Artem Petlyovanyy v. U.S. Attorney General , 563 F. App'x 683 ( 2014 )

Case: 13-12729 Date Filed: 04/17/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12729
Non-Argument Calendar
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Agency No. A088-690-622
ARTEM PETLYOVANYY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 17, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Artem Petlyovanyy, a citizen and national of Ukraine, seeks review of the
Board of Immigration Appeals’ (BIA’s) affirmance of the Immigration Judge’s
(IJ’s) denial of his petition for asylum. 1 After review of the record and
consideration of the parties’ briefs, we deny the petition because substantial
evidence supports the IJ’s and BIA’s finding that Petlyovanyy did not demonstrate
his feared persecution was on account of a protected category under 8 U.S.C.
§ 1101(a)(42)(A).2
The Attorney General has discretion to grant asylum to an alien that meets
the Immigration and Nationality Act’s definition of refugee. Diallo v. U.S. Att’y
Gen., 596 F.3d 1329, 1332 (11th Cir. 2009). An asylum applicant bears the burden
of establishing, with specific and credible evidence, that: (1) he suffered past
persecution on account of a protected ground; or (2) he has a well-founded fear of
future persecution on account of a protected ground. Id. In order to qualify for
asylum, the alleged feared persecution must be on account of one of the five
1
Because Petlyovanyy did not address the denials of withholding of removal or relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment in his brief on appeal, those claims are accordingly deemed abandoned.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Where the BIA issues its own opinion, but expressly adopts the IJ’s reasoning, we
review both the BIA’s and IJ’s decision. Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1048 (11th
Cir. 2009). We review conclusions of law de novo, and review findings of fact for substantial
evidence. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Id. Under the
substantial evidence test, we view the evidence in the light most favorable to the decision and
must affirm the decision if it is supported by reasonable, substantial, and probative evidence on
the record. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010).
2
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protected grounds—“race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Petlyovanyy testified that the mafia targeted his mother primarily to collect
protection payments. Following her murder, the mafia targeted him and his family
to try and collect the remainder of those payments. While it is true that the familial
relationship played a necessary role in the targeting, the underlying motivation was
based on the payments and any characteristic regarding the family relationship was
tangential to the mafia’s intent. Petlyovanyy may not establish his eligibility for
asylum based on his refusal to cooperate with the mafia, or the fact that his family
was the victim of criminal activity. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1258 (11th Cir. 2006) (stating evidence of private acts of violence or the
petitioner’s refusal to cooperate with criminals, or that merely shows that a person
has been the victim of criminal activity, does not constitute evidence of persecution
based on a statutorily protected ground); Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
437-38 (11th Cir. 2004) (explaining that to show a petitioner fears persecution on
account of a protected ground, it is not enough for a petitioner to show that he will
be persecuted due to his refusal to cooperate with guerilla groups). Substantial
evidence supports the BIA’s finding that Petlyovanyy could not establish a nexus
between the feared persecution and a protected ground. See 8 U.S.C.
§ 1158(b)(1)(B)(i) (stating an applicant must demonstrate that an enumerated
3
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ground “was or will be at least one central reason for persecuting” him).
Accordingly, we deny Petlyovanyy’s petition. 3
PETITION DENIED.
3
Because Petlyovanyy has not shown that any persecution would be on account of a
protected ground, he cannot show that he is eligible for asylum. Accordingly, we need not
address his other arguments regarding the safety of relocation within Ukraine and the lack of
notice or opportunity to provide corroborating evidence to confirm his belief that his father and
brother may have been killed by the mafia.
4