Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3407




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                   No. 07-3407
                                  _____________

                            ESMIRA MAMMADOVA;
                        TENGIZ RAMIZ OGLU MAMMODOV,

                                         Petitioners


                                          v.

                       ATTORNEY GENERAL OF THE
                      UNITED STATES; SECRETARY OF
                   DEPARTMENT OF HOMELAND SECURITY,

                                         Respondent

                                 _______________

         Petition for Review of an Order of the Board of Immigration Appeals
                      Agency Nos. A98 419 991 and A98 419 992
                                    ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 11, 2008
                                  ___________

                   Before: McKee, Smith and Weis, Circuit Judges

                              (Filed: October 6, 2008)
                                   ___________

                                    OPINION
                                   ___________
McKee, Circuit Judge:
       Esmira Mammadova and Tengiz Ramiz Oglu Mammadov (“Petitioners”) petition

for review of a final order of removal issued by the Board of Immigration Appeals on

July 17, 2007. Because substantial evidence supports the Board’s conclusion that

Petitioners failed to establish that their experiences rose to the level of persecution or that

their fear of future persecution is objectively reasonable, we will deny the petition.1

                                              I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not repeat the factual or procedural background. Petitioners argue that the Board

“engaged in its own fact-finding” and in doing so, failed to use the proper “clearly

erroneous” standard of review applicable to such factual findings. They misunderstand

the Board’s opinion. The Board concluded that their experiences, whether considered

individually or cumulatively, did not rise to the level of “persecution” required for relief.

In doing so, the Board applied the correct legal standard to the facts of the case, and

made its own judgment about whether the record supported a finding of “past

persecution” or a “well-founded fear of future persecution.”

       The Board’s negative conclusion is supported by substantial evidence in the


       1
        We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where the Board provides its
own analysis rather than adopting the IJ”s decision as its own, we review the BIA’s
decision. See Abdulai v. Ashcroft, 

, 545 (3d Cir. 2001). We uphold the
agency’s determination if its conclusions are supported by “reasonable, substantial and
probative evidence on the record considered as a whole” and will reverse “only if there is
evidence so compelling that no reasonable factfinder could conclude as the [agency]
did.” Mulanga v. Aschroft, 

, 131 (3d Cir. 2003).

                                              -2-
record. Applying our deferential standard of review, we conclude that the record does

not clearly compel the conclusion that the difficulties and harassment Petitioners faced in

Azerbaijan rise to the level of persecution. The “concept of persecution does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Fatin v. INS, 

, 1240 (3d Cir. 1993). Furthermore, we find

no error in the Board’s conclusion that the corroborating evidence of country conditions

did not establish “an objectively reasonable well-founded fear of return to Azerbaijan.”

                                           II.

       Because Petitioners failed to meet the asylum eligibility standard, they cannot

meet the more rigid withholding of removal standard. Janusiak v. INS, 

, 46-

48 (3d Cir. 1991). Furthermore, Petitioners do not challenge the Board’s conclusion that

they are not eligible for relief under the United Nations Convention Against Torture, and

it is clear that the record would not support such a claim.

       Accordingly, we will deny their petition for review.




                                             -3-