Sergey Fisenko v. Eric H. Holder, Jr. , 336 F. App'x 504 ( 2009 )

NOT FOR FULL-TEXT PUBLICATION
File Name: 09a0478n.06
FILED
JUL 9, 2009
NO. 08-4089
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SERGEY FISENKO, (
(
Petitioner, (
( On Petition for Review of an Order of
( the Board of Immigration Appeals.
(
( OPINION
ERIC H. HOLDER, Jr., (
Attorney General* (
(
(
Respondent. (
__________________________________/
BEFORE: COLE and ROGERS, Circuit Judges; and GRAHAM, Senior District Judge.**
GRAHAM, Senior District Judge. Petitioner Sergey Fisenko (Mr. Fisenko) seeks review
of a final order of the Board of Immigration Appeals (BIA or Board) adopting and affirming the
decision of the Immigration Judge denying Mr. Fisenko’s application for asylum and withholding
of removal. Mr. Fisenko argues that the BIA erred when it affirmed the Immigration Judge’s decision
because the Immigration Judge made an unreasonable demand for corroboration and because the
Immigration Judge’s decision was not supported by substantial evidence. For the following reasons,
we DENY the petition for review.
*
Substituted for Michael B. Mukasey pursuant to Federal Rule of Appellate Procedure
43(c)(2).
**
The Honorable James L. Graham, United States Senior District Judge for the Southern
District of Ohio, sitting by designation.
I. BACKGROUND
Mr. Fisenko claims to have suffered persecution on account of his Baptist faith at the hands
of the Russian Cossacks and the Russian police. According to various internet articles Mr. Fisenko
submitted into the record, Cossack origins have been traced back to the 18th Century. The Cossacks
were elite members of society who were eventually incorporated into the hierarchy of the Russian
state as scouts, border guards, and mercenaries. Today, Cossack values include “[a]n unyielding
commitment to the country’s territorial integrity, a forceful stance against adversaries, and the
promotion of traditional values. . . . Russian ethnicity and Orthodoxy are crucial to Cossack
identity.” Joint Appendix, 151, 153 hereinafter “J.A.” During the hearing before the Immigration
Judge, Mr. Fisenko introduced a video called “Death of a Nation.” The Immigration Judge stated that
this video indicated that Cossacks in some parts of Russia view themselves as protectors of
traditional Russia and serve in some parts of Russia as a “parallel police force with armed people
in their ranks and under their control.” J.A. 67.
In November 2005, after Mr. Fisenko left for the United States, the State Duma passed a law
which officially recognized the recruitment of Russian Cossacks into state service in police, military
and border guard forces. The law confirmed the effective coordination between regional authorities
and Cossack organizations. According to one article in the record, in southern Russia, “Cossack
paramilitary units have figured prominently in violent campaigns to persecute and expel ethnic
minorities and illegal immigrants -- often with tacit official approval.” J.A. 157.
Mr. Fisenko was born in Krasnador, Russia. He was raised as an atheist but later converted
to the Baptist faith in 2003. After converting, he discussed his newfound faith with his neighbors and
coworkers. People began mocking him for being different and calling him a “sectant.” Mr. Fisenko
bases his claim of past persecution on the following six incidents.
In November 2003, as he was coming home from work, Mr. Fisenko’s neighbors began
beating him, threatening to kill him, and threatening to slit his throat. He managed to make it safely
inside his house and lock the door. Mr. Fisenko did not file a police report after this first incident.
2
In December 2003 Mr. Fisenko was stopped by three drunk Cossacks on patrol while he was
coming home late from an evening worship service. They held him by his clothes and demanded
to see his identification, even though they knew who he was. Mr. Fisenko recognized one of the
Cossacks as “Ottoman.” He tried to escape but the patrolmen held him and started beating him and
he fell. Once on the ground, the Cossacks beat him and he lost his orientation. They swore at him,
calling him a Baptist and other “bad words.” J.A. 79. The Cossacks then handcuffed him and pushed
him into their car. They took him to Cossack headquarters and told him they were going to take him
to the police station and tell the police he was not obedient to authorities. They spilled vodka on him.
A sober Cossack who was at the headquarters when Mr. Fisenko arrived took Mr. Fisenko to the
hospital and told the staff that he had found Mr. Fisenko in this condition on the street. Mr. Fisenko
was treated for a brain concussion and kidney hematoma and released.
Mr. Fisenko filed a police report and the police sent him to the forensics department to
examine him. According to the police report, the Cossacks had familiarized themselves with a list
of wanted criminals prior to beginning their foot patrol that night. When they met Mr. Fisenko in
the street and he did not produce identification, they believed that he met the description of one of
these wanted criminals. They asked Mr. Fisenko to go to Cossack headquarters, but Mr. Fisenko
refused and, assuming he was a wanted criminal, they attempted to capture him and drag him to the
Cossack headquarters. Mr. Fisenko tried to flee and the Cossacks subdued him using physical force.
