Kouljinski v. Gonzales ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0421p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
NIKOLAI KOULJINSKI,
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No. 06-4016
v.
,
>
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*
PETER D. KEISLER, Acting Attorney General of the
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Respondent. -
United States,
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N
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A72 142 173.
Argued: September 17, 2007
Decided and Filed: October 16, 2007
Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.**
_________________
COUNSEL
ARGUED: Scott A. Keillor, Ypsilanti, Michigan, for Petitioner. Kristin K. Edison, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Scott
A. Keillor, Ypsilanti, Michigan, for Petitioner. Kristin K. Edison, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
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KAREN NELSON MOORE, Circuit Judge. After finding that an alien is eligible for asylum,
may an immigration judge consider the alien’s three convictions for driving under the influence of
alcohol in denying the application for asylum as a matter of discretion? That is the principal
question in this appeal, and because we conclude that an immigration judge may properly consider
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Peter D. Keisler is
automatically substituted for former Attorney General Alberto R. Gonzales.
**
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
1
No. 06-4016 Kouljinski v. Keisler Page 2
such convictions, we DENY Nikolai Kouljinski’s petition for review of the decision of the Board
of Immigration Appeals denying his application for asylum and withholding of removal.
I. BACKGROUND
A. Procedural History
Petitioner Nikolai Kouljinski (“Kouljinski”), now a fifty-five year-old Russian Jew, entered
the United States in October 1992 and filed an application for asylum in November 1992 with the
former Immigration and Naturalization Service (“INS”). Joint Appendix (“J.A.”) at 680-84 (1992
Request for Asylum), 698-708 (2004 Application for Asylum). In June 1995, Kouljinski learned
that his wife had been involved in a serious car accident in Russia, and he returned to Russia after
first receiving advance parole, which allowed him to reenter the United States and not abandon his
application for asylum. J.A. at 611-13 (Authorization for Parole), 141 (Hr’g Tr. at 74). He returned
to the United States on August 11, 1995, and his wife and daughter followed him to the United
States on December 11, 1995.
On August 14, 2002, the former INS initiated removal proceedings against Kouljinski,
alleging that, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), he was removable for entering the United
States without valid documents. J.A. at 709-10 (Notice to Appear in Immigration Court). On
November 26, 2003, at an initial Master Calendar hearing, the immigration judge (“IJ”), noting that
Kouljinski had originally applied for asylum in 1992, scheduled a second hearing for February 20,
2004, at which time Kouljinski was to submit an updated application for asylum. J.A. at 163-68
(Transcript of Master Calendar Hearing). Kouljinski submitted an updated application for asylum
at a brief hearing on February 20, 2004, at which he was represented by his current counsel. J.A.
at 698-708 (Application for Asylum), 158-162 (Transcript of Hearing). Kouljinski sought asylum,
withholding of removal under the Immigration and Nationality Act (“INA”), and withholding of
removal under the Convention Against Torture (“CAT”). On August 13, 2004, an IJ held a hearing
at which Kouljinski’s attorney, the Department of Homeland Security’s attorney, and the IJ
discussed the parties’ evidentiary submissions in advance of the asylum hearing. J.A. at 149-57
(Transcript of Hearing). On November 12, 2004, the IJ held a hearing on Kouljinski’s asylum
application. J.A. at 84-148 (Transcript of Hearing). At this hearing, Kouljinski and his wife, Alla
Kouljinski (“Ms. Kouljinski”), testified regarding instances of harassment and intimidation that they
experienced in Russia and attributed to anti-Semitism.
The IJ rendered an oral decision at the conclusion of the hearing. J.A. at 10-24 (Transcript
of Oral Decision). The IJ denied Kouljinski’s applications for asylum, withholding of removal
under the INA, and withholding of removal under the CAT. The IJ did so after first finding
Kouljinski eligible for asylum—he “conclu[ded] that [Kouljinski], in my view, has established a
reasonable possibility of persecution,” J.A. at 22—but the IJ denied Kouljinski asylum because he
“reached the conclusion that a favorable exercise of discretion in this case is unwarranted.” J.A. at
24. In doing so, the IJ decided that Kouljinski’s eligibility for asylum was not “a sufficiently
weighty favorable discretionary factor to outweigh the fact that [he] has three convictions for driving
under the influence” of alcohol, noting that Kouljinski’s most recent conviction was a felony
offense. J.A. at 23.
