Sergii Vlodimirovich Myroshnychenko v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-10230 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
OCTOBER 31, 2011
________________________
JOHN LEY
CLERK
Agency No. A089-214-029
SERGII VLODIMIROVICH MYROSHNYCHENKO,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 31, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Sergii Vlodimirovich Myroshnychenko seeks review of the Board
of Immigration Appeals’ (BIA’s) denial of his motion to reconsider its decision
affirming the Immigration Judge’s order denying his application for asylum. After
review, we dismiss in part and deny in part Myroshnychenko’s petition.
I.
Myroshnychenko is a citizen of Ukraine and is of mixed Ukranian and
Russian ethnicity. In 2006, he entered the United States on a temporary visa,
which he overstayed. In 2007, he filed an application with the Department of
Homeland Security seeking asylum, withholding of removal under the
Immigration and Nationality Act, and relief under the United Nations Convention
Against Torture (CAT). Myroshnychenko stated in his application that he suffered
persecution in Ukraine because of his ethnicity and political opinion and that he
had a well-founded fear of future persecution should he return.
At a hearing before an Immigration Judge (IJ), Myroshnychenko provided
details of two instances in Ukraine that he argued established his eligibility for
relief. First, in 2000 a travel agency defrauded him out of money and, when he
reported the crime, police abducted and beat him after having been bribed by the
travel agency. Second, in 2006 he and a friend were beaten by Ukranian police
during a political demonstration in Kiev. According to Myroshnychenko, the
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police arrested him, called him an anti-Russian slur, and attempted to coerce him
into signing a false confession. Myroshnychenko argued that the police’s conduct
evidenced their strong anti-Russian sentiment.
The IJ asked Myroshnychenko for evidence to corroborate these events,
such as newspaper clippings of the Kiev demonstration or an affidavit from the
friend who accompanied him. Myroshnychenko did not provide any corroborating
evidence nor did he argue that such evidence was unavailable. Because of the
absence of evidence tying the 2000 incident to Myroshnychenko’s ethnicity or
political opinion, and the absence of corroborating evidence regarding the 2006
incident, the IJ denied Myroshnychenko’s application.
Myroshnychenko appealed to the BIA, arguing that the IJ erred in denying
his asylum application.1 The BIA issued a final order of removal dismissing
Myroshnychenko’s appeal for the same reasons the IJ denied his application,
although the BIA did not adopt the IJ’s opinion. Myroshnychenko did not timely
seek judicial review of the BIA’s order, but instead filed a motion to reconsider.
1
Myroshnychenko did not challenge the IJ’s denial of his claims for withholding of
removal and CAT relief. Accordingly, he has abandoned these claims and we will not address
them. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
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In his motion to reconsider, Myroshnychenko argued: (1) the events that
took place in 2000 and 2006, in the aggregate, constituted past persecution; (2) he
satisfied his burden of proof by establishing asylum eligibility without
corroborating evidence; (3) he was not required to establish that internal
resettlement was unavailable because countrywide persecution is presumed when
the persecutor is the state; and (4) he established past persecution, so a well-
founded fear of future persecution should have been presumed.
The BIA denied Myroshnychenko’s motion to reconsider, finding that he
failed to establish persecution because he did not provide reasonably obtainable
corroborating evidence at the IJ’s request, 8 U.S.C. § 1229a(c)(4)(B), and that
without establishing past persecution, he was not entitled to a presumption of
future countrywide persecution. Myroshnychenko now seeks review of the BIA’s
denial of his motion to reconsider.
II.
A.
In his petition, Myroshnychenko appears to challenge not only the BIA’s
denial of his motion to reconsider, but also the BIA’s final order of removal. But
to obtain judicial review of the BIA’s final order, Myroshnychenko would have
had to file a petition within thirty days of that order. 8 U.S.C. § 1252(b)(1). He
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did not do so. Because Myroshnychenko did not file a timely petition for review
of the BIA’s final order of removal, we lack jurisdiction to review that order. See
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (noting that
the time limit to file a petition for review of an immigration proceeding is
“‘mandatory and jurisdictional’” (quoting Stone v. INS, 514 U.S. 386, 405
(1995))). Accordingly, to the extent Myroshnychenko seeks review of the BIA’s
final order of removal, we dismiss his petition.
B.
Our review is therefore limited to the BIA’s denial of Myroshnychenko’s
motion to reconsider. “The decision to grant or deny a motion to reopen or
reconsider is within the discretion of the [BIA] . . . .” 8 C.F.R. § 1003.2(a). We
review the BIA’s denial of a motion to reconsider for abuse of discretion, Chacku
v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008), and will uphold the
BIA’s decision unless it is “arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430
F.3d 1148, 1149 (11th Cir. 2005).
In his petition for review, Myroshnychenko argues that the BIA abused its
discretion in rejecting the arguments he raised in his motion to reconsider. A
proper motion to reconsider “shall specify the errors of law or fact in the previous
order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C).
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A motion “that merely republishes the reasons that had failed to convince the
tribunal in the first place gives the tribunal no reason to change its mind.” Calle v.
U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (internal quotation marks
omitted). Here, Myroshnychenko’s arguments were mere reiterations of his
original arguments before the BIA. Thus, the BIA did not abuse its discretion in
denying Myroshnychenko’s motion to reconsider. Because Myroshnychenko fails
to establish that the BIA abused its discretion in denying his motion to reconsider,
we deny this part of his petition.
PETITION DISMISSED in part and DENIED in part.
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