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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12710
Non-Argument Calendar
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Agency No. A076-577-376
MYKOLA SHCHUPAK,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 12, 2018)
Before MARCUS, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Mykola Shchupak seeks review of the Board of Immigration Appeals’
(“BIA”) ruling denying his motion to reopen his removal proceedings. Shchupak
is an ethnic-Russian Ukrainian and a member of the Russian Orthodox Church,
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who previously lived in western Ukraine while his brother lived in Russia. Years
after his March 2013 removal hearing, he moved to reopen to pursue his claims of
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”), and his claim of relief under the Convention Against Torture (“CAT”),
alleging that he feared persecution based on his religion, ethnicity, and family ties,
and feared being forced into military service in the eastern Ukrainian conflict. The
BIA denied the motion, concluding that (1) the motion was untimely, because
Shchupak did not demonstrate materially changed conditions pertaining to his
claims, and (2) Shchupak had not made a prima facie showing of eligibility for
asylum, withholding of removal, or CAT relief. On appeal, Shchupak argues that
the BIA erred in its decision and abused its discretion when it determined that the
expert opinions and mailed threat he submitted lacked probative value, failed to
consider his supporting evidence -- including evidence of the Russian annexation
of Crimea and invasion of eastern Ukraine -- and applied a wrong legal standard to
his asylum claims. 1 After careful review, we deny the petition.
We review the denial of a motion to reopen for abuse of discretion, limiting
our review to whether the BIA exercised its discretion in an arbitrary or capricious
manner. Jiang v. U.S. Atty. Gen.,
568 F.3d 1252, 1256 (11th Cir. 2009). A motion
1
Shchupak also says the BIA engaged in improper appellate fact-finding, but he relies on case
law about a regulation that prohibits the BIA from fact-finding when reviewing appeals from an
Immigration Judge (“IJ”), not when deciding motions to reopen. 8 C.F.R. § 1003.1(d)(3)(iv)
(“[T]he Board will not engage in factfinding in the course of deciding appeals.”).
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to reopen removal proceedings must be filed no later than 90 days after the final
administrative decision, but this limitation does not apply if the motion is
predicated on changed country conditions that are material and could not have
been discovered at the time of the removal proceedings. 8 U.S.C. §
1229a(c)(7)(C)(i)–(ii). “An alien who attempts to show that the evidence is
material bears a heavy burden and must present evidence that demonstrates that, if
the proceedings were opened, the new evidence would likely change the result in
the case.”
Jiang, 568 F.3d at 1256–57; see also Ali v. U.S. Att’y Gen.,
443 F.3d
804, 813 (11th Cir. 2006) (noting that new evidence must be “of such a nature that
the BIA is satisfied that . . . [it] would likely change the result in the case”
(quotations and brackets omitted)). The BIA is not required to address every piece
of evidence presented by the petitioner in its ruling. Ayala v. U.S. Att’y Gen.,
605
F.3d 941, 948 (11th Cir. 2010).
It is within the BIA’s discretion to deny a motion to reopen based on these
reasons: (1) a failure to establish a prima facie case for asylum, withholding of
removal, or CAT relief; (2) a failure to introduce evidence that was material and
previously unavailable; or (3) a determination that, despite the alien’s statutory
eligibility for relief, he is not entitled to a favorable exercise of discretion.
Jiang,
568 F.3d at 1256. “The standard for granting a motion to reopen immigration
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proceedings is high,” and the BIA has “significant discretion in deciding whether
to do so.” Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 872 (11th Cir. 2018).
To establish a claim for asylum, an applicant must prove that he was
persecuted, or has a well-founded fear of future persecution, on account of his race,
religion, nationality, membership in a particular social group, or political opinion.
Ayala, 605 F.3d at 948-49. To establish a well-founded fear of future persecution,
an applicant must show that there is a reasonable possibility he will suffer this kind
of persecution if returned to his native country. 8 C.F.R. § 1208.13(b)(2)(i)(B);
Mehmeti v. U.S. Att’y Gen.,
572 F.3d 1196, 1200 (11th Cir. 2009). The applicant
must establish that his fear is both subjectively genuine and objectively reasonable.
Mehmeti, 572 F.3d at 1200. An applicant may successfully seek asylum based on
a claim of forced conscription, but only if he proves that he “would be
disproportionately punished for refusing to serve . . . or that he would be forced to
join an internationally condemned military.” Mohammed v. U.S. Att’y Gen.,
547
F.3d 1340, 1346 (11th Cir. 2008). A particular social group has to be “socially
distinct within the society in question.” Gonzalez v. U.S. Atty. Gen.,
820 F.3d
399, 404 (11th Cir. 2016) (quotations omitted).
An alien seeking withholding of removal under the INA must demonstrate
that it is more likely than not that he will be persecuted or tortured upon his return
to his home country on account of his race, religion, nationality, membership in a
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particular social group, or political opinion. Carrizo v. U.S. Att’y Gen.,
652 F.3d
1326, 1331 (11th Cir. 2011) (quotations omitted). To establish a claim for CAT
relief, the alien has the burden of proving that it is more likely than not that he will
be tortured by or with the acquiescence of the government if removed to his home
country. Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004).
We’ve observed that the BIA, when reviewing a motion to reopen, may not
overlook or “inexplicably discount[]” relevant record evidence that corroborates an
applicant’s claim.
Jiang, 568 F.3d at 1258 (addressing the BIA’s denial of a
motion to reopen due to changed country conditions). However, the BIA is
entitled to give no deference to unauthenticated documents. Mu Ying Wu v. U.S.
