Thanks to the moderator for moving this story because it is a non-religious story. The man did not follow the rules. So many people want to emigrate. Let him go back and live with his parents and go through the proper chanels.
Here is the whole story:
2009 U.S. App. LEXIS 14388,*;334 Fed. Appx. 991
VIKTOR SERGEYEVICH ORDA, SVETLANA VALERIEVNA ORDA, OKSANA VIKTOROVNA ORDA,
Petitioners, versus U.S. ATTORNEY GENERAL, Respondent.
No. 08-16259 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
334 Fed. Appx. 991; 2009 U.S. App. LEXIS 14388
June 30, 2009, Decided
June 30, 2009, Filed
PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE
CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1]
Petition for Review of a Decision of the Board of Immigration Appeals. Agency
Nos. A079-483-795, A079-483-796.
COUNSEL: For Viktor Sergeyevich Orda, Oksana Viktorovna Orda, Appellants:
David S. Berger, Bernstein & Berger, P.A., MIAMI, FL.
For U.S. Attorney General, Appellee: Susan Bennett Green, Deitz P. Lefort,
WASHINGTON, DC; David V. Bernal, USDOJ, OIL, WASHINGTON, DC.
JUDGES: Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
Viktor Sergeyevich Orda, with his daughter and wife as derivative beneficiaries,
petitions this court for review of the Board of Immigration Appeals' (the "BIA")
affirmance of the Immigration Judge's (the "IJ") order of removal and denial of
asylum and withholding of removal. For the reasons discussed below, we deny
Orda's petition for review.
In 2001, Orda, accompanied by his wife Svetlana and daughter Oksana, arrived in
the United States on an immigrant visa. In 2005, the INS issued notices to
appear, alleging that Orda was a native of the Soviet Union and a citizen of the
Ukraine, that Svetlana was a native of the Soviet Union and citizen of
Lithuania, that Oksana was a native and citizen of Lithuania, and that all three
had remained beyond the expiration [*2] period of their visas and were
therefore removable under INA § 237(a)(1)(B). Orda timely applied for asylum and
withholding of removal, claiming that he was entitled to relief because his wife
and daughter had suffered persecution in the Ukraine based on their status as
Russian-speaking Lithuanian citizens. n1 Svetlana and Oksana did not file their
own applications for relief, but proceeded as derivative beneficiaries of Orda's
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Orda also claimed that he had a well-founded fear of future persecution in
Lithuania because he had formerly been persecuted in Lithuania on account of his
ethnicity and nationality. The IJ found, however, that because Orda admitted
that he was a citizen of Ukraine, Ukraine was the country of removal and the
only pertinent inquiry was whether Orda had a reasonable fear of future
persecution in the event of his removal to Ukraine. Orda's allegations of
persecution in Lithuania, therefore, were irrelevant to his well-founded fear
analysis. The BIA adopted this portion of the IJ's decision and Orda does not
raise this issue in his petition to this court. The issue, therefore, has been
abandoned. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 (11th Cir.
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At [*3] the merits hearing before the IJ, Orda admitted the allegations of the
notices to appear and conceded removability. Orda and Svetlana then testified
and their testimony, in relevant part, was as follows: Orda was born in Ukraine
and had been a soldier in the Soviet Army prior to the dissolution of the Soviet
Union. While he was a soldier, he was stationed in Ukraine for a time and then
in Lithuania. Orda and Svetlana lived in Lithuania from 1989 through 2001; their
daughter Oksana was born there in 1990. After the former Soviet states declared
independence in 1991, there was a movement of nationalism among these states and
Lithuanians began to discriminate against and persecute native Russians and
Ukranians. Orda was discriminated against and beaten in Lithuania because he was
a Russian-speaking Ukranian national and had been an officer with the Soviet
army. Svetlana was also discriminated against because she was Russian-speaking.
Seeking a better life, the family relocated to Ukraine from December 1993
through January 1994. When they arrived in Ukraine, however, hotel employees
refused to allow Svetlana and Oksana to stay in the hotel because they were
Lithuanian and the family was [*4] forced to sleep in their car in the cold.
Ukranian authorities informed Svetlana and Oksana that they could never obtain
citizenship in Ukraine and should just go back to Lithuania. Thereafter, Orda
contacted his former classmate Nikolay Gordyak, who was then the chief detective
of the Ministry of Internal Affairs, for assistance in getting a Ukranian
passport for his wife and daughter. Under the pretense of helping with the
paperwork, Gordyak invited Svetlana to his office, where he raped her and told
her that she would be killed if she told anybody. After this incident, the
family returned to Lithuania, where they remained until coming to the United
States in 2001. Orda himself experienced no trouble from the Ukranian government
during the trip and his parents continue to live in Ukraine without incident. If
he and his family were to return to Ukraine, however, Orda fears Gordyak would
harm him because Gordyak "hates [Orda] personally because [he] got married to"
Svetlana, who was Gordyak's "first love."
In addition to this testimony, Orda submitted the 2006 Country Reports for both
Lithuania and Ukraine. Both reports acknowledge that violence against women and
police corruption are [*5] problems in these countries. The Ukranian report,
however, indicated that the law prohibited rape and a number of rapes had been
reported to police.
