Victor Shnegelberger v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3649
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VICTOR VIKTOROVICH SHNEGELBERGER,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the Board of Immigration Appeals
(Agency No. A087-297-628)
Immigration Judge: Hon. Kuyomars Golparvar
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Submitted under Third Circuit L.A.R. 34.1(a)
July 9, 2018
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Before: SHWARTZ, NYGAARD, and RENDELL, Circuit Judges.
(Opinion Filed: August 6, 2018)
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OPINION*
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SHWARTZ, Circuit Judge.
Viktor Shnegelberger petitions for review of an order of the Board of Immigration
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Appeals (“BIA”) denying his application for cancellation of removal, withholding of
removal, asylum, and relief under the United Nations Convention Against Torture
(“CAT”). Because Shnegelberger’s argument for cancellation of removal is foreclosed
by precedent, and we lack jurisdiction over the BIA’s factfinding regarding the other
forms of relief he seeks, we will deny the petition in part and dismiss it in part.
I
Shnegelberger is a citizen of Tajikistan. He entered the United States in December
2007 as a sixteen-year-old, on a visitor’s B-2 visa, and became a lawful permanent
resident in June 2008 based on his mother’s marriage to a U.S. citizen. He last visited
Tajikistan in the summer of 2009 for a wedding. In January 2010, Shnegelberger was
arrested for possession of marijuana and drug paraphernalia and thereafter pleaded guilty
to violating 35 Pa. Stat. §§ 780-113(a)(31) and (32). In April 2015, he committed
additional drug-related offenses and subsequently pleaded guilty to violating 35 Pa. Stat.
§ 780-113(a)(16) and 75 Pa. Stat. § 3802(d)(3). As a result, the Department of Homeland
Security initiated removal proceedings, and Shnegelberger sought cancellation of
removal for lawful permanent residents, withholding of removal, and asylum, under 8
U.S.C. §§ 1229b(a), 1231(b)(3), and 1158(b), respectively, and CAT relief.
In support of his requests for relief, Shnegelberger testified before the Immigration
Judge (“IJ”) that when he was a child in Tajikistan, he was bullied because he is a light-
skinned Christian of Russian and German ethnicity, whereas most of the population
consisted of darker-skinned Muslims. In one incident, he was beaten by multiple
children, which resulted in Shnegelberger breaking his hand and tooth. He was also
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threatened and taunted for not being circumcised and ultimately proceeded with
circumcision at the age of eleven. His mother also testified about his mistreatment, and
his stepfather testified about Shnegelberger’s close relationship with his mother. In
addition, an expert testified that Shnegelberger is part of the ethnic and religious minority
in Tajikistan and that the country has serious problems with religious and ethnic
discrimination. Shnegelberger asserts that he was persecuted on the basis of his ethnicity,
religion, and membership in a particular social group of “light-haired, fair-skinned,
blue/green-eyed Christians of German or Russian descent.” A.R. 778, 800.
The IJ denied all of Shnegelberger’s requested relief. The IJ determined that
Shnegelberger’s 2010 marijuana conviction occurred before he accrued the seven years
of continuous residence required for a legal permanent resident to be eligible for
cancellation of removal under 8 U.S.C. § 1229b(a)(2) but noted that if Shnegelberger had
been statutorily eligible, the IJ would have favorably exercised his discretion to grant
cancellation of removal. However, the IJ found that Shnegelberger’s mistreatment in
Tajikistan did not rise to the level of past persecution, Shnegelberger did not demonstrate
a well-founded fear of future persecution on account of his ethnicity or religion or
establish that his proposed social group was socially distinct as required for a cognizable
particular social group, and thus, he was not entitled to asylum or withholding of
removal. The IJ also denied Shnegelberger CAT relief because the evidence failed to
show a likelihood that he would be tortured if removed to Tajikistan.
The BIA dismissed Shnegelberger’s appeal, agreeing with the IJ that
Shnegelberger was ineligible for cancellation of removal because his 2010 marijuana
3
offense disrupted his seven years of continuous residency in the United States. The BIA
also held that: (1) the IJ properly considered all of the evidence in the aggregate when it
determined that Shnegelberger did not establish past persecution or a well-founded fear
of future persecution on the basis of ethnicity or religion; (2) the IJ correctly concluded
that Shnegelberger’s proposed social group lacked social distinction; and (3) the IJ did
not err in ruling that Shnegelberger failed to establish that he would more likely than not
be tortured if returned to Tajikistan. Shnegelberger appeals.
II1
When the BIA issues its own opinion on the merits, we review the BIA’s decision,
not that of the IJ. Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). However,
where, as here, the BIA expressly adopts portions of the IJ opinion, we review both the IJ
and BIA decision. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Under 8
U.S.C. § 1252(a)(2)(C), we lack “jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed a criminal offense covered in
section 1182(a)(2) or . . . [1227(a)(2)](B),” except that we may review “constitutional
claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D). Under this standard, “we are
limited to pure questions of law, and to issues of application of law to fact, where the
facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen., 420 F.3d
202, 211 (3d Cir. 2005) (citations and internal quotation marks omitted). We review the
1
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1).
