Kovalchuk v. Attorney General of the United States

359 F. App'x 335
CourtCourt of Appeals for the Third Circuit
DecidedDecember 29, 2009
DocketNo. 08-4655
StatusPublished

This text of 359 F. App'x 335 (Kovalchuk v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kovalchuk v. Attorney General of the United States, 359 F. App'x 335 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Petitioner Mykola Kovalchuk seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We will deny the petition.

I.

Mykola Kovalchuk is a native and citizen of Ukraine. Kovalchuk entered the United States on a non-immigrant visa in 1998. In November 1998, his nonimmigrant visa was converted to F-l student status. However, after his student visa expired, Kovalchuk remained in the country. After removal proceedings commenced, Koval-chuk filed a application for asylum, which he later conceded was untimely.1 He also sought withholding of removal and relief under the CAT on the ground that he had been persecuted in Ukraine because of his religion. He alternatively requested voluntary departure. In his application for withholding of removal, Kovalchuk claimed that he left Ukraine in February 1998 to escape persecution that he experienced after becoming a Baptist the year before.

At his removal hearing, Kovalchuk testified that a friend introduced him to the Baptist faith in 1997. Kovalchuk explained that his friend had been beaten because of his Baptist beliefs and that the beating sparked his own interest in better understanding why some people hate others. Kovalchuk attended a meeting of Baptists in February 1997 and was baptized soon [337]*337after. He claimed that he only told a few acquaintances about his baptism, but that one such individual told him that “bad things” would happen to him as a result of it. Kovalchuk testified that in June 1997, while walking home one day, that same person, along with two others, stopped him and took his briefcase. Upon finding a Bible inside it, they confiscated it and threw Kovalchuk to the ground. He claimed that he suffered injuries including a severe headache and vomiting, but he did not seek medical treatment.

Kovalchuk also testified that he received threatening phone calls, but that the police refused to pursue the case, explaining that an officer told him that he “[didn’t] need any Baptist elements.” Kovalchuk wrote a letter to the city council complaining of his treatment, but they told him that he should go to the police. Upon going to the police station, Kovalchuk claimed that officers beat him up because he was involved in “anti-Ukrainian” activities. The officers also detained him for three days. After he was released, he left his hometown of Ga-lich and went to Kiev, hoping that the authorities there would help him. He was arrested, however, and told to return home. In October 1997, while working in a field, Kovalchuk testified that he was assaulted and that one of the men who attacked him threatened to kill him because of his religion. He believed that if he returned to Ukraine, he might be killed.

Following the hearing, the IJ denied Kovalchuk’s application for withholding of removal and relief under the CAT, but granted him voluntary departure. The IJ determined that Kovalchuk had not presented evidence sufficient to demonstrate that he had been persecuted in the past or that he it was more likely than not that he would be persecuted in the future. The IJ found Kovalchuk’s claim of past persecution unpersuasive because he did not present any witnesses or provide any medical records describing physical or mental problems stemming from his experiences in Ukraine. The IJ also questioned the extent of Kovalchuk’s current commitment to the Baptist faith as he offered no evidence of his involvement in the religion other than a letter from a pastor stating that he had been attending church services. Lastly, the IJ noted that since Kovalchuk left Ukraine, the political landscape had changed. A recent State Department report explained that citizens are allowed greater freedom of association under the current Ukranian President, and thus, Kovalchuk did not have a well-founded fear of future persecution.

Kovalchuk appealed the IJ’s decision to the BIA and, in a November 2008 opinion, the BIA dismissed Kovalchuk’s appeal. The BIA determined the IJ did not err in finding that Kovalchuk did not provide the evidence sufficient to corroborate his claim and that his explanations for not doing so were unpersuasive. The BIA also affirmed the IJ’s ruling that Koval-chuk did not have a well-founded fear of future persecution in Ukraine, disagreeing with Kovalchuk’s assertion that the IJ gave improper weight to State Department Country reports. Lastly, the BIA disagreed with Kovalchuk’s claim that his due process rights were violated when the IJ precluded his proposed expert witness from testifying at the hearing.2 This petition for review followed.

II.

This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings [338]*338of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

For withholding of removal, an applicant must prove that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); 8 C.F.R § 208.16(b). A petitioner applying for withholding of removal must establish a clear probability of persecution. 8 U.S.C. § 1231(b)(3). A “clear probability means more likely than not.” INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An applicant seeking relief under the CAT must establish that “it is more likely than not” that he would be tortured if removed to the proposed country of removal. Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)).

First, Kovalchuk argues that the BIA erred in upholding the IJ’s determination that he failed to present evidence sufficient to corroborate his claim of past persecution based on his Baptist faith. Specifically, Kovalchuk claims that the IJ and BIA did not give sufficient weight to his explanation that much of evidence supporting his claim was unavailable. Second, Kovalchuk argues that the BIA erred in upholding the IJ’s decision to afford substantial weight to State Department Country reports to the exclusion of other evidence regarding country conditions in Ukraine.

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359 F. App'x 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kovalchuk-v-attorney-general-of-the-united-states-ca3-2009.