Mykola Hray v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3209
MYKOLA HRAY,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
APPEALS
(No. A29 760 787)
Submitted Under Third Circuit LAR 34.1(a)
July 23, 2003
Before: ALITO, FUENTES and BECKER, Circuit Judges
(Opinion Filed: August 22, 2003)
OPINION OF THE COURT

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ALITO, Circuit Judge:
Mykola Hray, a Ukrainian national, petitions for review of the July 16, 2002
decision of the Board of Immigration Appeals (“BIA”) that affirmed, without opinion, the
decision of an Immigration Judge (“IJ”) denying Hray’s application for asylum,
withholding of deportation, suspension of deportation and, in the alternative, voluntary
departure. For the reasons given below, we deny Hray’s petition for review.
Hray was born at Dobrivlyany in the Ukrainian Soviet Socialist Republic on
December 20, 1960. Administrative Record (“A.R.”) at 187. He studied mechanical
engineering at the Lvov Institute and worked as an engineer after completing his
compulsory service in the Soviet Army. Id. at 53-55, 192. On September 5, 1990, Hray
was admitted into the United States at John F. Kennedy International Airport on a tourist
visa that expired on M arch 4, 1991. Id. at 187, 205. Hray remained in the United States
beyond the time permitted on his visa and, on May 7, 1991, submitted an application for
political asylum, claiming that he would be arrested in Ukraine for refusing to serve on
active duty with the Soviet Army “[b]ased on [his] political opinion and conscience.” Id.
at 204, 207. Hray further claimed that, if he were to return to Ukraine, the authorities
would single him out “[b]ased on [his] political activities in the past two years and [his]

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1 In his asylum application, Hray stated that he had been a member of RUKH, a
Ukrainian pro-democracy organization, and that he had attended anti-Soviet rallies
between 1988 and 1990. A.R. at 204. He also wrote that, in 1982, he had been detained,
beaten and interrogated for 10 days by the Soviet Militia for shouting a
political/nationalist slogan. Id.
2 Since 1991, Hray has worked in a variety of semi-skilled manufacturing jobs in
the Allentown, Pennsylvania, area. Id. at 55-57, 205.
3 Because Hray’s deportation proceeding began before April 1, 1997, the
amendments to the INA made by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (the “IIRIRA”), Pub. L. 104-208, 110 Stat. 3009, do not
apply. IIRIRA § 309(c)(1).
3
previous detention and interrogation in 1982.”1 Id. On June 19, 1991, the Immigration
and Naturalization Service (the “INS”) granted employment authorization to Hray.2 Id. at
205. On September 12, 1995, the Bethlehem police arrested Hray on charges of indecent
assault and attempted sexual assault. Id. at 104. On April 17, 1996, Hray pled nolo
contendere in the Lehigh County Court of Common Pleas to the charge of indecent
assault and was sentenced to serve one year of probation. Id. at 104-07.
On March 21, 1997, the INS served Hray with an Order to Show Cause
charging him with deportability for exceeding the time permitted on his nonimmigrant
visa, in violation of former Section 241(a)(1)(B) of the Immigration and Nationality Act
of 1952, as modified (the “INA”), 8 U.S.C. § 1251(a)(1)(B) (1994).3 A.R. at 226-30. On
October 7, 1997, Hray conceded his deportability before an IJ. A.R. at 41. The IJ
advised Hray that his asylum application was “very, very weak” and adjourned the
proceeding to allow Hray an opportunity to apply for suspension of deportation, pursuant

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4 The IJ stated that, despite continued problems, the “Ukraine has made remarkable
progress evolving itself into a law-based society” and that the people of Ukraine had
“done a lot of work in trying to make themselves into a democracy.” A.R. at 75.
4
to former Section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1) (1994). On June 2, I998,
the IJ noted that the problem with Hray’s asylum application was that, based on his
reading of the 1997 State Department Country Report and Profile, “conditions that
existed in the Ukraine that have changed.”4 Id. at 75, 81. When asked by counsel to
testify in support of his asylum application, Hray explained that he was afraid to return to
Ukraine because his brother had recently been detained and threatened by armed men
“[b]ecause he had visited America and they knew he had gotten money in America.” Id.
at 84. When asked by the IJ “for any other reason why he was afraid to return,” Hray
responded that he was “fearful that the same thing can happen to me as happened to my
brother” and added that “the level of medical care [in Ukraine] is not as good as here.”
Id. The IJ noted that “fear of being victim of a crime in another country is not within the
five factors protected by the Act.” Id. at 85.
In support of his application for suspension of deportation, Hray testified
that he would face extreme hardship if he were returned to Ukraine on account of his
medical condition, since he was on prescription medication for hypertension and had been
hospitalized for three days in January 1995, and because “[a]ll the factories are closed.”
Id. at 60-66. Hray admitted that he had pled “no contest” to a charge of indecent assault
in Pennsylvania state court and served probation. Id. at 68. The IJ noted that Hray’s plea

