FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 8, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12708

Non-Argument Calendar

________________________

Agency No. A97-201-911

VYACHESLAV NIFTALIEV, 

LYUDMILA NIFTALIEVA, 

DMITRO NIFTALIEV, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(January 8, 2007)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Vyacheslav Niftaliev, on behalf of his wife, Lyudmila, and his son, Dmitro,
 On November 25, 2002, President Bush signed into law the Homeland Security Act of 1

2002, Pub. L. No. 107-296, 116 Stat. 2135. The act created a new Department of Homeland

Security, abolished the INS, and transferred its functions to the new department. Because this

case began before the transfer, this opinion refers to the INS.

 The BIA affirmed the IJ’s determination that Niftaliev’s application for asylum was 2

untimely, and Niftaliev does not appeal that decision nor does he appeal the decision he was

ineligible for relief under CAT.

2

petitions this court for review of the final order of the Board of Immigration

Appeals (BIA). The BIA’s order affirmed the Immigration Judge’s (IJ) denial of

his application for withholding of removal under the Immigration and Nationality

Act (INA). Because the IJ’s decision is supported by substantial evidence, we

deny Niftaliev’s petition. 

I. Background

Niftaliev and his family are citizens of Ukraine and entered the United States

in February 2001 on non-immigrant visas. They overstayed their visas, and the

INS issued notices to appear, charging them with removability under INA § 1

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). 

After conceding his eligibility for removal, Niftaliev sought asylum and

requested withholding of removal. The IJ found Niftaliev’s application for asylum

untimely and heard testimony on the question of withholding of removal under

both INA § 241(b)(3) and the Convention against Torture (CAT). 

2

In his application for asylum and in testimony at the hearing, Niftaliev
3

alleged that he had suffered from discrimination and harassment because of his

mixed ancestry (his mother was Ukranian and his father was Azerbaijani) from

childhood until he left Ukraine in 1996. As a child, teachers and classmates

belittled his mixed ethnicity. During his military service, Niftaliev stated that he

and other ethnic minorities were subject to harassment and mistreatment by

superiors and peers including beatings, ethnic slurs, and menial assignments. 

After his military service, Niftaliev moved to Estonia to attend Tallin Polytechnical

Institute where, according to his testimony, he was also subject to mistreatment

from students and faculty because of his ethnicity. Niftaliev was eventually

expelled from the Institute because of his protests against his mistreatment. 

Niftaliev returned to Ukraine in 1987 and had difficulty in securing

employment because of his mixed ethnicity. After the dissolution of the Soviet

Union, Niftaliev’s difficulties increased because he does not speak or write

Ukranian well. He did, however, receive a correspondence degree from the

Polytechnic Institute in Kiev and was able to find some temporary jobs. 

In response to this constant discrimination, Niftaliev and three other

individuals formed an unofficial political group to protest and boycott the 1994

elections because neither of the candidates supported minority rights. Niftaliev

testified that the group organized rallies and printed and distributed pamphlets,

posters, and newspapers. Niftaliev described in his asylum declaration that
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members of a nationalist party, the Ukranian National Assembly-Ukranian

National Self-Defense Organization (UNA-UNSO) beat him for his protests in

early 1995, but his complaints to the police went unheeded. 

In early 1995, Lavrenty Malazoniya, a member of the protest group and

television reporter, hired Niftaliev to be his assistant. Together, they reported on

“government corruption and racist attitudes.” That June, Niftaliev was summoned

to the Security Services of Ukraine (SBU) where he was interrogated by Major

Igor Konovalov about his activities with Malazoniya. Although the Major was

friendly at first, when Niftaliev refused to cooperate, he was beaten and threatened

not to “undermine his country.” At the hearing, Niftaliev testified that the

detention lasted between two and four hours. 

Despite the threats, Niftaliev participated in a protest in July 2005 that was

broken up by police. Niftaliev was detained briefly by the police and they took his

name. The next month, SBU agents, including Major Konovalov, searched

Niftaliev’s house and took him into custody where he was beaten and called an

“Azeri dog” even though he told them information to avoid being hurt. The

detention also lasted between two and four hours. 

In October 1995,Vadim Kofman, another member of the protest group, was

beaten by the UNA-UNSO and, again, the police did nothing. The group planned a

rally to protest the police’s inaction, but on the day of the rally, the police raided
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Niftaliev’s home and found picket signs and other protest material. The police beat

him and demolished much of his apartment. 

Niftaliev and his group filed complaints with the police and the Attorney

General but heard nothing. In December, the group decided to attempt to speak to

the Attorney General directly but were apprehended by the SBU at the Attorney

General’s office. 