Based upon this evidence, the IJ found Orda to be credible, but concluded that
Orda did not suffer past persecution in Ukraine himself and had not shown that
he had a well-founded fear of persecution in the event of his removal to
Ukraine. With respect to Svetlana's rape, the IJ found that this crime had been
motivated by Gordyak's personal feelings and did not constitute persecution on
account of a protected ground. Accordingly, the IJ denied the requested relief.
Orda appealed to the BIA, which affirmed the IJ's determination that Orda, as
the lead respondent, had failed to meet his burden of proof for asylum. The BIA
found that Orda was never personally harmed in Ukraine and that nothing in the
evidence indicated that the rape of Orda's wife was motivated by a protected
ground. The BIA also explained that, because every applicant for personal asylum
must establish his or her individual eligibility for relief, a grant of asylum
to the principal applicant can not be based upon harm to one of the
application's derivative beneficiaries. Accordingly, [*6] the BIA found that
Orda's asylum claim could not be granted based upon his wife and daughter's fear
of persecution in Ukraine. For these reasons, the BIA dismissed Orda's appeal.
We review only the decision of the BIA, except to the extent it expressly adopts
the IJ's opinion. De Santamaria v. U.S. Att'y Gen., 525 F.3d 999, 1006 (11th
Cir. 2008).We review the BIA's factual determinations under the substantial
evidence test and will "affirm the [BIA's] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole." Id. "To conclude that the BIA's decision should be reversed, we must
find that the record not only supports the conclusion, but compels it."
Niftaliev v. U.S. Att'y Gen., 504 F.3d 1211, 1215 (11th Cir. 2007).
To be eligible for asylum, an alien must establish status as a "refugee."
Sepulveda, 401 F.3d at 1230. The statute defines "refugee" as:
[A]ny person who is outside any country of such person's nationality . . . and
who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of persecution or
a well-founded fear of persecution on account [*7] of race, religion,
nationality, membership in a particular social group, or political opinion.8
U.S.C. § 1101(a)(42)(A). An alien may demonstrate status as a refugee primarily
either by establishing well-founded fear of persecution or establishing past
persecution, which gives rise to a rebuttable presumption of a well-founded
fear. See Sepulveda, 401 F.3d at 1230-31. Past persecution exists when the alien
establishes he has suffered persecution in the past in the relevant country on
account of one of the protected grounds, and is unable or unwilling to return
to, or avail himself of the protection of, the country in question. 8 C.F.R. §
208.13(b)(1). The government may then attempt to rebut the presumed well-founded
fear that arises from the finding of past persecution by demonstrating either a
fundamental change in circumstances in the country or that the applicant could
avoid future persecution by relocating to a different area of the country. Id. §
In his petition for review, Orda argues, inter alia, that substantial evidence
does not support the BIA's factual determination that Svetlana's rape was not
inflicted on account of a protected ground. He notes that an [*8] applicant
for asylum "need not conclusively show why persecution occurred," Matter of S-P,
21 I.&N. Dec. 486 (BIA 1996), and must only "produce evidence from which it is
reasonable to believe that the harm was motivated, at least in part, by an
actual or imputed ground." INS v. Elias-Zacarias, 502 U.S. 478, 112 S. Ct. 812,
117 L. Ed. 2d 38 (1992). Orda points out that the record contains the State
Department Report on Ukraine, which notes that police corruption, violence
against women, and harassment of ethnic minorities are serious problems in
Ukraine. Given this evidence of the country conditions, Orda claims that the
record compels a finding that Svetlana's mixed ethnicity and non-Ukranian
citizenship rendered her particularly vulnerable to abuse by the police and
others. Although he admits that Gordyak had a personal history with Svetlana,
Orda asserts that Gordyak would not have raped her but for her status as a
vulnerable Russian-speaking migrant of mixed ethnicity. Accordingly, Orda
asserts that the BIA erred in finding as a matter of fact that Svetlana's rape
was not on account of a protected ground.
We must affirm the BIA's factual determinations if they are "supported by
reasonable, substantial, and probative [*9] evidence on the record considered
as a whole." De Santamaria, 525 F.3d at 1006. If substantial evidence supports
the BIA's findings that an alien suffered particular harms for reasons other
than his or her race, religion, nationality, membership in a particular social
group, or political opinion, the petition for review will be denied. See, e.g.,
Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1316 (11th Cir. 2006) (substantial
evidence supported IJ's conclusion that applicant's prosecution in his home
country was not due to his political opinion). In this case, Orda's own
testimony indicates that Gordyak had previously been in love with his wife and
that he was angry because she had married Orda instead of him. This testimony
provides substantial support for the IJ and BIA's finding that Gordyak's
criminal conduct was motivated by his personal desire to humiliate his former
love-interest and to punish Orda, his rival and former classmate. We therefore
affirm the IJ and BIA's factual determination that Orda's wife was raped for
reasons other than her ethnicity or nationality. For this reason, we conclude
that Orda has not established that he -- or any member of his family -- suffered
persecution [*10] in the past in the relevant country on account of one of the
protected grounds. n2
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Orda also argues that the BIA erred in holding that his asylum claim may not be
based upon his wife's persecution in Ukraine. Because we conclude that the
record supports the BIA's finding that his wife was not persecuted on account of
a protected ground in Ukraine, this argument is moot and we do not consider it.
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Without past persecution, Orda is not presumed to have a well-founded fear of
persecution and the record does not show that Orda has an objective basis to
fear future harm in the Ukraine. Accordingly, the BIA's denial of Orda's
application for asylum and withholding of removal was proper and we deny the
petition for review.