Denys Honcharov v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2019
• Docket: 15-71554
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DENYS HONCHAROV, AKA Denys No. 15-71554 Vitalyevich Honcharov, Agency No. A099-235-092 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted May 16, 2019 San Francisco, California

Before: WALLACE, IKUTA, and CHRISTEN, Circuit Judges.

Denys Honcharov is a Ukrainian national who was admitted to the United

States in 2004 on a five-month visa. In removal proceedings, Honcharov conceded

removability but requested asylum, withholding of removal, and Convention

Against Torture (CAT) protection. The immigration judge (IJ) denied all relief and

the Board of Immigration Appeals (Board) affirmed. Honcharov timely petitioned

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. this court for review. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

1. Asylum. For the reasons explained in our concurrently filed per

curiam, the Board did not err by declining to consider the proposed particular

social groups that were raised for the first time on appeal.

As to the two proposed social groups that Honcharov properly preserved, the

Board did not err by rejecting Honcharov’s asylum claim. First, being a Ukrainian

businessperson is not an immutable characteristic within the meaning of “particular

social group” as used in 8 U.S.C. § 1158(b)(1)(B)(i). See Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1084 (9th Cir. 2013) (en banc) (citing In re Acosta, 19 I &

N Dec. 211, 234 (BIA 1985)). Second, the Board did not err by concluding that the

proposed particular social group “witness victim to crime” lacked sufficient

particularity because the group is too amorphous to be recognized as a class of

distinct persons. See Reyes v. Lynch, 842 F.3d 1125, 1139 (9th Cir. 2016). Further,

even assuming that “witness victim to crime” could be a particular social group,

substantial evidence supports the Board’s finding that Honcharov was not

persecuted “on account of” his membership in this group because he was targeted

for extortionary purposes. See 8 U.S.C. § 1158(b)(1)(B)(i). For the same reason,

substantial evidence supports the Board’s finding that Honcharov was not harmed

because he held a political opinion. See id.

2 Because Honcharov did not demonstrate past persecution, he was not

entitled to a presumption of future persecution, and he did not otherwise

demonstrate a well-founded fear of future persecution. The Board therefore did not

err by rejecting Honcharov’s asylum claim. Because there was no error in the

Board’s decision as to Honcharov’s proposed social groups, there was no need to

remand his case for further fact-finding. The Board therefore did not abuse its

discretion by denying Honcharov’s motion to remand.

2. Withholding of removal. Because Honcharov failed to meet his

burden of proof on his asylum claim, he necessarily failed to meet his burden on

his withholding of removal claim. See Zehatye v. Gonzales, 453 F.3d 1182, 1190

(9th Cir. 2006). Although the Board did not have the benefit of Barajas-Romero v.

Lynch, any error in the Board’s application of the nexus standard was harmless

because the Board did not find that any protected ground was “a reason” for

persecution. See 846 F.3d 351, 359 (9th Cir. 2017).

3. CAT. Assuming, as the Board did, that all of Honcharov and Metz’s

testimony about the violence they suffered at the hands of criminal gangs in

Ukraine is true, the record does not “compel” the conclusion that Honcharov would

more likely than not be tortured if he returned to Ukraine. See Shrestha v. Holder,

590 F.3d 1034, 1049 (9th Cir. 2010). Substantial evidence therefore supports the

Board’s determination that Honcharov was not eligible for CAT relief.

3 PETITION DENIED.