Svitlana Zonova v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 3, 2022
• Docket: 20-71211
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SVITLANA ZONOVA, No. 20-71211

Petitioner, Agency No. A079-392-301

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 11, 2022** Pasadena, California

Before: TASHIMA and LEE, Circuit Judges, and CARDONE,*** District Judge.

Petitioner Svitlana Zonova, a Jewish citizen of Ukraine, petitions for review

of the decision of the Board of Immigration Appeals (BIA) denying her motion to

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. reconsider (“Motion”), which the BIA construed as a both a motion to reconsider

and a motion to reopen based on changed country conditions.1 We deny the

petition in part and dismiss in part.

We review the BIA’s denial of a motion to reopen or reconsider for abuse of

discretion. Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017). The BIA

abuses its discretion when its denial is “arbitrary, irrational, or contrary to law.”

Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (quoting Ahwazi v. INS, 751

F.2d 1120, 1122 (9th Cir. 1985)).

1. The BIA did not abuse its discretion by denying Petitioner’s Motion with

respect to reconsideration. A motion to reconsider must “specify[] the errors of

fact or law in the prior Board decision and shall be supported by pertinent

authority.” 8 C.F.R. § 1003.2(b)(1). Petitioner did not point to any legal errors in

the prior BIA decision, nor did she identify previously submitted evidence that the

BIA overlooked or misinterpreted. As such, the petition is denied as to

reconsideration.

1 Petitioner purports to “seek[] review of [the BIA’s] decisions” to deny both her first motion to reopen, filed in May 2019, and her motion to reconsider. Petitioner did not timely appeal the denial of her first motion to reopen. See 8 U.S.C. § 1252(b)(1) (setting thirty-day deadline for appealing final removal orders). Because the time limit for appealing removal orders “has been treated as mandatory and jurisdictional in this Circuit,” we lack jurisdiction to review the denial of her first motion. Martinez v. Sessions, 873 F.3d 655, 658 (9th Cir. 2017).

2 2. Neither did the BIA abuse its discretion by denying the Motion with respect to

reopening. To prevail on a motion to reopen based on changed country conditions,

a movant must produce previously unavailable material evidence, which, “when

considered together with the evidence presented at the original hearing, would

establish prima facie eligibility for the relief sought.” Bhasin v. Gonzales, 423

F.3d 977, 984 (9th Cir. 2005); see 8 C.F.R. § 1003.2(c)(3)(ii). Petitioner argues

that she is prima facie eligible for relief based on several theories of eligibility, all

of which fail.

Petitioner first contends that she is prima facie eligible for asylum based on a

pattern or practice of persecution of Jews in Ukraine. An applicant may be eligible

for asylum based on a “pattern or practice of persecution of a group of persons

similarly situated to the applicant” on account of protected grounds including

religion, such that the applicant’s inclusion in the group makes it “more likely than

not that his or her life or freedom would be threatened upon return to that country.”

8 C.F.R. § 208.16(b)(2)(i)–(ii). An applicant may prevail based on a showing of

persecution by private actors, “so long as the persecution is sufficiently widespread

and the government is unable or unwilling to control those actors.” Wakkary v.

Holder, 558 F.3d 1049, 1061 (9th Cir. 2009).

Petitioner argues that the treatment of Jews in Ukraine by anti-Semitic

groups constitutes widespread persecution and that the Ukrainian government is

3 unable or unwilling to stop it. She cites reports that anti-Semitic attacks are more

common in Ukraine than in other ex-Soviet countries and that radical groups have

carried out at least two dozen acts of physical violence or intimidation against Jews

in Ukrainian cities since 2018. Although these reports are appalling, they evidence

“sporadic”—not widespread—violence, which does not itself establish a pattern or

practice of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1180 (9th Cir.

2007).

Furthermore, the BIA did not abuse its discretion in finding insufficient

evidence that the Ukrainian government is unable or unwilling to stop anti-Semitic

violence. The evidence suggests that the Ukrainian government has, at times,

failed to respond to attacks by far-right groups but that it has been more responsive

when such attacks were clearly anti-Semitic. In fact, the government has opened

criminal investigations related to those attacks, supporting the BIA’s

determination. See Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005)

(concluding that the BIA did not abuse its discretion in finding that the

Bangladeshi government was not unable or unwilling to stop private persecution

when it “did not countenance attacks . . . and intervened in such attacks to the

extent that it was able”). As such, the BIA did not abuse its discretion in finding

Petitioner had not established prima facie eligibility for asylum based on a pattern

or practice of persecution of Jews in Ukraine.

4 We lack jurisdiction to consider Petitioner’s remaining arguments for prima

facie eligibility for relief, as she failed to raise them before the BIA. See 8 U.S.C.

§ 1252(d)(1) (providing for judicial review a final order of removal if “the alien

has exhausted all administrative remedies available to the alien as of right”);

Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). We also lack

jurisdiction to consider her argument that her proceedings should be reopened sua

sponte. See Menendez-Gonzalez v. Barr 929 F.3d 1313, 1315 (9th Cir. 2019

(“This court generally lacks jurisdiction to review a decision by the [BIA] not to

exercise its sua sponte authority to reopen removal proceedings.” (citation

omitted)).

3. Finally, Petitioner’s due process claim fails. To the extent that Petitioner

purports to appeal the denial of her first motion on due process grounds, we lack

jurisdiction. See Martinez, 873 F.3d at 658. To the extent that Petitioner appeals

the denial of reconsideration of the denial of her first motion, her claim fails

because the record does not support her assertion that she did not receive the

Government’s response to her first motion.

PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN

PART.