According to the report, it was only later after Mr. Fisenko provided the Cossacks with an alibi for
the crime of which he was suspected that the Cossacks let him go and took him to the hospital. The
police report concluded that after the investigation no criminal charges should be filed against the
Cossacks because Mr. Fisenko’s injuries were inflicted due to his resistance of lawful demands and
the handcuffs were placed on him for less than two hours and only for transportation to Cossack
headquarters.
In February 2004 as Mr. Fisenko was crossing the street, a car stopped, a Cossack got out,
hit Mr. Fisenko, and called him a Baptist and “dirty words.” J.A. 80. The man then got back into
3
his car and drove away. Again, Mr. Fisenko filed a police report and the police sent him to the
forensics department for examination. The police report indicates there was one witness to the
assault. The police ran the car model and the partial plate number, but found no cars that matched
that registration. The police report indicates that in order to identify the attacker, Mr. Fisenko was
shown pictures of Cossacks in the district but he was not able to identify anyone.
After the February 2004 incident and on an unknown date, two children threw bricks through
Mr. Fisenko’s front and rear windshields. One of the children was the son of Ottoman, the Cossack
from the December 2003 incident involving the three drunk Cossacks. Mr. Fisenko reported this
incident to the police and the police investigated. The police report stated that the son of Ottoman
admitted that he wanted to create trouble for the “sectarian.” J.A. 405. The police report stated that
in accordance with Russian law, the police could not charge the boys because they were not at least
14 years of age. The police, however, placed the boys on a watch list called the “Department of
Crime Prevention of Minors” that identified minors who were prone to committing felonies. J.A.
405. The police report indicated Mr. Fisenko could seek material damages through a civil action, but
Mr. Fisenko declined to do so.
After Mr. Fisenko acquired another car and on an unidentified date, the car was either set or
caught on fire while parked outside Mr. Fisenko’s property. Mr. Fisenko did not see anyone set fire
to his car and does not know who was responsible. He called the police and the fire department and
they told him that the “Cossacks said that they [were] going to make sure that all Baptists [were]
going to move out of that area.” J.A. 85. The police report stated that the car was a 1974 model and
the fire was probably caused by a short circuit of the electrical wiring of the car due to the way the
car burned from the inside out. The police based their opinion on the fact that the car was 30 years
old, that it lacked circuit breakers, and that halogen lights not intended by the manufacturer were
installed in the car. Mr. Fisenko does not believe this explanation because he has experience as a
mechanic.
4
In June 2004 Mr. Fisenko came home to find his dog hanged, the windows to his house
broken, and “gasoline set in the house.” J.A. 86. He called the police and they took him to the police
station. The police put Mr. Fisenko in a cell and kept him there for two days without food or water.
They interrogated him and asked him about his prayer house, where it was located, how many
members it had, and whether Mr. Fisenko could identify who was assaulting him. Among the
policemen were Cossacks. The police beat Mr. Fisenko and continuously put him under water saying
it was a “Baptismal procedure.” J.A. 87. They told Mr. Fisenko that if he did not move out of the
area, he would be hanged like his dog. Mr. Fisenko did not file a police report because it was the
police who were assaulting him. Two and a half months after this incident, Mr. Fisenko left for the
United States.
Two days before Mr. Fisenko’s authorization to remain in the United States ran out, Mr.
Fisenko filed an application for asylum, withholding of removal, and protection under the
regulations implementing the Convention Against Torture (“CAT”)1 with the Department of
Homeland Security (“DHS”). DHS initiated removal proceedings charging Mr. Fisenko under 8
U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States for a time longer than
permitted. On October 24, 2006, Mr. Fisenko testified in support of his application in front of an
Immigration Judge.
A. The Immigration Judge’s Decision
The Immigration Judge, conducting the proceeding through video conference in Cincinnati,
Ohio, denied Mr. Fisenko’s application for asylum and withholding of removal. The Immigration
Judge found Mr. Fisenko to be a “generally credible witness” whose testimony was “fairly detailed,
plausible, largely internally consistent and generally consistent with the asylum application and
statement that he filed.” J.A. 16. The Immigration Judge nevertheless found Mr. Fisenko did not
meet his burden of proving past persecution.
1
Mr. Fisenko does not argue in his opening brief that he is entitled to relief under the CAT,
and therefore this argument is waived.
5
The Immigration Judge found that Mr. Fisenko did not corroborate key parts of his story.
Significantly, he did not corroborate his last incident of abuse occurring in June 2004 with
statements from his family members in Russia, despite acknowledging that his mother, sister, and
grandmother knew about the incident. Further, although he produced evidence from his pastor here
in the United States who confirmed he was a practicing Baptist, he did not produce any corroboration
for his conversion to the Baptist faith in Russia or his practice of that faith in Russia, despite
acknowledging that he still kept in contact with his co-parishioners and fellow Baptists in Russia.
