Lebedev v. Garland

Case: 22-60174 Document: 00516608977 Page: 1 Date Filed: 01/12/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-60174 FILED January 12, 2023 Summary Calendar Lyle W. Cayce Clerk Ivan Lebedev, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 243 381 Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam:* Ivan Lebedev, a native and citizen of Russia, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal and affirming the immigration judge’s (IJ’s) denial of his application for * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-60174 Document: 00516608977 Page: 2 Date Filed: 01/12/2023 No. 22-60174 asylum, withholding of removal, and protection under the Convention Against Torture (CAT). On review of an order of the BIA, this court examines “the BIA’s decision and only consider[s] the IJ’s decision to the extent that it influenced the BIA.” Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). Because the BIA agreed with the IJ’s analysis and conclusions, we review both decisions. See id. This court reviews the BIA’s factual findings for substantial evidence, and it will not reverse such findings unless the petitioner shows that “the evidence was so compelling that no reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 536-37 (5th Cir. 2009). Among the findings that this court reviews for substantial evidence are the factual conclusions that an alien is not eligible for asylum, withholding of removal, or relief under the CAT. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Lebedev first argues that the BIA erred in finding that he failed to show past persecution based on his religious beliefs. He points to his testimony about being ridiculed and physically abused by his classmates in Russia because he was Baptist. This court has previously held that substantial evidence supported a finding of no past persecution where the mistreatment described consisted of “mere denigration, harassment, and threats.” Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004). As such, the BIA reasonably found that Lebedev had failed to demonstrate past persecution. See Wang, 569 F.3d at 537. Lebedev also argues that the BIA erred in adopting the IJ’s determination that his subjective fear of persecution, which was confirmed by the IJ’s credibility finding, was not objectively reasonable. See Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005). Citing INS v. Cardoza-Fonseca, 2 Case: 22-60174 Document: 00516608977 Page: 3 Date Filed: 01/12/2023 No. 22-60174 480 U.S. 421, 431 (1987), Lebedev argues that even a 10% chance of persecution in Russia is sufficient to establish the reasonableness of his fear. In this court’s post Cardoza-Fonseca decisions, however, we have “applied a reasonable person standard when making well-founded …

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