Petrova v. Garland ( 2023 )

20-1941
Petrova v. Garland
BIA
Conroy, IJ
A202 042 704/05
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 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 24th day of January, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD J. SULLIVAN,
9 MYRNA PÉREZ,
10 ALISON J. NATHAN,
11 Circuit Judges.
12 _____________________________________
13
14 ANGELINA PETROVA, ILIA
15 GURASPISHVILI,
16 Petitioners,
17
18 v. 20-1941
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Alexander J. Segal, Esq., New
26 York, NY.
27
28 FOR RESPONDENT: Brian Boynton, Acting Assistant
1 Attorney General; Kohsei Ugumori,
2 Holly M. Smith, Senior Litigation
3 Counsel, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners Angelina Petrova and Ilia Guraspishvili,
12 citizens of Georgia, seek review of a May 27, 2020 decision
13 of the BIA affirming a July 12, 2018 decision of an
14 Immigration Judge (“IJ”) denying Petrova’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”), 1 on which Guraspishvili
17 was listed as a derivative asylum applicant. In re Angelina
18 Petrova, Ilia Guraspishvili, Nos. A 202 042 704/05 (B.I.A. May
19 27, 2020), aff’g Nos. A 202 042 704/05 (Immigr. Ct. N.Y.C.
20 July 12, 2018). We assume the parties’ familiarity with the
21 underlying facts and procedural history.
1Petrova does not raise her CAT claim in this court or challenge
the BIA’s denial of her motion to remand.
2
1 Standard of Review
2 We have reviewed both the IJ’s and the BIA’s decisions
3 “for the sake of completeness.” Wangchuck v. Dep’t of
4 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
5 factual findings for substantial evidence and questions of
6 law de novo. See Pan v. Holder, 777 F.3d 540, 543 (2d Cir.
7 2015). Under the substantial evidence standard,
8 “administrative findings of fact are conclusive unless any
9 reasonable adjudicator would be compelled to conclude to the
10 contrary.” 8 U.S.C. § 1252(b)(4)(B).
11 Legal Standard
12 To establish eligibility for asylum, an applicant must
13 establish that he or she has suffered past persecution or has
14 a well-founded fear of future persecution and that “race,
15 religion, nationality, membership in a particular social
16 group, or political opinion was or will be at least one
17 central reason for persecuting the applicant.” 8 U.S.C.
18 § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b). “To qualify as
19 persecution[,] the conduct at issue must be attributable to
20 the government [of the country of removal], whether directly
21 because engaged in by government officials, or indirectly
3
1 because engaged in by private persons whom the government is
2 unable or unwilling to control.” Scarlett v. Barr, 957 F.3d
3 316, 328 (2d Cir. 2020) (internal quotation marks omitted).
4 “Under the unwilling-or-unable standard, a finding of
5 persecution ordinarily requires a determination that
6 government authorities, if they did not actually perpetrate
7 or incite the persecution, condoned it or at least
8 demonstrated a complete helplessness to protect the
9 victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir.
10 2021) (internal quotation marks omitted).
11 Discussion
12 Petrova challenges two findings by the agency. As
13 relevant to past persecution, she challenges the finding that
14 she failed to meet her burden of showing that the Georgian
15 government was unwilling or unable to protect her. As
16 relevant to her well-founded fear of future persecution, she
17 challenges the finding that her alleged persecutors were
18 motivated by criminal desires rather than her ethnicity. We
19 conclude that substantial evidence supports both of the
20 agency’s challenged findings, and accordingly, we deny the
21 petition for review. 8 U.S.C. § 1252(b)(4)(B).
4
1 I. Past Persecution
2 Petrova claimed that Guraspishvili’s ethnically Georgian
3 family abused her on account of her Russian ethnicity, and
4 that such abuse was indirectly attributable to the Georgian
5 government because it was unable or unwilling to protect her.
6 The agency found that Petrova did not establish that Georgian
7 authorities were unwilling or unable to protect her, citing
8 (1) the fact that she had never reported the abuse by
9 Guraspishvili’s family to the police and (2) the
10 insufficiency of evidence substantiating Petrova’s belief
11 that the police would be unwilling to intervene. An
12 applicant’s failure to report mistreatment is not fatal to
13 her application, but absent such reporting, there must be
14 other evidence establishing the government’s unwillingness or
15 inability to protect. See Pan, 777 F.3d at 544–45. Petrova
16 did not produce country-conditions evidence addressing police
17 responses to reports of violence, much less evidence that the
18 police treat ethnic Russians differently than other victims.
19 Therefore, we are not “compelled to conclude to the contrary”
20 of the agency’s determination. 8 U.S.C. § 1252(b)(4)(B).
5
1 II. Future Persecution
2 Petrova argues that the agency failed to consider the
3 harm her father had experienced at the hands of Shalva
4 Obgaidze and Georgian government officials as evidence that
5 the authorities would be unwilling to protect her from future
6 persecution. The agency did consider this evidence, but
7 expressly found that Obgaidze’s threats to Petrova’s family
8 were not indicative of Georgian authorities’ unwillingness or
9 inability to protect Petrova from persecution of ethnic
10 Russians. Indeed, Obgaidze himself appears to have been
11 motivated by his desire to take over Petrova’s father’s
12 business, rather than any animus related to her family’s
13 membership in a group of “highly successful ethnic Russians.”
14 Certified Admin. Record at 100–01; see, e.g., Pucha
15 Quituizaca v. Garland, 52 F.4th 103, 115 (2d Cir. 2022)
16 (upholding agency’s finding that, when asylum applicant was
17 robbed by gang members of a different ethnicity, there was a
18 “greater probability that the gang was motivated to harm him
19 based on [the pecuniary] incentives presented to ordinary
20 criminals[,] rather than [ethnically motivated] persecution”
21 (internal quotation marks omitted)). Letters from Petrova’s
6
1 father and brother describe Obgaidze’s actions against them
2 as part of his effort to take over their businesses. The
3 only evidence that Obgaidze was motivated by the family’s
4 Russian ethnicity is the testimony from Petrova and her
5 brother. But neither provided a reason why they believed the
6 harm was on account of their ethnicity, and Petrova did not
7 submit any evidence to corroborate that belief. See INS v.
8 Elias-Zacarias, 502 U.S. 478, 483 (1992) (requiring “some
9 evidence” of motive, either “direct or circumstantial”).
10 The record further supports the agency’s conclusion that
11 Petrova failed to establish that the Georgian police – either
12 due to Obgaidze’s influence or otherwise – would be unwilling
13 or unable to protect her. In fact, Petrova offered no
14 evidence that the police persecute ethnic Russians or stand
15 by while they are abused by others. To be sure, the evidence
16 includes reports of anti-Russian sentiment in Georgian
17 society at large, but those reports nowhere indicate that
18 police are targeting individuals on account of their
19 ethnicity or refusing to aid ethnic Russians who seek police
20 protection. Accordingly, we do not disturb the agency’s
21 finding that Petrova did not establish past persecution or a
7
1 well-founded fear of future persecution. See Singh, 11 F.4th
2 at 114–15.
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
9
8