Vladimir Vladimirovich Tretiakov v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 20, 2020
• Docket: 19-11347
• Status: Unpublished

Opinion

Case: 19-11347 Date Filed: 02/20/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11347 Non-Argument Calendar ________________________

Agency No. A216-412-438

VLADIMIR VLADIMIROVICH TRETIAKOV,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(February 20, 2020)

Before WILLIAM PRYOR, JORDAN, and DUBINA, Circuit Judges.

PER CURIAM: Case: 19-11347 Date Filed: 02/20/2020 Page: 2 of 9

Petitioner Vladimir Vladimirovich Tretiakov, a native of Russia, seeks

review of the final order of the Board of Immigration Appeals (“BIA”), affirming

the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of

removal, and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).

Tretiakov claims that he suffered past persecution in Russia based on several

incidents of mistreatment against himself and an attack against his father.

Additionally, Tretiakov argues that he established a well-founded fear of future

persecution.

I.

We review only the decision of the BIA, except to the extent that the BIA

expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we will also

review the IJ’s decision to that extent. Id.

On appeal from the BIA’s decision, we review legal determinations de novo.

Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). Because we

review factual determinations 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. (quoting Al Najjar, 257 F.3d at

1283-84). “[W]e review the record evidence in the light most favorable to the

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agency’s decision and draw all reasonable inferences in favor of that decision.” Id.

(quotation omitted). Hence, “a finding of fact will be reversed only when 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.” Id.

(quotation omitted).

To establish eligibility for asylum, an applicant has the burden of proving

that he is a “refugee,” which is defined as:

[A]ny person who is outside any country of such person’s nationality . . . 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 . . . political opinion. Diallo, 596 F.3d at 1332; see also Immigration and Nationality Act (“INA”)

§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). To meet this burden, the alien must,

with specific and credible evidence, establish (1) past persecution on account of a

statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor

will cause such future persecution. Diallo, 596 F.3d at 1332 (citing 8 C.F.R.

§ 208.13(a)-(b); Al Najjar, 257 F.3d at 1287).

Regarding the well-founded fear inquiry, an applicant must demonstrate that

his fear of persecution is subjectively genuine and objectively reasonable. See 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.

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Usually, the objective prong can be satisfied either by establishing past persecution

or by showing that the applicant has a “good reason to fear future persecution.” Id.

“[A]n applicant establishes a well-founded fear when he establishes that there is ‘a

reasonable possibility he or she would be singled out individually for persecution’

or that he is a member of, or is identified with, a group that is subjected to a pattern

or practice of persecution.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th

Cir. 2008) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).

Persecution is “an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation, and . . . mere harassment does not

amount to persecution.” Diallo, 596 F.3d at 1333 (quotation marks omitted); see

also Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (holding that

death threats and threatening anonymous phone calls were merely harassment and,

without more, did not qualify as persecution). For example, we held that the

record compelled a finding of persecution where a man had been beaten twice,

threatened, and kidnapped for 18 days. See Ruiz v. Gonzales, 479 F.3d 762, 763-

64, 766 (11th Cir. 2007) (evaluating a claim for withholding of removal). In

another case, we found that the record compelled a finding of past persecution

where the petitioner was repeatedly threatened, twice physically attacked,

terrorized by the torture and murder of a family friend who refused to disclose

information about the petitioner, and was eventually kidnapped and beaten, only to

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narrowly escape with her life. See De Santamaria v. U.S. Att’y Gen., 525 F.3d

999, 1008–09 (11th Cir. 2008). However, verbal threats of imprisonment

combined with a “minor” beating do not compel a finding of past persecution. See

Djonda, 514 F.3d at 1174. Furthermore, employment discrimination that “stops

short of depriving an individual of a means of earning a living does not constitute

persecution.” Yi Feng Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291 (11th Cir.

2006) (quoting Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir.

2001)); see Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1156 (11th Cir. 2014)

(noting that economic mistreatment rises to past persecution if it causes “severe

economic disadvantage,” meaning it “reduce[s] the alien ‘to an impoverished

existence’”) (quotation omitted).

