2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-10-2009

Amirov v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3928

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ALD-065 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3928

 

OLEG GEORGIEVICH AMIROV, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

 

On Petition for Review from the 

Board of Immigration Appeals

(A-072-778-928)

Immigration Judge: Walter A. Durling

 

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 3, 2009

Before: SLOVITER, AMBRO and SMITH, Circuit Judges

(Opinion filed: December 10, 2009)

 

OPINION

 

PER CURIAM.

Oleg Georgievich Amirov, a thirty-one-year-old native and citizen of Russia,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”) rejecting

his claim for relief under the Convention Against Torture (“CAT”). We will grant the

government’s motion for summary affirmance, which Amirov has not opposed, and deny
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the petition for review. 

In 1997, Amirov was granted derivative asylee status in the United States in

connection with his parents’ asylum application. That same year, he was convicted in a

New York state court of, among other things, third-degree assault, and was sentenced to

five years of probation. In 2007, Amirov was convicted in the United States District

Court for the Northern District of Texas of possession with intent to distribute 100

kilograms or more of marijuana, and aiding and abetting; he was sentenced to sixty

months in prison. In 2008, the government commenced removal proceedings, charging

Amirov as removable on several grounds, including the commission of a crime involving

moral turpitude and a controlled substance offense. Amirov conceded his removability

before the Immigration Judge (“IJ”) and filed an application for deferral of removal under

the CAT, claiming that he would likely be tortured in Russia because he is Jewish.

The IJ accepted the credibility of Amirov’s testimony, but denied relief upon

consideration of the record evidence. The IJ concluded that Amirov had failed to show

that it is more likely than not that the Russian government will act with a specific intent to

torture him, or acquiesce to his torture. While the IJ found evidence that the Russian

government may be unable or unwilling to protect Jews from acts of harassment and

persecution, and while the IJ was willing to presume that Amirov would be detained for

questioning by immigration authorities upon his return to Russia, the IJ found no record

evidence that Amirov is likely to be singled out for torture.

The BIA dismissed Amirov’s appeal on the basis of the IJ’s decision,
3

supplemented with an analysis of its own. The BIA agreed that Amirov failed to establish

that it is more likely than not that he will be tortured, explaining that, although there is

evidence of anti-Semitism, harassment, and violence against Jews (i.e., evidence of

persecution), Amirov did not present evidence that the Russian government is involved in

the systematic identification and torture of Jews. The BIA noted record evidence that

there are anti-Semitic elements in Russian society, and that the Russian government has

displayed an unwillingness to fully prosecute hate crimes, but it observed that Amirov

cannot support a CAT claim merely by stringing together suppositions about what will

happen upon his return. Given the “number and speculative nature” of the suppositions

supporting Amirov’s claim, and the lack of evidence of pervasive and systematic torture

of Jews, the BIA held that Amirov’s claim for CAT relief must fail. The BIA noted that

Amirov did not show that violence in Russia against Jews is severe enough to qualify as

torture, or is so pervasive as to establish a probability that Amirov would be singled out

for torture with government acquiescence.

Amirov timely filed his petition for review, and he has moved for a stay of

removal pending this Court’s review. The government opposes a stay and has moved for

a summary disposition on the merits of the petition for review. Amirov, who is

represented by counsel, has not filed a response in opposition to the motion for summary

disposition. Because we conclude that Amirov’s petition for review presents “no

substantial question,” 3d Cir. I.O.P. Ch. 10.6, we will grant the government’s motion and
1

 We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA issues a

decision that both adopts and supplements the IJ’s reasoning, this Court has jurisdiction

to review the decisions of both the IJ and BIA. See, e.g., Xie v. Ashcroft, 359 F.3d 239,

242 (3d Cir. 2004). Factual determinations underlying the denial of a CAT claim are

reviewed under the substantial evidence standard, which means that this Court will not

disturb those determinations if they are supported by reasonable, substantial, and

probative evidence on the record considered as a whole. Tarrawally v. Ashcroft, 338

F.3d 180, 184 (3d Cir. 2003). We regard such determinations as conclusive unless the

record not only supports a contrary conclusion, but compels it. Abdille v. Ashcroft, 242

F.3d 477, 483-84 (3d Cir. 2001).

4

deny the petition for review.1

An alien seeking CAT relief must demonstrate “that it is ‘more likely than not’ that

he or she will be tortured.” Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir. 2008) (en

banc). “In order to constitute torture, an act must be specifically intended to inflict severe

physical or mental pain or suffering.” Id. That act must be “‘inflicted by or at the

instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity.’” Id. at 189 (quoting 8 C.F.R. § 208.18(a)(1)). It is not

enough for public officials to be “willfully blind” to torturous acts; the officials must

“have the goal or purpose of inflicting severe pain or suffering.” Id. at 190.

After a review of the full administrative record, we find no room to question the IJ

and BIA’s stated reasons for denying CAT relief. At most, the record establishes the

possibility that Amirov will suffer acts of persecution in Russia as a Jew. But as the IJ

observed, the question raised by Amirov’s request for a deferral of removal under the

CAT is not whether he will face persecution, but whether he will be singled out for

torture. The record does not compel a conclusion contrary to the determination by the IJ
5

and BIA that Amirov has failed to show that torture is more likely than not to occur, or,

moreover, that any torturous act would be inflicted by or with the acquiescence of

Russian officials. While Amirov presented evidence of violence directed against Jews in

Russia, the record does not compel a conclusion that such violence amounts to a form of

torture, or that it is so pervasive as to establish a probability that Amirov himself would

be tortured.

For these reasons, we will grant the government’s unopposed motion for summary

action and deny the petition for review. In light of this disposition, we also deny

Amirov’s motion for a stay of removal pending review.