As to the other instances that were corroborated, the Immigration Judge found that they were
not undertaken by individuals the government was unable or unwilling to control because the police
investigated each time Mr. Fisenko complained and they took their investigation seriously. The
Immigration Judge also found that the first five instances were not severe enough to rise to the level
of persecution.
The Immigration Judge found Mr. Fisenko failed to meet his burden of showing a well-
founded fear of future persecution because although there was evidence in the record that the
Cossacks are responsible for some abuses against minority religions, there was also evidence
suggesting Baptists in present-day Russia are not persecuted by the government or by any other
persons the government is unable or unwilling to control and Mr. Fisenko did not show it would be
unreasonable for him to relocate somewhere in Russia where he could avoid problems and practice
his faith.
B. The BIA’s Decision
The BIA adopted and affirmed the decision of the Immigration Judge denying relief to Mr.
Fisenko. The Board added the following statement: “We agree that under the law of the Sixth Circuit
. . . the failure to present evidence corroborating the respondent’s conversion and membership in the
Baptist church in Russia is sufficient to support the Immigration Judge’s finding that the respondent
did not meet his burden of proof, even where the respondent’s testimony is credible.” J.A.1.
6
II. ANALYSIS
A. Standard of Review
Where the Board adopts and affirms the decision of the immigration judge and provides a
supplementary comment, this court reviews “the decision of the [immigration judge] while
considering the additional comment made by the [Board].” See Gilaj v. Gonzales, 408 F.3d 275, 283
(6th Cir. 2005)(per curium). The United States Supreme Court has held that an immigration judge’s
determination regarding asylum eligibility must be upheld if “‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992)(quoting 8 U.S.C. § 1105a(a)(4)) (repealed and replaced by 8 U.S.C. § 1252(b)(4)(B))).2
To reverse such a finding, the evidence must “not only support[] [the opposite] conclusion, but
compel[] it.” Id. at n.1 (emphasis omitted). “[A]dministrative 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). Questions of law are reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.
2004).
B. Eligibility for Asylum
Asylum analysis 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 favorable
exercise of discretion by the immigration judge. Patel v. Alberto Gonzales, 470 F.3d 216, 218 (6th
Cir. 2006). Mr. Fisenko has the burden to demonstrate he qualifies as a “refugee.” 8 C.F.R.
1208.13(a). The term “refugee” means a person who is unable or unwilling to return to his or her
country because of “persecution or a well-founded fear of persecution on account of race, religion,
2
In articulating the “substantial evidence” standard, the Supreme Court quoted directly from
8 U.S.C. § 1105a(a)(4), which has subsequently been repealed and replaced by 8 U.S.C. §
1252(b)(4)(B). Although articulated differently, “‘§ 1252(b)(4)(B) basically codifies the Supreme
Court’s substantial evidence standard.’” Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir.
2005)(quoting Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004)).
7
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). Under that definition, therefore, Mr. Fisenko must show that he was either
persecuted in the past on the basis of his Baptist faith or has a “well-founded fear” of persecution
in the future. If Mr. Fisenko can establish past persecution, it is presumed that he has a well-founded
fear of future persecution. 8 C.F.R. § 1208.13(b)(1).
1. Past Persecution
If the government itself is not responsible for persecution, it must be unable or unwilling to
control the people responsible in order for the applicant to be entitled to asylum. See Pilica v.
Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)(citing Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA
1996)); Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)(upholding the BIA denial of
withholding of removal because there was substantial evidence that those inflicting harm were not
individuals the government was unable or unwilling to control); Raza v. Gonzales, 484 F.3d 125, 129
(1st Cir. 2007) (“When an asylum claim focuses on non-governmental conduct, its fate depends on
some showing either that the alleged persecutors are aligned with the government or that the
government is unwilling or unable to control them.”). See also El Ghorbi v. Mukasey, 281 F. App’x
514, 517 (6th Cir. 2008) (unpublished) (finding no eligibility for asylum or withholding of removal
where petitioner could not establish that he was harmed by persons the government was unwilling
or unable to control); Kere v. Gonzales, 252 F. App’x 708, 713 (6th Cir. 2007)
(unpublished)(determining that no persecution exists where family members abused applicant
because there was no evidence that the government was unable or unwilling to control the family
members’ conduct and protect the applicant). Of the six incidents relied on by Mr. Fisenko, only the
final incident involved harm inflicted by the government itself, and the Immigration Judge did not
consider this incident because Mr. Fisenko did not corroborate it. As to the other five incidents, the
Immigration Judge found that they were investigated by the police and the police took that
investigation seriously, such that it could not be said that the government was unable or unwilling
8
to control the Cossacks. The first incident that involved Mr. Fisenko’s neighbors was never reported
to the police. As a result, Mr. Fisenko did not demonstrate that the police would have refused to or
been unable to investigate or prosecute his neighbors. The remaining four incidents were reported
and on each occasion the police investigated. The police report for the incident involving the three
drunk Cossacks in December 2003 indicates that the police did not prosecute them because the
investigation revealed that the Cossacks “lack[ed] criminal intent” – namely, that they abused Mr.
