17-2449 Zubar v. Barr BIA A076 164 655/656/657/658
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of June, two thousand nineteen.
PRESENT: JOSÉ A. CABRANES, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges. _____________________________________
OLGA ZUBAR, ALEKSANDR ZUBAR, VLADIMIR ZUBAR, INNA ZUBAR, Petitioners,
v. 17-2449 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONERS: Alexander J. Segal, The Law Offices of Grinberg & Segal, P.L.L.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Yedidya Cohen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,1
and Inna Zubar, who are family members and natives and
citizens of Ukraine, seek review of a BIA decision denying
their motion to reopen. In re Olga Zubar, Aleksandr Zubar,
Vladimir Zubar, Inna Zubar, Nos. A 076 164 655/656/657/658
(B.I.A. July 13, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history, to which we
refer only as needed to explain our decision to deny the
petition.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers evidence of country
1 The Zubars’ counsel has informed the Court that Vladimir Zubar died in April 2018. We therefore address the petition only as to the remaining family members. 2 conditions in evaluating a motion to reopen, we review the
BIA’s factual findings under the substantial evidence
standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
An alien seeking to reopen may file one motion to reopen
and may do so no later than 90 days after issuance of the
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),
(C)(i); 8 C.F.R. § 1003.2(c)(2). These time and number
limitations do not apply, however, if the motion is filed to
permit application for asylum “based on changed country
conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence
is material and was not available and would not have been
discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). An alien who seeks reopening must also
establish prima facie eligibility for the relief sought.
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).
Although in its decision the BIA noted the applicable time
and number limitations, it recognized recent political
3 changes in the Crimean peninsula in Eastern Ukraine—where
Petitioners last resided before coming to the United States—
and denied reopening based on Petitioners’ failure to show
prima facie eligibility for asylum. Accordingly, we review
only that determination. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial of
immigration relief stands or falls on the reasons given by
the IJ or BIA” (internal quotation marks and alterations
omitted)).
At the threshold, movants seeking asylum must demonstrate
“a ‘realistic chance’ that [they] will be able to establish
eligibility.” Poradisova, 420 F.3d at 78. To establish
asylum eligibility based on a well-founded fear of
persecution, an applicant must show that he or she
subjectively fears persecution and that this fear is
objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). An alien may make this showing
either by offering evidence that “he or she would be singled
out individually for persecution” or by “prov[ing] the
existence of a ‘pattern or practice in his or her country
4 . . . of persecution of a group of persons similarly situated
to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 564
(2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
Because the Zubars did not offer evidence that they “would be
singled out individually for persecution,” they were required
to establish a “pattern or practice” of persecution of ethnic
Ukrainians in their home country. See id.
The Zubars, ethnic Ukrainians with roots in Western
Ukraine, argue that they were not required to demonstrate a
pattern or practice of persecution of ethnic Ukrainians
across the country, but only in the Crimean peninsula in
Eastern Ukraine, the family’s last place of residence in the
country. Even if we accept this proposition, however, we
identify no error in the BIA’s determination that the Zubars
failed to carry their burden. Although the record contains
evidence of human rights abuses in the Crimean peninsula, the
Zubars presented little evidence that any danger that ethnic
Ukrainians may be facing in Crimea rises to the level of
persecution.
5 One record report by an international organization notes
in its discussion of disappearances occurring there that,
“[i]n Crimea, the targeted individuals primarily included
pro-Maidan activists, journalists and members of the Armed
Forces of Ukraine.” Certified Administrative Record (“CAR”)
at 282 (Human Rights Assessment Mission in Ukraine, Report by
the Organization for Security and Co-operation in Europe
(“OSCE Report”)). The Zubars point to the OSCE Report’s
statement that “[i]dentifying as Ukrainian and supporting
Ukrainian unity is allegedly perceived negatively by a
significant proportion of the population in Crimea.” Id. at
340.
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17-2449 Zubar v. Barr BIA A076 164 655/656/657/658
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of June, two thousand nineteen.
