Andrey Cherba v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2020
• Docket: 17-73396
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 18 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREY CHERBA, No. 17-73396

Petitioner, Agency No. A071-378-762

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 13, 2020** San Francisco, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. Andrey Cherba petitions for review of the Board of Immigration Appeals’

denial of his fourth motion to reopen his removal proceedings. We have

jurisdiction pursuant to 8 U.S.C. § 1252(a). Reviewing for abuse of discretion,

INS v. Abudu, 485 U.S. 94, 107 (1988), we deny the petition.

1. The immigration court properly exercised jurisdiction over Cherba’s

removal proceeding. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Cherba

argues the Board should have vacated his removal order because his Notice to

Appear was defective. This argument is foreclosed by Karingithi v. Whitaker, 913

F.3d 115, 116 (9th Cir. 2019) (“A notice to appear need not include time and date

information to . . . [meet] the regulatory requirements and . . . [vest] jurisdiction in

the [Immigration Judge].”).

2. The parties do not dispute that Cherba’s motion to reopen is untimely

and exceeds the number of motions allowed by 8 U.S.C. § 1229a(c)(7). These bars

do not apply if a motion to reopen is “based on changed country conditions arising

in the . . . country to which removal has been ordered, if such evidence is material

and was not available and would not have been discovered or presented at the

previous proceeding.” Id. § 1229a(c)(7)(C)(ii).

The Board did not abuse its discretion by concluding that Cherba was not

entitled to reopen his proceedings based on his argument that conditions for

2 Baptists in Ukraine have materially changed since 2011. Cherba argued that

Baptists suffered persecution when Ukraine was a member of the Soviet Union, but

the Soviet Union dissolved years before Cherba arrived in the United States in

1997. Cherba points to isolated incidents of present violence in Ukraine against

Baptists, but does not meaningfully compare these incidents to conditions in 2011.

In addition, the violence was committed by pro-Russian separatists, and in Eastern

Ukraine, where Cherba does not have family.

We uphold the Board’s factual findings in support of a denial of a motion to

reopen if the findings are supported by substantial evidence. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). Here, substantial evidence supports the

Board’s conclusion that Cherba would be ineligible for asylum, even if the merits

of his claim were considered. Cherba presented no evidence he was persecuted in

Ukraine on account of his religion, or that he was classified as a refugee on that

basis when he was admitted to the United States in 1997. Robleto-Pastora v.

Holder, 591 F.3d 1051, 1057–58 (9th Cir. 2010); Diaz-Torres v. Barr, 963 F.3d

976, 981 (9th Cir. 2020). Cherba did not show a well-founded fear of persecution

because he could relocate away from Eastern Ukraine. Duran-Rodriguez v. Barr,

918 F.3d 1025, 1029 (9th Cir. 2019). The record does not compel a contrary

conclusion.

3 The Board did not abuse its discretion by concluding Cherba was not

entitled to reopening based on his argument that conditions in Ukraine have

materially changed for political activists. Cherba presented no evidence of

materially changed conditions for political activists. Neither Cherba’s petition, nor

the record, demonstrate why evidence of political persecution was unavailable in

2011. In any case, substantial evidence supports the Board’s conclusion that

Cherba failed to establish prima facie eligibility for asylum based on his political

views. Cherba cites violence against socialist politicians and political bloggers but

cites no evidence that he is similarly situated. Najmabadi v. Holder, 597 F.3d 983,

992 (9th Cir. 2010). Cherba offered no evidence to substantiate his claim that his

Americanized appearance will cause him to be perceived by extreme nationalists as

holding pro-Western political views.

Cherba also argues he is a member of two proposed social groups,

“internally displaced persons,” and “apparent Americans.” The Board concluded

neither was cognizable, and Cherba failed to show membership in either group.

Cherba argues he is not presently employed in Ukraine and does not own a house

or rent an apartment there. Neither are immutable traits. Cherba did not provide

evidence that people with Americanized appearance, speech, and manner are

targeted for violence and harm in Ukraine based on these characteristics. Cherba’s

4 claim that he would be persecuted as a displaced person and “widely believed to be

pro Russian” failed for a similar reason. Knezevic v. Ashcroft, 367 F.3d 1206,

1211–12 (9th Cir. 2004) (explaining that persons “displaced by the inevitable

ravages of war” do not receive protected status). Cherba fails to show that the

record compels a contrary conclusion.

3. Substantial evidence supports the Board’s conclusion that Cherba

failed to establish prima facie eligibility for relief pursuant to the Convention

Against Torture. Cherba does not allege he will be tortured by government

officials or by Ukranian nationalists operating with government acquiescence.

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citing 8 C.F.R.

§ 208.18(a)(1)). Cherba’s argument that the Ukrainian government puts up

minimal resistance to violent and incredibly dangerous conditions is insufficient.

Id.

The Board did not abuse its discretion by denying Cherba’s fourth motion to

reopen his removal proceedings.

PETITION DENIED.