2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2008

Mammodova v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3407

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-3407

_____________

ESMIRA MAMMADOVA;

TENGIZ RAMIZ OGLU MAMMODOV,

 Petitioners

 v.

ATTORNEY GENERAL OF THE

UNITED STATES; SECRETARY OF

DEPARTMENT OF HOMELAND SECURITY,

 Respondent

_______________

Petition for Review of an Order of the Board of Immigration Appeals

Agency Nos. A98 419 991 and A98 419 992

___________

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

September 11, 2008

___________

Before: McKee, Smith and Weis, Circuit Judges

(Filed: October 6, 2008)

___________

OPINION

___________

McKee, Circuit Judge:
 We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where the Board provides its 1

own analysis rather than adopting the IJ”s decision as its own, we review the BIA’s

decision. See Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir. 2001). We uphold the

agency’s determination if its conclusions are supported by “reasonable, substantial and

probative evidence on the record considered as a whole” and will reverse “only if there is

evidence so compelling that no reasonable factfinder could conclude as the [agency]

did.” Mulanga v. Aschroft, 349 F.3d 123, 131 (3d Cir. 2003).

-2-

Esmira Mammadova and Tengiz Ramiz Oglu Mammadov (“Petitioners”) petition

for review of a final order of removal issued by the Board of Immigration Appeals on

July 17, 2007. Because substantial evidence supports the Board’s conclusion that

Petitioners failed to establish that their experiences rose to the level of persecution or that

their fear of future persecution is objectively reasonable, we will deny the petition.1

I.

Inasmuch as we write primarily for the parties who are familiar with this case, we

need not repeat the factual or procedural background. Petitioners argue that the Board

“engaged in its own fact-finding” and in doing so, failed to use the proper “clearly

erroneous” standard of review applicable to such factual findings. They misunderstand

the Board’s opinion. The Board concluded that their experiences, whether considered

individually or cumulatively, did not rise to the level of “persecution” required for relief. 

In doing so, the Board applied the correct legal standard to the facts of the case, and

made its own judgment about whether the record supported a finding of “past

persecution” or a “well-founded fear of future persecution.” 

The Board’s negative conclusion is supported by substantial evidence in the
-3-

record. Applying our deferential standard of review, we conclude that the record does

not clearly compel the conclusion that the difficulties and harassment Petitioners faced in

Azerbaijan rise to the level of persecution. The “concept of persecution does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Furthermore, we find

no error in the Board’s conclusion that the corroborating evidence of country conditions

did not establish “an objectively reasonable well-founded fear of return to Azerbaijan.”

II.

Because Petitioners failed to meet the asylum eligibility standard, they cannot

meet the more rigid withholding of removal standard. Janusiak v. INS, 947 F.3d 46, 46-

48 (3d Cir. 1991). Furthermore, Petitioners do not challenge the Board’s conclusion that

they are not eligible for relief under the United Nations Convention Against Torture, and

it is clear that the record would not support such a claim.

Accordingly, we will deny their petition for review.