Krasnopivtsev v. Ashcroft, 03-3100.

• Decision Date: 03 September 2004
• Docket Number: No. 03-3100.,03-3100.
• Citation: 382 F.3d 832
• Parties: Vladimir Ivanovich KRASNOPIVTSEV, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

382 F.3d 832

Vladimir Ivanovich KRASNOPIVTSEV, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-3100.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2004.

Filed: September 3, 2004.

Petition for review from the Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED

Gregory S. Bachmeier, argued, Minneapolis, MN, for appellant.

Elizabeth J. Stevens, U.S. Dept. of Justice, Office of Immigration Litigation, argued, Washington, D.C., for appellee.

Before BYE, HANSEN, and HAMILTON,¹ Circuit Judges.

HANSEN, Circuit Judge.

Vladimir Ivanovich Krasnopivtsev petitions this court for review of an order by the Board of Immigration Appeals (BIA). Krasnopivtsev argues that he suffered persecution in Georgia on the basis of his Russian ethnicity and Baptist religion, and he fears future persecution upon removal from the United States. After carefully reviewing the record, we deny Krasnopivtsev's petition for review.

I.

Krasnopivtsev, a 50-year-old citizen of Georgia and an ethnic Russian, entered the United States in April 1999 as a non-immigrant visitor for pleasure, with authorization to stay until October 1999. He overstayed his visit, and the Immigration and Naturalization Service (INS) commenced removal proceedings against him in December 1999. He conceded deportability but requested asylum, withholding of removal, voluntary departure, and relief under Article 3 of the Convention Against Torture.

At a hearing before an Immigration Judge (IJ), Krasnopivtsev and his sister Vera testified. Krasnopivtsev testified that he is a citizen of Georgia, an ethnic Russian, and a Baptist who attends church but has not been baptized. Krasnopivtsev was not a member of a Baptist church while he lived in Georgia, but he went to church with his parents when he was young, and he attended church occasionally as an adult. His mother, father, two brothers and one sister, all active Baptists, were granted refugee status in the United States in the 1990s. His father had been a deacon in the church in Tbilisi, Georgia, and his brother was a Baptist pastor. Krasnopivtsev did not elaborate on their experiences but testified only that his family was "persecuted." He mentioned that his father's uncle had been executed in 1929 due to his religious beliefs. Krasnopivtsev's daughter, who was approximately 27 years old at the time of the hearing, still lives in Georgia. She is not a Baptist but is an ethnic Russian and has had no known problems living there. His sister Lydmila and her daughter also still live there. Lydmila is a Baptist. There is no evidence that they have suffered any harm. Krasnopivtsev said he fears he would be killed or handicapped if he returned to Georgia, and although he is of Russian ethnicity, he could not be sent to Russia.

Krasnopivtsev testified that he encountered some troubles while he was in school due to his family's religion, such as name-calling and ridicule for going to church instead of believing in communism. This occurred in the 1960s, well before the communist Soviet Union dissolved in 1991. The IJ considered only events subsequent to this change in the country's condition.

Krasnopivtsev testified that in 1995, a police officer stopped him on the street, asked him for documents, and took him to the police station. The officer pointed a gun to his head and asked, "[A]ren't you Russian[s] afraid to live around here?" (R. at 107.) The officer, who was drunk, then started shooting around randomly, and a bullet grazed Krasnopivtsev. Immediately other police took him to the hospital for treatment and instructed him to tell the doctor that he fell down the stairs, if asked. The police took him home after the hospital visit. Krasnopivtsev said that after this incident, he was often stopped by the police and taken to do work for them without pay. He assumed this was because he was Russian, and he feared that, if he refused, they might make up a reason to put him in prison. Krasnopivtsev also testified that Georgians would stop him on the street and harass him because he was Russian. They would ask if he had cigarettes and would hit him if he did not.

In 1997, Krasnopivtsev traveled from Georgia to Russia on a Soviet passport. While he was in Russia, there was an incident where he was accused of stealing a cow and was beaten, but he was not arrested. He offered this testimony to demonstrate that although he was Russian, he was not accepted in Russia and was not firmly resettled in another country.

