Immigration – Asylum – Persecution

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Where a petitioner has failed to show past or future persecution, and her claim for protection under the Convention Against Torture is without merit, the Board of Immigration Appeals (BIA) was correct in affirming the denial of her application for asylum, withholding of removal, and withholding under the CAT.

“Substantial evidence supports the BIA’s determination that [Olena] Rebenko failed to show past persecution. As outlined earlier, Rebenko testified that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: (1) her arrest in May of 1999; (2) her receipt of threatening phone calls from nationalists following her arrest; (3) the ‘mockings’ she experienced during her graduation in June of 2000; and (4) her beating at the hands of ‘skinheads.’ Rebenko did not report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The IJ thus could have reasonably concluded that the mistreatment Rebenko described was not ‘systematic’ but rather was ‘reflective of a series of isolated incidents’ over the course of a particularly unpleasant year. …

“Beyond that, Rebenko describes no nexus between her harassment at her graduation and any government action or omission. Her speculation that the police caused nationalists to make threatening phone calls to her home is not supported by any evidence. As for Rebenko’s suggestion that the police intentionally failed to bring her ‘skinhead’ assailants to justice, the failure of the police to resolve this case by the time Rebenko inquired about it does not support the inference that they were ‘unwilling or unable to address’ the incident. … Though the IJ found Rebenko credible, ‘[t]reating an alien’s factual testimony as credible does not entail acceptance of [her] conclusions as to causation.’ …

“While Rebenko’s May 1999 arrest is clearly attributable to the Ukrainian government, this was a single incident in which Rebenko was detained for less than eight hours and suffered no injuries requiring medical treatment. A reasonable adjudicator would not be compelled to find that this incident rose to the level of persecution. Indeed, even if we accept Rebenko’s invitation to attribute the threatening phone calls and assault to the Ukrainian government, we have found more severe harassment not to constitute persecution.”

Rebenko, et al. v. Holder (Lawyers Weekly No. 01-235-12) (12 pages) (Lynch, C.J.) (1st Circuit) Daniel D. Estrin and Sirota & Associates on brief for the petitioners; Colin J. Tucker, Tony West and Terri J. Scadron on brief for the respondent (Docket No. 11-2171) (Sept. 4, 2012).

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