Viktor Valioukevitch v. Immigration and Naturalization Service, 251 F.3d 747

Viktor Valioukevitch v. Immigration and Naturalization Service

251 F.3d 747

8th Cir.

2001

Check Treatment

Docket

MAGILL, Circuit Judge.

Viktor Valioukevitch appeals an order of the Board of Immigration Appeals (the “BIA”) denying him asylum and withholding of deportation. We affirm.

Valioukevitch, a citizen of Belarus, entered the United States on March 31,1994, on a nonimmigrant visitor visa. Valiouk-evitch overstayed his visa, and in October 1997, the INS served him with a Notice to Appear, thereby placing him in removal proceedings. Valioukevitch conceded his removability as an alien who had overstayed his authorized time in the United States, but applied for asylum and withholding of removal, based on his assertion that he feared religious persecution in Belarus. *749 1 After a hearing, the immigration judge (IJ) found Valioukevitch was not eligible for either asylum or withholding of removal, because the assaults Valioukev-itch allegedly suffered in Belarus were not a result of his religious beliefs, were not sanctioned by the government or organized groups, and did not rise to the level of persecution. Valioukevitch filed a timely appeal with the BIA, which agreed with the LI and dismissed Valioukevitch's appeal.

II.

The Attorney General has discretion to grant asylum to an alien who is unwilling to return home because of a "well-founded fear of persecution on account of religion." 8 U.s.c. § 1101(a)(42) (2000); see id., § 1158(a). Under this statutory standard, Valioukev-itch was required to show that a reasonable person in his position would fear religious persecution if returned to Belarus. See Alsheweikh v. INS, 990 F.2d 1025, 1026-27 (8th Cir.1993). To be granted asylum for religious persecution, the harm Valioukevitch endured must have been in-flictecl either by the government of Belarus or by persons or an organization that the government was unwilling or unable to control. See Miranda v. INS, 139 F.3d 624, 627 (8th cir.1998).

To overcome the BIA's finding that Valioukevitch lacked a well-founded fear of persecution, Valioukevitch must show that the evidence he presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution. See Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.1999). We uphold the BIA's decision if it was supported by reasonable, substantial, and probative evidence, based on the record considered as a whole. Id.

We conclude that a reasonable fact finder would not be compelled to find that Valioukevitch has a well-founded fear of persecution. See Yacoub v. INS, 999 F.2d 1296, 1297 (8th Cir.1993). Valioukevitch has not shown that the Belarussian government either persecuted him or is unwilling or unable to control the Orthodox Christian majority. None of the incidents cited by Valioukevitch occurred with the imprimatur of Belarussian officials; in fact, Valioukevitch's own affidavit in support of his asylum application states that the principal of his school in Belarus expelled several students who targeted Va-lioukevitch for abuse based on his religion. The IJ and BIA considered State Department reports indicating that the Belarus-sian government respects its constitution's guarantee of religious freedom, and that citizens of Belarus are not prohibited from proselyt~izing. In sum, the BIA's finding that Valioukevitch lacked a well-founded fear of religious persecution is supported by substantial evidence on the record considered as a whole.

Valioukevitch's claim that the BIA erred in failing to withhold deportation must also fail. "The standard for with~ holding of deportation requires applicants to show a `clear probability' that they will face persecution in the country to which they will be deported." Kratchmarov, 172 F.3d at 555. This "clear probabifity" standard is more difficult to meet than the "well-founded fear" standard for asylum. *750 Id. As we have found that substantial evidence supports the denial of asylum, we also affirm the BIA’s denial of withholding of deportation. See id.

III.

Because Valioukevitch failed to show that he is eligible for either asylum or withholding of deportation, we hereby AFFIRM.

Notes

. Valioukevitch became a member of the Baptist church in 1990, when he was fifteen years old. The Baptist faith required Valioukevitch to proselytize to the Belarussian public, which is largely Russian Orthodox or Catholic. Va-lioukevitch asserts that he was attacked and subjected to name-calling, by numerous mdi-viduals as a result of his proselytizing attempts.