Sukhova v. Sessions , 698 F. App'x 638 ( 2017 )

15-2533
Sukhova v. Sessions
BIA
Nelson, IJ
A089 906 281
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 TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of October, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
IRINA SUKHOVA,
Petitioner,
v. 15-2533
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alexander J. Segal, The Law Offices
of Grinberg & Segal, P.L.L.C., New
York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Justin
R. Markel, Assistant Director;
Brooke M. Maurer, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Irina Sukhova, a native of the former Soviet
Union and citizen of Russia, seeks review of a July 13, 2015,
decision of the BIA affirming a January 9, 2014, decision of
an Immigration Judge (“IJ”) denying Sukhova’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Irina Sukhova, No. A089 906 281
(B.I.A. July 13, 2015), aff’g No. A089 906 281 (Immig. Ct. N.Y.
City Jan. 9, 2014). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Edimo-Doualla v.
Gonzales, 464 F.3d 276, 282 (2d Cir. 2006) (applying
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substantial evidence standard to nexus determination);
Joaquin-Porras v. Gonzales, 435 F.3d 172, 181 (2d Cir. 2006)
(reviewing agency’s denial of CAT relief under substantial
evidence standard).
I. Asylum and Withholding of Removal
To obtain asylum or withholding of removal, Sukhova had
to demonstrate that “race, religion, nationality, membership
in a particular social group, or political opinion was or will
be at least one central reason for” the claimed persecution.
8 U.S.C. § 1158(b)(1)(B)(i); see also 8 U.S.C. § 1231(b)(3)(A);
Matter of C-T-L, 25 I. & N. Dec. 341, 346-48 (B.I.A. 2010).
Sukhova argues that she was persecuted based on her actual or
imputed political opposition to state corruption because she
was criminally prosecuted after prevailing in a civil lawsuit
against a state-owned company. “Although opposing corruption
for purely self-interested reasons may lack a political
motivation, ‘opposition to endemic corruption . . . may have
a political dimension when it transcends mere self-protection
and represents a challenge to the legitimacy or authority of
the ruling regime.’” Castro v. Holder, 597 F.3d 93, 100-01 (2d
Cir. 2010) (alteration in original) (quoting Zhang v. Gonzales,
426 F.3d 540, 547-48 (2d Cir. 2005)). While the country
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conditions evidence in the record reflects that government
corruption is an endemic problem in Russia and that the
judiciary is subject to outside influence, the agency
reasonably determined that Sukhova was not targeted because of
her political opinion, as she engaged in litigation against the
state-owned company for purely self-interested purposes rather
than because of a political opposition to corruption. See id.While Sukhova testified that she had always opposed government
corruption, she did not point to any actions she took to oppose
corruption aside from her lawsuit against the state-owned
company and her defense of the subsequent criminal charges
against her. She did not speak out publicly or write articles
against corruption, organize other business owners to oppose
government corruption, or participate in any anti-corruption
efforts organized by others. In sum, her activities never
“extend[ed] beyond h[er] own case.” Id. at 547. Her case is
thus distinguishable from those where we have found that
petitioners’ anti-corruption activities transcended their own
self-interest. Ruqiang Yu v. Holder, 693 F.3d 294, 299 (2d
Cir. 2012) (emphasizing that petitioner’s “opposition to the
wage theft was not grounded in a desire to recoup his own wages,
but to assist the others” and that he “organized and accompanied
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other workers to demand their wages”); Zhang, 426 F.3d at 547-48(highlighting that petitioner’s opposition to extortion took
on a political dimension when he “decided to marshal support
from similarly afflicted’ business owners and to attempt to
publicize and criticize endemic corruption” of municipal
government).
Sukhova’s failure to establish that her anti-corruption
political opinion or another protected ground was “at least one
central reason” for the harm she suffered is dispositive of
asylum and withholding of removal. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Matter of C-T-L, 25 I. &
N. Dec. at 346.
II. CAT Relief
To obtain CAT relief, Sukhova was required to demonstrate
that “it is more likely than not” that she will be tortured by
or with the acquiescence of Russian government officials “if
removed.” 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a),
1208.18(a)(1); see also Khouzam v. Ashcroft, 361 F.3d 161,
170-71 (2d Cir. 2004). “In order to constitute torture, an act
must be specifically intended to inflict severe physical or
mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). We
defer to the BIA’s interpretation that substandard prison
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conditions do not constitute torture unless the conditions “are
sufficiently extreme and are inflicted by government actors (or
by others with government acquiescence) intentionally rather
than as a result of poverty, neglect, or incompetence.” Pierre
v. Gonzales, 502 F.3d 109, 111 (2d Cir. 2007); see also In re
J-E-, 23 I. & N. Dec. 291, 299-302 (B.I.A. 2002).
Sukhova bases her CAT claim on the likelihood of her
detention and imprisonment if she is removed to Russia. An
arrest warrant was issued for Sukhova after she failed to appear
for a hearing in February 2008, although she did not testify
about or provide evidence of any government attempts to locate
her since then. She was also detained for 11 months the last
time she failed to appear for a court hearing. And if she is
ultimately convicted of fraud, she could face up to 15 years
in prison.
The prison conditions Sukhova faces are similar to the
Haitian prison conditions we described in Pierre, 502 F.3d at
112. According to a 2012 State Department report on Russia,
“[c]onditions in prisons and detention centers vary but were
sometimes harsh and life-threatening. Limited access to
health care, food shortages, abuse by guards and inmates,
inadequate sanitation, and overcrowding were common in
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prisons, colonies, and other detention facilities.” A.R. 853.
The report noted that conditions were generally better in
women’s facilities and did not state that Russian officials
intentionally create or maintain harsh prison conditions or
that women or businesspeople like Sukhova are targeted for
physical abuse or intentionally harsh treatment.
Sukhova stated that while detained in 2006 and 2007, she
was able to see a medical specialist and received treatment for
her health condition. And Sukhova did not testify that she was
physically assaulted or otherwise singled out for mistreatment
by any officials, prison guards, or other inmates. While the
conditions Sukhova faces may be dismal, the record does not
reflect that she will be intentionally targeted for treatment
amounting to torture if she is detained again. Pierre, 502
F.3d at 111, 121. Thus, we conclude that substantial evidence
supports the agency’s denial of CAT relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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