Boris Sokhiev v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-3489 ______________ BORIS SOKHIEV, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA-1 No. A 088-147-710) Immigration Judge: John P. Ellington ______________ Submitted under Third Circuit L.A.R. 34.1(a) May 22, 2018 BEFORE: MCKEE, SHWARTZ, and COWEN, Circuit Judges (Filed: June 20, 2018) ______________ OPINION* ______________ ____________________ ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. COWEN, Circuit Judge. Boris Sokhiev petitions for review of the decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from the decision of the Immigration Judge (“IJ”). The IJ denied his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will dismiss his petition for review in part and deny it in part. I. Sokhiev, a Russian citizen, immigrated to the United States as a child several years after his mother was granted asylum. As an adult, he became a lawful permanent resident of the United States. Subsequently, he was convicted in a Pennsylvania court of the manufacture, delivery or possession with intent to manufacture or deliver marijuana in violation of 18 Pa. Cons. Stat. § 780-113(a)(30). The IJ sustained the charge of removability on account of a controlled substance violation pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Sokhiev sought asylum and withholding of removal based on his race, political opinion, and membership in a particular social group. He also applied for CAT protection. The IJ denied his application for relief. The IJ found Sokhiev to be credible and that he did subjectively fear future persecution because he is Ossetian, because “the government of Russia would impute to [Sokhiev] a political opinion of being a Chechen sympathizer [similar to his mother’s successful claim of political asylum that she was persecuted as a Chechen sympathizer for helping a Muslim brother-in-law named Sultan]” (AR66), and “because of his membership in a particular social group comprised of the family [of either Uncle Sultan or Sokhiev’s mother]” (AR67). However, Sokhiev 2 admitted that he did not suffer persecution in the past. In turn, the IJ could not find that Sokhiev’s subjective fear of future persecution “is objectively reasonable.” (AR65, AR66, AR67.) The IJ thereby found that he did not meet his burden of establishing by a preponderance of the evidence that he has a well-founded fear of future persecution on account of a protected ground. Because Sokhiev failed to meet the applicable burden of proof for asylum, the IJ concluded that he necessarily did not satisfy the higher burden of proof for a claim of withholding of removal. Finally, the IJ determined that Sokhiev’s fear of torture is purely speculative. The BIA dismissed Sokhiev’s administrative appeal. Initially, it rejected his argument that the IJ “erred in applying the preponderance of the evidence standard to his asylum application and ...

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