Kushakov v. Ashcroft , 97 F. App'x 863 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 14 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
OTABEK KUSHAKOV,
Petitioner,
v. No. 02-9589
(BIA No. A78-584-955)
JOHN ASHCROFT, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
Petitioner Otabek Kushakov, a citizen of Uzbekistan who is proceeding
pro se, petitions for review of an order of the Bureau of Immigration Appeals
(BIA) summarily affirming the decision of the Immigration Judge (IJ) denying his
applications for: (1) asylum; (2) withholding of removal under 8 U.S.C.
§ 1231(b)(3); and (3) withholding of removal under the Convention Against
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Torture, see 8 C.F.R. § 208.16(c)(2). We deny the petition for review and affirm
the IJ’s decision denying the applications for asylum and withholding of removal .1
I
Kushakov is twenty-five years old, and he left Uzbekistan in March 2000.
He claims he is a devout Muslim, and denies any affiliation with anti-government
or terrorist groups. Kushakov also claims that he has been persecuted by the
government of Uzbekistan in the past and fears future persecution because: (1) he
practiced Islam outside of state regulation; and (2) he was suspected of being a
Muslim extremist and of being engaged in anti-government activities.
To support his claim that he suffered past persecution, Kushakov alleges
that he was detained by government authorities for two weeks in August 1999 and
interrogated regarding his religious and political beliefs. Prior to his detention in
February 1999, five suspected terrorist bombs exploded in Tashkent (the capital
of Uzbekistan and the city where Kushakov resided), and Kushakov claims that he
1
Because we have jurisdiction to directly review the IJ’s decision denying
Kushakov’s applications for asylum and for withholding of removal, we need not
address Kushakov’s claim that the BIA failed to comply with the streamlining
regulations in 8 C.F.R. § 3.1 (codified at 8 C.F.R. § 1003.1) when it assigned
Kushakov’s appeal to a single member of the BIA for a summary affirmance
without an opinion. See Batalova v. Ashcroft, 355 F.3d 1246, 1253 n.8 (10th Cir.
2004) (noting, in case in which the IJ denied applications for asylum and for
withholding of removal, that “it [made] little difference whether the BIA member
properly or improperly determined to utilize [the streamlining regulations] . . .
because we directly review the IJ’s decision, which the BIA member adopted”).
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was detained as part of the government’s crackdown on suspected Muslim
extremists following the bombings. Although he was not tortured during his
detention, Kushakov asserts that he was kicked and punched by government
agents at the time he was initially detained. He also claims that in order to obtain
his release he had to sign a statement renouncing certain Islamic groups and
agreeing not to leave Tashkent.
According to Kushakov, his younger brother has been persecuted by the
government of Uzbekistan due to his religious beliefs and because he is a
suspected Muslim extremist. Specifically, Kushakov states that the government
wrongfully convicted his brother of sedition in July 1999, and that his brother is
currently serving a twenty-year prison sentence for that offense. During his
brother’s trial, Kushakov alleges that the government put forth evidence against
his father, and that his father was subsequently sentenced to prison for three and
one-half years for helping a friend of his brother (who was apparently also a
suspected Muslim extremist) flee the country.
In an oral decision dated March 6, 2001, the IJ found that Kushakov failed
to establish refugee status based on his alleged past persecution or his alleged fear
of future persecution, and therefore denied his application for asylum. In an order
dated November 18, 2002, a single member of the BIA summarily affirmed the
IJ’s decision without an opinion pursuant to 8 C.F.R. § 3.1(e)(4) (codified at 8
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C.F.R. § 1003.1(e)(4)). As a result of the BIA’s summary affirmance, the IJ’s
decision became “the ‘final agency determination’” for purposes of appellate
review. Sviridov v. Ashcroft, 358 F.3d 722, 726–27 (10th Cir. 2004) (quoting
8 C.F.R. § 3.1(e)(4)(ii)).
II
A
Because Kushakov’s application was denied on refugee status, our review
is “limited, in breadth, to that threshold determination,” Vatulev v. Ashcroft, 354
F.3d 1207, 1209 (10th Cir. 2003), and we review the IJ’s resolution of
Kushakov’s refugee status under a “substantial evidence standard.” Yuk v.
Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) . As a result,
[t]he [IJ’s] determination that [Kushakov 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 by [Kushakov] was such that a
reasonable factfinder would have to conclude that the requisite fear
of persecution existed. We do not weigh the evidence or . . .
evaluate the witnesses’ credibility. The [IJ’s] findings of fact are
conclusive unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.
Id. (quotations and citations omitted).
A request for asylum requires that the applicant first establish that he or she
is a “refugee.” See Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir. 2002)
(citation omitted). A “refugee” is any person outside the country of his or her
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national origin “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. § 1101(a)(42)(A). To demonstrate refugee status, an applicant for
asylum may prevail in any one of three ways:
One way is by showing he or she has a well-founded fear of [future]
persecution. A second way to establish refugee status is to
demonstrate that he or she has suffered past persecution, which gives
rise to a presumption that he or she has a well-founded fear of future
persecution unless the INS rebuts the presumption by a
preponderance of the evidence. The third way to establish status as a
refugee is to establish past persecution so severe that it demonstrates
compelling reasons for being unwilling to return. This is known as
“humanitarian” asylum.
Yuk, 355 F.3d at 1232–33 (quotations omitted). Once an applicant establishes his
or her refugee status, it is left to the discretion of the Attorney General to either
grant or deny asylum. Id. at 1233.
As set forth above, Kushakov claims that he is entitled to refugee status
because he has suffered religious/political persecution in Uzbekistan in the past
and has a well-founded fear of future persecution if he is forced to return to
Uzbekistan. However, with respect to his past persecution claim, Kushakov is not
claiming that he is entitled to “humanitarian” asylum. Instead, he is asserting past
persecution for the sole purpose of raising a presumption that he has a well-
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founded fear of future persecution. If he cannot establish that he suffered past
persecution for purposes of gaining the benefit of the presumption, Kushakov may
nonetheless prove a well-founded fear of persecution. To that end, he may
demonstrate either: (1) that he would be “singled out personally for persecution”
in Uzbekistan; or (2) that he has a “reasonable fear of persecution because of [his]
membership in a group subject to ‘a pattern or practice of persecution.’”
Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir. 2001) (quoting 8 C.F.R.
§ 208.13(b)(2)(iii)(A)-(B)).
Although the IJ found that Kushakov “was a credible witness in his own
behalf,” (Admin. R. at 42), he nonetheless found that Kushakov did not suffer
past persecution or have a well-founded fear of future persecution because: (1) in
his testimony at the hearing, while he “referred to concern regarding potential
affiliation with ‘Muslim clerics,’” he failed to establish any “particular personal
affiliation” with such clerics, (id. at 37); (2) after he was released from his two-
week detention in August 1999, “he had no other problems with governmental
authorities” during the seven-month period before he departed for the United
States, (id. at 41); (3) he failed to submit any “corroborating evidence . . . with
regard to the particular problems experienced by [him] or any other members of
his immediate family,” (id. at 42); (4) he “testified that admittedly the government
of Uzbekistan at no time specifically interfered with his ability to practice his
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Muslim beliefs,” (id.); (5) “[t]hough the Department of State reports indicate that
the Uzbeki government has investigated Muslims who are perceived to be
involved in what the government describes as fanatical or potentially terroristic
activities, . . . nevertheless, the State Department documents also establish that
this type of interference does not occur with recognized mosques or religious
institutions,” (id. at 43); (6) “there has been no establishment or identification of
[Kushakov] with any Muslim sect, either rightfully or wrongfully, that caused him
problems in the past or would potentially cause him problems in the future,” (id.
at 44); (7) “apparently no affiliation, no suspicions were confirmed tying
[Kushakov] to [the Khizbal-Takhir, an Islamic political movement, or any other
suspected extremist group] as evidenced by his release [from detention] in August
of 1999 without any further government investigation or interference in his
activities,” (id.); and (8) while Kushakov may suffer some form of punishment if
he returns to Uzbekistan because of his failure to comply with his agreement not
to leave Tashkent, any such punishment would not “be a form of ‘persecution
based upon race, religion, nationality, membership in a particular social group,
and/or political opinion,’” ( id. at 45) (internal quotation marks omitted).
