Mikhailevitch v. I.N.S.

• Citation: 146 F.3d 384
• Decision Date: 08 June 1998
• Docket Number: No. 97-3536,97-3536
• Parties: Guennadi Y. MIKHAILEVITCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 384

146 F.3d 384

Guennadi Y. MIKHAILEVITCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-3536.

United States Court of Appeals, Sixth Circuit.

Submitted April 22, 1998.

Decided June 8, 1998.

George P. Mann (briefed), Farmington Hills, MI, for Petitioner.

Richard M. Evans (briefed), Michelle R. Slack (briefed), U.S. Department of Justice, Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: GUY, GILMAN, and GODBOLD ^*, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Guennadi Y. Mikhailevitch ("Mikhailevitch") petitions for review of an order rendered by the Board of Immigration Appeals (the "Board") denying his application for asylum and withholding of deportation. For the reasons set forth below, we DENY Mikhailevitch's petition for review.

I. BACKGROUND

Mikhailevitch is a native and citizen of Belarus (a former republic of the Soviet Union) and a member of the Roman Catholic Church. In December of 1991, Mikhailevitch entered the United States by way of a nonimmigrant visitor's visa that expired on June 27, 1992. He settled in Oak Park, Michigan, where he has since resided. In February of 1995, the Immigration and Naturalization Service (the "INS") charged Mikhailevitch as deportable for remaining in the United States beyond the expiration of his visa without authorization. Mikhailevitch, through counsel, conceded his deportability on the basis charged. To avoid actual deportation, however, he subsequently filed an application for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. §§ 1158(a) and 1253(h) (1994) ("the Application"). On the Application form, he stated in part as follows:

I was persecuted by the security police and before the KGB, and they detained, interrogated and threatened me many times ... My father is Russian and Eastern Orthodox catholic [sic] and my mother is Byelorussian and Roman Catholic. They were persecuted because of their mixed background. My mother has always been very religious and so were her parents and her brothers. They suffered persecution because they are Roman Catholic. Because of my religious beliefs and activities the KGB, and later after the government changed in the former Soviet Union, the Security Police, have detained, harassed, interrogated and threatened me.

Mikhailevitch further stated in the Application that if he returned to Belarus, he "would suffer [harassment], threats, detention and interrogation by the government authorities and the police. They would put me in prison and [my] life would be in danger." In an affidavit filed in support of the Application, Mikhailevitch set forth various instances of purported persecution which he suffered while living in Belarus, including the following: (1) his father and paternal grandfather were deported to Siberia during Stalin's regime "because they were wealthy farmers and they refused to give up their farming equipment[,]" (2) the KGB interrogated him and threatened him on several occasions regarding his religious activities, and (3) the KGB searched his home and place of work because of his religious activities.

The Immigration Judge (the "IJ"), upon receiving the Application, requested an advisory opinion from the Office of Asylum Affairs of the Department of State. James L. Halmo, Director of the Office of Asylum Affairs, responded with a letter ("the Halmo letter") providing in relevant part as follows:

Under the Communists, believers of all faiths were oppressed [in Belarus]. However, post-independence Belarus has generally been tolerant of most religious practices, including that of Roman Catholics. There are some instances of prejudice, however, primarily because Roman Catholics are often suspect [sic] of being close to Poland, a[sic] historic foe of Belarus. In the past year, the President of Belarus has implied that the loyalty of such people is in question and there are limits on the activities of foreign Catholic Priests, most of whom are, in fact, Polish nationals. These forces do not contribute to a climate of ethnic and religious tolerance.

At the same time, the Roman Catholic Churches flourish in Belarus. Scores of Church buildings earlier confiscated by the Communists have been returned. We have no indication that ordinary individuals are prohibited, or inhibited, from practicing their religion. Thus, while these developments have been criticized, for example, in the most recent (1966)[sic] edition of our Country Reports on Human Rights Practices they do not constitute a pattern of abuse.

