Roman Gennadyevich Petrov v. U.S. Attorney General

135 F. App'x 377
Court of Appeals for the Eleventh Circuit·Decided June 16, 2005·No. 04-12024·Unpublished

Opinion

PER CURIAM:

Roman G. Petrov, proceeding pro se, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal and denial of his asylum, withholding of removal, and the United Nations Convention Against Torture (“CAT”) claims. Petitioner’s removal proceedings commenced after April 1, 1997, and therefore the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208,110 Stat. 3009 (1996) apply.

On appeal, Petrov claims that he qualified for asylum, withholding of removal and CAT relief. He argues that the IJ’s adverse credibility finding was erroneous because the IJ essentially took administrative notice when he decided that without the existence of corroborating documents, Petrov could have not been attacked by the Russian nationalists for religious reasons. Petrov claims that his testimony was not only detailed, internally consistent, and corroborated with abundant evidence, but also plausible in light of the 2001 Country Report and Religious Freedom Report. Petrov also claims that he was entitled to relief under CAT because the Russian government ignores the persecution of religious groups by the neo-Nazis.

The BIA’s factual determinations are reviewed under the substantial evidence test, and this Court “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 *379 (11th Cir.2001) (citation omitted). Here, the BIA both adopted the IJ’s reasoning and made its own observations, so this Court should review the BIA’s order and the IJ’s order, to the extent the BIA adopted the IJ’s reasoning. Id. at 1284.

Credibility determinations likewise are reviewed under the substantial-evidence test. D-Muhumed v. United States Attorney General, 388 F.3d 814, 817-18 (11th Cir.2004). The trier of fact must determine credibility, and this Court may not substitute its judgment for that of the BIA with respect to credibility findings. Id. “An immigration judge alone is in a position to observe an alien’s tone and demean- or, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence.” Sarv ia-Quintanilla v. U.S. INS, 767 F.2d 1387, 1395 (9th Cir.1985) (persuasive authority); accord Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (same).

An alien who arrives in or is present in the United States may apply for asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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....

8 U.S.C. § 101(a)(42)(A) (emphasis added). The asylum applicant carries the burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284.

To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of his religion (or other statutorily listed factor), or (2) a “well-founded fear” that his religion (or other statutorily listed factor) will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. A “well-founded fear” of future persecution may be established by showing (1) past persecution that creates a presumption of a well-founded fear and overcomes any rebuttal by the INS, (2) a reasonable possibility of personal persecution that cannot be avoided by relocating within the subject country, or (3) a pattern or practice in the subject country of persecuting members of a statutorily defined group of which the alien is a part. 8 C.F.R. § 208.13(b)(1), (2). The ‘Veil-founded fear” inquiry has both a subjective and objective component — that is, the applicant must show that his fear of persecution is subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289. The subjective component is generally satisfied by the applicant’s credible testimony that he or she genuinely fears persecution. Id. This Court noted that “in most cases, the objective prong can be fulfilled either by establishing past persecution or that he or she has a ‘good reason to fear future persecution.’ ” Id.

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Roman Gennadyevich Petrov v. U.S. Attorney General, 135 F. App'x 377 (11th Cir. 2005).

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