Filed: Jan. 04, 2017
Latest Update: Mar. 03, 2020
Summary: 14-3877 Zubar v. Lynch BIA A076 164 655 A076 164 656 A076 164 657 A076 164 658 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 ELECTR
Summary: 14-3877 Zubar v. Lynch BIA A076 164 655 A076 164 656 A076 164 657 A076 164 658 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 ELECTRO..
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14-3877
Zubar v. Lynch
BIA
A076 164 655
A076 164 656
A076 164 657
A076 164 658
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
4th day of January, two thousand seventeen.
PRESENT:
RALPH K. WINTER,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
_____________________________________
OLGA ZUBAR, ALEKSANDR ZUBAR,
VLADIMIR ZUBAR, INNA ZUBAR,
Petitioners,
v. 14-3877
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alexander J. Segal, The Law Offices
of Grinberg & Segal, P.L.L.C., New
York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
C. Payne, Assistant Director;
Yedidya Cohen, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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
GRANTED in part and DENIED in part.
Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,
and Inna Zubar, natives and citizens of Ukraine, seek review
of a September 15, 2014, decision of the BIA denying their motion
to reopen. In re Olga Zubar, Aleksandr Zubar, Vladimir Zubar,
Inna Zubar, Nos. A076 164 655/656/657/658 (B.I.A. Sept. 15,
2014). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen “for abuse
of discretion, mindful that motions to reopen ‘are
disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
(quoting INS v. Doherty,
502 U.S. 314, 322-23 (1992)). An alien
seeking to reopen proceedings may move to reopen once, no later
than 90 days after the final administrative decision was
rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
2
§ 1003.2(c)(2). These limitations may be excused, however, if
the motion to reopen is “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 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 C.F.R. § 1003.2(c)(3)(ii).
In their motion to reopen, the Zubars alleged that they fear
persecution in Crimea, in eastern Ukraine (from which they
emigrated) on account of their Ukrainian ethnicity. The BIA
failed to address that claim. The Government argues that
remand would be futile given the BIA’s determination that the
Zubars’ evidence was insufficient to establish a specific
threat of harm. We disagree.
“[A] judicial judgment cannot be made to do service for an
administrative judgment.” Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 106 (2d Cir. 2006) (internal quotation marks
omitted). We have recognized certain exceptions to that
general rule, which reconcile the “twin commands neither to
disturb substantially supported factual determinations nor to
let stand determinations that rely, in whole or in part, on legal
error.”
Id. Among those exceptions is the proposition cited
3
by the Government, that “remand should not be required
where—notwithstanding admitted errors—overwhelming evidence
supporting the administrative adjudicator’s findings makes it
clear that the same decision would have been reached in the
absence of the errors.” Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 402 (2d Cir. 2005). Our futility doctrine thus
contemplates an agency finding that rests in part on error, but
is otherwise amply supported by the record. Here, however,
there was no agency finding; so, this exception is inapplicable.
We therefore must remand for the limited purpose of allowing
the BIA to decide, in the first instance, whether the Zubars’
ethnicity claim warrants reopening.
The petition is otherwise denied. The BIA was within its
discretion to find that the Zubars failed to establish prima
facie asylum eligibility based on their membership in a
particular social group (Russian speakers) or their pro-Ukraine
political opinions. Singh v. Mukasey, 536 F.3d 149, 155 (2d
Cir. 2008). The Zubars claimed to have a well-founded fear of
future persecution; they did not claim to have been persecuted
in the past. To be eligible for asylum on that basis, they had
to “make some showing that authorities in [their] country of
nationality are either aware of [their] activities or likely
4
to become aware of [their] activities.” Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). To do so, the Zubars
could demonstrate that they will be singled out for persecution,
or that Crimea has a pattern or practice of persecuting those
similarly situated to them. 8 C.F.R. § 1208.13(b)(2).
The Zubars submitted newspaper articles and human rights
reports about the political situation in Crimea for Ukrainians.
Those reports describe heavily armed “self-defence” groups
beating and detaining pro-Ukrainian activists, statements that
favoring Ukrainian unity is perceived negatively by Crimeans,
and quote ethnic Ukrainians expressing fear of violence,
harassment, and losing their employment rights. The BIA
reasonably found that this evidence did not demonstrate that
a particular social group made up of Russian speakers face
persecution.
The BIA was likewise entitled to find that the Zubars failed
to corroborate their pro-Ukraine political opinions or show
that Crimean authorities would discover those opinions. A
motion to reopen must be supported “by affidavits and other
evidentiary material.” 8 C.F.R. § 1003.2(c)(1). The Zubars’
only individualized evidence was an affidavit from Olga Zubar
stating, in relevant part, “We do not support the pro-Putin
5
political views for the majority of Crimean residents.” That
statement was uncorroborated by, for example, documents showing
that the Zubars joined a political organization, engaged in
pro-Ukraine activism, wrote pro-Ukraine articles, or even that
they planned to do so. The record was also devoid of evidence
that the Crimean government will learn about the Zubars’
political opinions. See Y.C. v. Holder, 741 F.3d 324, 334 (2d
Cir. 2013) (explaining that even if the Chinese government
monitors electronic communications, that does not mean it “is
aware of every anti-Communist or pro-democracy piece of
commentary published online”).
For the foregoing reasons, the petition for review is
GRANTED in part and DENIED in part, and the case is REMANDED
for further proceedings consistent with this order. 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
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