Att’y Gen.,
745 F.3d 1140, 1153 (11th Cir. 2014). We have held that an IJ and the
BIA did not err in giving little or no weight to a document they concluded was
unauthenticated, as they “properly considered [the] evidence and offered reasoned
conclusions as to how to weigh it.”
Id. at 1154.
Here, the BIA did not abuse its discretion when it determined that Shchupak
failed to demonstrate a material change in country conditions or a prima facie case
for asylum, withholding of removal, or CAT relief. For starters, the BIA did not
abuse its discretion when it discounted the probative value of the opinions of
purported experts Igor A. Kotler and Adriana Helbig, Ph.D. The BIA noted that
the opinions did not indicate how Kotler and Helbig obtained the information
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underlying their opinions or when they had visited Ukraine, that Kotler did not
attach his curriculum vitae (“CV”), and that Helbig’s expertise was primarily
related to music. As the record reflects, Kotler cited to some sources for the
information in his opinion, but he did not indicate how he obtained the information
underlying the key parts of his opinion pertaining to Shchupak’s claims. Likewise,
Helbig’s opinion did not provide any sources for the information underlying her
opinion. As for Kotler’s qualifications, they included broad experience in the area
of the Soviet Union and post-Soviet states, yet did not demonstrate expertise
pertaining specifically to Ukraine. And while Helbig’s CV reflected a focus on
Ukraine, it was primarily in the area of music. In contrast, the expert in Matter of
Marshi, File No. A26 980 386 (A.G. Feb. 13, 2004) -- in which the Attorney
General had said there was no requirement that a witness be formally qualified as
an expert before giving testimony on country conditions in an administrative
hearing -- had extensive and relevant training, qualifications, and experience in the
country at issue. Thus, the BIA did not “inexplicably discount” Helbig’s and
Kotler’s opinions in this case.
Jiang, 568 F.3d at 1258.
As for the BIA’s determination that the threat mailed to Shchupak lacked
indicia of reliability, it was not an abuse of discretion. Shchupak did not present
any evidence with his motion to reopen explaining the context of the letter -- for
example, how the sender would know his address and that he was returning to
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Ukraine, how he knew that the substance it was smeared with was likely animal’s
blood, whether Shchupak knew who the sender was, and whether and how
Shchupak was on the radar of Ukrainian nationalists. Shchupak did not expressly
indicate that the letter arrived in the attached envelope, and there is no explanation
of who Ivan Zayaci is or whether Shchupak knew him. Further, neither the letter
nor the envelope had been authenticated. On this record, the BIA did not abuse its
discretion by giving little weight to the largely unexplained and unauthenticated
document. See Mu Ying
Wu, 745 F.3d at 1153–54.
Nor did the BIA abuse its discretion when it concluded that Shchupak failed
to present evidence of a change in country conditions material to his proposed
claims for relief based on religion or nationality. Shchupak presented evidence
that significant changes have occurred in Ukraine since March 2013, resulting in
violent conflict between pro-Ukrainian and pro-Russian groups. The reports he
submitted, however, showed that most of the violence has occurred in eastern
Ukraine, and Shchupak is from western Ukraine. Moreover, while he submitted
evidence of torture of detainees and societal discrimination and harassment of
ethnic and religious minorities, he did not demonstrate that ethnic Russians or
members of the Russian Orthodox Church in Ukraine are singled out as victims of
this abuse. Nor is there evidence showing that these conditions did not exist at the
time of his removal hearing, other than a statement by Kotler that Ukrainian
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nationalists began viewing Russians in Ukraine as traitors and separatists sometime
after the invasion of Crimea. Accordingly, the BIA did not abuse its discretion
when it determined that Shchupak failed to establish materially changed country
conditions. See
Jiang, 568 F.3d at 1256.
Similarly, the BIA did not abuse its discretion when it concluded that
Shchupak failed to establish a prima facie case for asylum, withholding of
removal, or CAT relief based on his political opinion or membership in a particular
social group. To begin with, Shchupak failed to articulate in his motion what
particular social group he was part of or, because, even assuming he adequately
asserted a proposed group of ethnic Russians belonging to the Russian Orthodox
Church, he failed to present evidence that this group constitutes a socially distinct
group in Ukraine.
Gonzalez, 820 F.3d at 404. Indeed, the only evidence Shchupak
presented showing that a dissenting political opinion might be imputed to him was
in Kotler’s opinion, which, as we’ve already said, the BIA properly concluded
lacked evidentiary value. Moreover, when the BIA determined that Shchupak had
not presented a prima facie case for these claims, it applied the correct legal
standard, because it accepted Shchupak’s assertions in his proposed application as
true before determining that he had not presented a reasonable likelihood that he
would be persecuted upon return to Ukraine. See C.F.R. § 1208.13(b)(2)(i)(B);
Jiang, 568 F.3d at 1256.
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Nor did the BIA abuse its discretion when it concluded that Shchupak failed
to assert a claim based on forced conscription. As the record reveals, Shchupak
did not present any evidence, other than his own unsupported assertion and the
properly discounted opinion of Kotler, that he “would be disproportionately
punished for refusing to serve . . . or that he would be forced to join an
internationally condemned military.”
Mohammed, 547 F.3d at 1346. Shchupak
did not establish that it was more likely than not that he would be tortured by or
with the acquiescence of the government if removed to Ukraine, because the only
evidence he presented of torture either pertained to events in eastern Ukraine or did
not specify that ethnic Russians in Ukraine were being tortured. See Reyes-
Sanchez, 369 F.3d at 1242. Finally, Shchupak has abandoned his claim based on
being targeted for extortion based on imputed wealth, because he failed to argue
this issue in his brief. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
Accordingly, we deny Shchupak’s petition.
PETITION DENIED.
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