Third Circuit disposition — 084655np-pdf

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4655
___________
MYKOLA KOVALCHUK,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-833-837)
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed : December 29, 2009)
___________
OPINION
___________
PER CURIAM.
Petitioner Mykola Kovalchuk seeks review of the Board of Immigration
Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration
Judge’s (“IJ”) decision to deny his application for withholding of removal and protection

-- 1 of 9 --

Kovalchuk filed his application for asylum only after he was served with a Notice to1
Appear on June 23, 2003. His attorney conceded at the hearing that Kovalchuk had failed
to apply for asylum within one year of entering the country, and there were no changed or
extraordinary circumstances to excuse his failure to do so. See 8 U.S.C. § 1158(a)(2)(B).
2
under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Mykola Kovalchuk is a native and citizen of Ukraine. Kovalchuk entered
the United States on a non-immigrant visa in 1998. In November 1998, his non-
immigrant visa was converted to F-1 student status. However, after his student visa
expired, Kovalchuk remained in the country. After removal proceedings commenced,
Kovalchuk filed a application for asylum, which he later conceded was untimely. He1
also sought withholding of removal and relief under the CAT on the ground that he had
been persecuted in Ukraine because of his religion. He alternatively requested voluntary
departure. In his application for withholding of removal, Kovalchuk claimed that he left
Ukraine in February 1998 to escape persecution that he experienced after becoming a
Baptist the year before.
At his removal hearing, Kovalchuk testified that a friend introduced him to
the Baptist faith in 1997. Kovalchuk explained that his friend had been beaten because of
his Baptist beliefs and that the beating sparked his own interest in better understanding
why some people hate others. Kovalchuk attended a meeting of Baptists in February
1997 and was baptized soon after. He claimed that he only told a few acquaintances

-- 2 of 9 --

3
about his baptism, but that one such individual told him that “bad things” would happen
to him as a result of it. Kovalchuk testified that in June 1997, while walking home one
day, that same person, along with two others, stopped him and took his briefcase. Upon
finding a Bible inside it, they confiscated it and threw Kovalchuk to the ground. He
claimed that he suffered injuries including a severe headache and vomiting, but he did not
seek medical treatment.
Kovalchuk also testified that he received threatening phone calls, but that
the police refused to pursue the case, explaining that an officer told him that he “[didn’t]
need any Baptist elements.” Kovalchuk wrote a letter to the city council complaining of
his treatment, but they told him that he should go to the police. Upon going to the police
station, Kovalchuk claimed that officers beat him up because he was involved in “anti-
Ukrainian” activities. The officers also detained him for three days. After he was
released, he left his hometown of Galich and went to Kiev, hoping that the authorities
there would help him. He was arrested, however, and told to return home. In October
1997, while working in a field, Kovalchuk testified that he was assaulted and that one of
the men who attacked him threatened to kill him because of his religion. He believed that
if he returned to Ukraine, he might be killed.
Following the hearing, the IJ denied Kovalchuk’s application for
withholding of removal and relief under the CAT, but granted him voluntary departure.
The IJ determined that Kovalchuk had not presented evidence sufficient to demonstrate

-- 3 of 9 --

4
that he had been persecuted in the past or that he it was more likely than not that he would
be persecuted in the future. The IJ found Kovalchuk’s claim of past persecution
unpersuasive because he did not present any witnesses or provide any medical records
describing physical or mental problems stemming from his experiences in Ukraine. The
IJ also questioned the extent of Kovalchuk’s current commitment to the Baptist faith as he
offered no evidence of his involvement in the religion other than a letter from a pastor
stating that he had been attending church services. Lastly, the IJ noted that since
Kovalchuk left Ukraine, the political landscape had changed. A recent State Department
report explained that citizens are allowed greater freedom of association under the current
Ukranian President, and thus, Kovalchuk did not have a well-founded fear of future
persecution.
Kovalchuk appealed the IJ’s decision to the BIA and, in a November 2008
opinion, the BIA dismissed Kovalchuk’s appeal. The BIA determined the IJ did not err in
finding that Kovalchuk did not provide the evidence sufficient to corroborate his claim
and that his explanations for not doing so were unpersuasive. The BIA also affirmed the
IJ’s ruling that Kovalchuk did not have a well-founded fear of future persecution in
Ukraine, disagreeing with Kovalchuk’s assertion that the IJ gave improper weight to State
Department Country reports. Lastly, the BIA disagreed with Kovalchuk’s claim that his
due process rights were violated when the IJ precluded his proposed expert witness from

-- 4 of 9 --

The IJ considered the expert’s curriculum vitae and affidavit and determined that he2
had no expertise on the treatment of Baptists in Ukraine.
5
testifying at the hearing. This petition for review followed.2
II.
This Court has authority to review final orders of removal. See 8 U.S.C. §
1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ’s decision, we have authority to review the decisions of both the IJ and
the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The BIA’s factual
determinations are upheld if they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
For withholding of removal, an applicant must prove that his “life or
freedom would be threatened in that country because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3);
8 C.F.R § 208.16(b). A petitioner applying for withholding of removal must establish a
clear probability of persecution. 8 U.S.C. § 1231(b)(3). A “clear probability means
“more likely than not.” INS v. Stevic, 467 U.S. 407, 429-30 (1984). An applicant
seeking relief under the CAT must establish that “it is more likely than not” that he would
be tortured if removed to the proposed country of removal. Sevoian v. Ashcroft, 290 F.3d
166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).