Niftaliev testified that he was held by the SBU for fifteen days during which

he was placed in solitary confinement, beaten, given little or no food, and

threatened. On his final day of detention, Major Konovalov held a pistol to his

head and said he was sick of seeing his “ugly Azeri face.” Niftaliev pleaded for his

life and promised to leave the country if he was allowed to live. 

After spending two months in the hospital recovering from injuries suffered

in detention, Niftaliev and his family emigrated from Ukraine to Argentina. They

lived there for almost five years before entering the United States. Although

Niftaliev gained permanent residency in Argentina, he left the country for the

United States after claiming to have been approached by an SBU agent seeking

information about the chemical plant where Niftaliev worked. Niftaliev initially

refused to help, but the agent informed Niftaliev that his parents, who still lived in

Ukraine, would be harmed if Niftaliev did not cooperate. He then agreed to help

but instead went into hiding in Argentina and subsequently entered the United
6

States. His parents do not appear to have been harmed. 

Although Niftaliev provided extensive documentation regarding the general

status of human rights in Ukraine and the plight of ethnic minorities in particular,

he did not offer any corroborating evidence regarding any of his political activities

or instances of detention and physical abuse. 

In his oral decision, the IJ denied Niftaliev’s application despite 

acknowledging the consistency of Niftaliev’s testimony with his written

declaration and the fact that the cross-examination “did not reveal anything

material or pertinent enough that would lead me to conclude that [Niftaliev] would

have been [sic] an incredible witness.” The IJ also noted that the State

Department’s Country Reports broadly supported the claims of police abuse

against ethnic minorities but the IJ was careful to state that the abuses in the

Reports did not necessarily amount to persecution. 

The IJ concluded, however, that Niftaliev did not meet his burden of proof to

establish eligibility for withholding of removal because the lack of detail in his

testimony and lack of documentary corroboration. The IJ also concluded that

Niftaliev had not been tortured even assuming that he had been denied food for

fifteen days while in detention and that it was not more likely than not that

Niftaliev would be subject to persecution should he return to Ukraine. 

The BIA dismissed Niftaliev’s appeal in a two paragraph order. The BIA
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found no “reversible error” regarding the IJ’s finding that the asylum application

was untimely and found no “clear error” in the IJ’s determination that Niftaliev

failed to meet his burden of proving that it was more likely than not that he would

suffer persecution in Ukraine. The BIA noted that persecution under the INA

“does not encompass all treatment that society regards as unfair, unjust, or even

unlawful or unconstitutional.” (Quoting Matter of V-T-S, 21 I&N Dec. 792 (BIA

1997)). 

II. Standard of Review

 Although the BIA did not expressly adopt the IJ’s opinion, the BIA did

affirm the IJ’s decision without analysis and so we review both the BIA’s order

and the IJ’s determination. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001) (“Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s

decision as well.”). We review the BIA’s legal conclusions de novo. D-Muhumed

v. U.S. Att’y Gen., 388 F.3d 814. 817 (11th Cir. 2004). We do not review the

factual record anew; rather, we are obligated to review factual determinations

under the deferential substantial evidence test and will affirm its decision “if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. at 817-18 (11th Cir. 2004) (quoting Al Najjar, 257

F.3d at 1283-84) (quotations omitted). “Under the substantial evidence test, we
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view the record evidence in the light most favorable to the agency’s decision and

draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004). “To reverse the IJ’s fact findings, we must find

that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y

Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). 

III.

 The issue in this case is whether the evidence compels the conclusion that

BIA erred in upholding the IJ’s determination that Niftaliev did not meet his

statutory burden under INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). To be entitled to

withholding of removal, an alien “must show that his life or freedom would be

threatened on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437

(11th Cir. 2004). “An alien bears the burden of demonstrating that he more-likelythan-not would be persecuted or tortured upon his return to the country in

question.” Id. 

An applicant for withholding of removal may satisfy his burden in either of

two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). First,

an alien may establish “past persecution . . . based on a protected ground.” Id.

(citing Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)). If an

alien establishes “past persecution,” a rebuttable presumption arises that he has a
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“well-founded fear of future persecution,” and the burden shifts to the DHS to

show that the conditions of the country have changed or the alien could avoid a

future threat through relocation. Id. 

