Sviridov v. Ashcroft

• Decision Date: 10 February 2004
• Docket Number: No. 02-9574.,02-9574.
• Citation: 358 F.3d 722
• Parties: Oleg SVIRIDOV, Petitioner, v. John ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.3d 722

Oleg SVIRIDOV, Petitioner, v. John ASHCROFT, Respondent.

No. 02-9574.

United States Court of Appeals, Tenth Circuit.

February 10, 2004.

Beverly W. Oserow, Denver, CO, for Petitioner.

Donald E. Keener, Deputy Director, Office of Immigration Litigation (Peter D. Keisler, Assistant Attorney General; Richard M. Evans, Assistant Director; and Susan K. Houser, Attorney, on the brief), Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before EBEL, ANDERSON, and HARTZ, Circuit Judges.

ANDERSON, Circuit Judge.

Petitioner Oleg Sviridov is a native and citizen of Russia. He seeks review of an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture. We affirm.

BACKGROUND

Sviridov entered the United States on June 20, 1997, on a visitor visa with authorization to stay until June 19, 1998. He successfully sought an extension of his departure date to December 19, 1998. Sviridov filed an application for asylum under the Immigration and Nationality Act ("INA") § 208, 8 U.S.C. § 1158, on June 29, 2000. He was placed into immigration proceedings in August 2000 and charged with being subject to removal under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States beyond the date authorized without receiving permission from the Immigration and Naturalization Service ("INS").¹ He renewed his application for asylum, and also sought withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture.²

After conducting a hearing, the IJ denied Sviridov's application for asylum because it was untimely. See 8 U.S.C. § 1158(a)(2)(B), (D) (requiring an asylum petitioner to file within one year of arrival in the United States, absent a showing of changed circumstances "which materially affect the applicant's eligibility for asylum" or extraordinary circumstances excusing the delay). The IJ denied his application for withholding of removal under § 1231(b)(3) because Sviridov had failed to show that "there is a clear probability of persecution due to his race, religion, nationality, membership in a particular social group, or political opinion." Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003) (citing INS v. Stevic, 467 U.S. 407, 413, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). The IJ also denied relief under the Convention Against Torture because he found Sviridov failed to establish that "it is more likely than not that he ... would be tortured if removed to [Russia]." 8 C.F.R. § 208.16(c)(2). Sviridov appealed the IJ's decision to the BIA, which issued a summary affirmance without an opinion, in accordance with 8 C.F.R. § 3.1(e)(4) (now codified at 8 C.F.R. § 1003.1(e)(4) (2003)). Sviridov seeks review of that decision.

Sviridov was born on October 24, 1958, and grew up in Poland and Russia. His father was Russian and his mother is ethnically Jewish, although she is registered as Russian. Sviridov trained to become a marine navigator and worked as a captain's assistant on a ship from 1979 until 1985. He alleges that the FSB (formerly the KGB) questioned him in 1985 about sailors under his command who had jumped ship while his ship was in port in the United States and warned him not to allow such conduct again. He further avers that he also lost his job in 1985 when he refused to join the Communist Party. Sviridov thereafter moved to Krasnodar, Russia, where he worked in construction for two years.

He was able to obtain another seafaring job in 1987, on a ship which conducted geological expeditions. He avers that in late 1995, he was again questioned by the FSB after several crew members jumped ship and defected to the United States.³ He asserts that the FSB knew about their prior contact with him in 1985, and they allegedly threatened him if he allowed any crew members to jump ship again. Sviridov testified that, following this questioning, he used his accumulated vacation days to take a long leave of absence in the city of Novorosisk, not far from Krasnodar, and when he returned, he was told that he would be fired unless he voluntarily quit his job. He avers that the company told him he was being dismissed for his political beliefs.

