Viktor Sergeyevich Orda v. U.S. Attorney General , 334 F. App'x 991 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16259 ELEVENTH CIRCUIT
JUNE 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A079-483-795,
A079-483-796
VIKTOR SERGEYEVICH ORDA,
SVETLANA VALERIEVNA ORDA,
OKSANA VIKTOROVNA ORDA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 30, 2009)
Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
Viktor Sergeyevich Orda, with his daughter and wife as derivative
beneficiaries, petitions this court for review of the Board of Immigration Appeals’
(the “BIA”) affirmance of the Immigration Judge’s (the “IJ”) order of removal and
denial of asylum and withholding of removal. For the reasons discussed below, we
deny Orda’s petition for review.
I.
In 2001, Orda, accompanied by his wife Svetlana and daughter Oksana,
arrived in the United States on an immigrant visa. In 2005, the INS issued notices
to appear, alleging that Orda was a native of the Soviet Union and a citizen of the
Ukraine, that Svetlana was a native of the Soviet Union and citizen of Lithuania,
that Oksana was a native and citizen of Lithuania, and that all three had remained
beyond the expiration period of their visas and were therefore removable under
INA § 237(a)(1)(B). Orda timely applied for asylum and withholding of removal,
claiming that he was entitled to relief because his wife and daughter had suffered
persecution in the Ukraine based on their status as Russian-speaking Lithuanian
citizens.1 Svetlana and Oksana did not file their own applications for relief, but
1
Orda also claimed that he had a well-founded fear of future persecution in Lithuania
because he had formerly been persecuted in Lithuania on account of his ethnicity and nationality.
The IJ found, however, that because Orda admitted that he was a citizen of Ukraine, Ukraine was
the country of removal and the only pertinent inquiry was whether Orda had a reasonable fear of
future persecution in the event of his removal to Ukraine. Orda’s allegations of persecution in
Lithuania, therefore, were irrelevant to his well-founded fear analysis. The BIA adopted this
portion of the IJ’s decision and Orda does not raise this issue in his petition to this court. The
issue, therefore, has been abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
(11th Cir. 2005).
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proceeded as derivative beneficiaries of Orda’s application.
At the merits hearing before the IJ, Orda admitted the allegations of the
notices to appear and conceded removability. Orda and Svetlana then testified and
their testimony, in relevant part, was as follows: Orda was born in Ukraine and had
been a soldier in the Soviet Army prior to the dissolution of the Soviet Union.
While he was a soldier, he was stationed in Ukraine for a time and then in
Lithuania. Orda and Svetlana lived in Lithuania from 1989 through 2001; their
daughter Oksana was born there in 1990. After the former Soviet states declared
independence in 1991, there was a movement of nationalism among these states
and Lithuanians began to discriminate against and persecute native Russians and
Ukranians. Orda was discriminated against and beaten in Lithuania because he
was a Russian-speaking Ukranian national and had been an officer with the Soviet
army. Svetlana was also discriminated against because she was Russian-speaking.
Seeking a better life, the family relocated to Ukraine from December 1993 through
January 1994. When they arrived in Ukraine, however, hotel employees refused to
allow Svetlana and Oksana to stay in the hotel because they were Lithuanian and
the family was forced to sleep in their car in the cold. Ukranian authorities
informed Svetlana and Oksana that they could never obtain citizenship in Ukraine
and should just go back to Lithuania. Thereafter, Orda contacted his former
classmate Nikolay Gordyak, who was then the chief detective of the Ministry of
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Internal Affairs, for assistance in getting a Ukranian passport for his wife and
daughter. Under the pretense of helping with the paperwork, Gordyak invited
Svetlana to his office, where he raped her and told her that she would be killed if
she told anybody. After this incident, the family returned to Lithuania, where they
remained until coming to the United States in 2001. Orda himself experienced no
trouble from the Ukranian government during the trip and his parents continue to
live in Ukraine without incident. If he and his family were to return to Ukraine,
however, Orda fears Gordyak would harm him because Gordyak “hates [Orda]
personally because [he] got married to” Svetlana, who was Gordyak’s “first love.”
In addition to this testimony, Orda submitted the 2006 Country Reports for
both Lithuania and Ukraine. Both reports acknowledge that violence against
women and police corruption are problems in these countries. The Ukranian
report, however, indicated that the law prohibited rape and a number of rapes had
been reported to police.
Based upon this evidence, the IJ found Orda to be credible, but concluded
that Orda did not suffer past persecution in Ukraine himself and had not shown that
he had a well-founded fear of persecution in the event of his removal to Ukraine.
With respect to Svetlana’s rape, the IJ found that this crime had been motivated by
Gordyak’s personal feelings and did not constitute persecution on account of a
protected ground. Accordingly, the IJ denied the requested relief.
