Kukalo v. Holder

• Decision Date: 13 April 2011
• Docket Number: Nos. 09–3338,09–4289.,s. 09–3338
• Parties: Myron KUKALO, Ganna Kukalo, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

744 F.3d 395

Myron KUKALO, Ganna Kukalo, Petitioners,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Nos. 09–3338, 09–4289.

United States Court of Appeals,Sixth Circuit.

Decided and Filed: April 13, 2011.^*

ON BRIEF:Margaret Wong, Margaret Wong & Associates Co., LPA, Cleveland, OH, for Petitioners. Christopher McGreal, James A. Hunolt, Jonathan Robbins, United States Department of Justice, Washington, DC, for Respondent.

Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.

AMENDED OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In this consolidated action, petitioners-appellants Myron and Ganna Kukalo appeal a final order of the Board of Immigration Appeals (“BIA”), denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), as well as an order of the BIA denying their motion to reopen for an adjustment of status. For the reasons that follow, we deny the Kukalos' petitions for review.

I.

Myron and Ganna Kukalo (collectively, the “Kukalos”) are husband and wife and citizens of the Ukraine. They entered the United States on February 10, 1994, on B–1 non-immigrant visas with authorization to remain for a temporary period not to exceed August 9, 1994. After the expiration of their visas, Myron timely filed an application for asylum on October 3, 1994, and Ganna was included on the application as a derivative. On July 28, 2004, the Department of Homeland Security (“DHS”) served the Kukalos with Notices to Appear before the Immigration Court, charging them as subject to removal from the United States pursuant to Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), and INA § 101(a)(15), 8 U.S.C. § 1101(a)(15). With this action, DHS referred the Kukalos' asylum case to the Immigration Court. During their removal hearings, both Myron and Ganna conceded removability but requested relief based on asylum, withholding of removal, and CAT. In the meantime, Myron's employer, Piper Plumbing, Inc., filed an I–140 immigrant petition for alien workers with a priority date of January 13, 2003. The petition was approved on January 30, 2007, and indicated “that [Myron Kukalo] is in the United States and will apply for adjustment of status.” The Notice of Action approving the petition stated that the information submitted with the petition showed that Myron was “not eligible to file an adjustment of status application at this time.” The Kukalos later filed I–485 applications for adjustment of status.

On May 25, 2007, Immigration Judge William Evans, Jr. (“IJ”) heard both Myron and Ganna's application for asylum, withholding of removal, and relief under CAT. Myron testified for both of the Kukalos, and the IJ found Myron's testimony credible. In his testimony Myron revealed several grounds on which he felt the court could find evidence of past persecution as well as a well-founded fear of future persecution. First, a former KGB worker who lived in Myron's village allegedly threatened Myron on three occasions. Myron testified, “He said that people like me should not live in this world,” a threat Myron attributed to his “political thinking.” Second, Myron testified that because he owned land, he received phone calls and one visit from people he suspected to be associated with mafia groups. These calls largely involved requests for money, but Myron never provided them with any money. Myron suffered no instances of physical harm. Myron also testified that his future in the Ukraine “would be same thing that it was before,” indicating a fear of similar threats from the people who had threatened him before.

In addition to Myron's testimony, the Kukalos submitted a letter from a friend in the Ukraine detailing the unrest and violence in the country, the Ukraine Country Reports on Human Rights Practices 2006, and a number of published reports regarding crime and corruption in the Ukraine. Myron also submitted a written statement with his asylum application discussing the same information offered in his testimony before the IJ.

Based on the testimony and the exhibits, the IJ found that the evidence was insufficient “to demonstrate either past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group or political opinion.” The IJ found that the evidence proved Myron had experienced “attempts at extortion” and that the Ukraine was “experiencing some degree of lawlessness,” but “[n]either the general condition of lawlessness nor criminal extortion or harassment or threats [ ]rise to the level of persecution.” The IJ found no evidence that the Kukalos had been victims of persecution in the past or that the Kukalos had a well-founded fear of persecution in the future “because the only fears expressed by the [Kukalos] are that they will be subject to the same treatment on their return to Ukraine as they've experienced.” The IJ found the Kukalos failed to sustain the burden of establishing their claim for asylum and thus necessarily failed to meet the burden for withholding of removal. They also failed to provide any evidence that they would be subject to torture required for their CAT protection claim. Furthermore, the IJ held that the Kukalos failed to establish their eligibility for voluntary departure.

