Paterko v. Holder , 480 F. App'x 12 ( 2012 )

11-155-ag
Paterko v. Holder
BIA
Straus, IJ
A095 583 189
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 YAROSLAV ALEKSEEVICH PATERKO,
14 Petitioner,
15
16 v. 11-155-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22 FOR PETITIONER: Justin Fappiano, New Haven,
23 Connecticut.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Emily Anne Radford,
27 Assistant Director; Aric A.
28 Anderson, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yaroslav Alekseevich Paterko, a native and
6 citizen of the Ukraine, seeks review of a December 17, 2010
7 order of the BIA affirming the July 16, 2009 decision of
8 Immigration Judge (“IJ”) Michael W. Straus, which denied his
9 applications for asylum, withholding of removal, and CAT
10 relief. In re Yaroslav Alekseevich Paterko, No. A095 583
11 189 (B.I.A. Dec. 17, 2010), aff’g No. A095 583 189 (Immig.
12 Ct. Hartford, CT Jul. 16, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Because the BIA’s opinion closely tracks the IJ’s
16 reasoning, we consider both the IJ’s and the BIA’s opinions
17 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
18 233, 237 (2d Cir. 2008). The applicable standards of review
19 are well established. See 8 U.S.C. § 1252(b)(4)(B); see
20 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008).
22
2
1 The agency reasonably concluded that Paterko failed to
2 establish that he was persecuted on account of his political
3 opinion. “[O]pposition to endemic corruption or extortion,
4 no less than opposition to other government practices or
5 policies, may have a political dimension when it transcends
6 mere self-protection and represents a challenge to the
7 legitimacy or authority of the ruling regime.” See Yueqing
8 Zhang v. Gonzales, 426 F.3d 540, 547-48 (2d Cir. 2005).
9 Although Paterko established that he was abducted and beaten
10 after he demanded payment on a contract from an official in
11 the Ukraine, Paterko failed to demonstrate that his
12 opposition to the official’s monetary demands and refusals
13 to make promised payments were political, rather than
14 motivated by his personal desire to recover the money he
15 lost. Unlike the petitioner in Zhang, Paterko did not
16 organize local business leaders in opposition to corruption
17 or demonstrate other political opposition to corruption. He
18 demonstrated merely that he was opposed to the activities of
19 a corrupt government official.
20 The BIA also concluded that Paterko had established
21 neither past persecution nor a well-founded fear of future
22 persecution on account of his membership in a particular
23 social group as “someone who witnesses political
3
1 corruption.” Paterko argues for the first time on appeal
2 that he belongs to a social group consisting of “[o]wners of
3 Ukrainian construction companies that have challenged a
4 government official’s extortion and suffered persecution as
5 a result.” We are precluded from considering this argument
6 because the government raises issue exhaustion as an
7 affirmative defense. See Lin Zhong v. U.S. Dep’t of
8 Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007). Finally,
9 there is no support in the record for Paterko’s suggestion
10 that the agency misconstrued the “social visibility”
11 argument, see In re A-M-E & J-G-U, 24 I. & N. Dec. 69, 74
12 (BIA 2007), by requiring Paterko to identify a particular
13 social group unified by a visible physical trait.
14 For the foregoing reasons, the petition for review is
15 DENIED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
4