IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Ivan Shchelkunov, a native and citizen of Russia, petitions for

review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal

of the Immigration Judge’s (IJ) order that denied his application for asylum and

withholding of removal and protection under the Convention Against Torture

(CAT) as well as his motion to remand. He claims that his deportation

proceeding was conducted in violation of the Due Process Clause and the IJ’s and

that the BIA’s findings that he was not persecuted on account of a protected

United States Court of Appeals

Fifth Circuit

F I L E D

April 9, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-60311

ground or that he does not have a well-founded fear of future persecution for

purposes of asylum are not supported by substantial evidence. When we review

an order of the BIA, we consider the underlying decision of the IJ only to the

extent it affected the BIA’s ruling. Ontunez-Tursios v. Ashcroft, 303 F.3d 341,

348 (5th Cir. 2002). 

In his petition to us, Shchelkunov does not challenge the denial of

withholding of removal or protection under the CAT. He has therefore waived

any such challenges. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th

Cir. 1986).

Shchelkunov contends that the IJ violated his Due Process rights by

conducting the merits hearing in English and not using a Russian interpreter. 

As Shchelkunov failed to exhaust 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 prevents a

fair review of his asylum application. In his brief in support of his 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 of the transcript consist almost exclusively of his own

testimony). Neither does he point to a single argument that he was unable to

make before the BIA or this court because of the incomplete transcript. Thus,

Shchelkunov has not identified how the “indiscernible” notations in the

transcript substantially prejudiced his ability to perfect and present an appeal. 

See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) (“Due process challenges to

deportation proceedings require an initial showing of substantial prejudice.”).

Accordingly, he has not 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. § 1158(b)(1). A refugee is a person who is outside of his

country and is “unable or unwilling to return ‘because of persecution or a

well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.’” Jukic v. INS, 40

F.3d 747, 749 (5th Cir. 1994) (quoting 8 U.S.C. § 1101(a)(42)(A)). The alien has

the burden of showing “some particularized connection” between the feared

persecution and one of those five exclusive grounds. Faddoul v. INS, 37 F.3d

185, 188 (5th Cir. 1994).

“Although we review the legal conclusions of the BIA and the IJ de novo,

. . . we review their factual findings for substantial evidence.” Majd v. Gonzales,

446 F.3d 590, 594 (5th Cir. 2006). Under the substantial evidence standard,

“reversal is improper unless 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.” Majd, 446 F.3d at 594. 

The evidence in this record does not compel a conclusion different from

that reached by the BIA and the IJ. Assuming arguendo that the act of whistle

blowing can constitute political activity sufficient to form the basis of persecution

on account of political opinion, Shchelkunov has failed to show that the evidence

compels a conclusion thatthe purported corruption was inextricably intertwined

with governmental operation. See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th

Cir. 2004). Moreover, the evidence does not compel a finding that Shchelkunov

was persecuted because he blew the whistle on his alleged persecutors. Rather,

it supports a conclusion that the persecution, if any, was based on a personal

dispute. Additionally, at the merits hearing, Shchelkunov testified that he

resided in Russia for nine months following the incidents of which he complains

without his experiencing any harassment. Thus, a reasonable factfinder would

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not be compelled to find that Shchelkunov has 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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