebook (online)
425 F. App'x 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kazakova-v-us-attorney-general-ca11-2011.