Monika Kupczyk; Patrik Maruska v. ATTORNEY GENERAL OF THE UNITED STATES Petition for Review of an Order of the United…

IMG-099
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2876
___________
MONIKA KUPCZYK;
PATRIK MARUSKA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
_____________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency Nos. A98-415-719 & A98-415-720)
Immigration Judge: Honorable Charles M. Honeyman
_____________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 4, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.
(Filed June 16, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Monika Kupczyk and Patrik Maruska petition for review of an order of the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of

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removal. For the reasons that follow, we will deny their petition.
Kupczyk, a native and citizen of Poland, entered the United States on July 22,
2000 as a non-immigrant visitor and overstayed her visa. On June 9, 2004, she filed an
affirmative application for relief from removal, seeking asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”), based on her status as a
Jehovah’s Witness. Her husband, Maruska, also a Jehovah’s Witness, and a native of
Czechoslovakia and citizen of the Slovak Republic, entered the country in February 1998
as a non-immigrant visitor, and sought relief as a derivative beneficiary of his wife’s
application.
Following a hearing on the merits, the IJ denied all relief save petitioners’ request
for voluntary departure, holding that Kupczyk’s asylum application was time-barred and
that they could not satisfy the standard for withholding of removal or CAT relief. The
BIA adopted and affirmed the IJ’s decision and dismissed the appeal, agreeing that
Kupczyk had not timely filed her asylum application or demonstrated the existence of
changed or extraordinary circumstances sufficient to excuse her delay, that she had failed
to establish past persecution or a clear probability of future persecution in Poland, or in
her husband’s case, the Slovak Republic, and that they failed to show that they would
more likely than not be tortured in Poland or the Slovak Republic. Through counsel,
petitioners filed a petition for review. The Government opposes the petition.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We
review the BIA’s factual findings for “substantial evidence.” See Abdille v. Ashcroft,

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242 F.3d 477, 483-84 (3d Cir. 2001). Under this standard, we will uphold these findings
unless the evidence not only supports a contrary conclusion, but compels it. See id.
While we generally lack jurisdiction to review the determination that an asylum
application was not filed within the one-year limitations period and that such period was
not tolled by extraordinary circumstances, see Tarrawally v. Ashcroft, 338 F.3d 180, 185
(3d Cir. 2003); 8 U.S.C. § 1158(a)(3), we have noted that, pursuant to the REAL ID Act
of 2005, we retain jurisdiction over “‘constitutional claims or questions of law raised
upon a petition for review . . . .’” Jarbough v. Attorney General, 483 F.3d 184, 188 (3d
Cir. 2007) (quoting 8 U.S.C. § 1252(a)(2)(D)). However, because petitioners failed to
challenge the IJ’s determination that Kupczyk’s asylum claim was time-barred in their
petition for review, any such claim they might have had is deemed waived. See Vente v.
Gonzales, 415 F.3d 296, 299 n.3 (3d Cir. 2005).
To be entitled to withholding of removal to a specific country, an applicant must
prove that it is more likely than not that her “life or freedom would be threatened in that
country because of [her] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003). To satisfy this standard, the applicant must show she has suffered
past persecution, or that she has a well-founded fear of future persecution. See 8 C.F.R.
§ 208.16(b). Persecution is defined as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993). For relief under the CAT, an applicant must demonstrate

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that it is more likely than not that she would be tortured if removed to her country of
origin. See 8 C.F.R. § 208.16(c)(2).
Kupczyk bases her application for relief on three specific incidents which occurred
in Poland, allegedly due to her status as a Jehovah’s Witness. First, she claims that on
July 28, 1996, she was attacked by “a band of thugs” and suffered bruises and abrasions,
as well as a broken nose, and had to spend three days in the hospital. She then began
receiving phone calls late at night which “threatened physical destruction,” causing her to
suffer a nervous breakdown on May 11, 1997, and to be re-hospitalized. Then, on August
10, 1999, she was returning from prayer service when someone pushed her to the ground,
breaking three of the fingers on her left hand, and again causing her to be hospitalized.
Kupczyk was unable to produce complete copies of the records from her stays in the
hospital, nor did she procure a statement from her mother or anyone else familiar with the
situation to corroborate her claims. She claims that she reported these incidents to the
police but was told that there was nothing they could do because she was living in a
community “where Jehovah’s Witnesses are treated like this.” She also stated that her
family, all Jehovah’s Witnesses, remain in Poland and continue to be the recipients of
“shouting and howling,” but she did not offer any specific examples of persecution of
members of her family who remain in Poland. Maruska testified that when knocking on
doors as a Jehovah’s Witness in the Slovak Republic, he was often chased away in a
harassing and insulting manner.
With respect to their withholding of removal claims, we agree that the evidence

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presented by petitioners, which the IJ determined was credible, nonetheless does not rise
to the level of past persecution nor does it demonstrate a clear probability of future
persecution. See Fatin, 12 F.3d at 1240 (holding that “the concept of persecution does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional”). As the IJ noted, while there may be hostility towards Jehovah’s
Witnesses in Poland, there is no evidence in the record of a “pattern or practice” of
persecution. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (holding that, in order
to demonstrate a pattern and practice of persecution against a particular group, petitioner
must demonstrate that persecution is “systemic, pervasive, or organized” and is
“committed by the government or forces the government is either ‘unable or unwilling’ to
control”). Finally, the IJ concluded that petitioners failed to offer any evidence that they
are likely to be detained, let alone tortured, should they be removed to Poland or the
Slovak Republic. See Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003) (holding
that petitioner must demonstrate it is more likely than not that he will be tortured upon his
return).
As we cannot conclude that the evidence compels a contrary conclusion, we will
deny the petition for review.

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