Kouljinski timely appealed to the BIA, where he argued that the IJ abused his discretion in
denying asylum based on Kouljinski’s drunk-driving convictions and his lack of family ties to the
United States given that his wife and daughter are currently in the United States. Kouljinski also
challenged the IJ’s findings as to past persecution and as to a likelihood of future persecution and
torture, arguing that he had established the higher showing necessary to mandate withholding of
removal under the INA and under the CAT.
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On June 23, 2006, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal.
J.A. at 8-9. Kouljinski filed a timely petition for review in this court of the BIA’s decision.
B. The Hearing
At the hearing on November 12, 2004, Kouljinski testified that he was born in Leningrad,
Russia, in 1952, that he is Jewish, that he had been married to his wife for over twenty years, and
that they have a daughter, then sixteen years old. Kouljinski testified that his employment options
in the former Soviet Union were limited because, as a Jew, he could not be a member of the
Communist Party. In 1980, when he was working for a restaurant, Kouljinski’s application for a
managerial position was “not approved by the District Party Committee,” and he stated that the
District Party Committee “sen[t] documents to me suggesting that I need to quit.” J.A. at 102 (Hr’g
Tr. at 35). As a result of that pressure, Kouljinski quit; to obtain another position he moved from
Leningrad to Kronstadt, a city twenty kilometers from Leningrad. KGB agents then demanded that
he report to them while he was working in Kronstadt. While he was working as a bartender in an
establishment frequented by military personnel, the KGB arrested him and detained him overnight,
demanding that he listen to conversations in the bar and pass along information to the KGB about
anyone planning to leave the Soviet Union and seek asylum elsewhere.
After his father died in the late 1980s, Kouljinski learned from some of his father’s papers
how to manufacture jewelry that resembled Fabergé products; once it became legal to do so, he
started his own business. Soon thereafter, Kouljinski faced problems from racketeers, who
pressured him to manufacture counterfeit Fabergé products, but he refused. On his application for
asylum, Kouljinski stated that an entity called the “Ost Corporation” began threatening and
pressuring him, demanding that he merge his business with theirs because his jewelry-making “was
a ‘Russian’ practice and tradition, part of the Russian culture, and therefore not suitable for Jews.”
J.A. at 708 (2004 Asylum Application). Ms. Kouljinski testified that they frequently received
threatening calls at night and that windows in their house were broken. The racketeers demanded
thirty percent of his revenue, and Kouljinski testified that when he attempted to report the extortion
to the police, he was laughed at. Ultimately, Kouljinski decided to shut down his production and
flee to the United States.
While Kouljinski was in the United States, his wife continued to experience harassment in
Russia. Ms. Kouljinski testified that she received threats, with callers telling her that “we know that
your husband got out . . . and you should leave with him, because you’re even worse than him. You
married a Jew.” J.A. at 136 (Hr’g Tr. at 69). She also claimed that callers directed threats at their
daughter. In 1995, Ms. Kouljinski was involved in a serious car accident, and she testified that the
other car “collided with my vehicle at a very high speed” and that she spent over two weeks in the
hospital due to her injuries. J.A. at 137-38 (Hr’g Tr. at 70-71). Her mother began receiving threats
over the phone, with the callers “saying that if your daughter doesn’t leave the country with her
offspring, then she would lose her life.” J.A. at 138 (Hr’g Tr. at 71). At this time, her mother called
Kouljinski, who returned to Russia. On his 2004 asylum application, Kouljinski stated that he
believed the auto accident “was caused by persons associated with members of the Ost Corp.” J.A.
at 708 (2004 Asylum Applic.). He admitted on cross-examination at his asylum hearing that he had
no personal knowledge regarding the circumstances of the accident.