Fisenko because he resembled a “wanted criminal for burglary,” lacked his identification papers to
establish that he was not the wanted criminal, and attempted to run away from them. The police
report for the incident in February 2004 involving the Cossack who got out of his car and hit Mr.
Fisenko indicates that the police investigated the abuse, questioned the only witness, attempted to
identify the owner of the car, and showed Mr. Fisenko pictures of known Cossacks in order to
identify the assailant. Mr. Fisenko was unable to identify his assailant, and thus, the police were
unable to locate him. The police report for the incident involving the two boys who broke Mr.
Fisenko’s windshield similarly establishes that the police questioned witnesses, and after discovering
the identity of the two boys, put their names on the “list of the Department of Crime Prevention of
Minors . . . as subjects who are prone to committing felonies.” Finally, the police report for the
incident during which Mr. Fisenko’s car burned indicates that the police investigated the cause of
the fire and determined that it was not arson but rather “the short circuit of the electric wiring of the
control panel” of his thirty-year old car.
Mr. Fisenko claims that the police reports were merely a cover up for the police officer’s
unwillingness to investigate his case, but Mr. Fisenko offered no evidence to support this claim and
no reason to believe the police were involved in the Cossacks’ abuse. Given the efforts by the police
and forensic departments, this court is not compelled to reach a conclusion different from the
Immigration Judge or to say that the abuses suffered by Mr. Fisenko were at the hands of individuals
the government is unable or unwilling to control. Thus, this leaves only the last incident for our
9
consideration- the incident involving Mr. Fisenko being detained for two days by the police. The
Immigration Judge did not consider this incident because Mr. Fisenko failed to corroborate it.
While it is true that the testimony of the applicant alone if credible may be sufficient to
sustain the burden of proof without corroboration, where it is reasonable to expect corroborating
evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence
should be provided. Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004); 8 C.F.R. §§ 208.13(a);
208.16(b). “The absence of such corroborating evidence can lead to a finding that an applicant has
failed to meet her burden of proof.” Dorosh, 398 F.3d at 382, quoting In re S-M-J, 21 I. & N. Dec.
722, 724-26 (BIA 1997); see also Abdulai v. Ashcroft, 239 F.3d 542, 553 (3rd Cir. 2001)(holding
failure to provide such evidence without adequate explanation can support a finding that the
applicant failed to meet his burden of proof). This corroboration rule can be applied even in cases
where the testimony of the applicant is deemed credible. Dorosh, 398 F.3d at 382. See also Abdulai,
239 F.3d at 554 (upholding the Board’s requirement that “otherwise-credible applicants . . . supply
corroborating evidence in order to meet their burden of proof”). A reviewing court may not reverse
an agency finding as to the availability of corroborating evidence unless the court finds a reasonable
trier of fact would be compelled to conclude that such evidence is unavailable. 8 U.S.C. §
1252(b)(4).3
The Immigration Judge determined that Mr. Fisenko’s testimony by itself did not meet his
burden of proof because he failed to corroborate the final incident of alleged persecution that took
place in June 2004, even though he testified his mother, sister, and grandmother knew about the
incident. See Dorosh, 398 F.3d at 383 (noting it was reasonable to expect corroboration where
3
This rule applies to the instant case, as it is applicable to all cases in which the “final
administrative removal order is or was issued before, on, or after the date of the enactment of the
REAL ID Act- May 11, 2005. See Real ID Act of 2005, § 101(h)(3), Pub.L. No. 109-13, 119 Stat.
231, 305-306. However, other provisions of the Immigration and Nationality Act that were amended
by the REAL ID Act do not apply to this case because those changes apply only prospectively to
applications for asylum made on or after May 11, 2005. See REAL ID Act § 101(h)(2). Mr.
Fisenko’s application for relief was filed on March 23, 2005.
10
petitioner was in contact with her mother in the Ukraine yet produced no affidavit from her mother
corroborating the ill treatment of her daughter). When the Immigration Judge asked Mr. Fisenko why
he failed to provide letters from his family members corroborating this last incident, Mr. Fisenko
responded “ I, I didn’t know that I could get those letters, and they could be helpful. I’m also scared,
and, I fear for their lives. So, I, I told them not to talk about me much.” J.A. 100. The Immigration
Judge implicitly rejected Mr. Fisenko’s given reason when he stated in his oral opinion:
There appears to me to have been reasonably available corroboration, which was not
produced. Respondent admitted that there are people in Russia who know about the
incident or who he says know about the incident. He named specifically certain
family members, including his mother. Yet, he did not provide any statements from
any people who had knowledge of this incident. No one corroborate[d] his claim. The
incident is serious because this is really the only one that involves the police
authorities of Russia themselves rather than Cossacks or private individuals. And yet,
he provided no statement or affidavit or letter or live witness of any persons who
could corroborate it.
J.A.20.
