2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-13-2015

Anatoliy Bezpalko v. Attorney General United

States

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"Anatoliy Bezpalko v. Attorney General United States" (2015). 2015 Decisions. Paper 367.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3178

_____________

ANATOLIY BEZPALKO 

a/k/a Anatoliv Bezpalko

a/k/a John Huey, Jr.,

 Petitioner

 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent 

_____________

On Petition for Review of an Order 

of the Board of Immigration Appeals 

(Agency No. A094-380-847)

Immigration Judge: Honorable Dorothy Harbeck

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

February 9, 2015

______________

Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.

(Filed: April 13, 2015)

______________

OPINION*

______________

VANASKIE, Circuit Judge.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7

does not constitute binding precedent.
2

Anatoliy Bezpalko, a native and citizen of Ukraine, petitions for review of the 

decision of the Board of Immigration Appeals affirming the denial of his application for

protection under the Convention Against Torture (“CAT”), art. 3, opened for signature 

Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. For the reasons 

discussed below, we will deny the petition for review.

I.

Bezpalko illegally entered the United States at some point prior to April 2010, 

when the Department of Homeland Security charged him as a removable alien present in 

the country without having been admitted or paroled. See Immigration and Nationality 

Act § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Bezpalko, represented by counsel, 

conceded the charge and was found removable by the Immigration Judge (“IJ”). 

Bezpalko subsequently applied for withholding of removal and CAT protection pursuant 

to 8 C.F.R § 208.16.1 

At a November 2011 hearing on his applications, Bezpalko testified that he feared 

he would be mistreated if he returned to Ukraine, given what he characterized as the 

country’s anti-Western sentiment and his extended stay in the United States. Bezpalko 

recounted two trips he had made from the United States to Ukraine in 2005 and 2008 in 

an unsuccessful attempt to find employment. Bezpalko claimed that on both occasions he 

was harassed by police and fined due to his failure to comply with local laws requiring 

 

1 Bezpalko initially applied for asylum as well, but he later withdrew the 

application after conceding that it was time-barred.
3

him to register a residence before obtaining employment. Bezpalko also submitted news 

articles, country reports, and an expert’s affidavit regarding nationalistic violence and 

torture in Ukraine.

The IJ denied both of Bezpalko’s applications. With respect to withholding of 

removal, the IJ concluded that Bezpalko had failed to demonstrate past persecution or a 

well-founded fear of future persecution based on protected grounds. The IJ reasoned that

Bezpalko’s encounters with the police stemmed from his admitted failure to comply with 

the country’s residence registration requirements, rather than a protected ground such as 

expression of a political opinion.2 The IJ also found that Bezpalko had failed to meet his 

burden for CAT protection because he had not shown a likelihood of being tortured if he 

returned to Ukraine. The IJ noted that while Bezpalko feared discrimination or 

mistreatment (which are not covered by CAT) upon his return to Ukraine, he had not

been imprisoned or tortured on either of his prior visits.

Bezpalko appealed to the Board of Immigration Appeals (“BIA”), challenging the 

denial of his application for CAT protection. In June 2014, the BIA dismissed the appeal, 

agreeing that Bezpalko had not shown a likelihood of torture if he returned to Ukraine. 

Bezpalko filed a timely petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of the 

BIA. We review the BIA’s legal determinations de novo and its factual findings for 

 

2 Bezpalko does not challenge the denial of withholding of removal.
4

substantial evidence, departing only where a reasonable adjudicator would be compelled 

to arrive at a contrary conclusion. Demandstein v. Att’y Gen., 639 F.3d 653, 655 (3d Cir. 

2011). 

III.

To be eligible for protection under the CAT, an alien “bears the burden of 

establishing ‘that it is more likely than not that he or she would be tortured if removed to 

the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 

2002) (quoting 8 C.F.R. § 208.16(c)(2)). “Torture” is defined as the intentional infliction 

of “severe pain or suffering . . . by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. 

§ 208.18(a)(1). An alien can establish the acquiescence of the government in question by 

producing sufficient evidence to show that it is “willfully blind” to the torture of its 

citizens. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007).

Bezpalko challenges the denial of his application for CAT protection on two 

fronts. First, he asserts that the IJ ignored the willful blindness standard announced in 

Silva-Rengifo, and instead applied an overly-rigorous legal standard. Our review, 

however, is limited to the correctness of the BIA’s decision, and we look to the IJ’s 

analysis only to the extent that the BIA deferred to or adopted it. Calla-Collado v. Att’y 

Gen., 663 F.3d 680, 683 (3d Cir. 2011). Here, the BIA rejected Bezpalko’s claim upon 

finding that he “ha[d] not established . . . that it is more likely than not that he will be 

tortured by or with the consent or acquiescence, including willful blindness, of a 
5

Ukrainian government official under the [CAT].” (App. at 5 (emphasis added).) Because 

the BIA applied the appropriate legal standard, Bezpalko’s challenge to the IJ’s decision 

is unavailing.

Second, Bezpalko contends that the BIA’s decision denying CAT relief is not 

supported by substantial evidence. We disagree. The BIA noted that even crediting 

Bezpalko’s testimony, he “was not significantly mistreated when he previously travelled 

to Ukraine” in 2005 and 2008. (Id. at 6.) Instead, he was fined and harassed by police 

“because he lacked a household registration, a violation of Ukrainian law . . . .” (Id. at 5.) 

The BIA further concluded that Bezpalko’s documentary evidence did not establish that 

Ukrainian citizens are routinely persecuted and tortured after returning from the United 

States. On this record, a reasonable adjudicator would not be compelled to conclude that 

it is more likely than not that Bezpalko would be tortured if he was removed to Ukraine.

Demandstein, 639 F.3d at 655.

IV.

For the aforementioned reasons, we will deny Bezpalko’s petition for review.