Ms. Kouljinski filed a lawsuit in Russia against the other driver, and Kouljinski’s asylum
application stated that “[e]ven though she won in court, the courts have never enforced the
judgment.” J.A. at 708 (2004 Asylum Applic.). When Ms. Kouljinski testified about the car
accident, she said that her suit “never got to the Court.” J.A. at 142 (Hr’g Tr. at 75). The
government noted that a document submitted in Kouljinski’s asylum application stated that a
judgment had been granted on her claim in the amount of some three thousand U.S. dollars. J.A.
at 142 (Hr’g Tr. at 75), 279 (Letter from Saint Petersburg Attorney German Natus). Ms. Kouljinski
No. 06-4016 Kouljinski v. Keisler Page 4
replied that they had never received any payment and that her attorney informed her that the other
party has twenty years to pay the judgment.
Both Kouljinski and his wife described episodes involving the brief kidnapping of their
daughter. Kouljinski testified that when he returned to Russia in 1995, while his daughter was
playing outside one day, he received a phone call in which he was told that the caller had his
daughter in a car. He stated that the caller wanted the documents regarding his jewelry
manufacturing process, and he immediately agreed to hand over the documents. He claimed that
“when I got outside, my daughter was already returned to me. It all took not more than 15 minutes.”
J.A. at 121-22 (Hr’g Tr. at 54-55). Ms. Kouljinski testified that on another occasion, when their
daughter was five years old, their daughter disappeared while playing in a park. She stated that she
received a phone call in which the caller claimed they had taken her daughter and that “[t]his time
we took her only for two hours. Next time, it’s going to be forever.” J.A. at 137 (Hr’g Tr. at 70).
No mention of either incident appeared in the application for asylum that Kouljinski filed in 2004,
or in any earlier application or affidavit.
Kouljinski and his wife also both testified that the graves of his family members have been
desecrated in recent years. In his asylum application, Kouljinski stated that he heard in 1998 that
his father’s gravestone was destroyed by anti-Semitic vandals. At his hearing, he also identified
photographs sent to him by friends containing images of grave sites with non-Russian names that
had been vandalized and “dirtied up.” J.A. at 112-13 (Hr’g Tr. at 45-46). Ms. Kouljinski also
identified photographs, which her mother’s friends had taken, depicting vandalized grave sites, and
she stated that the vandalism was “the work of a skinhead organization that exists in St. Petersburg,
whose goal is to clear St. Petersburg from all non-Russians.” J.A. at 139 (Hr’g Tr. at 72). Ms.
Kouljinski also specifically identified photographs of vandalism to the headstones of Kouljinski’s
aunt and uncle, his niece, and his parents.
Kouljinski testified that since he has been in the United States, he has been convicted three
times for driving under the influence of alcohol, in 1994, 1996, and 2001, all in the state of
Michigan. J.A. at 409-28 (Michigan State Court Records). Kouljinski asserted that he had not
drunk alcohol for three years and that he attends AA meetings when he is able. He also stated that
he now has a restricted driver’s license: his car must be equipped with a device to check his blood
alcohol level before he can start the car, and he is permitted to drive only to and from work and to
and from substance-abuse-support meetings. J.A. at 127-28 (Hr’g Tr. at 60-61), 248-51 (Order,
Mich. Dep’t of State, Driver License Appeal Div.).
Finally, both Kouljinski and the government submitted numerous documents for the IJ to
consider, including reports from the U.S. Department of State and Amnesty International.
C. The IJ’s Decision
The IJ opened his decision by analyzing the testimony that Kouljinski and his wife gave at
the hearing. The IJ expressed “concerns about the credibility of the testimony of [Kouljinski] and
his wife.” J.A. at 13-14. Although their testimony described their daughter being abducted, the IJ
highlighted that Kouljinski’s application for asylum did not mention these alleged traumatic events.
While Ms. Kouljinski attributed the cause of their problems in Russia to his Jewish religion,
Kouljinski spoke about racketeers’ efforts to extort him and take over his business. The IJ also
noted discrepancies between Ms. Kouljinski’s testimony about her car accident and lawsuit and the
documents that Kouljinski submitted with his asylum application. The IJ did find credible
Kouljinski’s testimony that he is Jewish and that he left Russia because he was subjected to extortion
by racketeers in connection with his jewelry-manufacturing business.
