NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KAMIL SAFAROV; KAMRAN No. 24-93 SAFAROV; EMIR SAFAROV; SHAMIL Agency Nos. SAFAROV; LEILA SAFAROV, A241-755-887 A241-755-884 Petitioners, A241-755-885 A241-755-886 v. A241-755-889 MERRICK B. GARLAND, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 9, 2024** San Francisco, California
Before: KOH and JOHNSTONE, Circuit Judges, and SIMON, District Judge.***
Petitioners Kamil Safarov, his wife Leila Safarov, and their three children,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. who are all ethnic Meskhetian Turks and citizens of Russia, seek review of a
decision from the Board of Immigration Appeals (BIA) affirming without opinion
the denial by an Immigration Judge (IJ) of their application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for
review.
“Where, as here, the BIA summarily adopts the IJ’s decision without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it were the
BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (internal
quotation marks and citation omitted). We review questions of law de novo and the
agency’s factual findings for substantial evidence. Manzano v. Garland, 104 F.4th
1202, 1206 (9th Cir. 2024). The parties agree that the substantial evidence standard
applies to the IJ’s determination of whether Petitioners were subject to past
persecution. “Under the substantial evidence standard, factual findings are
‘conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Id. (quoting Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.
2022)).
Petitioners’ appeal of the IJ’s decision on asylum and withholding of
removal turns on Petitioners’ claims of persecution. Petitioners argue that they
were subject to past persecution in Russia based on their membership in the
2 24-93 disfavored groups of Meskhetian Turks and Muslims and that they have a
reasonable fear that they will be subject to future persecution.
Substantial evidence supports the IJ’s conclusion that Petitioners were not
subject to past persecution. Petitioners alleged, and the IJ properly considered,
various claims of harm and mistreatment, including: a physical assault against
Kamil Safarov in 1997, discrimination in employment and in seeking medical
services, disruption of religious practices, and childhood bullying. The IJ accepted
most of Petitioners’ testimony as credible, and properly discounted only the
portions of Kamil Safarov’s verbal testimony where it contradicted his declaration.
See Ruiz-Colmenares v. Garland, 25 F.4th 742, 750 (9th Cir. 2022) (holding that
“inconsistencies in [] details” and omissions can support an adverse credibility
finding).
As the IJ recognized, although the conduct directed against Petitioners in
Russia, whether considered individually or cumulatively, may have been corrupt,
harassing, discriminatory, difficult, and painful, it did not rise to the level of past
persecution. “Persecution is an ‘extreme concept.’” Gu v. Gonzales, 454 F.3d
1014, 1019 (9th Cir. 2006) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.
1995)). As such, “it ‘does not include every sort of treatment our society regards as
offensive.’” Id. (quoting Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001)).
Indeed, we have affirmed that similar or more egregious conduct was not past
3 24-93 persecution. See, e.g., Wakkary v. Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009)
(“Wakkary’s personal experiences at the hands of native Indonesians—being
beaten by youths and robbed of his sandals and pocket money in 1985 and
1990 . . . and being accosted by a threatening mob while his family was driving to
Bible school in 1998—are instances of discriminatory mistreatment” that did not
compel a finding of past persecution.); Halim v. Holder, 590 F.3d 971, 975–76 (9th
Cir. 2009) (concluding that “five instances of mistreatment,” including, inter alia,
one beating and one instance in which the petitioner was denied access to medical
treatment, did not compel a finding of past persecution).
To show a well-founded fear of future persecution, an applicant must
provide evidence that it “is a reasonable possibility he or she would be singled out
individually for persecution” or that “there is a pattern or practice in his or her
country of nationality” of persecution against the applicant’s claimed disfavored
group. 8 C.F.R. § 1208.13(b)(2)(iii); see also Wakkary, 558 F.3d at 1060. For
individualized future persecution, the IJ explained that the specific incidents
against Petitioners appeared to be spontaneous, not targeted for individual reasons,
and without any evidence that those persons would again attack if Petitioners
moved back to Russia. The IJ determined that although Petitioners arguably have
shown a reasonable possibility of future discrimination, they have not shown a
reasonable possibility that any such discrimination would rise to the level of
4 24-93 persecution. As the IJ correctly concluded, although the record shows a history of
discrimination against Meskhetian Turks (and other minorities) in Russia, the
record does not establish that current discrimination against Meskhetian Turks is
“so severe and pervasive” as to constitute persecution, or that current
discrimination against Meskhetian Turks is state sponsored. Substantial evidence
supports the IJ’s determination that Petitioners did not establish a well-founded
fear of future persecution for purposes of asylum. They also necessarily fail to
meet the more stringent “clear probability standard for withholding of removal.”
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (quoting Al-Harbi v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KAMIL SAFAROV; KAMRAN No. 24-93 SAFAROV; EMIR SAFAROV; SHAMIL Agency Nos. SAFAROV; LEILA SAFAROV, A241-755-887 A241-755-884 Petitioners, A241-755-885 A241-755-886 v. A241-755-889 MERRICK B. GARLAND, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 9, 2024** San Francisco, California
Before: KOH and JOHNSTONE, Circuit Judges, and SIMON, District Judge.***
Petitioners Kamil Safarov, his wife Leila Safarov, and their three children,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. who are all ethnic Meskhetian Turks and citizens of Russia, seek review of a
decision from the Board of Immigration Appeals (BIA) affirming without opinion
the denial by an Immigration Judge (IJ) of their application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for
review.
