Yaroslav Rozhko v. Monty Wilkinson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2597
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Yaroslav Rozhko; Olena Rozhko; Ivan Rozhko
Petitioners
v.
Monty Wilkinson, Acting Attorney General of the United States 1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 9, 2021
Filed: February 12, 2021
[Unpublished]
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Before BENTON, MELLOY, and KELLY, Circuit Judges.
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PER CURIAM.
1
Monty Wilkinson has been appointed to serve as Acting Attorney General of
the United States, and is substituted as respondent pursuant to Federal Rule of
Appellate Procedure 43(c).
Ukrainian citizens Yaroslav, Olena, and Ivan Rozhko petition for review of
an order of the Board of Immigration Appeals (BIA). Having jurisdiction under
8 U.S.C. § 1252, this court denies the petition.
The BIA dismissed their appeal from the decision of an immigration judge
denying their request for asylum and withholding of removal relief.2 This court
concludes that substantial evidence supports the agency’s determination that Rozhko
was not entitled to asylum, because he did not show that he was unable or unwilling
to return to Ukraine due to persecution, or a well-founded fear of future persecution,
on account of a protected ground. See De Castro-Gutierrez v. Holder, 713 F.3d 375,
379 (8th Cir. 2013) (standard of review); Litvinov v. Holder, 605 F.3d 548, 553 (8th
Cir. 2010) (asylum eligibility requirements; if asylum applicants do not establish
past persecution, they must show their fear of future persecution is both subjectively
genuine and objectively reasonable); see also Cano v. Barr, 956 F.3d 1034, 1039
(8th Cir. 2020) (persecution “involves the infliction or credible threat of death,
torture, or injury to one’s person or freedom, on account of a protected
characteristic”; it is “an extreme concept that excludes low-level intimidation and
harassment”) (citations and alteration omitted). This court also concludes that
Rozhko’s argument concerning withholding of removal relief is not properly before
this court. See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner
fails to raise particular issue when he appeals to BIA, petitioner has not exhausted
administrative remedies).
The petition is denied. See 8th Cir. R. 47B.
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2
The denial of relief under the Convention Against Torture is not before this
panel. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (claim
not raised in opening brief is waived). Because Olena and Ivan Rozhko’s
applications are derivative of Yaroslav Rozhko’s application, see 8 U.S.C.
§ 1158(b)(3)(A), all subsequent references are to Yaroslav Rozhko.
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