No. 06-4016 Kouljinski v. Keisler Page 5
The IJ next announced that he “would not be prepared to find on this record that [Kouljinski]
was persecuted in Russia on account of his religion.” J.A. at 17. Although Kouljinski mentioned
various employment difficulties, the IJ stated that “these appear to have been related to his failure
to obtain party membership” and those employment difficulties were not “sufficiently serious
enough to rise to the level of persecution.” Id. Further, those experiences occurred prior to the
disintegration of the Soviet Union, and “there obviously have been significant changes in country
conditions,” particularly relating “to whether membership in the Communist Party would act as a
barrier to employment” today. Id.
Although the IJ found that Kouljinski had not been persecuted in the past, in light of the
testimony and the evidence in the record—particularly the Department of State 2003 Country Report
on Human Rights Practices for Russia, J.A. at 18; see also J.A. at 494-531 (Dep’t of State
Report)—the IJ concluded that Kouljinski had demonstrated a well-founded fear of future
persecution. J.A. at 18-19. Specifically, the IJ stated that
given the fact that [Kouljinski] suffered some level of discrimination in the past
based on the fact that he is Jewish and the fact that societal anti-Semitism appears
to have survived the collapse of the Soviet Union and, unfortunately, that skinhead
violence against Jews and other minorities is a persistent problem in Russia, [he]
might well reasonably fear that he would be the target of such violence on return to
Russia today.
J.A. at 19.
The IJ next discussed Kouljinski’s three convictions in the United States for driving while
under the influence of alcohol, noting that he had “very serious concerns in this case about whether
. . . asylum should be granted as a matter of discretion.” J.A. at 19. The IJ discussed each of the
convictions and Kouljinski’s efforts to attend substance-abuse counseling. The IJ also noted that
Michigan had not fully restored Kouljinski’s driving privileges and that Kouljinski’s last conviction
was a felony offense.
Before making his final determination as to whether to grant asylum to Kouljinski as a matter
of discretion, the IJ next evaluated whether Kouljinski had demonstrated that he was entitled to
withholding of removal under the INA or the CAT. Although the IJ concluded that Kouljinski
“established a reasonable possibility of persecution,” he found that Kouljinski had not demonstrated
a likelihood of persecution—the standard for withholding of removal—for two reasons: First,
because Kouljinski “was not, in my view, actually persecuted in the past,” and second, because “the
type of harm that [he] fears is not harm which is inflicted by the government” and is instead harm
inflicted by non-state actors. J.A. at 22. The IJ stated that such harm is “likely to be somewhat more
sporadic than persecution by government authorities.” Id. The IJ next found that Kouljinski had
not established a likelihood of being tortured on his return to Russia for similar reasons, explaining
that Kouljinski did not complain of ever being tortured by government authorities and that his fear
of persecution “relates again to action by non-state actors and not by the government.” J.A. at 23.
At this point, the IJ returned to balancing the favorable and unfavorable factors regarding
the exercise of discretion in Kouljinski’s asylum application. The IJ explained that “the question
is whether [Kouljinski's] eligibility for asylum is a sufficiently weighty favorable discretionary
factor to outweigh the fact that [he] has three convictions for driving under the influence, the most
recent conviction . . . a felony conviction for that offense.” J.A. at 23. Noting the “repetitive” nature
of Kouljinski’s behavior as an adverse factor, the IJ concluded that “[i]n consideration of these
factors, unfortunately, I have reached the conclusion that a favorable exercise of discretion in this
case is unwarranted.” J.A. at 23-24. Accordingly, the IJ ordered that Kouljinski’s petition be denied
and that he be removed from the United States to Russia.
No. 06-4016 Kouljinski v. Keisler Page 6
II. ANALYSIS
A. Asylum
1. Standard of Review
“The court reviews the factual determination of whether a petitioner qualifies as a refugee
under a ‘substantial evidence’ test.” Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005). “The
court may reverse the BIA’s determination if the evidence ‘not only supports a contrary conclusion,
but indeed compels it.’” Id. (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)). Pursuant to
8 U.S.C. § 1252(b)(4)(D), “the Attorney General’s discretionary judgment whether to grant relief
under section 1158(a) . . . shall be conclusive unless manifestly contrary to the law and an abuse of
discretion.” “An abuse of discretion occurs when the BIA exercises its discretion in a way that is
arbitrary, irrational, or contrary to law.” Gilaj, 408 F.3d at 288. Because the BIA adopted the IJ’s
reasoning, we review the IJ’s decision directly. Id. at 282-83.
