Marzena Bera v. Attorney General United States ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1620
___________
MARZENA MAGDALENA BERA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-913-017)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 22, 2015
Before: RENDELL, SMITH, and KRAUSE, Circuit Judges.
(Opinion filed: January 28, 2015)
___________
OPINION*
___________
KRAUSE, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Marzena Magdalena Bera, a native and citizen of Poland, petitions for review of
an order of the Board of Immigration Appeals (the “Board”) denying her motion to
reopen. For the reasons that follow, we will deny the petition for review.
Bera entered the United States in September 2007. In September 2008, she
applied for asylum but was referred to removal proceedings. The notice to appear
charged her with being present in violation of the law, pursuant to 8 U.S.C.
§ 1227(a)(1)(B). Bera conceded removability but applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). She claimed that she
was persecuted in Poland because she participated in the Solidarity Movement during the
1980s and because she is Jewish. The Immigration Judge (“IJ”) denied her applications
and ordered her removed to Poland. The Board dismissed her appeal. We denied her
petition for review.1 While Bera was awaiting our decision, however, she filed a motion
to reopen, arguing that anti-Semitism in Poland had escalated since her hearing before the
IJ. Presently before us is Bera’s petition for review of the Board’s denial of her motion to
reopen.2
Bera sought reopening to reapply for asylum, withholding of removal, and CAT
protection. To support her argument that anti-Semitism escalated in Poland, she cited the
country’s recent ban of shechita, which is a procedure for the ritual slaughter of meat
according to Jewish law, and continued anti-Semitic activities by, and influence of,
1
Bera v. Att’y Gen., 555 F. App’x 129 (3d Cir. 2014).
2
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
2
Leszek Bubel, the head of the Polish National Party. Alternatively, she argued that
reopening was warranted for a grant of humanitarian asylum, given her past persecution
as a member and leader of the Solidarity Movement.
The Board denied the motion to reopen, concluding that Bera failed to
demonstrate a reasonable likelihood that she was eligible for relief.3 Specifically, the
Board noted that “much of the evidence proffered” was “cumulative” of the evidence it
previously considered.4 Though the evidence demonstrated the existence of anti-
Semitism in Poland, it was “insufficient, without more, to demonstrate that [Bera] . . .
may suffer persecution or torture” there.5 Even assuming an increase in anti-Semitism,
the Board determined that Bera did not show a “realistic chance” that she would be
individually singled out for persecution due to her Jewish faith.6 The Board deemed her
fear of religious persecution “simply too speculative, such that reopening would be
warranted to permit her to reapply for asylum.”7 Finally, because the Board declined to
revisit its previous determination that Bera did not suffer past persecution, it denied her
request to reopen the proceedings to allow her to pursue humanitarian asylum.
3
See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (motion to reopen must
establish a reasonable likelihood of entitlement to relief).
4
A. 4.
5
Id.
6
Id.
7
Id. The Board also concluded that Bera failed to meet the higher burden for
statutory withholding of removal and to demonstrate that she would more likely than not
suffer torture upon returning to Poland.
3
We review the Board’s denial of a motion to reopen for abuse of discretion.8 The
Board’s denial of such a motion is entitled to “broad” deference,9 and “will not be
disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.”10
Bera argues that the Board abused its discretion by failing to consider the evidence
that she provided with her motion to reopen. However, the record reflects that the Board
addressed every issue Bera raised, and all the evidence she provided (which was nearly
identical to, and cumulative of, the evidence she previously presented) did not justify
reopening her case. In our prior decision, denying Bera’s petition for review, we
determined that “Bera’s past experiences [were] troublesome but they [fell] short of past
persecution.”11 Thus, because there was no new evidence presented with Bera’s motion
to reopen, the Board did not abuse its discretion in concluding that she was not eligible
for asylum or humanitarian asylum on that basis.12 Nor did the Board abuse its discretion
in denying asylum based on the theory that Bera would suffer some other serious harm.
Although Bera argued that she would not be able to eat or buy kosher meat due to the ban
on shechita, such that it would interfere with her religious practices and be detrimental to
8
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).
9
Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003).
10
Guo, 386 F.3d at 562.
11
Bera, 555 F. App’x at 132.
See, e.g., Sheriff v. Att’y Gen., 587 F.3d 584, 594 (3d Cir. 2009) (reserving
12
humanitarian asylum based on past persecution reserved “for the most atrocious abuse”).
4
her health, the Board reasonably concluded that the ban would not “so impinge” on
Bera’s religious practice as to rise to the level of persecution or torture in Poland.13
We also previously concluded that Bera had not established a well-founded fear of
future persecution in Poland.14 The Board gave detailed reasons why Bera’s new
evidence did not support reopening that issue, i.e., she failed to prove that she was
individually singled out for persecution or that the Polish government currently
participates in a “systemic, pervasive, or organized” persecution of Jewish people.15 We
agree with the Board’s assessment.
Because the Board thoroughly examined all of the evidence offered in support of
Bera’s motion to reopen and properly analyzed it under the applicable law, we perceive
no abuse of discretion in its decision denying that motion. Therefore, we will deny
Bera’s petition for review.
13
See A.R. 4. (“[Bera] herself has not expressed an intent to practice shechita, nor
has she shown that the ban of this practice would actually prevent her from being able to
eat kosher meat, as she alleges.”); see also Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001)
(persecution includes “threats to life, confinement, torture, and economic restrictions so
severe that they constitute a real threat to life or freedom”).
14
See Bera, 555 F. App’x at 132 (“Substantial evidence . . . supports the Board’s
determination that Bera did not have an objective basis for her fear of future
[persecution].”)
15
Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
5