Inga Barysheva v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 7, 2018
• Docket: 18-11362
• Status: Unpublished

Opinion

Case: 18-11362 Date Filed: 11/07/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11362 Non-Argument Calendar ________________________

Agency No. A016-087-611

INGA BARYSHEVA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(November 7, 2018)

Before TJOFLAT, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM: Case: 18-11362 Date Filed: 11/07/2018 Page: 2 of 10

Inga Barysheva, proceeding pro se, petitions for review of the Bureau of

Immigration Appeals’ (“BIA”) decision denying her motion to reopen her removal

proceedings. After review, we deny Barysheva’s petition.

I. IMMIGRATION PROCEEDINGS

A. Underlying Removal Proceedings

On May 17, 2010, Barysheva, a native and citizen of Ukraine, arrived in the

United States as a crewmember on a Carnival Cruise Lines ship with a non-

immigrant C1/D visa1 and was refused permission to land. On June 8, 2010, the

Department of Homeland Security (“DHS”) served her with a Form I-863 Notice

of Referral to Immigration Judge, placing her in asylum-only proceedings because

she expressed fear of returning to Ukraine. Because she was placed in asylum-

only proceedings, the only relief Barysheva could pursue was asylum, withholding

of removal, and relief under the United Nations Convention Against Torture

(“CAT”). See 8 C.F.R. § 208.2(c)(1)(i)(B), (3)(i) (an alien crewmember who has

been refused permission to land is not entitled to proceedings under section 240 of

the Immigration and Nationality Act (“INA”) and may pursue only asylum and

withholding of removal); see also Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1366

n.5 (11th Cir. 2005) (an alien in asylum-only proceedings “is limited exclusively to

1 A C1/D visa allows alien crewmembers on commercial sea vessels to travel to the United States to join their vessel and to work on the vessel while it is in a U.S. port. 2 Case: 18-11362 Date Filed: 11/07/2018 Page: 3 of 10

asylum-related relief,” and “cannot contest admissibility, removability, or raise

claims concerning [her] eligibility for other forms of relief”).

In August 2010, Barysheva, pro se, submitted an I-589 application for

asylum, withholding of removal, and CAT relief. Though she indicated that her

application was based on her religion and nationality, Barysheva’s application

primarily focused on her claims that her Italian-citizen husband, Filippo Romano,

was abusive and had kidnapped their son, and that she was detained and threatened

by Italian police in 2008 when she went to Italy to check on her son. Similarly,

though Barysheva indicated on her application that she feared returning to her

home country of Ukraine, the only explanation she provided was also related to her

issues with her husband. Specifically, Barysheva asserted that Ukraine was still a

developing democracy where anybody involved in her son’s kidnapping could

have her “arrested, imprisoned, confined, [or] killed” by bribing Ukrainian

government officials. Barysheva’s hearing testimony likewise focused on her

issues with her husband, Romano, and her arrest by Italian authorities, and

Barysheva admitted that no one in Ukraine had ever bothered her.

In August 2010, following the merits hearing, the IJ issued an oral decision

denying Barysheva’s asylum application. The IJ determined that Barysheva’s

problems were not with anyone in Ukraine, but rather with Italian authorities, and

she failed to establish any reasonable possibility that she would be harmed or

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persecuted if she were returned to Ukraine. Accordingly, the IJ concluded that

Barysheva failed to establish her eligibility for asylum, withholding of removal, or

CAT relief.

On appeal, the BIA affirmed the IJ’s decision in December 2010. In January

2011, Barysheva filed a petition for review with this Court, but that petition was

later dismissed for want of prosecution. In March 2011, Barysheva filed a motion

to reconsider with the BIA, arguing that her civil rights were violated during the

merits hearing and requesting that her case be remanded to the IJ for

reconsideration. The BIA denied Barysheva’s motion as untimely, and Barysheva

did not petition this Court for review of that denial.

In 2012, Barysheva was removed to Ukraine. Barysheva remained in

Ukraine only briefly before moving to Cyprus, where she lived from 2012 to 2017.