2. Analysis
“The disposition of an application for asylum involves a two-step inquiry: (1) whether the
applicant qualifies as a ‘refugee’ as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the
applicant ‘merits a favorable exercise of discretion by the Attorney General.’” Gilaj, 408 F.3d at
283 (quoting Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994)). At the first step, an applicant for
asylum may qualify as a refugee in either of two ways: (A) by establishing that he or she has
suffered past persecution on the basis of race, religion, nationality, social group, or political opinion;
or (B) by showing that he or she has a well-founded fear of persecution on one of those same bases.
8 C.F.R. § 1208.13(b).
Once an applicant demonstrates his or her eligibility for asylum by establishing refugee
status, as Kouljinski did, the applicant progresses to the second step of the inquiry, at which point
the BIA has stated that the applicant “has the burden of establishing that the favorable exercise of
discretion is warranted.” In re Pula, 19 I. & N. Dec. 467, 474 (B.I.A. 1987). The BIA has also
stated that IJs should consider “the totality of the circumstances . . . in determining whether a
favorable exercise of discretion is warranted,” id. at 473, and that “[t]he danger of persecution will
outweigh all but the most egregious adverse factors.” In re Kasinga, 21 I. & N. Dec. 357, 367
(B.I.A. 1996).
Even though the IJ found that Kouljinski succeeded in establishing refugee status by showing
a well-founded fear of future persecution, Kouljinski argues extensively in his brief that he is a
refugee entitled to asylum because of both past persecution and fear of future persecution. See Brief
for Petitioner (“Pet. Br.”) at 17-26. Because both the IJ and the BIA agreed with Kouljinski that he
established refugee status via the second route—by showing a reasonable possibility of future
persecution—we proceed to the second step and analyze the IJ’s discretionary denial of Kouljinski’s
application for asylum.1
Kouljinski argues that the IJ abused his discretion in denying him asylum for two reasons.
First, Kouljinski contends that “drunk driving convictions, which are not even crimes involving
moral turpitude, should not be a factor to negate the grant of asylum.” Pet. Br. at 28. In his brief,
Kouljinski provides absolutely no citations or support for his assertions that only crimes involving
1
We will return to Kouljinski’s evidentiary arguments insofar as they relate to his claims that he met the
standards required for mandatory relief under the INA and the CAT.
No. 06-4016 Kouljinski v. Keisler Page 7
moral turpitude may be the basis for a discretionary denial of asylum.2 In fact, several cases appear
to rely on such lesser crimes in affirming the exercise of discretion by immigration judges. See
Barrie v. Gonzales, 228 F. App’x 66, 69 (2d Cir. 2007) (denying petition where IJ based her
discretionary denial on applicant’s multiple convictions for counterfeiting and disorderly conduct);
Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006) (stating that “[a]dverse factors include criminal
convictions, as well as significant violations of national immigration laws and the manner of entry
into this country”); Kazlauskas v. INS, 46 F.3d 902, 906-07 (9th Cir. 1995) (holding that “the IJ
permissibly found asylum unwarranted as a matter of discretion” where the IJ considered the
applicant’s “criminal record since he has been in this country”); Dhine v. Slattery, 3 F.3d 613, 619
(2d Cir. 1993) (“Seven convictions over seven years—even seven misdemeanors—easily furnish
a rational basis for the Attorney General’s exercise of discretion.”); Purveegiin v. U.S. INS
Processing Ctr., 73 F. Supp. 2d 411, 418-19 (S.D.N.Y. 1999) (stating that the “INS may consider
petitioner’s criminal history in determining whether he is eligible for asylum” and concluding that
six misdemeanor convictions over four years furnished rational basis for the exercise of discretion);
cf. Ajanel v. Ashcroft, 120 F. App’x 729, 732 (9th Cir. 2005) (denying petition, in context of motion
to remand for adjustment of status, where the IJ held that applicant did not merit “favorable exercise
of discretion because his [single] drunk driving conviction outweighed his recent marriage to a
[U.S.] citizen[] and the fact that their child was a [U.S.] citizen”).
