* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 9, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60926

Summary Calendar

TETYANA MYKOLAYIVNA TSIRKOUNOVA; OLEG VALENTYNOVICH TSIRKOUNOV,

Petitioners,

v.

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A95 223 454

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

Tetyana Mykolayivna Tsirkounova and Oleg Valentynovich Tsirkounov (the petitioners) are

natives and citizens of Ukraine. The petitioners seek review of a Board of Immigration Appeals’

(BIA) order denying their applications for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Trea tment or

Punishment (CAT).2 Eduard v. Ashcroft , 379 F.3d 182, 186 (5th Cir. 2004).

3 Mikhael v. INS , 115 F.3d 299, 305 (5th Cir. 1997).

4 Id. at 304; Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994).

5 Roy v. Ashcroft

, 389 F.3d 132, 138 (5th Cir. 2004) (quoting INS v. Elias-Zacarias

, 502 U.S.

478, 484 (1992)).

6 Zhao v. Gonzales , 404 F.3d 295, 306 (5th Cir. 2005).

7 Thuri v. Ashcroft , 380 F.3d 788, 792 (5th Cir. 2004).

8 Id. at 791.

2 Because the BIA summarily affirmed and adopted the immigration judge’s (IJ) opinion, we

review the IJ’s factual findings and legal conclusions. 2 The IJ’s legal conclusions are reviewed d e

novo

. 3 The IJ’s factual findings will be upheld if supported by substantial evidence. 4 Substanti al

evidence is lacking only if the evidence is “‘so compelling that no reasonable factfinder could fail to

find’ the petitioner statutorily eligible for relief.” 5

To establish eligibility for asylum, an alien must demonstrate past persecution or a wellfounded fear of future persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion. 6 When seeking asylum based on political opinion, the alien must

show that “her persecutors w ere mo t ivated, at least in part, by a political opinion held by her or

imputed to her.” 7 Whether the persecutors were motivated by the alien’s political opinion is a

question of fact, subject to the substantial evidence standard of review. 8

The petitioners based their applications for asylum on the political opinion and activities of

Ms. Tsirkounova, but the petitioners failed to establish the requisite link between her political opinion

and the persecution. First, although Ms. Tsirkounova was told to stop teaching politics in her first9 See Eduard v. Ashcroft

, 379 F.3d 182, 187 (5th Cir. 2004) (defining persecution as “‘[t]he

inflict ion of suffering or harm, under government sanction, upon persons who differ in a way regarded

as offensive ( e.g.

, race, religion, p o lit ical opinion, etc.), i n a manner condemned by civilized

governments

. . . .’” (quoting Abdel-Masieh v. INS

, 73 F.3d 579, 583 (1996)) (internal quotati on

marks and citation omitted)) (emphasis added).

10 See id.

11 Cf. Thuri

, 380 F.3d at 793 (concluding reasonable factfinders would not have been

compelled, based on the evidence in the record, to conclude that the persecutors were motivated in

any part by the alien’s political opinion); Ontunez-Tursios v. Ashcroft , 303 F.3d 341, 352 (5th Cir.

3 aid classes or she wou ld lo se her job, this treatment of Ms. Tsirkounova did not constitute

persecution. 9 As the IJ pointed out, in many civilized countries, teaching one’s personal political

views in public school would probably lead to the loss of one’s job. 10

Second, although Ms. Tsirkounova suffered much abuse while at a police station, the record

lacks sufficient evidence that her persecut ors were motivated in any part by her political opinion.

Ms. Tsirkounova was arrested after a civilian accused her of involvement in a burglary. Even if the

civilian accuser was motivated by Ms. Tsirkounova’s political opinion, as she suggests, there is no

evidence that the policemen who abused Ms. Tsirkounova were aware of or motivated by her political

op inio n. The policemen never mentioned, inferred or insinuated they knew of Ms. Tsirkounova’s

political opinion or activitie s. Their questions related only to her whereabouts on the day of the

burglary, and they attempted to force her to confess to the burglary . The t hreat ening phone calls

Ms. Tsirkounova received after she was released related solely to her treatment while in confinement.

The caller s never mentioned or referenced her political opinions or activities. Thus, substantial

evidence supports the IJ’s conclusion that Ms. Tsirkounova’s persecutors were not motivated in any

part by her political opinion. 112002) (same).

12 Mikhael v. INS , 115 F.3d 299, 306 (5th Cir. 1997).

13 See Thuri , 380 F.3d at 793.

14 Efe v. Ashcroft , 293 F.3d 899, 907 (5th Cir. 2002); see also 8 C.F.R. § 208.18(a)(1).

15 Efe , 293 F.3d at 907 (quoting 8 C.F.R. § 208.16(c)(2)).

4 With regard to future persecution, the IJ’s determination against a well-founded fear of future

persecution is supported by substantial evidence. As noted above, Ms. Tsirkounova failed to establish

a link between the feared persecution and her political opinion. In addition, in February of 2000 the

police o fficially informed Ms. Tsirkounova that she was no longer a burglary suspect. Accordingly,

substantial evidence supports the IJ’s denial of the petitioners’ applications for asylum.

The level of proof required for withholding of deportati on is more stringent than for asylum. 12

Because the petitioners have f ailed t o est ablish their eligibility for asylum, they necessarily cannot

succeed on their applications for withholding of removal. 13 In addition, although CAT regulations

do not require a connection between torture and political opinion, 14 the applicant must still show that

“‘more likely than not

. . . s he would be tortured if removed’” to Ukraine. 1 5 The petitioners have

failed to make the required showing. For these reasons, the petition for review is DENIED.