B. December 2017 Motion to Reopen

In December 2017, Barysheva, who had recently returned to the United

States, filed a pro se motion to reopen her removal proceedings with the BIA. In

her motion, Barysheva stated that she sought reopening to reapply for asylum and

withholding of removal based on changed personal circumstances and country

conditions. Barysheva asserted that she had a well-founded fear of returning to

Ukraine based on her membership in a particular social group—“single women

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without family and close relatives.” Barysheva also noted that, in 2013 and 2014,

armed conflict had broken out in Ukraine.

In addition to pursuing asylum and withholding of removal, Barysheva

requested that her removal proceedings be terminated so she could apply for

adjustment of status. Barysheva asserted that (1) U.S. Citizenship and Immigration

Services approved her I-212 Application to Reapply for Admission and (2) her

mother had filed an I-130 Petition for Alien Relative on her behalf.

Barysheva attached a new asylum application to her 2017 motion to reopen.

In her new application, Barysheva indicated that she sought relief based on her

membership in a particular social group. Barysheva asserted that women in

Ukraine are subjected to discrimination, sexual harassment, domestic violence, sex

trafficking, and other human rights abuses. Barysheva said women in her family

had experienced such mistreatment, explaining that her sister once was attacked by

a sex offender, and Barysheva herself turned down a job offer when she was 17

because it was conditioned on the performance of a sexual favor. Barysheva

asserted that there is little to no protection against such violence for women in

Ukraine, and that she would be particularly vulnerable as a single woman without

any close relatives or friends. Barysheva also expressed fear of returning to

Ukraine based on the ongoing armed conflict between Ukraine and Russia.

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C. March 2018 BIA Decision

In March 2018, the BIA denied Barysheva’s motion to reopen. The BIA

first noted that Barysheva’s 2017 motion to reopen was untimely, as it was not

filed within 90 days of the BIA’s 2010 decision on the merits of her first asylum

application. The BIA further noted that, to the extent Barysheva argued that the IJ

and BIA erred in denying her first asylum application, those arguments should

have been raised on appeal or in a timely motion to reconsider.

As to Barysheva’s changed-country-conditions argument, the BIA explained

that Barysheva (1) had not shown that the military conflict in Ukraine was material

to her asylum claim based on her membership in a particular social group, and

(2) had not shown that Ukraine’s problems with violence against women, human

trafficking, and other gender-based human rights abuses were actually changed

circumstances, rather than a continuation of similar conditions that existed at the

time of her initial asylum application.2 The BIA further determined that Barysheva

had not demonstrated prima facie eligibility for asylum in her new application, as

the evidence submitted showed that the armed conflict she feared was concentrated

in eastern Ukraine, not in the southwestern city of Odessa where Barysheva was

from. Lastly, the BIA noted that Barysheva’s I-130 petition did not provide an

2 During Barysheva’s initial asylum proceedings in 2010, DHS submitted the 2009 State Department Country Report for Ukraine, which indicated that discrimination and violence against women and human trafficking were problems in Ukraine. 6 Case: 18-11362 Date Filed: 11/07/2018 Page: 7 of 10

exception to the time limits for a motion to reopen and, in any event, adjustment of

status was not available to Barysheva in her asylum-only proceedings.

Proceeding pro se, Barysheva now petitions for review of the denial of her

2017 motion to reopen.

II. DISCUSSION

Typically, a motion to reopen immigration proceedings must be filed within

90 days of the date of entry of a final administrative order of removal. 3 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). That 90-day time limit does not

apply, however, if the motion seeks asylum or withholding of removal based on

changed country conditions in the alien’s country of nationality, “if such evidence

is material and was not available and would not have been discovered or presented

at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jiang v. U.S.

Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). An alien seeking reopening on

that basis bears a heavy burden—she must present material evidence of changed

country conditions that, if the proceedings were reopened, likely would alter the

result in the case. Jiang, 568 F.3d at 1256-57.