The BIA has stated that IJs should consider “the totality of the circumstances . . . in
determining whether a favorable exercise of discretion is warranted,” In re Pula, 19 I. & N. Dec. at
473, and Kouljinski points to nothing in the INA, relevant regulations, or BIA case law that
precludes consideration of convictions for driving under the influence of alcohol. Indeed, governing
law provides for a mandatory denial of an alien’s application for asylum if the alien has “been
convicted by a final judgment of a particularly serious crime [and] constitutes a danger to the
community of the United States.” 8 U.S.C. § 1158 (b)(2)(A)(ii); see also 8 C.F.R. 1208.13(c)(2)(i).
Given that the BIA has held that “[f]actors which fall short of the grounds of mandatory denial may
constitute discretionary considerations,” In re H–, 21 I. & N. Dec. 337, 347 (B.I.A. 1996), we need
not determine whether driving under the influence of alcohol is a “particularly serious
crime”—which would require the denial of Kouljinski’s application—to hold that the IJ properly
considered Kouljinski’s three convictions of that offense in denying his application as a matter of
discretion.
In light of this case law and our view that an IJ may properly consider an alien’s convictions
for an offense like driving while under the influence of alcohol, regardless of whether it is a crime
of moral turpitude or a particularly serious crime, we hold that the IJ did not abuse his discretion in
2
At oral argument, counsel for Kouljinski referenced the U.S. Department of State Foreign Affairs Manual in
arguing that the IJ should not have considered Kouljinski’s drunk-driving convictions because they occurred more than
three years before the hearing. The cited section, however, pertains not to asylum applications but to visas. See 9 F.A.M.
40.11 N9.5, available at http://www.state.gov/documents/organization/86936.pdf. Further, the section discusses the
effect of evidence of substance abuse in visa applications, and, far from barring evidence of substance abuse, the manual
provides that an alien in remission—which is not something that Kouljinski established—“is not ineligible to receive
a visa.” 9 F.A.M. 40.11 N9.4. Thus, even the sole source to which Kouljinski points does not bar this evidence and
would seem to permit consideration of drunk-driving convictions.
In addition, the manual elsewhere states that an applicant is ineligible for a visa if the applicant “[h]as a physical
or mental disorder with associated harmful behavior.” 9 F.A.M. 40.11 N.8. The manual further explains that
[w]hile alcoholism constitutes a medical condition . . . [a]n alcoholic is not ineligible to receive a visa
unless there is current[,] or a history of, harmful behavior associated with the disorder that has posed
or is likely to pose a threat to the property, safety, or welfare of the alien or others. For example, . . .
a conviction for driving while under the influence of alcohol would constitute evidence of a medical
disorder with associated harmful behavior.
9 F.A.M. 40.11 N8.3. According to the Foreign Affairs Manual, Kouljinski appears ineligible for a visa based on his
three convictions for driving under the influence.
No. 06-4016 Kouljinski v. Keisler Page 8
this case by basing his discretionary denial of asylum on Kouljinski’s three drunk-driving
convictions.
Kouljinski’s second argument that the IJ abused his discretion concerns the IJ’s statement
that Kouljinski “does not have family ties in the United States to individuals who are legally present
in this country.” J.A. at 23. Kouljinski contends that the IJ erred in ignoring his daughter and his
wife, who testified at his hearing, Pet. Br. at 28, but BIA case law belies this argument. In re Pula,
the case that Kouljinski cites regarding the factors that an IJ should consider in exercising discretion,
states that “whether the alien has relatives legally in the United States . . . is another factor to
consider.” In re Pula, 19 I. & N. Dec. at 474 (emphasis added). Kouljinski does not rely on the
presence of any relatives legally in the United States, as he only mentions his wife and daughter,
who were not legally present. The IJ therefore did not abuse his discretion balancing the factors
without considering Kouljinski’s wife and daughter.
In sum, Kouljinski has not demonstrated that the IJ abused his discretion in denying
Kouljinski’s application for asylum.
