NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
EVGENII REDIN; NADEZDA REDINA, No. 23-1017
Petitioners, Agency Nos. A205-326-700 v. A205-326-701
MERRICK B. GARLAND, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 25, 2024** Portland, Oregon
Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.
Petitioners seek review of a Board of Immigration Appeals (BIA) decision
dismissing an appeal of an Immigration Judge (IJ)’s denial of their claims for
asylum, withholding of removal, and Convention Against Torture (CAT) relief. We
have jurisdiction under 8 U.S.C. § 1252. “[U]nder the highly deferential substantial
* 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). evidence standard,” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir.
2023), findings of fact are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742,
748 (9th Cir. 2022) (citation and internal quotation marks omitted). We deny the
petition.
1. For asylum and withholding claims premised on political opinion,
petitioners must show (1) past persecution or an objectively reasonable fear of future
harm and (2) a causal nexus to the political opinion. Rodriguez-Zuniga, 69 F.4th at
1016. Petitioners must demonstrate that persecution occurs “because of th[e]
political opinion,” not another reason. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483
(1992), superseded by statute on other grounds, 8 U.S.C. § 1252(b)(4)(B). Because
“motive is a matter of fact, we review … for substantial evidence.” Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 893 (9th Cir. 2021) (cleaned up).
Substantial evidence supports the agency’s determination that Redin’s past
persecution was motivated not by political opinion, but by a desire to discourage
business competition. Both the threatening phone calls he received after opening his
catering company and the unknown attackers who physically assaulted him
admonished that he close his restaurant, but never mentioned political opinion.
“[This] evidence at most shows that [Redin] ha[s] been the victim of criminal activity
2 in Russia,” not that he was harmed due to “political opinion.” See Bolshakov v.
I.N.S., 133 F.3d 1279, 1281 (9th Cir. 1998) (cleaned up).
Regarding potential future persecution, substantial evidence also supports the
agency’s conclusion that Redin’s police report neither expressed a political opinion
nor will result in a political opinion being attributed to him. Although Redin testified
that he shared the names of his suspected attackers with police, his signed statement
does not include any names, and he could not confirm the identity of his attackers.
Even if he had publicly named suspects, the agency reasonably understood his report
as being directed “only against individuals whose corruption was aberrational,” not
“toward a governing institution,” and therefore expressing an interest in legal
vindication or self-preservation rather than “protected political opinion.”
Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (citations and internal
quotation marks omitted); see Rodriguez-Zuniga, 69 F.4th at 1017 (explaining that
“resisting a robbery” is not “expressing a political opinion” because “most people
who resist criminal activity … do so for obvious non-political self-interested
reasons”). And finally, as to imputed political opinion, the threatening phone call to
Redina (after Redin filed his complaint with law enforcement) criticized only the
fact that the report was made, not any political opinion expressed therein.
2. Nor did the agency err by rejecting Redin’s and Redina’s particular social
groups (PSGs) for lacking, respectively, particularity and legal cognizability.
3 Particularity requires “a clear benchmark for determining who falls within the group,
such that the relevant society has a commonly accepted definition of the group.”
Macedo Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021) (citation and
internal quotation marks omitted). Regarding Redin’s PSGs, the agency correctly
observed that the meaning of the terms “law-abiding” and “independent” are unclear
when dealing with criminal organizations and corrupt government institutions, and
petitioners do not point to any evidence demonstrating that Russian society views
these as distinct groups. See id.
As for Redina, petitioners failed to challenge and thus waived any argument
about her PSG of “family members of a person being persecuted.” See Antonio v.
Garland, 58 F.4th 1067, 1072 n.7 (9th Cir. 2023) (finding the “claim waived” when
the petitioner “offers no substantive argument”). Even if it was preserved, it is a
“well-established principle that a particular social group must exist independently of
the harm asserted.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020).
Redina’s PSG does not exist independently of the harm asserted and is thus
impermissibly circular.
3. Substantial evidence also supports the agency’s conclusion that petitioners
lack a well-founded fear of future persecution based on their Pentecostal religion.
While the country conditions evidence contains some passing incidents supporting
the notion that Pentecostals are treated worse than the Orthodox majority in Russia,
4 such incidents are infrequent, merely discriminatory, and do not rise to the level of
persecution. See Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (characterizing
persecution as “an extreme concept that does not include every sort of treatment our
society regards as offensive” (citation and internal quotation marks omitted)).
Petitioners’ pastor testified that Jehovah’s Witnesses, Mormons, and Seventh Day
Adventists, for example, are more immediately “in line” for mistreatment than
Pentecostals. And although their pastor has stopped traveling to Russia due to fear
of harm, he did travel there for a large Pentecostal conference in 2011 without
incident. Taken together, these facts support a reasonable conclusion that petitioners
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
EVGENII REDIN; NADEZDA REDINA, No. 23-1017
Petitioners, Agency Nos. A205-326-700 v. A205-326-701
MERRICK B. GARLAND, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 25, 2024** Portland, Oregon
Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.
Petitioners seek review of a Board of Immigration Appeals (BIA) decision
dismissing an appeal of an Immigration Judge (IJ)’s denial of their claims for
asylum, withholding of removal, and Convention Against Torture (CAT) relief. We
have jurisdiction under 8 U.S.C. § 1252. “[U]nder the highly deferential substantial
* 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). evidence standard,” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir.
2023), findings of fact are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742,
748 (9th Cir. 2022) (citation and internal quotation marks omitted). We deny the
petition.
