Struk v. Holder ( 2014 )

12-5027
Struk v. Holder
BIA
Verrillo, IJ
A200 738 680
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of April, two thousand fourteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 LIUDMYLA VOLODYMYRIVNA STRUK,
14 Petitioner,
15
16 v. 12-5027
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert C. Ross, West Haven,
24 Connecticut.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Daniel E. Goldman, Senior
28 Litigation Counsel; Jonathan
29 Robbins, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Liudmyla Volodymyrivna Struk, a native and
6 citizen of Ukraine, seeks review of a November 27, 2012,
7 decision of the BIA affirming a November 9, 2010, decision
8 of an Immigration Judge (“IJ”), pretermitting her
9 application for asylum and denying her application for
10 withholding of removal. In re Liudmyla Volodymyrivna Struk,
11 No. A200 738 680 (B.I.A. Nov. 27, 2012), aff’g No. A200 738
12 680 (Immig. Ct. Hartford Nov. 9, 2010). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and the IJ’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (citation omitted). The applicable standards of
19 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
20 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 I. Pretermission of Asylum
22 Our jurisdiction to review the pretermission of an
23 asylum application as untimely is limited to constitutional
2
1 claims and questions of law. See 8 U.S.C. §§ 1158(a)(2),
2 (3), 1252(a)(2)(D). Struk contends that her asylum
3 application was timely because she could not have applied
4 until she was baptized. Insofar as she argues that she
5 could not seek asylum based on religious persecution unless
6 the faith recognized her as a member, she raises a
7 reviewable question of law, but her claim is without merit.
8 An asylum applicant bears the burden of establishing that
9 the alleged persecution is on account of a protected ground.
10 See 8 U.S.C. § 1158(b)(1)(B)(i). However, “[p]ersecution
11 for ‘imputed’ grounds (e.g., where one is erroneously
12 thought to hold particular political opinions or mistakenly
13 believed to be a member of a religious sect) can satisfy the
14 ‘refugee’ definition.” In re S-P-, 21 I. & N. Dec. 486, 489
15 (BIA 1996); see Rizal v. Gonzales, 442 F.3d 84, 90 n.7 (2d
16 Cir. 2006).
17 Moreover, Struk’s argument ignores the agency’s
18 determination that her baptism did not materially affect her
19 eligibility for asylum because she alleged she had been
20 raised in the faith, had been persecuted in Ukraine on the
21 basis of her religion, and had begun the process of becoming
22 baptized within one year of her arrival in the country.
3
1 Struk has not identified any error of law in this
2 determination.
3 II. Withholding of Removal
4 In her brief, Struk abandons her claim of past
5 persecution and, accordingly, must make an independent
6 showing of a likelihood of persecution. See 8 C.F.R.
7 § 1208.16(b). The agency reasonably found that Struk did
8 not meet this standard.
9 The country reports, which Struk admits include little
10 information about Jehovah’s Witnesses, support the agency’s
11 determination that she did not show either that she would be
12 singled out for persecution or that Jehovah’s Witnesses face
13 “systemic or pervasive” harm in Ukraine. In re A-M-, 23 I.
14 & N. Dec. 737, 741 (BIA 2005); see Jian Xing Huang v. INS,
15 421 F.3d 125, 129 (2d Cir. 2005) (providing that a fear is
16 not objectively reasonable if it lacks “solid support” in
17 the record and is merely “speculative at best”). Struk’s
18 claim that all religious minorities in Ukraine are
19 persecuted is not supported and she has not identified
20 evidence compelling the conclusion that she would be subject
21 to persecution.
22
4
1 Moreover, the agency reasonably found that Struk’s fear
2 of future persecution was undercut by her testimony that her
3 parents had not been harmed since 2008. See Melgar de
4 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding
5 fear of future persecution diminished when
6 similarly-situated relatives continued to live in
7 applicant’s native country without harm).
8 For the foregoing reasons, the petition for review is
9 DENIED. The pending motion for a stay of removal in this
10 petition is DENIED as moot.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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