Kornetskyi v. Gonzales

129 F. App'x 254
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 28, 2005
Docket03-4460
StatusUnpublished

This text of 129 F. App'x 254 (Kornetskyi v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kornetskyi v. Gonzales, 129 F. App'x 254 (6th Cir. 2005).

Opinions

COOK, Circuit Judge.

Lead Petitioner Dr. Igor Kornetskyi, his wife Nadejda, and son Orest, seek review of a final order of deportation. Because substantial evidence supports the IJ’s determination that the Kornetskyis failed to demonstrate eligibility for asylum or withholding of deportation, we deny the petition for review.

I

Dr. Kornetskyi formerly practiced medicine and served as the chief of the radiology department in a Ukraine hospital. From 1985 to 1986, Dr. Kornetskyi treated patients who lived near nuclear plants and suffered from radiation illness, including victims of the Chernobyl disaster. Dr. Kornetskyi contends that members of the Soviet KGB and Secret Police security [256]*256agents accompanied the patients and warned the doctors against asking questions or discussing the situation. Dr. Kornetskyi’s own second-hand exposure to radiation resulted in his being a “carrier,” which in turn exposed his family to increased radiation levels. After his son became ill due to such exposure, Dr. Kornetskyi allegedly began openly criticizing — to family, friends, hospital employees, and security officials — the government’s conduct in connection with the nuclear radiation. Dr. Kornetskyi maintains that he and his family suffered government persecution because of his criticism. Specifically, he alleges: security officials warned him on multiple occasions to stay quiet, threatening violence, imprisonment, or confinement in an insane asylum if he refused to comply; and KGB and Secret Police interrogated him and his family, searched his home, and kept him under surveillance. Dr. Kornetskyi also insists that his government criticism led to his reassignment to a family-practice clinic eighty miles away, with a resulting loss of status and a thirty-five-percent reduction in pay. As a further consequence of his government denunciation, Dr. Kornetskyi’s wife lost her engineering job with the Patent Examination Office.

Dr. Kornetskyi’s wife and children obtained passports and United States visitor visas and left Ukraine just before the country declared its independence. Dr. Kornetskyi followed about eighteen months later.

Because Dr. Kornetskyi and his family remained in the United States after their visas expired, the INS initiated deportation proceedings. The Kornetskyis conceded deportability, but maintained that their alleged persecution entitled them to asylum or withholding of deportation. The IJ denied relief, and the BIA summarily affirmed without opinion. Because the Board adopted the IJ’s decision in lieu of issuing its own opinion, this court reviews the IJ’s decision as the final agency decision. Abay v. Ashcroft, 368 F.3d 634, 637-38 (6th Cir.2004); Denko v. INS, 351 F.3d 717, 726 (6th Cir.2003).

II

Asylum

The Kornetskyis challenge the IJ’s denial of their request for asylum. An appellate court .must uphold the IJ’s determination if “reasonable, substantial, and probative evidence on the record considered as a whole” supports it. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998) (citations and internal quotation marks omitted). To demonstrate eligibility for asylum, an applicant must first prove that he qualifies as a refugee either because he suffered past persecution or because he has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. at 389. If an applicant successfully establishes past persecution, he is presumed to have a well-founded fear of future persecution rebuttable only by a showing that country conditions “have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he were to return.” Id. (citation and internal quotation marks omitted).

A. Past Persecution

The IJ concluded that the Kornetskyis failed to satisfy their burden regarding past persecution: “In the instant case, the record does not reveal a level of mistreatment that can be characterized as past persecution based upon one of the statutory categories so as to warrant a finding of statutory eligibility for asylum.” Applying the deferential substantial-evidence standard, the court may grant the Kornetskyis’ [257]*257petition for review only if their evidence “ ‘not only supports a contrary conclusion, but indeed compels it.’ ” Id. at 388 (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.1992)).

Though the IJ agreed Dr. Kornetskyi’s criticism of the “design, maintenance and utilization of safeguards in the nuclear reactors located in the Ukraine” motivated the government’s conduct, she concluded that such criticism was “specific in nature” and did not equate to a political opinion. The Kornetskyis emphatically challenge this conclusion. Regardless, we need not address this issue because, even if Dr. Kornetskyi’s criticism constitutes political opinion, the mistreatment he alleges, being more in the nature of harassment, fails the standard we must apply.

The Sixth Circuit holds that “ ‘persecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch, 146 F.3d at 390. “Harassment alone ... does not rise to the level of ‘persecution’ under the Act.” Id.

The Kornetskyis’ claim that the KGB and Secret Police searched their home, interrogated them, and verbally threatened them amounts to “harassment,” not “persecution.” See id. (finding the petitioner’s evidence that the KGB questioned him on several instances, conducted searches of his home and place of business, and knocked on the door of his home for forty minutes beginning at 1:00 a.m. constituted harassment, not persecution); Borca v. INS, 77 F.3d 210, 215 (7th Cir.1996) (upholding the BIA’s finding the plaintiffs mistreatment — being interrogated twice, having her dwelling searched twice, and receiving threatening phone calls — “not sufficiently serious to rise beyond the level of harassment”); Zalega v. INS, 916 F.2d 1257, 1258-59 (7th Cir.1990) (upholding the BIA’s determination that multiple arrests, interrogations, and searches of the petitioner’s home “did not rise to the level of persecution”); see also Bradciva v. INS, 128 F.3d 1009, 1012 (7th Cir.1997).

Dr. Kornetskyi’s demotion to the position of family practitioner similarly falls short of persecution. “Economic deprivation constitutes persecution only when the resulting conditions are sufficiently severe.” Daneshvar v.

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