To establish a claim for asylum, an applicant must show that she was

persecuted or has a well-founded fear of future persecution in her home country on

3 We review the BIA’s denial of a motion to reopen for an abuse of discretion, and our review is limited to determining whether the BIA’s exercise of discretion was arbitrary and capricious. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). 7 Case: 18-11362 Date Filed: 11/07/2018 Page: 8 of 10

account of her race, religion, nationality, membership in a particular social group,

or political opinion. 8 U.S.C. § 1158(b)(1)(B)(i); Scheerer v. U.S. Att’y Gen., 445

F.3d 1311, 1315 (11th Cir. 2006). Persecution is an extreme concept that requires

more than mere harassment or a few isolated incidents of harassment or

intimidation. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). A

particular social group must be “defined with particularity” and “socially distinct

within the society in question.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404

(11th Cir. 2016) (internal quotations omitted). An alien seeking to demonstrate a

well-founded fear of future persecution based on membership in a particular social

group must show a pattern or practice within her home country of persecuting

members of that group. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th

Cir. 2008). An applicant who fails to establish eligibility for asylum necessarily

also fails to establish eligibility for withholding of removal or CAT relief. Forgue

v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).

Here, the BIA did not abuse its discretion in denying Barysheva’s 2017

motion to reopen. Barysheva filed her 2017 motion to reopen well beyond the 90-

day time limit for such motions and failed to establish her entitlement to reopening

based on changed country conditions. The only changed condition Barysheva

pointed to in her motion and accompanying asylum application was the ongoing

armed conflict between Ukraine and Russia. The BIA correctly concluded that this

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conflict is not material to Barysheva’s asylum claim. 8 U.S.C. § 1229a(c)(7)(ii);

see also Jiang, 568 F.3d at 1256. Though the evidence Barysheva presented

indicated that various human rights abuses, including violence against women,

have occurred during the conflict, the evidence also showed that this conflict is

concentrated in the eastern regions of Donetsk and Luhansk, and in the Crimean

peninsula, not in Barysheva’s hometown of Odessa in southwestern Ukraine.

Moreover, though the evidence indicated that certain groups of women—

including, among others, older and rural women, women with disabilities, and

lesbian, bisexual, or transgender women—faced a heightened risk of sexual

violence and exploitation, it did not indicate that “single women without close

relatives” were targeted for such abuse. In addition, as the BIA noted, gender-

based human rights abuses, including sexual violence, human trafficking, and

discrimination, were existing problems in Ukraine at the time of Barysheva’s first

asylum application in 2010. In short, the BIA correctly concluded that Barysheva

failed to demonstrate either materially changed country conditions in Ukraine or

prima facie eligibility for asylum or related forms of relief. See Jiang, 568 F.3d at

1256-57; Djonda, 514 F.3d at 1174; Forgue, 401 F.3d at 1288 n.4.

The BIA likewise did not err in concluding that Barysheva’s approved I-130

petition did not fall within any exception to the 90-day time limit for motions to

reopen, see 8 C.F.R. § 1003.2(c)(3), and that she was not entitled to seek an

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adjustment of status based on the I-130 petition in her asylum-only proceedings in

any event, see 8 C.F.R. § 208.2(c)(1)(i)(B), (3)(i); Nreka, 408 F.3d at 1366 n.5.4

In sum, the BIA did not abuse its discretion in denying Barysheva’s 2017

motion to reopen. Accordingly, we deny her petition for review.

PETITION DENIED.

4 On appeal, Barysheva raises several arguments regarding her original 2010 asylum proceedings, but our review in this case is limited to the denial of Barysheva’s 2017 motion to reopen and does not extend to her original 2010 proceedings. See Jiang, 568 F.3d at 1256; see also Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (this Court lacks jurisdiction to review underlying final removal order where petitioner only filed a petition for review from denial of motion to reopen). Barysheva also argues that the BIA should have considered her approved I-212 waiver as a changed circumstance warranting reopening. As with her I-130 petition, however, Barysheva’s approved I-212 waiver does not fall within any exception to the 90-day time limit for motions to reopen. See 8 C.F.R. § 1003.2(c)(3); Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (an alien seeking reopening under § 1229a(c)(7)(C)(ii) “cannot circumvent the requirement of changed country conditions by demonstrating only a change in her personal circumstances”). 10