The Second and Third Circuits use a three-part test for analyzing corroboration. See Diallo
v. INS, 232 F.3d 279, 290 (2d Cir. 2000); Abdulai, 239 F.3d at 554. The test requires that the
Immigration Judge to (1) identify the facts for which “it is reasonable to expect corroboration; (2)
[make] an inquiry as to whether the applicant has provided information corroborating the relevant
facts, and if he or she has not, (3) [analyze] whether the applicant has adequately explained his or
her failure to do so.” Abdulai, 239 F.3d at 554, quoting in part In re S-M-J, 21 I. & N. Dec. 722,
724-26 (BIA 1997). Mr. Fisenko argues the Immigration Judge did not comply with this test because
he did not analyze why Mr. Fisenko’s explanation that he feared for his family was inadequate. The
Sixth Circuit has yet to formally adopt all three parts of this test in any published decision, but we
have indicated support for the test in at least one unpublished case. See Niang v. Gonzeles, 195 F.
App’x 371, 377 (6th Cir. 2006)(unpublished). Mr. Fisenko argues that the Sixth Circuit has adopted
this test because Dorosh cited Diallo and Abdulai, supra, when indicating we agreed with their
approach that corroboration should be provided where reasonably available. But Dorosh did not
11
explicitly adopt the three-part test from these cases nor did it adopt a requirement that the
Immigration Judge specifically address on the record why an applicant’s explanation is insufficient,
and Mr. Fisenko points this court to no published Sixth Circuit case law that does.
We decline to adopt the test from the Second and Third Circuits in this case because the
policy behind the test, clarity for purposes of judicial review, is not furthered by applying the test
here. In Diallo, petitioner stated he could not corroborate his story because his identity papers were
destroyed, he received only one hand-delivered letter from his sister since he arrived in the United
States, he had not been able to communicate directly with his family, and he lost his refugee camp
identity card during his travels. 232 F.3d at 289. The immigration judge in Diallo, after being given
such concrete reasons why the applicant could not provide the requested corroboration, failed to
address why these reasons were insufficient. The court noted that because no assessment was made
of the petitioner’s reasons why he failed to produce the corroboration, the court could not know
whether the BIA or the IJ credited his explanations, which at least facially, appeared reasonable.
Diallo, 232 F.3d at 289. Because the applicant listed multiple reasons for his failure to corroborate
his evidence, the Second Circuit could not determine for purposes of appellate review on what basis
the immigration judge found the applicant’s testimony insufficient where the immigration judge did
not explain his reasons. In Abdulai the record was even less clear as the BIA never explained what
aspects of Abdulai’s testimony should have been corroborated or whether Abdulai ever adequately
explained his inability to do so. As in Diallo, the court noted that without mentioning what particular
aspects of the applicant’s testimony it would have been reasonable to expect him to corroborate and
without an explanation about his inability to do so, the court could not effectively review the case.
Abdulai, 239 F.3d at 554 . The court expounded on its reasoning by stating:
We acknowledge that our standard of review is extraordinarily deferential to the BIA,
and that nothing in the INA specifically requires the Board to explain its decisions.
But the availability of judicial review (which is specifically provided in the INA)
necessarily contemplates something for us to review. In a case quite similar to this
one, the Second Circuit vacated and remanded a decision by the BIA so that the
Board could further explain its reasoning. See Diallo v. INS, 232 F.3d 279, 288-90
12
(2d Cir. 2000). We have done the same when deficiencies in BIA decisions have
made them impossible to review meaningfully. See, e.g., Sotto v. USINS, 748 F.2d
832, 837 (3d Cir. 1984). Because the BIA’s failure of explanation makes it
impossible for us to review its rationale, we grant Abdulai’s petition for review,
vacate the Board’s order, and remand the matter to it for further proceedings
consistent with this opinion.
Id. at 555 (emphasis in original).
Here, the Immigration Judge asked Mr. Fisenko why he did not provide the corroborative
evidence, and Mr. Fisenko testified he feared for his family. Because Mr. Fisenko testified to only
one reason on the record and gave no further testimony that would make this fear reasonable, it is
clear why the Immigration Judge rejected it.4 Mr. Fisenko gave no testimony that would indicate his
sisters, mother, or grandmother were in any kind of danger simply by being related to Mr. Fisenko
or that they were targets of any threats themselves. Nor did he explain why he feared that they would
be harmed for statements made in private communications sent to him. In Dorosh, petitioner argued
that getting corroboration from her mother would have jeopardized her mother’s safety. 398 F.3d
at 383. But the Court found that despite petitioner’s fears, she could have requested a letter “in a
manner that minimized any risk of sensitive statements being overheard.” Id. Because Mr. Fisenko
gave only one reason without any additional support for his lack of corroboration, it is clear for
purposes of review why that reason was implicitly rejected by the Immigration Judge. Thus, the
policy of having a clear record for judicial review is not jeopardized in this case and it is not an
appropriate case in which to adopt the three part reasoning from the Second and Third Circuits.