B. Withholding of Removal under the INA and the CAT
1. Standard of Review
To prevail on a petition for withholding of removal under the INA, or on a petition for
withholding of removal under the CAT, an alien must show that there is a “clear probability” that
she would be subject to persecution, for the INA, or to torture, for the CAT, on the basis of one of
the five statutorily protected grounds were she removed from this country. Almuhtaseb v. Gonzales,
453 F.3d 743, 749 (6th Cir. 2006). This showing of “clear probability” requires more than that
needed to demonstrate refugee status, which requires only a “well-founded fear of persecution.” 8
C.F.R. § 208.13(b). See also Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998) (“An
application seeking withholding of deportation faces a more stringent burden of proof than one for
asylum.”). Further, “administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
2. Analysis
Kouljinski contends that the IJ erred in finding that Kouljinski failed to meet the showing
required for withholding of removal under the INA because “the country condition reports alone
support Mr. Kouljinski’s claims that as a Russian Jew, he faces persecution, detention, torture and
possibly even death at the hands of anti-Jewish Russians.” Pet. Br. at 30. The IJ, however,
recognized that such anti-Semitic violence was possible, but concluded that such violence was not
likely and relied on the same State Department country conditions report that Kouljinski claims
demonstrates his entitlement to relief. J.A. at 18, 22-23. The IJ “noted that Jewish leaders have
stated publicly that state-sponsored anti-Semitism of the Soviet era no longer existed.” J.A. at 18.
The IJ also stated that although “Jews continued to face prejudice, social discrimination and some
acts of violence,” because non-state actors are the source of such harms, “such occurrences are . . .
likely to be somewhat more sporadic than persecution by government authorities.” J.A. at 18, 22.
The IJ and Kouljinski examined the same evidence, the IJ reached a reasonable conclusion, and
Kouljinski does not point to any evidence that compels the opposite conclusion.
Kouljinski argues that the IJ erred in denying his claim for relief under the CAT because the
IJ incorrectly focused on Kouljinski’s subjective fears. See Pet. Br. at 33 (citing Camara v.
Ashcroft, 378 F.3d 361 (4th Cir. 2004)). Although the IJ did state his belief that Kouljinski’s “fear
of persecution, in my view, relates again to action by non-state actors and not by the government,”
the IJ also supported his decision to deny relief under the CAT by noting that Kouljinski “does not
complain that he was ever tortured or really in any way physically mistreated by government
No. 06-4016 Kouljinski v. Keisler Page 9
authorities during the time he lived in the Soviet Union or Russia previously.” J.A. at 23. That
consideration appears as a factor designated for examination in the relevant regulation. See 8 C.F.R.
§ 208.16(c)(3)(i).
Kouljinski also argues that the IJ erred in denying his claim for relief under the CAT because
the record shows that the “Russian government does not investigate nor prosecute these claims [of
torture], thus showing their acquiescence in the abuse, torture and murder of Jews in Russia.” Pet.
Br. at 34. Kouljinski is correct that a government’s “acquiescence” in the torture of a group could
support relief under the CAT. See 8 C.F.R. § 1208.18(a)(1) (defining torture as including severe
pain or suffering “inflicted by or . . . with the consent or acquiescence of a public official or other
person acting in an official capacity”). The IJ, however, observed that the State Department report
noted that governmental “[a]uthorities often provided strong words of condemnation” to acts of
violence against Jews. J.A. at 19. That report also notes that Russian police have successfully
defused bombs wired to anti-Semitic signs. J.A. at 512 (State Dep’t Report). As the Second Circuit
concluded in Wang v. Ashcroft, “while [the asylum applicant’s] testimony as well as some of his
‘country conditions’ documents . . . indicate that some prisoners in China have been tortured, [he]
has in no way established that someone in his particular alleged circumstances is more likely than
not to be tortured if imprisoned in China.” Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).
Likewise, given that the very documents on which he relies demonstrate that the Russian
government has condemned and worked to stop acts of persecution and violence against Jews,
Kouljinski has not demonstrated that the record compels the conclusion that it is more likely than
not that he would be subjected to torture in Russia by public officials or with the consent or
acquiescence of the Russian government.
III. CONCLUSION
Because we hold that an IJ may properly consider an alien’s convictions for driving under
the influence of alcohol in making a discretionary denial of asylum, and because Kouljinski has
failed to show that he is “more likely than not” to face persecution or torture were he to return to
Russia, we DENY Kouljinski’s petition for review of the BIA’s decision to deny his application for
asylum and withholding of removal.