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Ladyha v. Holder

November 24, 2009


Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Murphy, Circuit Judge.

Submitted: November 17, 2009

Before MURPHY, SMITH, and BENTON, Circuit Judges.

Petitioner Aliaksandr Ladyha, a native and citizen of Belarus, sought asylum, withholding of removal, protection under the Convention against Torture (CAT), and voluntary departure. The Immigration Judge (IJ) denied all requested relief and the Board of Immigration Appeals (BIA) affirmed by order of November 23, 2007. Ladyha petitioned this court for review. We dismissed the petition after he filed a motion to reopen seeking a status adjustment based on his marriage to a United States citizen. The BIA granted Ladyha's motion to reopen and remanded the case to the IJ. Ladyha's spouse subsequently withdrew her I-130 visa petition. On January 13, 2009, the BIA vacated its decision remanding the case and reinstated its November 23, 2007 order, and Ladyha again petitioned this court for review. We deny the petition.

Ladyha entered the United States as a non-immigrant business visitor on May 26, 2004. He overstayed his visa and concedes removability. Ladyha applied for asylum on July 21, 2004. He is a Pentecostal Christian, a religious minority in Belarus. According to Ladyha, he has been subjected to persecution on account of his religion and political advocacy and would face future persecution if deported.

Ladyha asserts that because of his Pentecostalism, he was mistreated by both teachers and students in his public school, the former purposefully lowering his grades and using a stick against him and the latter pushing him and throwing stones at him. In 2002, Ladyha was once threatened at knifepoint by assailants who sought to show him who was "king" of the city. Fellow citizens intervened on his behalf. Ladyha was unharmed and he did not report the incident to the police. Ladyha asserts that he could not find a job because of his religion, but he admitted that it was only government employment from which he was foreclosed and that he successfully found other employment.

In 2002, the government of president Alexander Lukashenko imposed new rules on religious minority groups, compelling them to register and submit to government regulation. Ladyha claims that these requirements would make it difficult for Ladyha to form his own church. Record evidence shows that the overwhelming majority of religious groups that sought government registration received it. Ladyha and other members of his congregation successfully registered with the government and founded a new church in Belarus, Salvation Church. The government also paid for Ladyha's education at the Institute of Theology in Minsk from 2001-2003, from which he received a diploma entitling him to open his own church and share his religion with others in Belarus. In 2003, the Belarus government permitted Ladyha to leave the country to continue his religious studies in Croatia, although Ladyha claims that the issuing official did not understand the true reason for his departure.

Ladyha has also raised an issue with regard to military service and government harassment of his family regarding Ladyha's whereabouts. The IJ and BIA understood Ladyha's claim to be that he fears that the Belarus government will jail him upon his return because of his refusal, on religious grounds, to join the military. Record evidence shows that Belarus has mandatory conscription. Unarmed military service is available for conscientious objectors who refuse to take up arms on religious grounds, and in any case Ladyha testified that he was willing to serve in the Belarus army and that he explored the possibility of joining the United States Army. Letters from Ladyha's mother and friend indicate that the government seeks Ladyha's enlistment and may consider him to have evaded his military duty.

According to Ladyha, his conscription is pretextual and the government is harassing his family about his whereabouts because of his Pentecostalism. Yet Ladyha's family, Pentecostal Christians actively involved in Salvation Church, live unharmed in Belarus. His mother works for a government organization and his stepfather owns his own business after previous government service despite their religious convictions.

Ladyha also asserts that he was subjected to persecution on account of his political beliefs. Ladyha contributed to an antigovernment website while in Croatia. He received an email message indicating that he was not allowed to publish information critical of Lukashenko. Ladyha did not produce evidence of what he wrote, the email he received, the identify its source, or any consequences he endured beyond the one warning which did not include a threat of harm.

The IJ found Ladyha's testimony generally credible. While she acknowledged possible mistreatment, the IJ concluded that Ladyha had not established a well- founded fear of persecution on any ground or a likelihood that he would be tortured if removed to Belarus, and the BIA agreed.

Ladyha has not challenged the denial of his application for CAT relief, 8 C.F.R. § 1208.16(c)(2), or voluntary departure, id. at § 1229c(b)(1)(A).*fn1 Therefore we review only the decision about his eligibility for asylum and withholding. An asylum applicant must prove that he cannot return to his country of origin "because of persecution or a well-founded fear of persecution on account of . . . religion . . . or political opinion." 8 U.S.C. § 1101(a)(42)(A). "Persecution is the infliction or threat of death, torture, or injury to one's person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion." Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir. 2008) (quotation omitted). An applicant may qualify for asylum by proof of either past persecution or a well founded fear or future persecution. 8 C.F.R. § 208.13(b).

"We review the BIA's decision as the final agency action, including the IJ's findings and reasoning to the extent they were expressly adopted by the BIA." Lovan v. Holder, 574 F.3d 990, 993 (8th Cir.2009)(quotation omitted). We review the record for substantial evidence and affirm unless the evidence was "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Gomez v. Gonzales, 425 F.3d 543, 545 (8th Cir.2005), citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484 (1992).

Ladyha has not demonstrated that the record evidence compels reversal on the basis of past persecution. While Ladyha testified he was threatened at knifepoint, the "king of the city" comment by his assailants is accurately characterized as "exaggerated, non-specific, or lacking in immediacy." Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004). Ladyha was unharmed. See Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir.2007) ("Absent physical harm, the incidents of harassment [and] unfulfilled threats of injury . . . are not persecution."). Similarly, the warning email in response to Ladyha's online antigovernment postings is insufficiently specific or imminent to constitute persecution. Ladyha suffered no adverse consequence beyond the single warning and did not proffer the message or the postings it criticized. Ladyha's testimony about schoolchildren throwing stones at him and teachers harassing him because of his religion do not, by themselves or in conjunction with other record evidence, compel reversal. Persecution is an "extreme concept that does not encompass low-level intimidation and ...

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