Under Sixth Circuit case law, the immigration judge’s conclusion that Mr. Fisenko could have
reasonably corroborated the last and most serious incident occurring in June 2004 is sufficient, and
this court is not compelled to conclude that such corroboration was unavailable so as to warrant
reversing the Immigration Judge’s findings. See 8 U.S.C. § 1252(b)(4).
4
Mr. Fisenko’s comment that he did not know that information could be helpful is not
sufficient to show that the evidence is unavailable.
13
Mr. Fisenko also argues that any affidavits from his family detailing the June 2004 incident
would have been inadmissible hearsay. But immigration proceedings are not governed by the Federal
Rules of Evidence, see Singh v. Ashcroft, 398 F.3d 396, 406-407 (6th Cir. 2005), and this court has
found hearsay evidence is admissible as corroborating evidence in immigration proceedings. See
Keita v. Gonzales, 175 F. App’x. 711, 713 (6th Cir. 2006) (unpublished). See also Kasa v. Gonzales,
128 F. App’x 435, 441 (6th Cir. 2005).
This court is bound by the REAL ID Act of 2005 and may not reverse an agency finding as
to the availability of corroborating evidence “unless the court finds. . . that a reasonable trier of fact
is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4) (as
amended by The Real ID Act of 2005). Given that Mr. Fisenko could have obtained corroboration
for this last incident, this court is not compelled to conclude that corroboration was unavailable. The
fact that he did not corroborate his evidence of the June 2004 incident takes that incident out of
consideration when determining whether Mr. Fisenko’s abuse was at the hands of individuals the
government was unable or unwilling to control. As to the other five instances, the Immigration Judge
reasonably concluded that Mr. Fisenko failed to demonstrate that the individuals who carried out
these abuses were individuals the government was unable or unwilling to control.
Because Mr. Fisenko cannot demonstrate the abuse he experienced in Russia at the hands of
the Cossacks was abuse undertaken by those the government was unable or unwilling to control, his
claim that he suffered past persecution fails. Thus this court need not analyze the other two grounds
relied on by the Immigration Judge- that the abuse was not severe enough to rise to the level of
persecution and that Mr. Fisenko failed to show his abuse was on account of his Baptist faith.
2. Well-founded Fear
Even if Mr. Fisenko does not demonstrate that he was persecuted in the past, he can still
prevail on his claim for asylum if he can show he has a well-founded fear of persecution in the
14
future.5 Because Mr. Fisenko did not carry his burden of demonstrating past persecution, he is not
entitled to a presumption that he has such a fear. Instead, Mr. Fisenko must demonstrate he has a
well-founded fear by showing: (1) he has a fear of persecution in his country of nationality on
account of race, religion, nationality, membership in a particular social group, or political opinion;
(2) there is a reasonable possibility of suffering such persecution if he were to return to that country;
and (3) he is unable or unwilling to return to, or avail himself of, the protection of that country
because of such fear. 8 C.F.R. 208.13(b)(2)(i). The Immigration Judge’s decision turns on the second
prong - whether there was a reasonable possibility of suffering persecution upon return to Russia.
a. Objective Fear
A well-founded fear of persecution has both a subjective and objective component. The
asylum applicant must actually fear he will be persecuted upon return to his country and he must
establish that an objective situation exists under which his fear can be deemed reasonable. Ali v.
Ashcroft, 366 F.3d 407, 410-11 (6th Cir. 2004). “‘[T]he objective component requires the applicant
to prove that either (a) there is a reasonable probability that he or she will be singled out individually
for persecution, 8 C.F.R. § 208.13(b)(2)(i); or that (b) there is a pattern or practice of persecution of
an identifiable group, to which the alien demonstrates he belongs, such that the alien’s fear is
reasonable.6 8 C.F.R. § 208.13(b)(2)(iii).’” Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir.
5
Respondent argues that Mr. Fisenko waived this argument in his opening brief because he
does not challenge that his fear was objectively reasonable or that it would be unreasonable for him
to relocate in Russia. In fact, Mr. Fisenko discusses the reasons he believes his fear was well-
founded, including his past abuse and country conditions on the record. Mr. Fisenko also argues that
it is the Government’s burden to demonstrate relocation is reasonable. Thus, Mr. Fisenko did not
waive these arguments.
6
Respondent argues that Mr. Fisenko failed to exhaust his argument that Mr. Fisenko’s fear
is well-founded because there is a “pattern or practice” of persecution of Baptists in Russia. See
Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004)(discussing failure to exhaust); 8 C.F.R.
§ 1208.13(b)(2)(iii)(A)(pattern and practice standard). While there may be some support for
Respondent’s position because Mr. Fisenko did not use the words “pattern or practice” in his brief
to the BIA, regardless of whether this claim was exhausted, Mr. Fisenko has not shown a pattern and
practice of persecution exists for the reasons discussed above.
15
2005)(quoting Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004) (internal citation omitted)).
