Andrey Cherba v. Jefferson Sessions , 694 F. App'x 603 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREY CHERBA, No. 14-72134
Petitioner, Agency No. A071-378-762
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2017**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LYNN,*** Chief District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Andrey Cherba seeks to reopen his case so that he can apply for asylum,
withholding of removal, and protection under the Convention Against Torture
based on changed circumstances in Ukraine.1 We have jurisdiction under 8 U.S.C.
§ 1252(a) and deny the petition.
1. The Board of Immigration Appeals (“BIA”) did not err in failing to find a
presumption of future persecution. Even assuming that Cherba’s previously
granted refugee status was based on past persecution on account of his Christian
religion,2 he cannot now use that religious persecution as the basis for a
presumption for future persecution based on an imputed political opinion. See 8
C.F.R. § 1208.13(b)(1); Ali v. Holder, 637 F.3d 1025, 1029-30 (9th Cir. 2011).
2. The BIA did not abuse its discretion in concluding that Cherba failed to
establish materially changed conditions in Ukraine. Cherba asserted that, because
he is a Russian speaker, a pro-Russian opinion will be imputed to him, subjecting
1
There is no dispute that Cherba’s motion to reopen was time and number
barred. See 8 C.F.R. § 1003.2(c)(2)-(3). However, these limitations do not apply
if the motion is filed for the purpose of seeking asylum “based on changed
circumstances arising in the country of nationality or in the country to which
deportation has been ordered. ” 8 C.F.R. § 1003.2(c)(3)(ii).
2
Because Cherba did not assert before the BIA that he feared returning to
Ukraine on account of his religion, any claim on this ground is unexhausted. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
2
him to persecution.3 The BIA recognized that Ukraine has experienced civil
unrest. However, the changes in Ukraine were not material to Cherba’s
circumstances. The BIA reasonably concluded that, even though Ukraine is
divided into two distinct political groups, speaking Russian (by itself) would not
single Cherba out for persecution. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d
995, 998-99 (9th Cir. 2003). Cherba did not suggest that he was involved in
political activities that would single him out for persecution. Therefore, Cherba
failed to make a prima facie showing that he is eligible for asylum, withholding of
removal, and protection under the Convention Against Torture. Accordingly, the
BIA’s decision was not arbitrary, irrational, or contrary to law.4 See Toufighi v.
Mukasey, 538 F.3d 988, 992 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
3
Cherba argued before the BIA that he also has the potential to be
conscripted into the Ukrainian military and may be seen as an American spy.
Cherba did not address these two reasons in his opening brief. They are therefore
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).
4
Because we conclude that the BIA did not abuse its discretion in denying
the motion to reopen and thus did not commit error, we need not address Cherba’s
due process claims. See 8 U.S.C. § 1229a(c)(7)(B); see also Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (“To prevail on a due process challenge to deportation
proceedings, [the petitioner] must show error and substantial prejudice.”).
3