We agree with the IJ that there is insufficient evidence in the administrative
record to establish that the government of Uzbekistan persecuted Kushakov in the
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past. 2 As a result, we also agree with the IJ that Kushakov is not entitled to a
presumption that he has a well-founded fear of future persecution based on past
persecution. This does not end our inquiry, however, because Kushakov may
establish that he has a well-founded fear of future persecution without the benefit
of a presumption based on past persecution, again, either by showing: (1) that he
would be singled out personally for persecution; or (2) that his membership in a
group subject to a pattern or practice of persecution leads to a reasonable fear of
future persecution. See Woldemeskel, 257 F.3d at 1190.
As to individualized persecution, in Vatulev v. Ashcroft, 354 F.3d 1207,
1210-11 (10th Cir. 2003), this court recently discussed the showing that must be
2
“Although persecution is not explicitly defined, [this court has] observed that it
requires the infliction of suffering or harm . . . in a way regarded as offensive and
requires more than just restrictions or threats to life and liberty.” Woldemeskel,
257 F.3d at 1188 (quotations omitted). We also agree with the Seventh Circuit
that being detained for a short period of time generally does not rise to the level
of persecution unless the detention is accompanied by significant physical
mistreatment. See Asani v. INS, 154 F.3d 719, 723-25 (7th Cir. 1998). While
Kushakov claims that he was kicked and punched by government agents during
his detention in August 1999, he has acknowledged that this occurred only when
he was “first” arrested, and that he “was not physically beaten while [he] was
being held.” (Admin. R. at 267, 268.) Kushakov has also acknowledged that he
was not tortured or “harassed continuously” like most of the other prisoners. (Id.
at 95, 267.) He attributes the better treatment he received to the fact that he
spoke to the prison guards in Russian, has a Caucasian appearance, and possessed
a passport that showed he had traveled abroad. (Id. at 94-95, 268.) In light of
this evidence, the IJ’s determination that Kushakov’s two-week detention in
August 1999 did not constitute past persecution is supported by substantial
evidence in the record.
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made in order for an asylum applicant to establish the requisite individualized risk
of future persecution, and we cited with approval the Ninth Circuit’s decision in
Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). We noted that “[t]he more
egregious the showing of group persecution—the greater the risk to all members
of the group—the less evidence of individualized persecution must be adduced.”
Vatulev, 354 F.3d at 1210-11 (quoting Hoxha, 319 F.3d at 1182-83). In Hoxha,
the Ninth Circuit concluded that although an ethnic Albanian from the Kosovo
region of Serbia failed to establish that he had been persecuted in the past by the
dominant Serbian majority, 319 F.3d. at 1182, he nonetheless had established a
well-founded fear of future persecution, id. at 1184. The court based its holding
on three factors: (1) that the administrative record documented extensive
persecution of ethnic Albanians in Kosovo, id. at 1183; (2) that petitioner “had
been subjected to harassment, threats and mistreatment since early childhood,” id.
at 1181, which although not sufficient to compel a presumption of future
persecution were nonetheless “indicative of his individualized risk of
experiencing similar mistreatment if he returns to Kosovo,” id. at 1184; and (3)
prior to leaving Kosovo, the petitioner had “received, and ignored, a summons for
an ‘informative conversation’ with Serbian authorities,” id.While the backdrop of ethnic cleansing and genocide makes Hoxha an
extreme case, this case is analogous to Hoxha in certain respects. Most notably,
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there are extremely condemning State Department reports in the administrative
record documenting the government of Uzbekistan’s widespread
religious/political persecution of certain Muslim groups. In fact, the reports
specifically document the governmental persecution and human rights violations
that occurred following the bombings in Tashkent in February 1999, including the
precise types of unlawful detentions and false convictions that Kushakov claims
he and his brother were victims of in July and August 1999. ( See Admin. R. at
154-55.) Likewise, this case is similar to Hoxha in that Kushakov is claiming that
he has an increased risk of future persecution if he is forced to return to
Uzbekistan because the government can prosecute him for failing to abide by his
agreement not to leave Tashkent.
