Viktor Slapak v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2638
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VIKTOR SLAPAK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-647-600)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2013
Before: SMITH, GREENAWAY, JR., and WEIS, Circuit Judges
(Opinion filed: January 4, 2013)
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OPINION
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PER CURIAM.
Viktor Slapak seeks review of the Board of Immigration Appeals‟ (“BIA” or
“Board”) final order of removal. In its order, the BIA affirmed the Immigration Judge‟s

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(“IJ”) decision to deny his application for withholding of removal. We will deny the
petition for review.
Slapak, a native and citizen of the Czech Republic, was admitted to the United
States on a visitor‟s visa in March 2006, and overstayed. The Department of Homeland
Security issued a Notice to Appear, charging Slapak with removability under INA
§ 237(a)(1)(B). Slapak conceded his removability and filed an application for asylum
and withholding of removal based on his fear of being persecuted in the Czech Republic
because of his perceived Roma ethnicity.1
Slapak testified that because of his dark skin and other physical characteristics,
many in the Czech Republic believe that he is Roma. Although Slapak‟s mother is part
Roma, Slapak does not identify as Roma himself. Slapak testified that he experienced
harassment as a child because of his appearance and, around age fifteen, he was the target
of ethnic epithets and a beating. Slapak believes that he will face persecution upon his
return to the Czech Republic by neo-Nazi groups. An expert witness, Krista Marie
Hegburg, testified about the marginalization and discrimination that Roma people
experience in the Czech Republic. She also described a rise in violence against Roma in
recent years and opined that the Czech government is unwilling to control it.
The IJ pretermitted Slapak‟s asylum application because, as Slapak had earlier
conceded, his application was statutorily time-barred and there were no changed or
1 Alternatively, Slapak requested voluntary departure, which the IJ granted.

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extraordinary circumstances to excuse its untimely filing. See Administrative Record
(“A.R.”) at 39; INA § 208(a)(2)(B)&(D). The IJ then denied Slapak‟s application for
withholding of removal. Although Slapak testified credibly, the IJ determined that
Slapak was unable to establish that a pattern or practice of persecution exists against
Roma in the Czech Republic that is systemic, pervasive, or organized.
Slapak appealed the IJ‟s decision to the BIA and, in an order dated May 17, 2012,
the Board dismissed Slapak‟s administrative appeal. The Board agreed with the IJ that
Slapak had not demonstrated his eligibility for withholding of removal. This petition for
review followed.
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 must be 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).
In his petition for review, Slapak argues that his due process rights were violated
when the IJ and BIA failed to fully consider the evidence that he submitted before
denying his application for withholding of removal. Having reviewed the administrative
record, we conclude that contrary to Slapak‟s assertion, the agency‟s review comported
with principles of due process. We have held that the BIA “„is not required to write an

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exegesis on every contention,‟ but only to show that it has reviewed the record and
grasped the movant‟s claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)
(citation omitted, quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)). Although
Slapak argues that the agency failed to consider the affidavit of Paul St. Clair, the
Executive Director of the Roma Community Center in Toronto, and the U.S. State
Department materials, these items were considered. Indeed, at the start of his decision,
the IJ observed that Slapak had submitted State Department materials as well as expert
reports. The IJ later noted that based upon those materials, he was unable to conclude
that the Roma people experience systemic or pervasive persecution. The BIA agreed
with those findings on appeal. Although Slapak may disagree with the agency‟s
conclusions, his claim that his materials were not adequately considered is without merit.
Slapak also argues that the agency erred in determining that he failed to establish
that a pattern or practice of persecution exists against Roma people in the Czech
Republic. To establish a fear of future persecution, an applicant must demonstrate that he
“„has a genuine fear, and that a reasonable person in [his] circumstances would fear
persecution if returned to [his] native country.‟” Abdulrahman v. Ashcroft, 330 F.3d 587,
592 (3d Cir. 2003) (quoting Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)). This
requires that a petitioner show that he would be individually singled out for persecution
or demonstrate a pattern or practice of persecution of similarly situated individuals. Lie
v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). “[T]o constitute a „pattern or practice,‟ the
persecution of the group must be „systemic, pervasive, or organized.‟” Id. at 537

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(quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir.2004)). In addition, the acts of
persecution must be committed by the government or forces the government is either
unable or unwilling to control. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.
2006).
Slapak‟s claim is not that he would be singled out for persecution upon return to
the Czech Republic, see A.R. at 239, but that there is a “pattern or practice” of
discrimination against those of Roma ethnicity. In rejecting Slapak‟s pattern or practice
claim, the BIA found that the documentary evidence did not establish systemic,
pervasive, or organized persecution against Roma people living in the Czech Republic.
Substantial evidence supports the BIA‟s finding.
Although Slapak‟s expert, Hegburg, testified about the recent rise in violent
attacks against the Roma, the 2008 State Department Human Rights Report states only
that “[l]atent societal discrimination against the country‟s Romani population
occasionally manifested itself in violence.” A.R. at 333. Overwhelmingly, the
documentary evidence describes what amounts to institutional discrimination against the
country‟s Roma population. However, discrimination does not necessarily constitute
persecution. See Chen v. Ashcroft, 381 F.3d 221, 233 n.20 (3d Cir. 2004) (noting that
courts routinely deny immigration relief to persons “who suffer racial discrimination that
falls short of „persecution‟”). While incidents of violence may be on the rise as Hegburg
suggests, based on the record presented, a reasonable adjudicator could conclude, based
on the record presented, that Slapak failed to establish systemic or pervasive persecution

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of Roma people in the Czech Republic. Cf. Sioe Tjen Wong v. Att‟y Gen., 539 F.3d 225,
234 (3d Cir. 2008) (holding that “the BIA properly reviewed the record and determined
that violence was not sufficiently widespread and incidents of harassment and
discrimination were not sufficiently severe to constitute a pattern or practice of
persecution”).
For these reasons, we will deny the petition for review.

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