Sviridov claims he then traveled to Moscow and filed a request for job reinstatement with the Geological Ministry, the entity which oversaw Sviridov's former company. He alleges that nobody at the Ministry would listen to him. He then returned home to Novorosisk, where he and other current and former employees of the geological company formed a group to protest the company's dismissal of people based upon their political beliefs or ethnic background. He avers the group was "an informal and unregistered group that did not have an official name." Sviridov Aff. at 2, Admin. R. at 189. He further avers the group also opposed the candidacy of the company's president, Mikhail Gromov, for a seat in the Duma, the Russian parliament. Sviridov testified that the group published flyers, spoke to people, and held meetings in the city of Gelendzhik, some twenty miles from Novorosisk, to protest the administration in the Krasnodar region, which the group claimed persecuted minorities.

Sviridov claims that in 1997, based upon his association with this group, he was detained in the street and taken to a police station, where he was warned to stop his protest activities and leave the city. He asserts that on May 1, 1997, he and the group held a meeting in front of the geological company, during which Sviridov gave a speech accusing Gromov of being a Communist and being corrupt. He admitted in his testimony before the IJ that the group was required to obtain a permit before holding a demonstration, but that they had not obtained a permit prior to the May I demonstration. He states that the police broke up the meeting, arrested him and other group members, and detained him for twenty days, during which time he asserts he was beaten on two or three occasions.⁴ He says the police interrogated him and told him he had been warned to leave the city and that they knew of his dealings with the FSB. He avers he was placed in a cell with others whom the police knew would beat him. He claims that, following his release, he went to a hospital and received treatment for a concussion and other injuries. He claims that he then returned home to Novorosisk.

Sviridov testified that, following his detention by the police, he and his second wife decided to leave Russia and go to the United States.⁵ He testified that when he first came to the United States, he intended to seek asylum. Id. at 102. However, in his asylum application, he explained his failure to file his application within one year of arrival by stating that he "did not plan to remain USA." Id. at 251. He claims he cannot return safely to Russia because Gromov holds a position in the Duma, had held a position on the Geological Ministry committee, and is a personal friend of Konstatin Kondratenko, the governor of the Krasnodar region. He avers that "Gromov has power that extends throughout Russia and Mr. Sviridov is afraid that Gromov could pursue and cause harm to him no matter where he would move in Russia." Pet'r's Opening Br. at 16. He further claims that he would be unable to register to live somewhere else in Russia without first cancelling his current registration, which would necessitate contacting the local authorities whom, he claims, would harm him. He believes that he would be unable to obtain employment in his field because of Gromov's influence over the Geological Ministry committee and the industry in general.

Sviridov claims that after he left Russia, his first wife, who lives in Krasnodar, began receiving phone calls from the police asking for Sviridov's whereabouts, and he avers that his brother sent to him several summons from the police ordering him (Sviridov) to report to police headquarters. He further states that his mother, who remains in Russia, has told him over the phone not to return to Russia.

When asked why he filed his asylum application more than one year after entering the United States, he testified that he was not initially aware of the one-year deadline. Furthermore, he testified that when he began the process of seeking asylum in November 1998, he gave someone $1000 to file his application, but that person never did so. He then contacted a woman in Los Angeles in February 1999, who required $4000 to file his application. He avers it took him some length of time to amass the $4000 fee. The woman finally filed his application in June 2000.

Sviridov argues (1) the BIA improperly issued a decision without opinion by a single Board member, in violation of 8 C.F.R. § 3.1(a)(7) and (e)(4); (2) the BIA violated Sviridov's due process rights by issuing a decision without opinion which failed to explain its reasons for upholding the IJ's decision; (3) the IJ made clearly erroneous factual findings concerning Sviridov's testimony; (4) the IJ erred in finding Sviridov was not credible; (5) the IJ erred in finding Sviridov had "shown no basis why he would be targeted for harm by the authorities"; and (6) the IJ erred as a matter of fact and law in finding that Sviridov had failed to establish eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3) and relief under the Convention Against Torture, 8 C.F.R. § 208.16. Pet'r's Opening Br. at 40. At oral argument, Sviridov's counsel argued for the first time that, based upon her interpretation of a recent First Circuit decision, Haoud v. Ashcroft, 350 F.3d 201 (1st Cir.2003), we should remand this case to the BIA for clarification of the reasons why it affirmed the IJ's decision. Sviridov has also filed, subsequent to oral argument, a motion for a stay of voluntary departure pending disposition of...