PRESENT: JOSÉ A. CABRANES, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges. _____________________________________
OLGA ZUBAR, ALEKSANDR ZUBAR, VLADIMIR ZUBAR, INNA ZUBAR, Petitioners,
v. 17-2449 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONERS: Alexander J. Segal, The Law Offices of Grinberg & Segal, P.L.L.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Yedidya Cohen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,1
and Inna Zubar, who are family members and natives and
citizens of Ukraine, seek review of a BIA decision denying
their motion to reopen. In re Olga Zubar, Aleksandr Zubar,
Vladimir Zubar, Inna Zubar, Nos. A 076 164 655/656/657/658
(B.I.A. July 13, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history, to which we
refer only as needed to explain our decision to deny the
petition.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers evidence of country
1 The Zubars’ counsel has informed the Court that Vladimir Zubar died in April 2018. We therefore address the petition only as to the remaining family members. 2 conditions in evaluating a motion to reopen, we review the
BIA’s factual findings under the substantial evidence
standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
An alien seeking to reopen may file one motion to reopen
and may do so no later than 90 days after issuance of the
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),
(C)(i); 8 C.F.R. § 1003.2(c)(2). These time and number
limitations do not apply, however, if the motion is filed to
permit application for asylum “based on changed country
conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence
is material and was not available and would not have been
discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). An alien who seeks reopening must also
establish prima facie eligibility for the relief sought.
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).
Although in its decision the BIA noted the applicable time
and number limitations, it recognized recent political
3 changes in the Crimean peninsula in Eastern Ukraine—where
Petitioners last resided before coming to the United States—
and denied reopening based on Petitioners’ failure to show
prima facie eligibility for asylum. Accordingly, we review
only that determination. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial of
immigration relief stands or falls on the reasons given by
the IJ or BIA” (internal quotation marks and alterations
omitted)).
At the threshold, movants seeking asylum must demonstrate
“a ‘realistic chance’ that [they] will be able to establish
eligibility.” Poradisova, 420 F.3d at 78. To establish
asylum eligibility based on a well-founded fear of
persecution, an applicant must show that he or she
subjectively fears persecution and that this fear is
objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). An alien may make this showing
either by offering evidence that “he or she would be singled
out individually for persecution” or by “prov[ing] the
existence of a ‘pattern or practice in his or her country
4 . . . of persecution of a group of persons similarly situated
to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 564
(2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
Because the Zubars did not offer evidence that they “would be
singled out individually for persecution,” they were required
to establish a “pattern or practice” of persecution of ethnic
Ukrainians in their home country. See id.
The Zubars, ethnic Ukrainians with roots in Western
Ukraine, argue that they were not required to demonstrate a
pattern or practice of persecution of ethnic Ukrainians
across the country, but only in the Crimean peninsula in
Eastern Ukraine, the family’s last place of residence in the
country. Even if we accept this proposition, however, we
identify no error in the BIA’s determination that the Zubars
failed to carry their burden. Although the record contains
evidence of human rights abuses in the Crimean peninsula, the
Zubars presented little evidence that any danger that ethnic
Ukrainians may be facing in Crimea rises to the level of
persecution.
5 One record report by an international organization notes
in its discussion of disappearances occurring there that,
“[i]n Crimea, the targeted individuals primarily included
pro-Maidan activists, journalists and members of the Armed
Forces of Ukraine.” Certified Administrative Record (“CAR”)
at 282 (Human Rights Assessment Mission in Ukraine, Report by
the Organization for Security and Co-operation in Europe
(“OSCE Report”)). The Zubars point to the OSCE Report’s
statement that “[i]dentifying as Ukrainian and supporting
Ukrainian unity is allegedly perceived negatively by a
significant proportion of the population in Crimea.” Id. at
340. But, that some individuals who identify as Ukrainian
may be “perceived negatively” by many in Crimea does not
establish that ethnic Ukrainians are persecuted there. As
we have observed, “persecution is an extreme concept that
does not include every sort of treatment our society regards
as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
Cir. 2011) (internal quotation marks omitted). Nor does it
“encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Id.
6 The OSCE Report also describes how individuals speaking
Ukrainian in public have been “harassed.” CAR at 340.
Similarly, harassment does not amount to persecution. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006). Further, even if individuals in Crimea are
harassed for speaking Ukrainian, it appears from the record
that the Zubars are not similarly situated to these
individuals because Russian is their native language. In
addition, reports that ethnic Ukrainians have become
generally fearful since the Russian annexation, e.g., CAR at
408, 434, are also insufficient, either alone or considered
together with the descriptions discussed above, to make a
prima facie showing of a pattern or practice of harm rising
to the level of persecution. See In re A-M-, 23 I. & N. Dec.
737, 741 (BIA 2005) (describing a pattern or practice of
persecution as the “systemic or pervasive” persecution of a
group).
For these reasons, the BIA did not abuse its discretion
in concluding that the country conditions evidence adduced by
the Zubars does not establish that they have a “realistic
7 chance” of showing a pattern or practice amounting to
persecution of ethnic Ukrainians residing in Crimea.
Poradisova, 420 F.3d at 78; see In re A-M-, 23 I. & N. Dec.
at 741.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court