Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2006

Stepanyants v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1212




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Recommended Citation
"Stepanyants v. Atty Gen USA" (2006). 2006 Decisions. Paper 1704.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1704


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                                                 NOT PRECEDENTIAL


                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                               ____________________

                                    NO. 05-1212
                               ____________________


                              DAVID STEPANYANTS,
                                       Petitioner


                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES

                               ____________________

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals
                             (Board No. A95 837 572)
                            ______________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 18, 2006
               Before: ROTH, FUENTES and BECKER, Circuit Judges

                               (Filed: January 27, 2006)

                            ________________________

                                    OPINION
                            ________________________

BECKER, Circuit Judge.

      David Stepanyants petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of Stepanyants’s

applications for political asylum, withholding of removal, and relief under Article III of

the Convention Against Torture.1 The BIA reviewed and adopted much of the IJ’s

decision, but went on to make certain findings of its own. Where the BIA has reviewed

and incorporated the IJ’s decision, we treat the incorporated parts of the IJ’s decision as

the BIA’s decision. See Xie v. Ashcroft, 

, 242 (3d Cir. 2004). Because the

parties are fully familiar with the background facts and procedural history we need not set

them forth in detail, and limit our discussion essentially to our ratio decidendi.

       Stepanyants was born in the USSR in what is now Turkmenistan. With his wife

and three children, he fled to Russia from Turkmenistan in 1996. He carries a passport

issued in Moscow by the USSR on March 6, 2000. He came by himself to the United

States from Russia in 2001 to visit his mother, brother, sister, and nephew, leaving his

wife and children in Astrakhan in Russia. He overstayed his visa and then applied for

asylum. At his deportation hearing, he indicated that his first preference for deportation

was to Russia and his second preference to Turkmenistan. Ironically, Stepanyants’s

mother, brother, sister, and nephew fled to the United States in 1996, not to Russia, and

have been granted asylum here. Stepanyants maintains that while in Russia he and his




1
  Stepanyants does not discuss the agency’s denial of his applications for withholding of
removal or protection under the Convention Against Torture in his brief to this Court,
therefore, he has waived these issues for purposes of this petition for review. See, e.g.,
Vente v. Gonzales, 

, 299 n.3 (3d Cir. 2005).

                                              2
family were menaced by an organization known as Pamyats who held antipathy toward

Armenians such as Stepanyants. In Turkmenistan, then and now, the regime is hostile to

Christian religions (Stepanyants is a Christian). Indeed the hostility is considerable as

reflected by the State Department Country Reports.

       The decisions of the IJ and the BIA are essentially based on the finding that

Stepanyants was not credible. We must uphold the agency’s findings of fact where they

are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole,” Gao v. Ashcroft, 

, 272 (3d Cir. 2002) (quotation

omitted), and must treat those findings as conclusive unless any reasonable adjudicator

would be compelled to reach a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B). Put

differently, to revise the BIA’s decision Stepanyants must show that the evidence he

presented was “so compelling that no reasonable fact finder could fail to find the requisite

fear of persecution,” INS v. Elias-Zacarias, 

, 481 (1992). This standard

requires the Court to affirm the administrative decision unless the evidence not only

supports the petitioner’s position, but compels it “such that a reasonable fact finder would

have to conclude that the requisite fear of persecution existed.” 

(emphasis

added).

       The adverse credibility determinations were fueled by what the IJ and BIA found

to be numerous inconsistencies between Stepanyants’s testimony, his written asylum

application, and his proffered affidavits, that were related to the key aspects of his claim.



                                              3
The inconsistencies are clearly identified in the IJ’s and BIA’s opinions and in the

Agency’s brief before this Court, and need not be repeated here. Suffice it to say that

Stepanyants has not shown that the findings are not supported by substantial evidence or

that the evidence compels the reasonable fact finder to conclude that the requisite fear of

persecution exists.

       Stepanyants’s brief on appeal is centered largely on the issue of country

conditions, in particular the extreme hostility of Turkmens and the Turkmen government

to Armenian Christians such as Stepanyants. But, if deported, Stepanyants will go to

Russia where his wife and children are residing peacefully. See Lie v. Ashcroft, 

, 537 (3d Cir. 2005) (“[W]hen family members remain in petitioner’s native country

without meeting harm, and there is no individualized showing that petitioner would be

singled out for persecution, the reasonableness of a petitioner’s well-founded fear of

future persecution is diminished.”) (citation omitted). The lack of religious tolerance and

the apparent hostility of the Turkmen government to Christian religions is deeply

troubling, but Stepanyants will apparently not go back to Turkmenistan.

       At all events, the material allegedly supporting the country conditions was not

proffered to the IJ, and thus Stepanyants’s argument that the BIA erred in not considering

the country reports cannot prevail. The BIA is an appellate body and is not permitted to

engage in fact finding or to consider new evidence on appeal. See 8 C.F.R. §




                                             4
1003.1(d)(3); 8 C.F.R. § 1003.3(f).2

              The petition for review will be denied.




2
 Moreover, if Stepanyants believed that the current country reports (a) were germane and
(b) reflected a change in conditions such that his fear of future persecution was
heightened, his proper remedy was to file a motion to reopen and remand with the BIA.
See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve
an appeal without further fact finding must file a motion for remand”); 8 C.F.R. §
1003.2(c)(3)(ii).


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