1. For asylum and withholding claims premised on political opinion,
petitioners must show (1) past persecution or an objectively reasonable fear of future
harm and (2) a causal nexus to the political opinion. Rodriguez-Zuniga, 69 F.4th at
1016. Petitioners must demonstrate that persecution occurs “because of th[e]
political opinion,” not another reason. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483
(1992), superseded by statute on other grounds, 8 U.S.C. § 1252(b)(4)(B). Because
“motive is a matter of fact, we review … for substantial evidence.” Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 893 (9th Cir. 2021) (cleaned up).
Substantial evidence supports the agency’s determination that Redin’s past
persecution was motivated not by political opinion, but by a desire to discourage
business competition. Both the threatening phone calls he received after opening his
catering company and the unknown attackers who physically assaulted him
admonished that he close his restaurant, but never mentioned political opinion.
“[This] evidence at most shows that [Redin] ha[s] been the victim of criminal activity
2 in Russia,” not that he was harmed due to “political opinion.” See Bolshakov v.
I.N.S., 133 F.3d 1279, 1281 (9th Cir. 1998) (cleaned up).
Regarding potential future persecution, substantial evidence also supports the
agency’s conclusion that Redin’s police report neither expressed a political opinion
nor will result in a political opinion being attributed to him. Although Redin testified
that he shared the names of his suspected attackers with police, his signed statement
does not include any names, and he could not confirm the identity of his attackers.
Even if he had publicly named suspects, the agency reasonably understood his report
as being directed “only against individuals whose corruption was aberrational,” not
“toward a governing institution,” and therefore expressing an interest in legal
vindication or self-preservation rather than “protected political opinion.”
Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (citations and internal
quotation marks omitted); see Rodriguez-Zuniga, 69 F.4th at 1017 (explaining that
“resisting a robbery” is not “expressing a political opinion” because “most people
who resist criminal activity … do so for obvious non-political self-interested
reasons”). And finally, as to imputed political opinion, the threatening phone call to
Redina (after Redin filed his complaint with law enforcement) criticized only the
fact that the report was made, not any political opinion expressed therein.
2. Nor did the agency err by rejecting Redin’s and Redina’s particular social
groups (PSGs) for lacking, respectively, particularity and legal cognizability.
3 Particularity requires “a clear benchmark for determining who falls within the group,
such that the relevant society has a commonly accepted definition of the group.”
Macedo Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021) (citation and
internal quotation marks omitted). Regarding Redin’s PSGs, the agency correctly
observed that the meaning of the terms “law-abiding” and “independent” are unclear
when dealing with criminal organizations and corrupt government institutions, and
petitioners do not point to any evidence demonstrating that Russian society views
these as distinct groups. See id.
As for Redina, petitioners failed to challenge and thus waived any argument
about her PSG of “family members of a person being persecuted.” See Antonio v.
Garland, 58 F.4th 1067, 1072 n.7 (9th Cir. 2023) (finding the “claim waived” when
the petitioner “offers no substantive argument”). Even if it was preserved, it is a
“well-established principle that a particular social group must exist independently of
the harm asserted.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020).
Redina’s PSG does not exist independently of the harm asserted and is thus
impermissibly circular.
3. Substantial evidence also supports the agency’s conclusion that petitioners
lack a well-founded fear of future persecution based on their Pentecostal religion.
While the country conditions evidence contains some passing incidents supporting
the notion that Pentecostals are treated worse than the Orthodox majority in Russia,
4 such incidents are infrequent, merely discriminatory, and do not rise to the level of
persecution. See Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (characterizing
persecution as “an extreme concept that does not include every sort of treatment our
society regards as offensive” (citation and internal quotation marks omitted)).
Petitioners’ pastor testified that Jehovah’s Witnesses, Mormons, and Seventh Day
Adventists, for example, are more immediately “in line” for mistreatment than
Pentecostals. And although their pastor has stopped traveling to Russia due to fear
of harm, he did travel there for a large Pentecostal conference in 2011 without
incident. Taken together, these facts support a reasonable conclusion that petitioners
do not face “an individualized risk” or “a pattern or practice” of religious
persecution. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1198 (9th Cir. 2023) (citation
and internal quotation marks omitted).
Because petitioners failed to demonstrate (1) a nexus between past or future
persecution and a political opinion, (2) a sufficiently particular or legally cognizable
PSG, or (3) a well-founded fear of future religious persecution, substantial evidence
supports the agency’s denial of their claims for asylum and withholding.
4. Even assuming the CAT claim was not waived, substantial evidence
supports the denial of relief. CAT claims require proof “that it is more likely than
not” petitioners “would be tortured if removed to the proposed country … by or at
the instigation of or with the consent or acquiescence of a public official or other
5 person acting in an official capacity.” Rodriguez-Zuniga, 69 F.4th at 1023 (cleaned
up).
First, petitioners’ general commentary on the frequency of attacks on Russian
businessmen does not prove that any link in the highly speculative chain of events
supporting their fear of future torture is more likely than not to occur. Second, a
“government does not acquiesce to torture where [it] actively, albeit not entirely
successfully, combats the illegal activities.” Hussain v. Rosen, 985 F.3d 634, 650
n.8 (9th Cir. 2021) (citation and quotation marks omitted). Here, the record suggests
at least some willingness to help petitioners and rein in criminal activity. Police took
Redin’s statement and opened a criminal case, and even though no arrests were
made, one of the named individuals—Vitalyii Kirienko—was arrested and
imprisoned on other charges. For these reasons, substantial evidence supports the
agency’s conclusion that petitioners “did not demonstrate eligibility for protection
under the CAT.”
PETITON DENIED.