-- 5 of 9 --

6
First, Kovalchuk argues that the BIA erred in upholding the IJ’s
determination that he failed to present evidence sufficient to corroborate his claim of past
persecution based on his Baptist faith. Specifically, Kovalchuk claims that the IJ and BIA
did not give sufficient weight to his explanation that much of evidence supporting his
claim was unavailable. Second, Kovalchuk argues that the BIA erred in upholding the
IJ’s decision to afford substantial weight to State Department Country reports to the
exclusion of other evidence regarding country conditions in Ukraine. Third, Kovalchuk
argues that the BIA improperly denied his claim that the IJ violated his due process rights
by denying his expert witness an opportunity to testify at the hearing.
The IJ and BIA may expect reasonable corroboration of a claim. Abdulai v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). An applicant’s failure to corroborate may
undermine his case if: (1) the facts at issue are facts for which corroboration is reasonable
to expect; (2) the applicant failed to corroborate those facts; and (3) the applicant has not
adequately explained his failure to do so. Id. We find the BIA’s determination that
Kovalchuk failed to provide sufficient corroborating evidence is supported by substantial
evidence.
Kovalchuk testified that he suffered marks and scars on his lips and nose
after he was beaten. (A.R. 176-77.) However, he did not provide any documentary
evidence either demonstrating that he sought treatment from doctors or verifying that he
had previously been injured in Ukraine. Kovalchuk was also unable to provide any

-- 6 of 9 --

7
documents showing that he has sought medical treatment in the United States for any of
his injuries. (Id. at 167-69.) When questioned about the availability of evidence
supporting his claim that he was a practicing Baptist in Ukraine, such as a baptismal birth
certificate or statements from his Baptist friends, Kovalchuk claimed the evidence was
unavailable. (Id.) As mentioned, Kovalchuk was only able to provide a letter from his
current pastor stating that he has attended church services in the United States.
We agree that Kovalchuk’s inability to produce any information
corroborating his Baptist affiliation in Ukraine – e.g., a baptismal birth certificate or an
affidavit from his former pastor – coupled with his inability to provide any medical
records, undermined his ability to establish his claim. Abdulai, 239 F.3d at 554.
Furthermore, Kovalchuk showed no visible physical signs of past torture at his hearing
and he did not provide any historical data supporting his claim that Baptists suffered
routine persecution in Ukraine in 1997 and 1998.
We also find that substantial evidence supports the IJ’s and BIA’s
conclusion that Kovalchuk would not be harmed upon his return to Ukraine. Although
Kovalchuk argues that the IJ and BIA improperly relied upon State Department Country
reports to reach their conclusion, this Court has recognized that reliance on State
Department reports is justifiable and that such reports may constitute “substantial
evidence” for the purposes of reviewing immigration decisions. See Ambartsoumian v.
Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004). Kovalchuk argues that the IJ ignored articles

-- 7 of 9 --

8
that he submitted in support of his application discussing the treatment of Orthodox
Christians in Ukraine. However, a review of the articles shows that they do not contradict
the information observed in the State Department Reports in any meaningful way.
Lastly, Kovalchuk argues that the BIA improperly concluded that his due
process rights were not violated when the IJ refused to allow his expert witness to testify
at the hearing. Although there is no constitutional right to asylum, aliens facing removal
are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). In this
context, the Due Process Clause entitles an alien to “a full and fair hearing and a
reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175,
185 (3d Cir. 2006). To prevail on a due process claim, an alien must show substantial
prejudice. Id.
The IJ, after considering the expert’s affidavit and curriculum vitae,
determined that he had no specialized knowledge regarding the treatment of Baptists in
Ukraine. (A.R. 52.) Kovalchuk’s attorney admitted at the hearing that the expert had no
specialized knowledge about the treatment of Christians in Ukraine. (Id. at 174.) In his
brief, Kovalchuk does not address what particular conclusions drawn by the IJ based upon
the State Department Reports the expert would have refuted. Accordingly, he has not
presented any specific information on appeal showing that he was prejudiced by the IJ’s
refusal to allow the expert to testify, particularly where the IJ considered the expert’s
curriculum vitae and affidavit prior to rendering his decision.

-- 8 of 9 --

9
See Romanishyn, 455 F.3d at 185-86.
Finally, the BIA did not err when it concluded that Kovalchuk had not
established a basis for relief under the CAT, as he did not demonstrate that it is more
likely than not that he would be tortured if returned to Ukraine. Accordingly, we will
deny the petition for review.

-- 9 of 9 --