Dvorak v. Garland ( 2021 )

19-4130
Dvorak v. Garland
BIA
Farber, IJ
A209 029 897/898
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.
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 30th day of November, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 NIKOLAJ DVORAK, NATALIE
14 DVORAKOVA,
15 Petitioners,
16
17 v. 19-4130
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Theodore N. Cox, New York,
25 NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General;
29 Jessica A. Dawgert, Senior
30 Litigation Counsel; Richard
31 Kelley, Trial Attorney, Office of
32 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioners Nikolaj Dvorak and Natalie Dvorakova,
9 natives of Russia and citizens of the Czech Republic, seek
10 review of a November 15, 2019, decision of the BIA affirming
11 a May 16, 2019, decision of an Immigration Judge (“IJ”)
12 denying asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Nikolaj Dvorak,
14 Natalie Dvorakova, Nos. A209 029 897/898 (B.I.A. Nov. 15,
15 2019), aff’g Nos. A209 029 897/898 (Immig. Ct. N.Y. City May
16 16, 2019). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
22 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
23 Asylum and Withholding of Removal
2
1 To establish eligibility for asylum and withholding of
2 removal, an applicant must establish past persecution or a
3 well-founded fear or likelihood of persecution on account of
4 “race, religion, nationality, membership in a particular
5 social group, or political opinion.” 8 U.S.C.
6 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R.
7 § 1208.16(b)(1)(i), (2). “[P]ersecution is an extreme
8 concept that does not include every sort of treatment our
9 society regards as offensive.” Mei Fun Wong v. Holder, 633
10 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted).
11 For economic harm to constitute persecution, “an asylum
12 applicant must offer some proof that he suffered a deliberate
13 imposition of substantial economic disadvantage.” Guan Shan
14 Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002)
15 (internal quotation marks omitted); see also In re T-Z-, 24
16 I. & N. Dec. 163, 170–73 (B.I.A. 2007).
17 The agency did not err in finding that, even assuming
18 Petitioners’ proposed social groups were cognizable,
19 Petitioners failed to establish that they suffered economic
20 persecution as a result. The record establishes that
21 Petitioners themselves instituted bankruptcy proceedings,
22 were found to be creditors, were permitted to remain in their
23 company’s residence during the bankruptcy proceedings, and
3
1 were able to support themselves with alternate employment.
2 Accordingly, Petitioners did not establish that they
3 “suffered a deliberate imposition of substantial economic
4 disadvantage” as required to establish economic persecution.
5 Guan Shan Liao, 293 F.3d at 70 (internal quotation marks
6 omitted).
7 The agency also did not err in concluding that
8 Petitioners failed to establish past persecution or a well-
9 founded fear of future persecution based on Nikolaj’s
10 conviction for theft of assets from their bankrupt company.
11 “Punishment for violation of a generally applicable criminal
12 law is not persecution.” Saleh v. U.S. Dep’t of Justice, 962
13 F.2d 234, 239 (2d Cir. 1992). Although “prosecution that is
14 pretext for political persecution is not on account of law
15 enforcement,” Jin Jin Long v. Holder, 620 F.3d 162, 166 (2d
16 Cir. 2010), Petitioners did not show pretext. In determining
17 whether prosecution is a pretext for persecution, the agency
18 looks to, among other factors, conformity to criminal
19 procedures, indications that abuse was directed toward
20 modifying an opinion rather than conduct, and treatment of
21 other members of the population under similar circumstances.
22 See Vumi v. Gonzales, 502 F.3d 150, 157–58 (2d Cir. 2007).
23 The record reveals that Czech police followed criminal
4
1 procedures in pursuing charges against Nikolaj. Natalie, who
2 represented the creditors in the bankruptcy proceeding, filed
3 complaints about the bankruptcy trustee, and tried to
4 circumvent the trustee’s authority, was not prosecuted. And
5 the country conditions evidence reflects that the government
6 of the Czech Republic does not arbitrarily arrest people,
7 that the judiciary is independent, and that criminal trials
8 are fair and public.
9 Petitioners’ failure to demonstrate past persecution or
10 a well-founded fear of persecution was dispositive of asylum
11 and withholding of removal. See Lecaj v. Holder, 616 F.3d
12 111, 119–20 (2d Cir. 2010). Accordingly, we do not reach the
13 other grounds. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
14 (“As a general rule courts and agencies are not required to
15 make findings on issues the decision of which is unnecessary
16 to the results they reach.”).
17 CAT Relief
18 To obtain CAT relief, an applicant must show that it is
19 “more likely than not” that he would be tortured. 8 C.F.R.
20 §§ 1208.16(c)(2), 1208.17(a). In evaluating a CAT claim, the
21 agency considers evidence of past torture and evidence of
22 human rights violations in the country of removal among any
23 other relevant information. Id. § 1208.16(c)(3).
5
1 Petitioners did not present any evidence of past torture
2 and their fear that Nikolaj would be tortured in prison is
3 speculative given that his prison sentence was suspended and
4 the country conditions evidence states that there were no
5 reports of torture in the Czech Republic. See Jian Xing
6 Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
7 absence of solid support in the record . . . , [an
8 applicant’s] fear is speculative at best”). Accordingly, the
9 agency did not err in concluding that Petitioners failed to
10 satisfy their burden of proof for CAT relief. See 8 C.F.R.
11 §§ 1208.16(c)(2), 1208.17(a).
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
6