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might be a statutory bar to his application for suspension of deportation. Id. at 69-73.
The IJ adjourned the proceeding to allow Hray a chance to obtain a medical report and the
court records of his plea. Id. at 86-87. On August 21, 1998, Hray again appeared before
the IJ, and the medical and court records were placed into evidence. Id. at 95-96.
On October 27, 1998, the IJ issued a written opinion denying Hray’s claim
for asylum and withholding of deportation on the ground that Hray had not demonstrated
persecution on account of any of the five factors enumerated in INA § 101(a)(42)(A) and
was therefore “not a ‘refugee’ as defined by law.” A.R. at 32-33. The IJ denied Hray’s
claim for suspension of deportation because Hray had “utterly failed to show that he
would suffer extreme hardship if required to depart from the United States” and,
furthermore, was “precluded from the finding of good moral character required for
suspension of deportation as a result of his conviction for indecent assault.” Id. at 34.
Finally, the IJ noted that Hray was ineligible for voluntary departure because he had not
displayed the requisite good moral character for the five years preceding his application.
Id. Hray filed a brief with the BIA arguing that he had met his burden of showing that he
qualified for suspension of deportation and had demonstrated a “well-founded fear of
persecution by non-governmental actors.” Id. at 6-8. On November 20, 2000, the BIA
affirmed the results of the decision of the IJ without issuing a separate opinion, pursuant
to 8 C.F.R. § 3.1(a)(7) (2002).
In this petition, Hray asserts that the IJ prevented him from offering

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5 The issue of whether the “streamlining” procedure of 8 C.F.R. § 3.1(a)(7)
violates Due Process and conforms with principles of administrative law is presently
before an en banc panel of this Court. Dia v. Ashcroft, No. 02-2640 (3d Cir. argued May
28, 2003). However, because Hray does not challenge the streamlining procedure, we
need not address this issue in the present appeal.
6 Because Hray's deportation proceeding was in progress on April 1, 1997, the
amendments to the INA made by the IRIRA do not apply. IIRIRA § 309(c)(1). However,
the transitional rules that preclude judicial review of certain discretionary decisions of the
Attorney General, including suspension of deportation, do apply, since Hray’s final order
of deportation was entered “more than 30 days after [September 30, 1996].” Id. §
309(c)(4)(E).
6
evidence of past persecution in support of his application for political asylum and
withholding of removal. Appellant’s Br. at 9-18. Hray also claims that the IJ erred in
concluding that Hray’s 1996 nolo contendere plea to indecent assault was a bar to his
receiving suspension of deportation and voluntary departure. Id. at 19-28. Finally, Hray
argues that the IJ ignored substantial evidence that showed Hray would suffer extreme
hardship if he were returned to Ukraine. Id. at 28-30.
Because the BIA affirmed the results of the decision of the IJ without
issuing a separate opinion, pursuant to 8 C.F.R. § 3.1(a)(7)(iii) (2002), we review the
decision of the IJ.5 Abdulai v. Ashcroft, 239 F.3d 542, 548-49 & n.2 (3d Cir. 2001). We
review the IJ’s interpretation of the INA6 under the deferential standard of Chevron,
U.S.A. v. Natural Res. Def. Counsel, 467 U.S. 837 (1984). Lukwago v. Ashcroft, 329
F.3d 157, 166 (3d Cir. 2003). Accordingly, “if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the agency's answer is
based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. On the

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other hand, “we must treat . . . findings of fact as ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Lukwago v. Ashcroft, 329
F.3d 157, 167 (3d Cir. 2003) (quoting. 8 U.S.C. § 1252(b)(4)(B)). Finally, “[a]n order of
deportation or exclusion shall not be reviewed by any court if the alien has not exhausted
the administrative remedies available to him.” INA § 106(c), 8 U.S.C. § 1105a(c) (1994).
Section 208 of the INA provides that “[t]he Attorney General may grant
asylum to an alien . . . if the Attorney General determines that such alien is a refugee
within the meaning of [INA § 101(a)(42)(A)].” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).
A “refugee” is defined as an alien “who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, [his or her home] country
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) (emphasis added). Thus, past persecution, or a
well founded fear of future persecution, does not render an alien eligible for asylum,
unless the persecution is “on account of” one of the five grounds enumerated in Section
101(a)(42)(A). INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). Furthermore, “[t]he
asylum applicant bears the burden of establishing that he or she falls within th[e] statutory
definition of ‘refugee.’” Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). We will
uphold the IJ’s finding that an applicant lacks the requisite well-founded fear of
persecution, if statements in the relevant State Department Country Report demonstrate