In 1999, he returned to Georgia. Krasnopivtsev applied for an international passport in Tbilisi. To complete the application, he was required to obtain from the police a verification of his residence and that he was not involved in any criminal activity. Although he said the police had harassed him on the streets because he was Russian, he obtained the necessary verification without incident, and the international passport was issued in the normal course of business. He came to the United States on April 3, 1999.

Krasnopivtsev's sister Vera has been granted refugee status and now lives in Minnesota. She testified that she is a Baptist who was baptized in 1980 in Tbilisi, Georgia, and she is an ethnic Russian. She said that Russians are threatened in Georgia on the basis of nationalism and that Krasnopivtsev would be harmed if he went back due to nationalism, being a Baptist, and because he had been in the United States. She testified that their sister Lydmila has been unable to have social gatherings or birthday parties due to her religion. Vera corroborated the 1995 police shooting incident and that Krasnopivtsev did skilled work for the police without pay.

The IJ refused to consider a copy of Krasnopivtsev's internal passport but considered exhibits consisting of INS forms and attachments, including an asylum officer's "assessment to refer" and the Department of State Country Reports from Georgia for 1999 and 2000. The IJ outlined portions of the Country Report on Human Rights Practices for Georgia, which stated, among other things, that torture was used on some criminals and detainees and that "members of the security forces beat members of religious minorities." (R. at 65-66.) Also, although the constitution provides for freedom of religion and the government generally respects this right, local police officers and security officials have been known to harass several nonorthodox religious groups, "particularly local and foreign missionaries, including Jehovah's Witnesses, Baptists and Hare Krishna." (R. at 66.) Krasnopivtsev had never been a Baptist missionary.

The IJ found that Krasnopivtsev's testimony was not credible. Even if credible, the IJ further found that Krasnopivtsev's testimony was meager, general, and not the type of specific or detailed evidence necessary to obtain asylum. The IJ gave weight to the fact that Krasnopivtsev still has family members who live in Georgia, and he knows of no harm that has come to them. The IJ found that Krasnopivtsev failed to satisfy his burden of demonstrating that he had been persecuted or had a well-founded fear of future persecution, and the IJ denied all relief.

The BIA affirmed the IJ's decision, specifically noting that its adoption or affirmance of an IJ's decision is a statement that the Board's conclusions coincide with those articulated by the IJ. The BIA then added some of its own reasons and rejected Krasnopivtsev's arguments of evidentiary error. Krasnopivtsev petitions this court for judicial review.

II.

Because the BIA essentially adopted the IJ's opinion while adding some of its own reasoning, we review both decisions. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004); Chand v. INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000). We review for substantial evidence the BIA's determination that an alien is not eligible for asylum or withholding of deportation, and we may not overturn the BIA's determination "unless the evidence was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution." Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002) (internal quotation marks omitted).

A.

Krasnopivtsev argues that the IJ erred and deprived him of due process by admitting into evidence the asylum officer's referral assessment containing references to his credibility and by not admitting a copy of his internal passport. We find no error. First, the referral assessment was properly admitted. "The traditional rules of evidence do not apply to immigration proceedings." Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.2004). Instead, the sole test for admission of evidence is whether it is relevant and whether its admission is fundamentally fair. Id. Krasnopivtsev's statements to another INS officer were relevant. Federal regulations prescribing rules of procedure state that the IJ may receive into evidence any statement that is material and relevant to any issue, and that the IJ shall make a de novo determination as to whether the alien could establish eligibility for asylum or withholding, taking into account the credibility of statements made by the alien and other facts that are known. 8 C.F.R. § 1003.42(c), (d); see Prokopenko v. Ashcroft, 372 F.3d 941, 944-45 (8th Cir.2004).

Krasnopivtsev asserts that admission of the referral assessment was prohibited by an internal Operating Policies and Procedures Memorandum (OPPM), which states that a document containing reference to INS credibility findings should not be filed with the immigration court. OPPM No. 96-1 (superseded by OPPM 00-01, Aug. 4, 2000); see also Prokopenko, 372 F.3d at 944. As the BIA noted, there was no error because this OPPM permits the filing of the referral sheet and all supporting documents. OPPM 00-01, at 14. We have said that it is doubtful whether this type of internal agency memorandum could confer any substantive legal benefits to an alien or be binding on the INS. Prokope...