Khavrenko v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2024
• Docket: 21-1113
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEKSANDR KHAVRENKO, No. 21-1113 Agency No. Petitioner, A076-078-694 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 6, 2024** San Francisco, California

Before: S.R. THOMAS and MILLER, Circuit Judges, and BENNETT, District Judge.***

Aleksandr Nikolyevich Khavrenko, a native and citizen of Ukraine, petitions

for review of a Board of Immigration Appeals decision dismissing his appeal from

* 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. an immigration judge’s order denying his applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review questions of law de novo and review the agency’s factual

findings for substantial evidence. See Perez-Portillo v. Garland, 56 F.4th 788, 792

(9th Cir. 2022). Factual findings “are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We

review the Board’s refusal to take administrative notice of extra-record evidence

for abuse of discretion. Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

1. Substantial evidence supports the agency’s determination that Khavrenko

is not eligible for asylum. To be eligible for asylum, Khavrenko must show

“persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). A petitioner may establish a well-founded fear of future

persecution either by proving past persecution or by demonstrating that he has a

subjectively genuine and objectively reasonable fear of future persecution. Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019). A petitioner may prove

that his fear is objectively reasonable by showing (1) “that there is a ‘reasonable

possibility’ that he will be ‘singled out individually for persecution’ if removed” or

(2) “that there is a systematic ‘pattern or practice’ of persecution against the group

2 21-1113 to which he belongs in his home country.” Wakkary v. Holder, 558 F.3d 1049,

1060 (9th Cir. 2009) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).

Substantial evidence supports the agency’s finding that Khavrenko did not

suffer past persecution. Khavrenko did not allege that he experienced physical

harm, faced direct threats in Ukraine, or was subject to any other conduct rising to

the level of persecution. See Sharma v. Garland, 9 F.4th 1052, 1061–63 (9th Cir.

2021). The same is true of the agency’s finding that he does not have an

“objectively reasonable” fear of future persecution. See Rusak v. Holder, 734 F.3d

894, 896 (9th Cir. 2013). There is no evidence that the Ukrainian government or

“ultranationalists” sanctioned by the government systematically target ethnic

Russians who are not involved in political activity. Nor does the record compel the

conclusion that Christian Baptists are a disfavored group in Ukraine or that there is

a pattern or practice of persecution of Christian Baptists at the hands of pro-

Russian separatists.

Khavrenko’s arguments to the contrary are unavailing. First, he contends

that the agency erred by failing to engage in a cumulative analysis of the harm he

would suffer because of his ethnicity and religion. But he provides no evidence

that he faces a greater risk of persecution in Ukraine because he is both an ethnic

Russian and a Christian Baptist. And the record does not show that the agency

failed to consider all the evidence he presented. See Hernandez v. Garland, 52

3 21-1113 F.4th 757, 771, 773 (9th Cir. 2022). Further, Khavrenko’s argument that the Board

applied the wrong legal standard to its review of the immigration judge’s

cumulative analysis is contradicted by the language of the Board’s decision, which

cited and applied the correct de novo standard of review.

Second, Khavrenko argues that the Board violated his due process rights by

affirming the immigration judge’s finding that he had not demonstrated a pattern or

practice of persecution when the immigration judge had allegedly made no such

finding. The record shows otherwise: the immigration judge determined that

Khavrenko’s allegations did not describe a pattern or practice of persecution

against ethnic Russians or Christian Baptists.

Third, Khavrenko argues that the immigration judge failed to consider his

inability to reasonably relocate to eastern Ukraine due to religious persecution in

that region. But the immigration judge never found a pattern or practice of

persecution of Christian Baptists in eastern Ukraine. Rather, he found that

persecution against Christians was limited to two cities with ongoing conflict over

pro-Russian separatist activity.

2. Because substantial evidence supports the agency’s finding that

Khavrenko did not establish a sufficient likelihood of persecution to be eligible for

asylum, substantial evidence also supports its denial of withholding of removal.

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016) (“A petitioner

4 21-1113 who fails to satisfy the lower standard of proof for asylum necessarily fails to

satisfy the more stringent standard for withholding of removal.”)

3. Substantial evidence also supports the agency’s denial of CAT relief. To

be eligible for CAT protection, Khavrenko must show that he is more likely than

not to be tortured if removed and that a public official would “inflict, instigate,

consent to or acquiesce in that torture.” Madrigal v. Holder, 716 F.3d 499, 508 (9th

Cir. 2013); see 8 C.F.R §§ 1208.18(a)(1), 1208.16(c)(2). The record does not

compel the conclusion that Khavrenko faces an individualized risk of torture at the

direction or with the acquiescence of the Ukrainian government. See Lopez v.

Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018).

4. The Board acted within its discretion when it declined to take

administrative notice of new evidence about the conflict between Russia and

Ukraine and instead suggested that Khavrenko file a motion to reopen. See

Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003) (explaining that a motion to

reopen is the appropriate vehicle for presenting new facts or evidence that might

provide relief from removal).

PETITION DENIED.

5 21-1113