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that the persecution claimed by the applicant has ceased. Kayembe v. Ashcroft, 334 F.3d
231, 236-37 (3d Cir. 2003). In order to receive withholding of deportation under former
Section 243(h) of the INA, the applicant must show that he faces a “clear probability” of
persecution in his home country “on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. § 1253(h) (1994); INS v. Stevic,
467 U.S. 407, 430 (1984). Because the “clear probability” standard of former Section
243(h) is more stringent than the “well founded” fear standard of Section 208, an
applicant who fails to qualify for asylum is necessarily disqualified from receiving
withholding of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Stevic,
467 U.S. at 430.
Hray’s claim that the IJ prevented him from offering evidence of past
persecution in Ukraine is completely unfounded. On June 2, 1998, the IJ asked Hray
whether he wished to expand on his testimony concerning his fear of criminal gangs and
poor medical treatment in Ukraine that had been elicited by counsel. A.R. at 85. Hray
declined the IJ’s invitation. Id. Furthermore, Hray did not raise the issue of past
persecution with the BIA, since he merely reiterated his claim that “he fear[ed] returning
to Ukraine because of criminal gangs which [sic] attacked his brother upon his return to
the country.” Id. at 7. We are therefore precluded from considering the claims of past
persecution contained in Hray’s 1991 asylum application, INA § 106(c), 8 U.S.C. §
1105a(c) (1994), and must consider solely his claim that fear of criminal gangs in Ukraine

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7 We note that Hray’s application for asylum and withholding of deportation would
fail even if Hray had testified before the IJ concerning the past persecution described in
the 1991 asylum application. As noted by the IJ, statements in the 1997 Country Report
and Profile indicate that conditions in the now sovereign nation of Ukraine have
improved considerably since 1990. A.R. at 75, 81. Such statements constitute a proper
basis for rejecting Hray’s claim that he fears persecution on account of his political
beliefs. Kayembe, 334 F.3d at 236-37 (3d Cir. 2003).
9
constitutes fear of political persecution. Because “ordinary criminal activity does not rise
to the level of persecution necessary to establish eligibility for asylum,” Abdille, 242 F.3d
at 494, Hray did not meet his burden of showing persecution on account of one of the
protected grounds set forth in Section 101(a)(42)(A) of the INA.7 Lukwago, 329 F.3d at
167. Furthermore, because the “well founded” fear standard of Section 208 is less
stringent than the “clear probability” standard of former Section 243(h), Hray is also
disqualified from receiving relief in the form of withholding of deportation. Cardoza-
Fonseca, 480 U.S. at 449; Stevic, 467 U.S. at 430.
Hray’s application for suspension of deportation is governed by former
Section 244(a)(1) of the INA, 8 U.S.C. 1254(a)(1) (1994). Under former Section 244, the
Attorney General may offer suspension of deportation to an alien who has been physically
present in the United States for at least seven years, possesses good moral character, and
“whose deportation would, in the opinion of the Attorney General, result in extreme
hardship to the alien or to [a qualifying relative] who is a citizen of the United States or
an alien lawfully admitted for permanent residence.” INA § 244(a)(1), 8 U.S.C. §
1254(a)(1) (1994) (emphasis added). The use of the phrase “in the opinion” indicates

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8 In any event, even if we could reach this argument, in light of Hray’s relative
youth, educational background, professional experience, A.R. at 53-55, 192, and since he
has a brother, father and teenage daughter who live in Ukraine, id. at 58-59, we would not
be compelled to find that Hray would suffer extreme hardship if returned to Ukraine, and
would therefore uphold the IJ’s decision. Lukwago, 329 F.3d at 167.
9 We note that, because it can reasonably be argued that the “touching of the sexual
or other intimate parts [of another person] . . . for the purpose of gratifying sexual desire”
18 Pa. Cons. Stat. Ann. §§ 3101, 3126(a)(1), constitutes a crime of moral turpitude for
purposes of the INA, we would be bound by the IJ’s decision that Hray does not possess
the requisite good moral character. Chevron, 467 U.S. at 843.
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that the determination of whether the applicant will face extreme hardship is at the
discretion of the Attorney General. Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). The
applicable transitional rules promulgated under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (the “IIRIRA”), Pub. L. 104-208, 110 Stat. 3009,
preclude us from considering an appeal from “any discretionary decision under section . .
. 244 . . . of the [INA].” IIRIRA § 309(c)(4)(E). Accordingly, we may not consider
Hray’s argument that he would suffer extreme hardship if forced to return to Ukraine, on
account of his medical condition and the dearth of employment opportunities.8 Because
Hray is thus rendered ineligible for suspension of deportation, we need not consider his
contention that the IJ erred by concluding that Hray’s plea to indecent assault constituted
a crime of moral turpitude under the INA.9 Finally, because Hray did not discuss the
question of his eligibility for voluntary departure in his appeal before the BIA we are
barred from addressing the issue in the present petition. INA § 106(c), 8 U.S.C. §
1105a(c) (1994).

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For the foregoing reasons, Hray’s petition for review of the decision of the
BIA is denied.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Not Precedential Opinion.
/s/ Samuel A. Alito
Circuit Judge

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