Andrey Cherba v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
AUG 18 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREY CHERBA, No. 17-73396
Petitioner, Agency No. A071-378-762
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2020**
San Francisco, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,*** 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 James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
Andrey Cherba petitions for review of the Board of Immigration Appeals’
denial of his fourth motion to reopen his removal proceedings. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a). Reviewing for abuse of discretion,
INS v. Abudu, 485 U.S. 94, 107 (1988), we deny the petition.
1. The immigration court properly exercised jurisdiction over Cherba’s
removal proceeding. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Cherba
argues the Board should have vacated his removal order because his Notice to
Appear was defective. This argument is foreclosed by Karingithi v. Whitaker, 913
F.3d 115, 116 (9th Cir. 2019) (“A notice to appear need not include time and date
information to . . . [meet] the regulatory requirements and . . . [vest] jurisdiction in
the [Immigration Judge].”).
2. The parties do not dispute that Cherba’s motion to reopen is untimely
and exceeds the number of motions allowed by 8 U.S.C. § 1229a(c)(7). These bars
do not apply if a motion to reopen is “based on changed country conditions arising
in the . . . country to which removal has been ordered, if such evidence is material
and was not available and would not have been discovered or presented at the
previous proceeding.” Id. § 1229a(c)(7)(C)(ii).
The Board did not abuse its discretion by concluding that Cherba was not
entitled to reopen his proceedings based on his argument that conditions for
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Baptists in Ukraine have materially changed since 2011. Cherba argued that
Baptists suffered persecution when Ukraine was a member of the Soviet Union, but
the Soviet Union dissolved years before Cherba arrived in the United States in
1997. Cherba points to isolated incidents of present violence in Ukraine against
Baptists, but does not meaningfully compare these incidents to conditions in 2011.
In addition, the violence was committed by pro-Russian separatists, and in Eastern
Ukraine, where Cherba does not have family.
We uphold the Board’s factual findings in support of a denial of a motion to
reopen if the findings are supported by substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Here, substantial evidence supports the
Board’s conclusion that Cherba would be ineligible for asylum, even if the merits
of his claim were considered. Cherba presented no evidence he was persecuted in
Ukraine on account of his religion, or that he was classified as a refugee on that
basis when he was admitted to the United States in 1997. Robleto-Pastora v.
Holder, 591 F.3d 1051, 1057–58 (9th Cir. 2010); Diaz-Torres v. Barr, 963 F.3d
976, 981 (9th Cir. 2020). Cherba did not show a well-founded fear of persecution
because he could relocate away from Eastern Ukraine. Duran-Rodriguez v. Barr,
918 F.3d 1025, 1029 (9th Cir. 2019). The record does not compel a contrary
conclusion.
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The Board did not abuse its discretion by concluding Cherba was not
entitled to reopening based on his argument that conditions in Ukraine have
materially changed for political activists. Cherba presented no evidence of
materially changed conditions for political activists. Neither Cherba’s petition, nor
the record, demonstrate why evidence of political persecution was unavailable in
2011. In any case, substantial evidence supports the Board’s conclusion that
Cherba failed to establish prima facie eligibility for asylum based on his political
views. Cherba cites violence against socialist politicians and political bloggers but
cites no evidence that he is similarly situated. Najmabadi v. Holder, 597 F.3d 983,
992 (9th Cir. 2010). Cherba offered no evidence to substantiate his claim that his
Americanized appearance will cause him to be perceived by extreme nationalists as
holding pro-Western political views.
Cherba also argues he is a member of two proposed social groups,
“internally displaced persons,” and “apparent Americans.” The Board concluded
neither was cognizable, and Cherba failed to show membership in either group.
Cherba argues he is not presently employed in Ukraine and does not own a house
or rent an apartment there. Neither are immutable traits. Cherba did not provide
evidence that people with Americanized appearance, speech, and manner are
targeted for violence and harm in Ukraine based on these characteristics. Cherba’s
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claim that he would be persecuted as a displaced person and “widely believed to be
pro Russian” failed for a similar reason. Knezevic v. Ashcroft, 367 F.3d 1206,
1211–12 (9th Cir. 2004) (explaining that persons “displaced by the inevitable
ravages of war” do not receive protected status). Cherba fails to show that the
record compels a contrary conclusion.
3. Substantial evidence supports the Board’s conclusion that Cherba
failed to establish prima facie eligibility for relief pursuant to the Convention
Against Torture. Cherba does not allege he will be tortured by government
officials or by Ukranian nationalists operating with government acquiescence.
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citing 8 C.F.R.
§ 208.18(a)(1)). Cherba’s argument that the Ukrainian government puts up
minimal resistance to violent and incredibly dangerous conditions is insufficient.
Id.The Board did not abuse its discretion by denying Cherba’s fourth motion to
reopen his removal proceedings.
PETITION DENIED.
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