The term “well-founded fear” can only be given concrete meaning through case-by-case
adjudication. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). In order to show a
well-founded fear of persecution, the applicant does not need show that he probably will be
persecuted if he is deported; “[o]ne can certainly have a well-founded fear of an event happening
when there is less than a 50% chance of the occurrence taking place.” Id. at 431. The Supreme Court
has stated that even a showing of a ten percent likelihood of persecution in some situations could
suffice to establish that an applicant’s fear is well-founded. See id. (citing a “leading authority” for
the proposition that where every tenth adult male person is either put to death or sent to some remote
labor camp it would be apparent that anyone who escaped from the country would have a “well-
founded fear” of being persecuted upon return). See also Castaneda-Hernandez v. Immigration &
Naturalization Service, 826 F.2d 1526, 1530 (6th Cir. 1987) (interpreting Cardoza-Fonseca as
characterizing the lower threshold for asylum eligibility as even a 10% chance of persecution but
also noting that the Supreme Court avoided a definitive attempt to define the phrase “well-founded
fear”).7 Because a well-founded fear of persecution can be based on what has happened to others
who are similarly situated, it is “necessary, in considering an applicant’s asylum petition, to weigh
evidence of general conditions in the country of origin and the foreign government’s history of
treatment of others engaged in similar activities.” Perkovic v. INS, 33 F.3d 615, 621 (6th Cir. 1994).
In order to reverse the Board’s determination, this court would have to decide that the evidence
compels a reasonable fact finder to conclude that there is a reasonable possibility that Mr. Fisenko
7
Respondent argues that Mr. Fisenko failed to exhaust the argument that a ten percent
showing would suffice to establish a well-founded fear. But Mr. Fisenko did argue he had a
reasonably well-founded fear in his brief to the BIA and his citation to the fact that even a ten percent
chance of persecution could support a well-founded fear standard only lends further support to his
argument.
16
would suffer persecution if he were to return to Russia. 8 C.F.R. § 1208.13(b)(2)(B); Mikhailevitch
v. INS, 146 F.3d 384, 390 (6th Cir. 1998).
While the Immigration Judge acknowledged that there was “significant information in the
record” to establish that the Cossacks were responsible for some abuses against practitioners of
minority religions in Russia, he did not find the information on the record supported that any of
these abuses amounted to persecution carried out by people the government was unwilling or unable
to control. For example, the United States Department of State Country Report on Human Rights
Practices for Russia for 2005 (“2005 Country Report”), and the United States Department of State
International Religious Freedom Report for Russia for 2005 (“2005 Religious Freedom Report”)
indicate incidents of harassment and violence against religious minorities, including the bombing
of two unregistered Baptist churches in 2004, and one registered Baptist church in 2005. While the
reports indicate no progress was made in the investigation of these explosions, the reports do not
indicate that such abuse was at the hands of the government or that the reason for the lack of
progress was the government’s inability or unwillingness to control the perpetrators. The fact that
these incidents occurred does not demonstrate that the government is unable or unwilling to control
the perpetrators of these, or similar, incidents. The 2005 Country Report states that the “authorities
usually investigated incidents of religious vandalism and violence.” J.A. 182. Although the Report
further states that “arrest of suspects were extremely infrequent and convictions rare ”(J.A. 182), the
report does not indicate that the reason for the low arrest, prosecution, or conviction rates was
because the government was unable or unwilling to control the perpetrators.
As to acts carried out by the government itself, Mr. Fisenko argues that one Baptist minister
was prevented from returning to Russia (although the report does not indicate why), a Baptist
community was prevented from renting the premises at a public library since 2003, and a rebuilding
permit for one Baptist church was denied by the government (although the church was eventually
rebuilt and services held there without interruption). Mr. Fisenko also argues that a 1997 law targets
minority religions by making it difficult for members of less well-established religions to set up
17
religious organizations; and grants rights such as opening a bank account and owning property to
religious groups who are registered, while members of unregistered groups do not have these same
rights. While unfortunate, these examples of discrimination against minority religions and this 1997
law are not examples of persecution such that they would support Mr. Fisenko’s well-founded fear.
“Persecution” within the meaning of 8 U.S.C. § 1101(a)(42)(A) “requires more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.” Mikhailevitch, 146 F.3d at 390. It is clear,
no doubt, that there may be some tension between minority religions and the government of Russia,
but this court is not compelled to conclude based on the evidence in the record that such tensions
amount to persecution sufficient to support Mr. Fisenko’s well-founded fear of future persecution.
Noticeably absent from either report is any significant mention of the Russian Cossacks.
Instead, Mr. Fisenko has submitted articles detailing the Cossack’s role in the Russian government
and their reputations as fierce nationals. According to one article in the record, in southern Russia,
“Cossack paramilitary units have figured prominently in violent campaigns to persecute and expel
ethnic minorities and illegal immigrants -- often with tacit official approval.” J.A. 157. Although
characterizing Cossacks as violent and such violence as receiving “tacit official approval,” this
statement still does not say that Cossacks target religious minorities in general or Baptists in
particular. Instead, it refers to “ethnic minorities and illegal immigrants.”
