Korneenkov v. Holder, No. 07-60712 (5th. Cir. 9/30/2009)
| Decision Date | 30 September 2009 |
| Docket Number | No. 07-60712.,07-60712. |
| Parties | ALEXEY KORNEENKOV; OLESYA KORNEENKOVA, Petitioners, v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before: JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
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Petitioners Alexey Korneenkov ("Alexey") and Olesya Korneenkova ("Olesya") (collectively "the Korneenkovs") challenge the Board of Immigration Appeals ("BIA") order dismissing their appeal of an Immigration Judge's ("IJ") denial of their applications for asylum.1 The Korneenkovs argue that the BIA erred in determining that they are not eligible for asylum from their native country, Russia, because they were not persecuted on statutorily protected grounds. Specifically, they assert that (1) they were persecuted in Russia because of their status as mentally disabled persons and (2) mentally disabled persons constitute a "social group" for asylum purposes. Because we hold that the Korneenkovs were not persecuted as defined by applicable law, we AFFIRM the BIA's order denying asylum and need not reach the "social group" issue.
The Korneenkovs further challenge the BIA's denial of their motion to remand to the IJ on the ground of ineffective assistance of counsel. We agree with the BIA's conclusion that the Korneenkovs were not prejudiced by any alleged deficiency in their counsel's performance and therefore AFFIRM the BIA's denial of their motion to remand.
The Korneenkovs, a married couple, are natives and citizens of Russia who were admitted to the United States in September 2005 as non-immigrant visitors for pleasure with authorization to remain in the United States no later than March 5, 2006. Rather than leaving by that date, the Korneenkovs remained in the United States without authorization by the Department of Homeland Security ("DHS"). Accordingly, in April 2006, the DHS served the Korneenkovs with a notice to appear, charging them as removable under Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(1)(B). The Korneenkovs filed applications for asylum, alleging past persecution on account of membership in a social group consisting of mentally disabled persons.
At a hearing before an IJ, the Korneenkovs conceded that they were removable from the United States as charged. At a subsequent hearing on the merits of their applications for asylum, they described their experiences in Russia.
Alexey testified as follows: As a child, he attended a government-run school for mentally disabled children known as an "Internat." At the Internat, an intoxicated teacher struck him in the head with a wooden hanger, causing an injury that required stitches. His parents complained to the director of the Internat, but the director did not discipline the teacher and warned Alexey's parents that they would have trouble if they told anyone else about the incident. Although Alexey acknowledged that that was the only time a teacher ever abused him at the Internat, he testified that teachers threatened students and gave some students medicine that caused them to fall asleep during lessons. He also testified that he once witnessed a female student being raped.
After leaving the Internat, Alexey worked for a construction company. On one occasion, Alexey's supervisor, who w as intoxicated and unhappy with Alexey's work, pushed a hammer to his head, hit him, and stole money from him. Alexey further claimed that his co-workers disliked him because of his disabilities.
Alexey left the construction company and took a job with another company. While Alexey was employed there, his supervisor, who was stealing from the company, coerced him into helping her steal. She threatened to kill Alexey and his family if he told anyone that she was stealing, and she called his home and scream ed at Olesya that they were "a family of `idiots' and `imbeciles.'"
Finally, Alexey testified that in 2004, four police officers stopped him and asked for his identification, which he was legally required to carry with him and for which Russian police could check at any time. When Alexey did not produce his identification—which he had left at work—the police officers pulled his arm back, causing his spine to "crack[]," and took him to the police station. At the station, the police seized his belongings, initially refused to allow him to use the telephone, forced him to clean the toilets, beat him until he lost consciousness, threw water on him to wake him up, and told him to call his parents to "bring lots of money" for him to be released. They threatened to kill him if his family reported the incident.
Olesya also recounted her experiences in Russia. Olesya testified that when she was a child, children in her school beat her, bit her, pulled her hair, shouted at her, and laughed at her. She also testified—without elaboration—that teachers abused her and that despite her parents' requests the school took no corrective action. When asked if she had problems with anyone outside of school, Olesya stated that drunkards picked on her by pointing at her and calling her disabled.
Olesya testified that when she was seventeen years old, two men attempted to rape her while she was on her way home from a store. Olesya had accompanied her mother to the store, and her mother instructed her to wait outside. After some time, Olesya assumed that her mother had left and began to walk home. Near her house, two men approached her and lured her around a corner by telling her that they had puppies to sell. Olesya followed the men, and they took her into a building where they attacked her. The men beat her, attempted to pull off her clothes, and choked her before a bystander came to her aid and caused them to flee. Olesya was promptly hospitalized, and although the police promised to apprehend the suspects, they also inform ed Olesya's parents that they might have a better chance of finding her attackers themselves. Olesya's attackers were never apprehended.
Olesya's father testified that it was difficult to get good medical treatment for Olesya in Russia and that he did not believe that Alexey and Olesya could live on their own in Russia.
Finally, the Korneenkovs proffered an affidavit from Olesya's mother. In the affidavit, Olesya's mother stated that Olesya was dropped on her head at birth and corroborated Olesya's accounts of school children picking on her, her attempted rape, and Alexey's negative experiences at work.
The IJ rendered an oral decision denying the Korneenkovs' applications for asylum, finding that the incidents that they recounted were not sufficiently severe to rise to the level of persecution or were not on account of their mental disabilities. Specifically, with regard to Olesya's attempted rape, the IJ found that there was insufficient evidence that the perpetrators targeted her because of her mental disabilities.
After obtaining new counsel, the Korneenkovs appealed the IJ's decision to the BIA and also moved to remand on the basis of ineffective assistance of counsel. Assuming without deciding that mentally disabled persons in Russia constitute a "social group" for asylum purposes, the BIA affirmed the IJ's decision and denied the motion to remand, finding that the incidents that the Korkeenkovs described did not rise to the level of persecution. The BIA also determined that the Korneenkovs failed to demonstrate prejudice from their former counsel's failure to present testimony from Olesya's mother and Dr. Eric Reznik ("Dr. Reznik"), a psychologist. Accordingly, the BIA denied the Korneenkovs' motion to remand. The Korneenkovs timely filed a petition for review. See 8 U.S.C. § 1252.
We review the BIA's resolution of questions of law de novo, "giving considerable deference to the BIA's interpretation of the legislative scheme it is entrusted to administer." Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (internal quotation marks omitted). "We review factual findings of the Board to determine if they are supported by substantial evidence in the record." Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Under this stringent standard, we will reverse the BIA's decision "only when the evidence is `so compelling that no reasonable fact finder could fail to find' the petitioner statutorily eligible for relief." Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). Mere disagreement with the BIA's factual findings is not a sufficient ground for reversal; we may reverse only if the evidence compels a conclusion opposite to that reached by the BIA. See Girma v. INS, 283 F.3d 664, 669 (5th Cir. 2002); Mikhael, 115 F.3d at 304; see also Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 622 (1966) (). "Even though we have authority to review only the BIA's decision, we may consider the IJ's decision to the extent that it influenced the BIA." Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008).
"As a general matter, the determination that an alien is not eligible for consideration for asylum is a factual conclusion reviewed under the substantial-evidence standard." Thuri v. Ashcroft, 380 F.3d 788, 791 (5th Cir. 2004); see also Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir. 1990). The same is true of the more specific determination of whether the alien suffered persecution on account of a statutorily enumerated ground. Thuri, 380 F.3d at 791; see also Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350-51 (5th Cir. 2002).
We review the BIA's denial of a motion to remand for abuse of discretion. Castillo-Perez v. INS, 212 F.3d 518,...
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