The BIA issued a separate opinion on March 20, 2009, dismissing the Kukalos' appeal of the IJ decision. The BIA rejected Myron's contention that he suffered past persecution or had a well-founded fear of future persecution. The BIA found that “the unfulfilled threats from an individual in his neighborhood and the extortionist demands from persons [Myron] believes were affiliated with the mafia were not severe enough to qualify as persecution.” Moreover, the BIA held that because Myron failed to establish eligibility for asylum, he necessarily could not establish withholding of removal or protection under CAT. The BIA went on to say, “In any event, the respondent has failed to meaningfully appeal the Immigration Judge's denial of his withholding of removal and CAT applications.”

On March 31, 2009, the Kukalos filed a motion to reopen to apply for adjustment of status, claiming eligibility for adjustment under INA § 245(a), 8 U.S.C. § 1255(a). This motion was based on the I–140 that was filed by Piper Plumbing, Inc., on behalf of Myron with a priority date of January 13, 2003, and was approved by DHS on January 30, 2007. Immigration and Customs Enforcement (“ICE”) opposed the motion, arguing that the Kukalos had failed to make a prima facie showing of eligibility for relief in order to qualify for reopening. The BIA denied the Kukalos' motion on September 30, 2009, on the grounds that they were “unable to establish prima facie eligibility for adjustment of status.” The BIA noted: (1) the Kukalos' lawful nonimmigration status expired on August 9, 1994; (2) their asylum application was not filed until October 3, 1994; and (3) a visa petition under INA § 203(b)(3)(A)(iii) with a priority date of January 13, 2003, was approved in January 2007. The BIA found that the Kukalos had “not adequately explained why they believe that a government delay in processing an asylum application which they concede was filed after their lawful nonimmigrant status expired provides an exception to the continuous lawful status requirement for section 245 of the [INA].” Thus, the BIA denied their motion.

The Kukalos now appeal the March 20, 2009, and September 30, 2009, BIA decisions. After briefing, these cases were consolidated on July 29, 2010.

II.

We first address the appeal of the BIA's March 20, 2009, denial of the Kukalos' applications for asylum, withholding of removal, and CAT protection. Where the BIA reviewed the IJ's decision de novo and issued a separate opinion, we review the BIA's opinion as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.2007) (citing Grijalva v. Gonzales, 212 Fed.Appx. 541, 547 (6th Cir.2007)). Questions of law are reviewed de novo, but we give substantial deference to the BIA's interpretations of the INA and its accompanying regulations. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). The BIA's factual findings are reviewed under the deferential substantial evidence standard and “must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Mikhailevitch v. I.N.S., 146 F.3d 384, 388 (6th Cir.1998) (internal quotation marks omitted) (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Under this standard, we will reverse if the evidencepresented “ ‘not only supports a contrary conclusion, but indeed compels it.’ ” Id. (quoting Klawitter v. I.N.S., 970 F.2d 149, 152 (6th Cir.1992)). We do not reverse simply on the grounds that we would have decided the matter differently. Koliada v. I.N.S., 259 F.3d 482, 486 (6th Cir.2001). Rather, we look to the evidence presented to determine if “a reasonable factfinder would have to conclude” that the Kukalos established their claims for asylum, withholding of removal, or protection under CAT. See Elias–Zacarias, 502 U.S. at 481, 112 S.Ct. 812.

A.

An applicant for asylum bears the burden of establishing that he is a “refugee” as defined by the INA. 8 U.S.C. § 1158(b)(1)(B); Koliada, 259 F.3d at 486–87. In order to qualify for asylum, the Kukalos must establish that they qualify as refugees “ ‘either because [they have] suffered actual past persecution or because [they have] a well-founded fear of future persecution.’ ” Koliada, 259 F.3d at 487 (quoting 8 C.F.R. § 208.13(a)–(b)).

Establishing that harassment rose to the level of “persecution” is not an easy task. See Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.2005) (“The numerous decisions rendered by the various panels of this court upon review of BIA decisions on applications for asylum make clear that the conduct on...