4
BIA’s legal determinations de novo. Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir.
2012).
III
A
We will first address Shnegelberger’s argument that the BIA erred in interpreting
the cancellation of removal statute’s stop-time rule in § 1229b(d)(1) in a manner that
precludes him from qualifying for cancellation of removal under § 1229b(a). The
interpretation of the stop-time rule is a question of law over which we have jurisdiction.
Rachak v. Att’y Gen., 734 F.3d 214, 216 (3d Cir. 2013).
Section 1229b(a) allows the Attorney General to cancel removal of “an alien who
is inadmissible or deportable” if the alien meets certain requirements, including
continuous residence in the United States for seven years after having been admitted. 8
U.S.C. § 1229b(a). However, under the stop-time rule, “any period of continuous
residence . . . in the United States shall be deemed to end . . . when the alien has
committed an offense referred to in section 1182(a)(2) . . . that renders the alien
inadmissible to the United States under section 1182(a)(2) . . . or removable from the
United States under section 1227(a)(2) . . . .” Id. § 1229b(d)(1). Thus, the stop-time rule
involves two requirements. First, the alien’s offense must be one that is “referred to in
[§ 1182]” and second, the offense must then “render[] the alien inadmissible . . . under
section [1182] or removable . . . under section [1227(a)(2)].” Matter of Garcia, 25 I. &
N. Dec. 332, 334 (B.I.A. 2010) (quoting 8 U.S.C. § 1229b(d)(1)); see In re Campos-
Torres, 22 I. & N. Dec. 1289, 1292-93 (B.I.A. 2000) (giving independent effect to the
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“referred to in [§ 1182]” requirement). Section 1227(a)(2)(B)(i) makes deportable “[a]ny
alien who at any time after admission has been convicted of a violation of . . . any [state
or federal law] relating to a controlled substance . . . other than a single offense involving
possession for one’s own use of 30 grams or less or marijuana.” 8 U.S.C.
§ 1227(a)(2)(B)(i). In other words, § 1227(a)(2) makes aliens convicted of controlled
substance offenses removable, subject to an exception for possession of 30 grams or less
of marijuana. Section 1182(a)(2)(A)(i)(II) mirrors § 1227(a)(2) and renders inadmissible
“any alien convicted of, or who admits having committed . . . a violation of . . . any [state
or federal law] relating to a controlled substance.” Id. § 1182(a)(2)(A)(i)(II). However,
unlike § 1227(a)(2), § 1182(a)(2)(A)(i)(II) does not contain an exception for possession
of 30 grams or less of marijuana.
Shnegelberger concedes that his 2010 marijuana conviction is one that is “referred
to in [§ 1182]” because it is a controlled substance offense under § 1182(a)(2)(A)(i)(II),
but disputes whether it bars him from cancellation of removal. He argues that the stop-
time rule’s use of the disjunctive “or” in its reference to the alien’s commission of an
offense that renders him “inadmissible . . . under section 1182(a)(2) . . . or removable . . .
under section 1227(a)(2),” 8 U.S.C. § 1229b(d)(1), should be construed as a conjunctive
“and,” meaning that the offense would need to render him both inadmissible and
removable. Our precedent, however, forecloses this interpretation. In Rachak, the
petitioner—like Shnegelberger—was a lawful permanent resident who had a conviction
for marijuana possession prior to accruing the requisite seven years of continuous
residency necessary to be eligible for cancellation of removal under § 1229b(a)(2). 734
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F.3d at 215-16. In interpreting the stop-time rule, we stated that the provision
“terminates the accrual of the period of residence when the alien ‘has committed an
offense’ that renders him either inadmissible or removable.” Id. at 218 (quoting
§ 1229b(d)(1)). Noting that the petitioner’s marijuana offense did not render him
removable but did make him inadmissible under § 1182(a)(2)(A)(i)(II) because it was a
controlled substance offense, we agreed with the BIA that the petitioner did not qualify
for cancellation of removal since application of the stop-time rule meant he had not
attained the required seven years of continuous residency. Id.
Rachak controls here and precludes Shnegelberger from eligibility for cancellation
of removal. Although his 2010 marijuana offense does not render him removable, due to
the 30 gram exception, 8 U.S.C. § 1227(a)(2)(B)(i), it does render him inadmissible under
§ 1182(a)(2)(A)(i)(II), and thus, the stop-time rule terminates his accrual of continuous
residency at the time he committed the marijuana offense. See In re Jurado-Delgado, 24
I. & N. Dec. 29, 32 (B.I.A. 2006). Because Shnegelberger committed his marijuana
offense in January 2010, before he reached seven years of continuous residency after
having entered the United States in December 2007,2 the BIA correctly concluded that
Shnegelberger is ineligible for cancellation of removal.
2
See Holder v. Martinez Gutierrez, 566 U.S. 583, 587 n.1, 593 (2012) (stating that
the seven-year continuous residency requirement of § 1229b(a)(2) includes time
preceding the acquisition of lawful permanent resident status and observing that
“admission” refers to the lawful entry of an alien to the United States under
§ 1101(a)(13)(A)).
