Igoshin v. Immigration & Naturalization Service , 50 F. App'x 905 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANDREI IGOSHIN; ELENA
IGOSHIN; JULIA IGOSHIN,
Petitioners, No. 01-9527
(BIA Nos. A72 449 618,
v. A72 453 306
& A72 450 957)
IMMIGRATION & (Petition for Review)
NATURALIZATION SERVICE,
Respondent.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and HARTZ , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioners Andrei and Elena Igoshin and their daughter Julia seek review
of the Immigration Judge’s (IJ) determination that they are not eligible for asylum
and withholding of deportation. We deny the petition.
Petitioners are Russian nationals who became members of the Church of
Jesus Christ of Latter Day Saints (LDS) in 1991. 1
Prior to 1991, they were not
members of any religious group. A few weeks after being baptized into the LDS
church, Mr. Igoshin was summoned to the police station to have his passport
checked. At that time, he was informed by an official of the Russian Bureau of
State Security (KGB) that LDS missionaries were actually agents of foreign
governments and were engaged in espionage. He was asked to cooperate by
disclosing information about their activities. He refused. He was asked twice
more and again refused.
After that, he began receiving harassing phone calls, up to several times a
day. The harassment became more intense and Mr. Igoshin was told he would
lose his job if he did not cooperate. He again refused and lost his job a few days
later. Mr. Igoshin then began receiving anonymous calls threatening his life. In
December, 1991, he was accosted and beaten in the stairway of his apartment
building. He then attempted to apply for an exit visa, but was denied permission.
1
This recitation of facts was accepted by the IJ and the BIA who found that
Mr. Igoshin’s testimony was fully credible.
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He eventually obtained one through the black market. Mr. Igoshin arrived in the
United States in January 1992 with authorization to remain until July 1992.
Mrs. Igoshin and their daughter arrived in July 1992 with authorization to remain
until January 1993.
Mr. Igoshin applied for political asylum and withholding of deportation
shortly after his arrival. See Petitioners’ Br., Ex. A at 1 (Form I-589). In his
application, Mr. Igoshin stated that he was applying for asylum because he feared
he would be persecuted and possibly imprisoned if he were to return to Russia due
to the fact that he had “refused to cooperate with the KGB in informing on
American LDS missionaries.” Id. at 3.
The BIA determined that the Igoshins were not eligible for asylum or
withholding of deportation. The BIA agreed with Mr. Igoshin that he had
probably been harassed, lost his job, and was beaten due to his refusal to spy on
the LDS missionaries. The BIA concluded, however, that the harassment did not
occur on account of his religion. The BIA noted that impediments to religious
freedom were due to the Russian Orthodox Church’s attempts to retain
membership and not from the government or KGB. The BIA concluded that
Mr. Igoshin’s fear of future persecution was insupportable.
On appeal, petitioners raise ten issues. These issues can be summarized as
urging that the BIA’s decision should be reversed because, contrary to the BIA’s
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conclusion, petitioners did establish both past persecution and a well-founded fear
of future persecution based on their religion and membership in a particular social
group.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) “altered the availability, scope, and nature of judicial review in INS
cases.” Rivera-Jimenez v. INS , 214 F.3d 1213, 1215 n.1 (10th Cir. 2000).
Because petitioners’ deportation proceedings began before April 1, 1997, and the
BIA’s decision was entered more than thirty days after IIRIRA’s enactment date
of September 30, 1996, IIRIRA’s transitional rules apply. Id.An asylum applicant must first prove “statutory eligibility by establishing
refugee status.” Woldemeskel v. INS , 257 F.3d 1185, 1188 (10th Cir. 2001).
The applicant can accomplish this by establishing “either past persecution or a
well- founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion,” as manifested by an
infliction of suffering or harm which is regarded as offensive and involves “more
than just restrictions or threats to life and liberty.” Id. (quotation omitted).
Analysis of a claim specifically based on a well-
founded fear of future persecution includes both a
subjective and an objective component. The applicant
must first prove an objective basis by credible, direct,
and specific evidence in the record, of facts that would
support a reasonable fear that the petitioner faces
persecution. If an objective basis exists, the applicant
must show her subjective fear is genuine.
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Id. at 1188-89 (quotations and citation omitted).
We apply a substantial evidence standard to the BIA’s resolution of
the first step of an asylum claim . . . . The BIA’s determination that
the applicant is not eligible for asylum must be upheld if supported
by reasonable, substantial, and probative evidence on the record
considered as a whole. It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed. We will not,
therefore, weigh the evidence or . . . evaluate the witnesses’
credibility.
Id. at 1189 (quotations omitted).
Petitioners attempted to show they were eligible for asylum or withholding
of deportation because they were persecuted on account of their religion. See
8 U.S.C. § 1101(a)(42)(A). Such persecution need only be “ a motive for the
persecution in question; it need not be the sole motive.” Navas v. INS , 217 F.3d
646, 656 (9th Cir. 2000) .
Mr. Igoshin testified he did not believe he was persecuted on religious
grounds, but because he refused to be a spy and to provide the KGB with
information about the missionaries who were believed to be spies, Admin. R.
at 145, although he believed his religion indirectly caused his persecution, id. at
162. The KGB did not ask him questions about Russian Mormons. Id. at 165.
Further, the Igoshins were not prohibited from practicing their faith. Id. at 182.
The record supports the BIA’s conclusion that the mistreatment Mr. Igoshin
suffered at the hands of the KGB was due to his failure to cooperate as a spy and
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was not due to his religion. The missionaries were believed to be spies because
they were American. Mr. Igoshin failed to establish “with the degree of clarity
necessary to permit reversal of a BIA finding to the contrary” that he either was
persecuted or has a well-founded fear of future persecution because of his
religion, rather than because of his refusal to spy for the KGB. E.g. , INS v.
Elias-Zacarias , 502 U.S. 478, 483 (1992).
Because petitioners cannot establish their entitlement to asylum, they
cannot satisfy the more stringent standard required for withholding of deportation.
See Woldemeskel , 257 F.3d at 1193.
The petitions for review are DENIED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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