### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60311 Summary Calendar

IVAN SHCHELKUNOV,
Petitioner

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A088 131 416

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Petitioner I van Shchelkunov, a native and citizen of Russia, petitions for review of the B o ar d o f I m m i gr ati o n Appeals’ (BIA) decision dismissing his appeal of the Immigration Judge’s (IJ) order that denied h is application f or asylum and withholding of r emoval a nd protection u n d e r t he Convention Against Torture (CAT) as well a s his motion to reman d

. H e claims that h i s deportation proceeding w as conducted in violation of the Due Process Clause and the IJ’s and that the BIA’s f

ind i n g s t h a t he w as not persecuted on account of a protected U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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ground o r t h a t he does n ot have a well-founded fear of future persecution for
purposes of asylum are not supported by substantial e vidence. When we review

an order of the BIA, we consider the underlying decision of the IJ o n l y t o t he extent it affected the BIA’s ruling. Ontunez-Tursios v . Ashcr oft , 303 F.3d 341, 348 (5th Cir. 2002). In his p etition to u s, Shchelkunov does not challenge t h e d e n i al of withholding of removal or protection under the CAT. He h as therefore waived
any such challenges. See Calderon-Ontiveros v. INS , 809 F.2d 1 050, 1052 (5th Cir. 1986). Shchelkunov contends tha t t he IJ violated his Due Process rights by conducting the merits hearing in English and not u sing a Russian interpreter. As Shchelkunov failed to e xhaust his remedies before the BIA, we do not have jurisdiction to consider this issue. 8 U.S.C. § 1252 (d)(1); Wang v. Ashcroft , 260 F.3d 448, 452-53 (5th Cir. 2001). Next, Shchelkunov asserts that his due process rights were violated because the record on appeal is incomplete and inadequate and thus p revents a fair review of his as y l u m application. In his brief in support of h is petition, however, Shchelkunov fails to identify specific, material facts that are missing from the transcript and would support his application (despite the fact that the missing portions o f t h e t ranscript consist almost exclusively of h is own testimony). Neither d oes he p o i n t t o a single argument that he was unable to mak e before the BIA or this court because of the incomplete transcript. Thus, Shchelkunov has not identi f i e d how the “i ndiscernible” notations in the transcript substantially p rejudiced h is ability t o perfect and present an appeal. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) (“Due process challenges to d eportation proceedings require an initial showing o f substantial prejudice.”). Accordingly, he has n o t demonstrated a Due Process violation during the deportation proceeding. See id

.

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The Attorney General has discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1 158(b)(1). A refugee is a p erson who is outside of his

c o u n try and i s “unable or unwilling to return ‘because of persecutio n o r a well-founded fea r o f p e r secution on account o f race, religion, nationality, membership in a particular social group, or political opinion.’” Jukic v. INS , 40 F.3d 7 47, 749 (5th Cir. 1994) (quoting 8 U.S.C. § 1101(a)(42)(A)). T he alien has the burden of s howing “some particularized connection” betwe e n the feared persecution and one of those five exclusive grounds. F a d doul v. I

NS , 37 F.3d 185, 188 (5th Cir. 1994). “Although we review the legal conclusions of th e BIA and the IJ de novo,

. . . we review their f

a ctual findings for substantial evidence.” Majd v. Gonzales , 446 F .3d 590, 594 (5th Cir

. 2 0 0 6 )

. Under the substantial evidence standard, “reversal is improper u nless we decide ‘not only that the evidence supports a contrary conclusion, but [also] that the evidence compels it.’” Zhang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 2005) ( quoting Zhao v. Gonzales , 404 F.3d 295, 306 (5th Cir. 2005)). “The alien bears the burden of proving the requisite compelling nature of the evidence.” M ajd , 446 F.3d at 594. The evidence in this r ecord does not compel a conclusion different from that reached by the BIA and the IJ. A s suming arguendo that the act of whistle b l o w i n g c a n c o n s tit u te political activity sufficient to form the basis of persecution

on a ccount of p olitical opinion, Shchelkunov has failed t o s how that the evidence compels a conclusio n th at th e purported corruption was inextricably intertwined with governmental operation. See T huri v. Ashcroft , 380 F .3d 788, 792-93 (5th Cir. 2 004). Moreover, the e vi dence does not compel a finding that Shchelkunov

was persecuted because he blew the whistle on his alleged persecutors. Rather, it s u pports a c onclusion that the persecution, if any, was based on a personal dispute. Additionally, at the merits h earing, Shchel k u n o v testified that he resided in Russia for n ine months following the incidents of w hich he complains without h is experiencing any harassment. T hus, a reasonable factfinder would
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not be compelled to f

ind that Shchel k u n o v h as a well-founded fear of future persecution. See Jukic , 40 F.3d at 749. Accordingly, Shchelkunov did not make the showing required to establish eligibility for asylum. See id

. The petition for review is DENIED IN PART and DISMISSED IN PART FOR LACK OF JURISDICTION.

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