Nonetheless, Kushakov has failed to carry his burden of demonstrating that
the administrative record compels a finding that he has a sufficient individualized
risk of future persecution. Specifically, he has not shown any legal error or
evidentiary deficiency with respect to the IJ’s finding that he has failed to
establish any tangible affiliation with any of the Muslim clerics or suspected
extremist groups that have been targeted for persecution by the government of
Uzbekistan. In addition, while Kushakov claims he has a well-founded fear of
future persecution because the government of Uzbekistan will perceive that he is
a member of one of the Muslim groups that it has targeted as part of its
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crackdown on Muslim extremists, the fact that he is not a member of any of the
targeted groups distinguishes this case from Hoxha and leads us to conclude that
the IJ’s decision to deny refugee status to Kushakov is supported by substantial
evidence.
As to whether Kushakov has a “reasonable fear of persecution because of
[his] membership in a group subject to a pattern or practice of persecution,”
Woldemeskel, 257 F.3d at 1190 (quotation omitted), Kushakov alleged that he is a
member of a group that has been subjected to persecution by the government of
Uzbekistan. “A pattern or practice of persecution has been defined as ‘something
on the order of organized or systematic or pervasive persecution.’” Id. at 1191(quotation omitted). Moreover, “[t]he group must consist ‘of persons similarly
situated to [Kushakov] on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Id. at 1190–91 (quoting 8 C.F.R.
§ 208.13(b)(2)(iii)(A)).
As noted above, we agree with the IJ that there is no evidence in the
administrative record specifically tying Kushakov to any of the Muslim clerics or
suspected extremist groups that have been targeted by the government of
Uzbekistan. We also conclude that there is insufficient evidence in the
administrative record to mandate a finding by the IJ that the government of
Uzbekistan has engaged in a pattern or practice of persecution against all devout
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Muslims who practice their religion outside of the state-sponsored religious
institutions. As a result, there is no basis for granting Kushakov refugee status
based on the alleged group persecution.
B
Turning to Kushakov’s remaining arguments on appeal, to be entitled to
withholding of removal under 8 U.S.C. § 1231(b)(3), “[t]he applicant must
establish a clear probability of persecution . . ., which is a higher standard than is
applicable to a request for asylum.” Krastev, 292 F.3d at 1271. The IJ found that
Kushakov failed to establish a clear probability of persecution if he is forced to
return to Uzbekistan. (See Admin. R. at 46.) We conclude that the IJ’s finding
with respect to this higher standard of proof is supported by substantial evidence
in the administrative record. We therefore affirm the denial of Kushakov’s
application for withholding of removal under § 1231(b)(3).
To be entitled to withholding of removal under the Convention Against
Torture, an applicant must establish that “it is more likely than not that he or
she would be tortured if removed to the proposed country of removal.” Batalova
v. Ashcroft, 355 F.3d 1246, 1248 n.2 (10th Cir. 2004) (citing 8 C.F.R.
§ 208.16(c)(2)). The IJ found that Kushakov failed to establish the requisite
likelihood of being tortured so as to merit relief under the Convention Against
Torture. (See Admin. R. at 46.) Because the IJ’s finding is supported by
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substantial evidence in the administrative record, we affirm the denial of
Kushakov’s application for withholding under the Convention Against Torture.
III
The petition for review is DENIED . The IJ’s decision denying the
applications for asylum and withholding of removal is AFFIRMED .
Entered for the Court
Carlos F. Lucero
Circuit Judge
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