The record in this case indicates that the Russian government supports the Cossacks in
general and that they have now been officially recognized by the government, but the record does
not demonstrate that the government supports Cossacks who abuse religious minorities or that the
government refuses to investigate allegations of Cossack criminal behavior. The 2005 Country
Report and the 2005 Religious Freedom Report do not make any mention of incidents in which the
Cossacks engaged in violence against religious minorities. The 2005 International Religious
Freedom Report states that “[t]he Constitution provides for freedom of religion, and the Government
generally respects this right in practice, however, in some cases the authorities imposed restrictions
18
on certain groups. Although the Constitution provides for the equality of all religions before the law
and the separation of church and state, the Government did not always respect these provisions.” J.A.
245. “[The] government policy continued to contribute to the generally free practice of religion for
most of the population.” J.A. 244. Given these conditions in Russia, this court is not compelled to
conclude Mr. Fisenko has a well-founded fear of persecution.
Mr. Fisenko argues that his production of one witness, Natalaya Shetsova, compels the
conclusion that he has a well-founded fear of future persecution. Ms. Shetsova was granted asylum
in the United States after fleeing Krasnador, Russia with her parents in 1997. Ms. Shetsova’s
affidavit states she and her family were persecuted on account of her Baptist religion in Russia.
Apart from the fact that Mr. Fisenko and Ms. Shetsova are both Baptists from Krasnador, they seem
to have little else in common. Ms. Shetsova’s affidavit makes no mention of the Cossacks, nor does
it name her aggressors. Moreover, the affidavit does not explain the reasons that Ms. Shetsova was
granted asylum.
b. Relocation
Mr. Fisenko will not be considered to have a well-founded fear of persecution if he could
avoid persecution by relocating to another part of Russia if under all the circumstances it would be
reasonable to expect him to do so. 8 C.F.R. § 208.13(b)(2)(ii). Where the applicant has established
past persecution, it is presumed that internal relocation would not be reasonable and it is the
Service’s burden to show otherwise. See 8 C.F.R. § 208.13(b)(3)(ii). However, because Mr. Fisenko
has not established past persecution, he has the burden of establishing that it is not reasonable for
him to relocate. 8 C.F.R. § 208.13(b)(3)(i). Relying on the 2005 Country Report and the 2005
International Religious Freedom Report, the Immigration Judge concluded that Mr. Fisenko failed
to demonstrate it was unreasonable for him to relocate within Russia without persecution. The only
reason Mr. Fisenko gave for being unable to relocate within Russia is his opinion that the Cossacks
“live all over Russia.” J.A. 89. Mr. Fisenko’s opinion that Cossacks “live all over Russia” is
insufficient to demonstrate that it would not be reasonable for him to relocate within Russia. Even
19
the evidence submitted by Mr. Fisenko that details abuses by the Cossacks against ethnic minorities
describes these acts as occurring in “southern” Russia. J.A. 157. The evidence does not mention such
abuses by Cossacks in other areas of the country.
Mr. Fisenko has submitted a large amount of evidence that could lead this court to believe
it would have decided the matter differently, but because this evidence does not compel a contrary
conclusion, Mr. Fisenko’s petition must be denied. Given that there is no clear evidence in the
record that the Russian government supports or tolerates persecution of Baptists at the hands of the
Russian Cossacks or anyone else and that there is no clear evidence in the record that Mr. Fisenko
could not safely relocate to another part of the country, this court is not compelled to conclude that
Mr. Fisenko has demonstrated a well-founded fear of future persecution. Thus, based on the facts
before the Immigration Judge and the BIA, this court does not conclude that “any reasonable
adjudicator would be compelled” to find a contrary result. 8 U.S.C. §1252(b)(4)(B); see Yu, 364
F.3d at 702.
C. Withholding of Removal
Mr. Fisenko also petitions for review of the administrative denial of his request for
withholding of removal. Withholding of removal is mandatory if the alien establishes that his “life
or freedom would be threatened in the proposed country of removal on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
Pilica, 388 F.3d at 951. Where an applicant seeks withholding of removal, he faces a burden that is
more stringent than that required for a claim for asylum. Khalili, 557 F.3d at 435. He must
demonstrate “that there is a clear probability that he will be subject to persecution if forced to return
to the country of removal.” Singh, 398 F.3d at 401 (quoting Pilica, 388 F.3d at 951). Because this
burden is more stringent, Mr. Fisenko’s failure to establish his eligibility for asylum likewise results
in his failure to satisfy the more onerous burden for withholding of removal. See, e.g., Koliada v.
INS, 259 F.3d 482, 489 (6th Cir. 2001) (per curium).
20
III. CONCLUSION
Based on the foregoing reasons, this court DENIES Mr. Fisenko’s petition for review.
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