Second, an alien is entitled to withholding of removal if he establishes “that

is it more likely than not that [he] would be persecuted on account of race, religion,

nationality, membership in a particular social group, or political opinion upon

removal to that country.” 8 C.F.R. § 208.16(b)(2). “An alien cannot demonstrate

that [he] more-likely-than-not would be persecuted on a protected ground if the [IJ]

finds that the alien could avoid a future threat by relocating to another part of [his]

country.” Tan, 446 F.3d at 1375. The well-founded fear inquiry contains both an

objective and subjective component; the petitioner must be genuinely afraid and

that fear must be objectively reasonable. Al Najjar, 257 F.3d at 1289. 

Furthermore, it is the petitioner’s burden to present “specific, detailed facts

showing a good reason to fear that [he] will be singled out for persecution.” Id. at

1287 (internal quotation, emphasis, and citation omitted).

Although the INA does not expressly define “persecution,” see INA §

101(a)(42), 8 U.S.C. § 1101(a)(42), this court has held that persecution is “an

extreme concept, requiring more than a few isolated instances of verbal harassment

or intimidation[.]” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.

2005). 
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The BIA has defined persecution to mean “a threat to the life or freedom of,

or the infliction of suffering or harm upon, those who differ in a way regarded as

offensive.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). However, the

BIA also has stated that “persecution [does] not encompass all treatment that

society regards as unfair, unjust, or even unlawful or unconstitutional.” In re V-TS, 21 I&N Dec. 792, 798 (BIA 1997). 

A petitioner’s credible testimony can be sufficient to meet his burden of

proof without corroboration. 8 C.F.R. §§ 208.16(b); Tan, 446 F.3d at 1376. 

Although the IJ found Niftaliev’s testimony to be consistent with his application

and declaration, he held that Niftaliev’s testimony was insufficiently detailed to

meet his burden of proof. The IJ does not explicitly discount Niftaliev’s

credibility, but he repeatedly refers to the lack of any supporting evidence

regarding the existence of Niftaliev’s small political group, the detentions, or any

medical treatment received after the alleged mistreatment. The IJ’s emphasis on

the absence of documentation supporting Niftaliev’s testimony suggests that the IJ

did not fully credit Niftaliev’s testimony. But an explicit credibility determination

was not made. 

Our review of the factual record is significantly hampered when the IJ does

not make a credibility determination. See Yang v. U.S. Att’y Gen., 418 F.3d 1198,

1201 (11th Cir. 2005). Because, as in Yang, the IJ’s analysis focused on the
 Two unpublished opinions of this court, although not binding precedent, are persuasive 3

here. In Gebremarian v. U.S. Att’y Gen., this court held that a fourteen-day detention “suffered

under hostile conditions” did not rise to the level of persecution. 126 Fed. Appx. 934, 936 (11th

Cir. 2005) (unpublished). And in Arbeleaz v. U.S. Att’y Gen., this court held that being

threatened, beaten, and actually shot in the leg, while serious, did not constitute persecution. 181

Fed. Appx. 926 (11th Cir. 2006) (unpublished). 

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insufficiency of the evidence, we will assume that any implicit credibility decision

was not dispositive to the outcome of the case. Id. 

Our standard of review governs our reading of the record in this case. Silva

v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006). We do not substitute our

analysis of the evidence for the IJ’s but instead look to see if the IJ’s decision was

reasonable and based on substantial evidence. Id. 

The standard governing what constitutes past persecution is high. This court

has held that detentions based on a protected ground do not necessarily rise to the

level of persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287 (11th Cir.

2006) (“Although under certain circumstances detention may rise to the level of

persecution, Zheng’s five-day detention during which he was not harmed does not

compel the conclusion that he experienced past persecution.” (emphasis in the

original)). 

3

Other circuits also have held that cases involving detentions do not compel

a contrary finding of persecution. See Dandan v. Ashcroft, 339 F.3d 567 (7th Cir.

2003) (three-day detention where suspect was denied food and was given a
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“swollen” face did not compel a finding of persecution); Fesseha v. Ashcroft, 333

F.3d 13 (1st Cir. 2003) (holding that several twenty-four hour detentions were not

sufficient to count as persecution); Nelson v. INS, 232 F.3d 258 (1st Cir. 2000)

(describing multiple cases across the circuits where detentions with beatings were

not found to be past persecution). 

Under our case law, only Niftaliev’s last detention even approaches the level

of mistreatment that can fairly be characterized as past persecution. The other

incidents, while unfortunate, are best characterized as mere harassment. See

Sepulveda, 401 F.3d at 1231. And although Niftaliev certainly suffered during the

fifteen-day detention, the facts do not compel a conclusion of past persecution. 

IV. Conclusion

The record in this case does not compel a finding of past persecution given

the deferential standard of review and the standard of proof necessary to show past

persecution. Accordingly, we DENY Niftaliev’s petition.