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Orda appealed to the BIA, which affirmed the IJ’s determination that Orda,
as the lead respondent, had failed to meet his burden of proof for asylum. The BIA
found that Orda was never personally harmed in Ukraine and that nothing in the
evidence indicated that the rape of Orda’s wife was motivated by a protected
ground. The BIA also explained that, because every applicant for personal asylum
must establish his or her individual eligibility for relief, a grant of asylum to the
principal applicant can not be based upon harm to one of the application’s
derivative beneficiaries. Accordingly, the BIA found that Orda’s asylum claim
could not be granted based upon his wife and daughter’s fear of persecution in
Ukraine. For these reasons, the BIA dismissed Orda’s appeal.
II.
We review only the decision of the BIA, except to the extent it expressly
adopts the IJ’s opinion. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006
(11th Cir. 2008). We review the BIA’s factual determinations under the substantial
evidence test and will “affirm the [BIA’s] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id. “To
conclude that the BIA’s decision should be reversed, we must find that the record
not only supports the conclusion, but compels it.” Niftaliev v. U.S. Att’y Gen.,
504 F.3d 1211, 1215 (11th Cir. 2007).
III.
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To be eligible for asylum, an alien must establish status as a “refugee.”
Sepulveda, 401 F.3d at 1230. The statute defines “refugee” as:
[A]ny person who is outside any country of such person’s nationality
. . . and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). An alien may demonstrate status as a refugee primarily
either by establishing well-founded fear of persecution or establishing past
persecution, which gives rise to a rebuttable presumption of a well-founded fear.
See Sepulveda, 401 F.3d at 1230-31. Past persecution exists when the alien
establishes he has suffered persecution in the past in the relevant country on
account of one of the protected grounds, and is unable or unwilling to return to, or
avail himself of the protection of, the country in question. 8 C.F.R. § 208.13(b)(1).
The government may then attempt to rebut the presumed well-founded fear that
arises from the finding of past persecution by demonstrating either a fundamental
change in circumstances in the country or that the applicant could avoid future
persecution by relocating to a different area of the country. Id. § 208.13(b)(1)(I).
In his petition for review, Orda argues, inter alia, that substantial evidence
does not support the BIA’s factual determination that Svetlana’s rape was not
inflicted on account of a protected ground. He notes that an applicant for asylum
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“need not conclusively show why persecution occurred,” Matter of S-P, 21 I.&N.
Dec. 486 (BIA 1996), and must only “produce evidence from which it is
reasonable to believe that the harm was motivated, at least in part, by an actual or
imputed ground.” INS v. Elias-Zacarias, 502 U.S. 478 (1992). Orda points out
that the record contains the State Department Report on Ukraine, which notes that
police corruption, violence against women, and harassment of ethnic minorities are
serious problems in Ukraine. Given this evidence of the country conditions, Orda
claims that the record compels a finding that Svetlana’s mixed ethnicity and non-
Ukranian citizenship rendered her particularly vulnerable to abuse by the police
and others. Although he admits that Gordyak had a personal history with Svetlana,
Orda asserts that Gordyak would not have raped her but for her status as a
vulnerable Russian-speaking migrant of mixed ethnicity. Accordingly, Orda
asserts that the BIA erred in finding as a matter of fact that Svetlana’s rape was not
on account of a protected ground.
We must affirm the BIA’s factual determinations if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” De Santamaria, 525 F.3d at 1006. If substantial evidence supports the
BIA’s findings that an alien suffered particular harms for reasons other than his or
her race, religion, nationality, membership in a particular social group, or political
opinion, the petition for review will be denied. See, e.g., Scheerer v. U.S. Att’y
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Gen., 445 F.3d 1311, 1316 (11th Cir. 2006) (substantial evidence supported IJ’s
conclusion that applicant’s prosecution in his home country was not due to his
political opinion). In this case, Orda’s own testimony indicates that Gordyak had
previously been in love with his wife and that he was angry because she had
married Orda instead of him. This testimony provides substantial support for the IJ
and BIA’s finding that Gordyak’s criminal conduct was motivated by his personal
desire to humiliate his former love-interest and to punish Orda, his rival and former
classmate. We therefore affirm the IJ and BIA’s factual determination that Orda’s
wife was raped for reasons other than her ethnicity or nationality. For this reason,
we conclude that Orda has not established that he – or any member of his family –
suffered persecution in the past in the relevant country on account of one of the
protected grounds.2
Without past persecution, Orda is not presumed to have a well-founded fear
of persecution and the record does not show that Orda has an objective basis to fear
future harm in the Ukraine. Accordingly, the BIA’s denial of Orda’s application
for asylum and withholding of removal was proper and we deny the petition for
review.
2
Orda also argues that the BIA erred in holding that his asylum claim may not be based
upon his wife’s persecution in Ukraine. Because we conclude that the record supports the BIA’s
finding that his wife was not persecuted on account of a protected ground in Ukraine, this
argument is moot and we do not consider it.
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