“Where, as here, the BIA summarily adopts the IJ’s decision without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it were the
BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (internal
quotation marks and citation omitted). We review questions of law de novo and the
agency’s factual findings for substantial evidence. Manzano v. Garland, 104 F.4th
1202, 1206 (9th Cir. 2024). The parties agree that the substantial evidence standard
applies to the IJ’s determination of whether Petitioners were subject to past
persecution. “Under the substantial evidence standard, factual findings are
‘conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Id. (quoting Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.
2022)).
Petitioners’ appeal of the IJ’s decision on asylum and withholding of
removal turns on Petitioners’ claims of persecution. Petitioners argue that they
were subject to past persecution in Russia based on their membership in the
2 24-93 disfavored groups of Meskhetian Turks and Muslims and that they have a
reasonable fear that they will be subject to future persecution.
Substantial evidence supports the IJ’s conclusion that Petitioners were not
subject to past persecution. Petitioners alleged, and the IJ properly considered,
various claims of harm and mistreatment, including: a physical assault against
Kamil Safarov in 1997, discrimination in employment and in seeking medical
services, disruption of religious practices, and childhood bullying. The IJ accepted
most of Petitioners’ testimony as credible, and properly discounted only the
portions of Kamil Safarov’s verbal testimony where it contradicted his declaration.
See Ruiz-Colmenares v. Garland, 25 F.4th 742, 750 (9th Cir. 2022) (holding that
“inconsistencies in [] details” and omissions can support an adverse credibility
finding).
As the IJ recognized, although the conduct directed against Petitioners in
Russia, whether considered individually or cumulatively, may have been corrupt,
harassing, discriminatory, difficult, and painful, it did not rise to the level of past
persecution. “Persecution is an ‘extreme concept.’” Gu v. Gonzales, 454 F.3d
1014, 1019 (9th Cir. 2006) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.
1995)). As such, “it ‘does not include every sort of treatment our society regards as
offensive.’” Id. (quoting Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001)).
Indeed, we have affirmed that similar or more egregious conduct was not past
3 24-93 persecution. See, e.g., Wakkary v. Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009)
(“Wakkary’s personal experiences at the hands of native Indonesians—being
beaten by youths and robbed of his sandals and pocket money in 1985 and
1990 . . . and being accosted by a threatening mob while his family was driving to
Bible school in 1998—are instances of discriminatory mistreatment” that did not
compel a finding of past persecution.); Halim v. Holder, 590 F.3d 971, 975–76 (9th
Cir. 2009) (concluding that “five instances of mistreatment,” including, inter alia,
one beating and one instance in which the petitioner was denied access to medical
treatment, did not compel a finding of past persecution).
To show a well-founded fear of future persecution, an applicant must
provide evidence that it “is a reasonable possibility he or she would be singled out
individually for persecution” or that “there is a pattern or practice in his or her
country of nationality” of persecution against the applicant’s claimed disfavored
group. 8 C.F.R. § 1208.13(b)(2)(iii); see also Wakkary, 558 F.3d at 1060. For
individualized future persecution, the IJ explained that the specific incidents
against Petitioners appeared to be spontaneous, not targeted for individual reasons,
and without any evidence that those persons would again attack if Petitioners
moved back to Russia. The IJ determined that although Petitioners arguably have
shown a reasonable possibility of future discrimination, they have not shown a
reasonable possibility that any such discrimination would rise to the level of
4 24-93 persecution. As the IJ correctly concluded, although the record shows a history of
discrimination against Meskhetian Turks (and other minorities) in Russia, the
record does not establish that current discrimination against Meskhetian Turks is
“so severe and pervasive” as to constitute persecution, or that current
discrimination against Meskhetian Turks is state sponsored. Substantial evidence
supports the IJ’s determination that Petitioners did not establish a well-founded
fear of future persecution for purposes of asylum. They also necessarily fail to
meet the more stringent “clear probability standard for withholding of removal.”
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (quoting Al-Harbi v.
INS, 242 F.3d 882, 888–89 (9th Cir. 2001)).
“To be eligible for relief under CAT, an applicant bears the burden of
establishing that she will more likely than not be tortured with the consent or
acquiescence of a public official if removed to her native country.” Xochihua-
Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020) (citing Avendano-Hernandez
v. Lynch, 800 F.3d 1072, 1078-79 (9th Cir. 2015)). “Torture is an extreme form of
cruel and inhuman treatment and does not include lesser forms of cruel, inhuman
or degrading treatment or punishment that do not amount to torture.” 8 C.F.R.
§ 1208.18(a)(2). The IJ concluded that because Petitioners did not provide
evidence of serious physical harm in the past or that they would likely suffer
torture if they returned to Russia, Petitioners failed to show entitlement to relief
5 24-93 under CAT. For the same reasons discussed above in concluding that Petitioners
failed to show persecution, substantial evidence supports this conclusion by the IJ.
PETITION DENIED.1
1 Petitioners’ motion for stay of removal (Dkt. No. 6) is denied as moot.
6 24-93