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B
We lack jurisdiction to consider Shnegelberger’s challenges to the BIA’s
determinations that he had not established various facts necessary to obtain asylum,
withholding of removal, or CAT relief. Specifically, he contends the BIA and IJ erred in
concluding that his mistreatment in Tajikistan did not rise to the level of past persecution,
that he has not established a well-founded fear of future persecution on the basis of
ethnicity and religion, that his proposed social group of lacks social distinction, and that
he has not shown a likelihood of torture if he is returned to Tajikistan.
Whether an asylum or withholding of removal applicant has established past
persecution or a well-founded fear of future persecution are factual determinations.
Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007); Voci v. Gonzales, 409 F.3d
607, 613 (3d Cir. 2005); Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005).3 We thus
3
Shnegelberger asserts that we have jurisdiction to review his claims because
under Huang v. Att’y Gen., 620 F.3d 372 (3d Cir. 2010), while questions as to what may
happen to an alien if he returns to his home country are factual, whether that conduct
meets the definition of persecution is legal. To the extent Huang conflicts with Jarbough,
Voci, and Li, those earlier cases govern the factual nature of the past persecution and
well-founded fear of persecution inquiry. See Pardini v. Allegheny Intermediate Unit,
524 F.3d 419, 426 (3d Cir. 2008).
Even if Huang governs, we would still agree with the BIA’s conclusion that
Shnegelberger did not establish mistreatment rising to the level of past persecution or a
well-founded fear of future persecution on the basis of ethnicity or religion. See Wong v.
Att’y Gen., 539 F.3d 225, 236 (3d Cir. 2008) (explaining that “harassment and
discrimination do not constitute persecution” and finding no objectively reasonable fear
of persecution), abrogated on other grounds by Nbaye v. Att’y Gen., 665 F.3d 57 (3d Cir.
2011); Jarbough, 483 F.3d at 191 (“Abusive treatment and harassment, while always
deplorable, may not rise to the level of persecution.”); Voci, 409 F.3d at 615 (“[O]ur
cases suggest that isolated incidents that do not result in serious injury do not rise to the
level of persecution.”). Shnegelberger’s circumstances are distinguishable from In re O-
Z & I-Z, 22 I. & N. Dec. 23 (B.I.A. 1998), upon which he relies, because the misconduct
8
lack jurisdiction to review the BIA’s determinations concerning past persecution and a
well-founded fear of future persecution. Similarly, whether a proposed social group is
socially distinct is a factual determination. See Perez-Rabanales v. Sessions, 881 F.3d 61,
65-66 (1st Cir. 2018); Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016), cert. denied
sub nom. Reyes v. Sessions, 138 S. Ct. 736 (2018); Zaldana Menijar v. Lynch, 812 F.3d
491, 500 (6th Cir. 2015). Therefore, we also lack jurisdiction to review the BIA’s
conclusion that Shnegelberger’s proposed social group of “light-haired, fair-skinned,
blue/green-eyed Christians of German or Russian descent” lacks the social distinction
necessary for a cognizable particular social group.
Lastly, the BIA adopted the IJ’s determination that there was insufficient evidence
to suggest that Shnegelberger would more likely than not be tortured if removed to
Tajikistan. The IJ specifically found that Shnegelberger’s situation was distinguishable
from the circumstances of other individuals described by Shnegelberger’s expert, who
in that case, which involved repeated beatings that resulted in a rib injury and required
stitches to the petitioner’s face, id. at 24, the beating of the petitioner’s son and a separate
incident where his son was “dragged” and beaten by classmates, who also “cornered” him
in the bathroom and forced him to undress to show that he had been circumcised, id., was
far more severe than the reprehensible conduct Shnegelberger experienced.
Furthermore, the BIA’s conclusion that there was insufficient evidence to support
a well-founded fear of future persecution is correct. While Shnegelberger’s expert stated
that Department of State reports on Tajikistan underreported instances of religious
persecution, he could not provide a basis for this view other than his anecdotal
experience. Finally, to the extent Shnegelberger complains that the IJ or BIA
“incorrectly weighed evidence [or] failed to consider evidence,” we lack jurisdiction to
review such claims because they “are not questions of law under § 1252(a)(2)(D).”
Jarbough, 483 F.3d at 189; see also Green v. Att’y Gen., 694 F.3d 503, 508 (3d Cir.
2012) (stating that we lack jurisdiction to consider arguments that the IJ incorrectly
weighed evidence in making factual determinations).
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had been detained, interrogated, and beaten, and that the likelihood of torture was
“heavily undermined” by the fact that Shnegelberger returned to Tajikistan in 2009
without incident. These are factual findings that we lack jurisdiction to review. See
Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017) (explaining that the determination
of “what is likely to happen to the petitioner if removed,” for purposes of assessing the
likelihood of torture, is a factual question).
IV
For the foregoing reasons, we will deny in part and dismiss in part
Shnegelberger’s petition.
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