2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2008

Prokopets v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2801

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"Prokopets v. Atty Gen USA" (2008). 2008 Decisions. Paper 625.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 07-2801

________________

VALENTIN MIKAILOVICH PROKOPETS,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES

________________

On Review of a Decision of the 

Board of Immigration Appeals 

Immigration Judge: Honorable Walter A. Durling

(No. A44-817-459)

________________

Submitted Under Third Circuit LAR 34.1(a)

August 20, 2008

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Filed: August 26, 2008)

________________

OPINION

________________

PER CURIAM

Valentin Mikailovich Prokopets, a Ukranian native and citizen, petitions for

review of a final order of the Board of Immigration Appeals (“BIA”) vacating the
Before the BIA, Prokopets did not challenge the IJ’s finding on the asylum or 1

withholding of removal claims and does not raise those issues on appeal.

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Immigration Judge’s grant of relief under the Convention Against Torture (“CAT”). 

Prokopets was admitted to the United States on a visa in September 1996. The

Government subsequently charged him as removable for having been convicted of

possession of a controlled substance and for two or more crimes involving moral

turpitude. He conceded removability, but sought asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). 

Initially, the IJ declined to grant any relief and ordered Prokopets removed. 

Prokopets appealed to the BIA, which directed the IJ to reissue his order to correct

inadequacies in the earlier decision. The IJ took additional evidence, then issued a new

ruling denying the asylum and withholding claims but granting relief under the CAT. The

Government appealed to the BIA. The BIA sustained the appeal, holding that Prokopets

was not entitled to withholding under the CAT because he had not shown that it was more

likely than not that he would be singled out for harm in Ukraine. Prokopets appealed the 1

BIA’s decision to this court. 

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the basis for

removal is Prokopets’ conviction for an aggravated felony, our jurisdiction is limited to

“constitutional claims or questions of law.” Id. § 1252(a)(2)(C)-(D). We review the

BIA’s findings under the substantial evidence standard. Yu v. Att’y Gen., 513 F.3d 346
-3-

(3d Cir. 2008). 

To obtain relief under the CAT, an applicant must establish that it is more likely

than not that he would be tortured if removed. Toure v. Att’y Gen., 443 F.3d 310, 317

(3d Cir. 2006). Prokopets left the Ukraine when he was approximately twelve years old

and has not returned since. Prokopets’ essential claim is that his status as a returning

criminal to the Ukraine would mark him as an easy target for a corrupt national police

force with a history of singling out and torturing known criminals to obtain false

confessions. Prokopets also argues that he would be a target based on his wife’s Judaism

and his perceived wealth as an immigrant returning from the United States. He fears

imprisonment, abuse, torture, and possible death. 

The BIA’s determination that Prokopets’ fear of detention upon his return to the

United States was too speculative to warrant relief under the CAT is supported by

substantial evidence. “The burden of proof is on the applicant . . . to establish that it is

more likely that not that he or she would be tortured if removed to the proposed country

of removal.” 8 C.F.R. § 208.16(c)(2). While Prokopets provided voluminous evidence

on the pervasiveness of police corruption and torture in the Ukraine, he did not show that

it is likely that he would be subject to such torture. Prokopets provided only the affidavit

and testimony of Nickolai Butkevich, a scholar who studies former Soviet republics,

stating that it was possible that police in the Ukraine would mark him as “the perfect

usual suspect to hang an unsolved case on.” As the Government points out, however,
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Butkevich was unable to state with any certainty whether it was likely that Prokopets

would be detained and tortured. Further, no evidence was presented as to how the

Ukranian government or local police would become aware that Prokopets was removed

from the United States for criminal activity. Finally, none of the documents he submitted

mention or allude to the detention and torture of Ukranian nationals removed from the

United States. Thus, Prokopets’ belief that he could be perceived as wealthy or could be

tortured in order to confess to a crime he did not commit was, without further proof,

plausibly rejected by the BIA. See Savchuck v. Mukasey, 518 F.3d 119, 124 (2d Cir.

2008). 

 For the above-stated reasons, we will deny the petition for review.