In May of 1996, the IJ conducted a hearing on the Application. Mikhailevitch testified that his father was persecuted in Belarus for having escaped from Siberia after spending twelve years there. He also discussed his religious activities, which included restoring church buildings, painting and restoring icons, and assisting others in obtaining baptism for infants. Mikhailevitch testified that the KGB questioned him in regard to those activities on two occasions in 1990. He also testified that, on one occasion, the KGB arrived at his home at 1:00 a.m. and knocked on the door for approximately 40 minutes before leaving. According to Mikhailevitch, several of his neighbors witnessed the incident and he consequently earned a reputation as "a criminal." He speculated that if he returned to Belarus, "it's possible that [the KGB] would put me in jail for several--several years." Mikhailevitch admitted, however, that he had never been arrested, imprisoned, or physically harmed in Belarus on account of his religious activities.

The IJ denied the Application at the conclusion of the hearing. Although finding that Mikhailevitch was "essentially credible" and that his fears of persecution in Belarus were "subjectively genuine," the IJ concluded that Mikhailevitch was statutorily ineligible for asylum because he did not qualify as a "refugee" as defined in 8 U.S.C. § 1101(a)(42)(A). In so ruling, the IJ determined that Mikhailevitch failed to satisfy his burden of proving either that he suffered past persecution in Belarus or that he had a well-founded fear of suffering future prosecution if he were returned to Belarus. In light of the foregoing determination, the IJ ruled that Mikhailevitch could not make the more stringent showing necessary for entitlement to withholding of deportation.

Mikhailevitch appealed to the Board from the IJ's denial of the Application. The Board affirmed the IJ's decision and dismissed Mikhailevitch's appeal in an order rendered on April 29, 1997. On May 28, 1997, Mikhailevitch timely filed a petition for review with this court under 8 U.S.C. § 1105a, as modified by section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub.L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 3009-546. Pursuant to the latter section, our review of the merits of Mikhailevitch's petition will be based upon the Act's provisions as they existed before enactment of the IIRIRA.

II. ANALYSIS

A. Standard of Review

We must ascertain whether the Board correctly determined that Mikhailevitch failed to sustain his burden of establishing eligibility for asylum and withholding of deportation. The Board's determination "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, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). Under this deferential standard, we may not reverse the Board's determination simply because we would have decided the matter differently. Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir.1992). We may reverse, on the other hand, if the evidence presented by Mikhailevitch "not only supports a contrary conclusion, but indeed compels it." Id. at 152. The appropriate inquiry is whether the applicable evidence "was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.

B. The Board's Decision

In affirming the IJ's denial of the Application, the Board expressed its agreement "with the [IJ's] thorough and well-reasoned decision that [Mikhailevitch] has failed to establish that he has been persecuted in the past on account of his religion, or that he has a well-founded fear of persecution on that basis in the future in Belarus." The Board concluded that the IJ fully considered Mikhailevitch's statements as set forth in the Application, along with his testimony at the hearing, and that Mikhailevitch had identified no "additional information on appeal on this subject which he feels the [IJ] should have, but failed to, consider."

The Board also found no merit in Mikhailevitch's claim that the IJ erred by impeding the efforts of Mikhailevitch's counsel to assist Mikhailevitch in correcting errors in the Application. It further rejected Mikhailevitch's argument that the IJ refused to listen to Mikhailevitch and thus became "confused as to some of the testimony regarding [Mikhailevitch's] experiences with the KGB." Finally, the Board was unpersuaded by Mikhailevitch's contention that the IJ failed to articulate reasons for concluding that Mikhailevitch did not merit a favorable exercise of discretion, determining that the IJ "did not make, and was not required to make, a discretionary finding with regard to asylum or withholding, as [Mikhailevitch] had not met his burden of establishing past persecution or a well-founded fear of persecution."

Mikhailevitch argues in support of his petition for review of the Board's order that he was deprived of due process of law because the IJ refused to allow him to testify at the hearing "in a full and complete manner," or "about his past instances of persecution in Belarus." Specifically, Mikhailevitch maintains that the IJ was "clearly biased" against him...