Aleksandr Lebid; Marina Lebid; Artem Lebid; Daria Lebid v. John Ashcroft, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 02-2576
ALEKSANDR LEBID; MARINA LEBID;
ARTEM LEBID; DARIA LEBID,
Petitioners
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
( Agency No: A73-032-541;
Agency No: A73-032-540;
Agency No: A73-173-203;
Agency No: A73-173-206)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2003
BEFORE: MC KEE, SMITH and COWEN, Circuit Judges
(Filed: May 8, 2003)
OPINION

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COWEN, Circuit Judge.
Aleksandr Lebid, his wife Marina Lebid, and their children Artem Lebid and Daria
Lebid appeal from the May 13, 2002 orders of the Board of Immigration Appeals (“BIA”)
affirming the immigration judge’s denial of asylum and withholding of deportation. Their
petition for review will be denied.
I.
The Lebids are natives and citizens of Ukraine. Marina Lebid’s great-aunt, called
“grandma” by the Lebids, is a citizen of the United States. She previously sent parcels to
Marina Lebid’s family. The family, with this help, was able to build a house. The Lebids
lived in this house after marriage and also continued to receive assistance from their
American relative, allowing them to get a car. They claim that this assistance gave rise to
a pattern of harassment by several unidentified individuals.
The Lebids received threatening phone calls from 1985 to 1993. Unknown
persons also threw a rock through the window of the nursery while the children were
sleeping. On another occasion, an unidentified individual threw a bottle at their
unoccupied car, causing a dent. Aleksandr Lebid also described an assault that occurred
on May 20, 1993. On returning home from work, three men, identifying themselves as
members of Rukh, the country’s main nationalist party, approached him. The individuals
called him an American and demanded money so they could buy alcohol. They then
attacked him. The men told him to “get out of here, you American,” and they threatened

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to go to his house. A.R. at 42. Aleksandr Lebid lost consciousness and suffered serious
injuries to his face and leg. He did not awake again until he was at the hospital.
Aleksandr Lebid testified that the most serious incident of harassment, involving
his children, occurred in June 1990. An unidentified individual opened the gate to their
front yard and allowed a dog to come into the yard where the children were playing. The
dog jumped on Daria Lebid, knocking her to the ground and injuring her forehead.
Although her injury was stitched up at the hospital, she remains permanently scarred.
The great-aunt invited the Lebids to come to the United States. The Lebids were
admitted as nonimmigrant visitors for pleasure to remain for a period not to exceed six
months. Instead of leaving at the end of the six-month period, Aleksandr Lebid filed an
application for asylum and withholding of deportation in December 1993. On February 9,
1996, the Immigration and Naturalization Service (“INS”) issued Orders to Show Cause
charging the Lebids with being deportable under section 241(a)(1)(B) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(1)(B). The Lebids conceded
deportability at the September 3, 1996 master calender hearing. Following an evidentiary
hearing on November 13, 1997, the immigration judge denied the applications of
Aleksandr Lebid and Marina Lebid for asylum and withholding of deportation but
allowed for voluntary departure. The BIA affirmed the immigration judge’s ruling
without opinion in orders dated May 13, 2002. The Lebids timely filed their appeal with
this Court.

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II.
This Court has jurisdiction under former INA section 106(a), 8 U.S.C. § 1105a(a).
An alien is eligible for asylum only if he or she is unwilling to return to the country of
origin “because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The burden of proof rests with the alien.
See, e.g., Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The INA further
provides for mandatory withholding of removal in certain cases. An applicant for
withholding must demonstrate “a ‘clear probability’ of persecution.” Janusiak v. INS,
947 F.2d 46, 47-48 (3d Cir. 1991) (quoting INS v. Stevic, 467 U.S. 407, 424 (1984)).
Because the burden on the alien to prove eligibility for non-discretionary withholding is
higher than the standard of proof for asylum, an alien who fails to satisfy the requirements
for asylum is unable to establish any right to withholding. Id. at 47-48. Given the
absence of a separate opinion by the BIA, we must review the immigration judge’s
decision. See, e.g., Gao, 299 F.3d at 271. The immigration judge’s factual findings are
reviewed under a substantial evidence standard. See, e.g., INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). “‘Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (citation omitted). The

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1 The Lebids also refer to persecution on account of political opinion. We do not
address this issue of political persecution because of the absence of any substantial
argument on the part of the Lebids as to this question.
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immigration judge’s findings may be rejected only if the evidence compels a contrary
conclusion. See, e.g., Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
The Lebids assert that the immigration judge erred in not accepting their “credible
testimony that they have suffered these threats and acts solely on account of their . . .
membership in a particular social group.”1 Pet’rs.’ Br. at 10. Even assuming that the
Lebids have properly preserved this issue and that their relationship with a great-aunt in
the United States gave rise to a protected social group, the record evidence furnished
sufficient evidence to support the determination that the family did not suffer past
persecution or possess a well-founded fear of future persecution.
It is well established that the concept of persecution, while encompassing extreme
forms of misconduct, does not include all actions regarded by society as offensive. Fatin
v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). The immigration judge appropriately noted
that the past incidents “exemplify the kinds of crime that could be easily committed
against individuals throughout the world,” including in the United States. A.R. at 49.
Although the family was the target of harassment and vandalism and the May 20, 1993
assault and the June 1990 dog attack apparently were serious crimes, this course of
conduct was not sufficiently egregious to constitute past persecution or to give rise to a
well-founded fear of persecution in the future.

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Even if the conduct is sufficiently egregious, the alien must also demonstrate that it
was committed by either the government or forces that it was “‘either “unable or
unwilling” to control.’” Gao, 299 F.3d at 272 (quoting Navas v. INS, 217 F.3d 646, 655
(9th Cir. 2000)). The family never apparently reported most of the incidents to the police,
due in part to a concern about police corruption. Aleksandr Lebid did report the beating
to the police who responded that nothing could be done about “hooligans.” A.R. at 238.
But he did not notify the police until approximately a month after the attack, and it
therefore appears reasonable that this crime, involving unknown members of the
country’s primary nationalist party, would remain unsolved. Under these circumstances,
there was a lack of the necessary connection between the actions against the Lebids and
Ukranian government officials to give rise to either past persecution or the fear of future
persecution.
The Lebids therefore failed to establish their eligibility for asylum. Given this
failure, we likewise find that the immigration judge properly rejected any claim for
withholding of deportation.
III.
For the foregoing reasons, the petition for review will be denied.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Robert E. Cowen
United States Circuit Judge

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M E M O R A N D U M
DATE: May 7, 2003
TO: Marcia M. Waldron, Clerk
FROM: Judge Cowen
RE: Lebid, et al. V. Ashcroft,
No. 02-2576; Submit: 4/1/03
Dear Marcy:
Kindly file the enclosed Not Precedential Opinion in the above-captioned case.
The signed original will be forwarded in the mail.
Sincerely,
Robert E. Cowen
REC:daj
enc.
cc: Judge McKee (memo only)
Judge Smith (memo only)

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