In determining whether an alien has suffered past persecution, the factfinder

must consider the cumulative effect of the allegedly persecutory incidents. De

Santamaria, 525 F.3d at 1008 (citing Delgado v. U.S. Att’y Gen., 487 F.3d 855,

861 (11th Cir. 2007)). Threats or harm to a petitioner’s family member do not

constitute evidence of persecution against the petitioner “where there has been no

threat or harm directed against the petitioner.” Rodriguez v. U.S. Att’y Gen., 735

F.3d 1302, 1308 (11th Cir. 2013); see also De Santamaria, 525 F.3d at 1009 n.7

(holding that harm to another person may constitute evidence of persecution

against a petitioner where the harm “concomitantly threatens the petitioner”).

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Serious physical injury is not required to prove past persecution where the

petitioner demonstrates repeated threats combined with other forms of severe

mistreatment. De Santamaria, 525 F.3d at 1009.

To qualify for withholding of removal under the INA, an alien must show

that if returned to his country, the alien’s life or freedom would be threatened on

account of, inter alia, his political opinion. INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3). An alien seeking withholding of removal must show that it is “more

likely than not” he will be subject to persecution based on a protected ground if

returned to his country. Ruiz, 479 F.3d at 766. To establish eligibility for CAT

relief, the alien must show that he “more likely than not” will be tortured upon his

return to his home country by or with the acquiescence of government officials.

8 C.F.R. § 208.16(c)(2).

II.

Tretiakov makes several arguments to persuade this court to reverse the BIA’s

affirmance of the IJ’s denial of his application for asylum. He claims that he suffered

past persecution due to his political opinion and these instances were manifested by

his diminished career opportunities, an attack perpetrated on him and his father, and

his arrest and beatings by the Russian police because of his attendance at an anti-

corruption rally. Tretiakov argues that, even if each instance he cites does not

amount to past persecution alone, all three instances together establish past

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persecution. He urges our application of the totality of the circumstances test to

conclude that he suffered past persecution. See Shi v. U.S. Att’y Gen., 707 F.3d 1231,

1235–36 (11th Cir. 2013) (viewing the cumulative effect of all alleged instances of

persecution to determine if they demonstrate past persecution).

The record here does not compel a finding of past persecution where Tretiakov

was briefly detained and suffered two minor beatings with no substantial injuries

and experienced a lack of professional or creative advancement but did not lose his

job. Substantial evidence supports the finding that the attack on his father was not

based on Tretiakov’s political opinion, and Tretiakov offered no evidence to support

his speculation that the attack was linked to a YouTube exposé released three weeks

earlier.

In addition, when considering these instances in their totality, we conclude

that they do not amount to persecution based on a protected ground. First, our case

law states that diminished employment opportunities do not necessarily constitute

past persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291 (11th Cir.

2006). The record shows that Treviakov may have missed desired employment

opportunities, but he was still employed. See Mu Ying Wu, 745 F.3d at 1156

(economic mistreatment rises to the level of persecution if it reduces the petitioner

to an “impoverished existence”). Second, Treviakov’s mere speculation that the

attack on him and his father was politically motivated due to the proximity of time

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between the attack and the release of the YouTube video does not compel the

conclusion that the attack was politically motivated. Moreover, there is

contradictory testimony in the record that the attack on him and his father was

politically motivated. Third, Tretiakov’s arrest and two minor beatings following

the anti-corruption rally do not constitute past persecution. See Djonda, 514 F.3d at

1174 (finding that minor scratches and bruises do not rise to the level of past

persecution). Hence, even under the cumulative effect test, Treviakov’s alleged

incidents fail to reach the level of past persecution required by law. See Shi, 707

F.3d at 1235 (stating that past persecution “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”) (citation

omitted).

Nor does the record compel a finding that Tretiakov has a reasonable

possibility of suffering future political persecution where he was only briefly

detained one time and was released without being criminally or civilly charged.

Although the police were looking for him after he left Russia, they did not threaten

him. In actuality, the police may have wanted to question him regarding their

investigation on the attack on his father. Moreover, substantial evidence supports

the BIA’s determination that Tretiakov was insufficiently prominent, either

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politically or professionally, that the Russian government would be likely to single

him out for persecution.

Consequently, substantial evidence supports the finding that he did not meet

his burden of proof for asylum, or the more stringent burden of proof required for

withholding of removal. Similarly, substantial evidence supports the BIA’s

conclusion that Tretiakov is not eligible for CAT relief because it was not more

likely than not that the Russian government would target him for torture.

Accordingly, for the aforementioned reasons, we deny Tretiakov’s petition for

review.

PETITION DENIED.