Struk v. Holder

U.S. Court of Appeals for the Second Circuit
Struk v. Holder, 563 F. App'x 28 (2d Cir. 2014)

Struk v. Holder

Opinion

SUMMARY ORDER

Petitioner Liudmyla Volodymyrivna Struk, a native and citizen of Ukraine, seeks review of a November 27, 2012, decision of the BIA affirming a November 9, 2010, decision of an Immigration Judge (“IJ”), pretermitting her application for asylum and denying her application for withholding of removal. In re Liudmyla Volodymyrivna Struk, No. A200 738 680 (B.I.A. Nov. 27, 2012), aff'g No. A200 738 680 (Immig. Ct. Hartford Nov. 9, 2010). 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 the IJ’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (citation omitted). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

I. Pretermission of Asylum

Our jurisdiction to review the pret-ermission of an asylum application as untimely is limited to constitutional claims and questions of law. See 8 U.S.C. §§ 1158(a)(2), (3), 1252(a)(2)(D). Struk contends that her asylum application was timely because she could not have applied until she was baptized. Insofar as she argues that she could not seek asylum *30 based on religious persecution unless the faith recognized her as a member, she raises a reviewable question of law, but her claim is without merit. An asylum applicant bears the burden of establishing that the alleged persecution is on account of a protected ground. See 8 U.S.C. § 1158(b)(1)(B)(i). However, “[persecution for ‘imputed’ grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the ‘refugee’ definition.” In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996); see Rizal v. Gonzales, 442 F.3d 84, 90 n. 7 (2d Cir. 2006).

Moreover, Struk’s argument ignores the agency’s determination that her baptism did not materially affect her eligibility for asylum because she alleged she had been raised in the faith, had been persecuted in Ukraine on the basis of her religion, and had begun the process of becoming baptized within one year of her arrival in the country. Struk has not identified any error of law in this determination.

II. Withholding of Removal

In her brief, Struk abandons her claim of past persecution and, accordingly, must make an independent showing of a likelihood of persecution. See 8 C.F.R. § 1208.16(b). The agency reasonably found that Struk did not meet this standard.

The country reports, which Struk admits include little information about Jehovah’s Witnesses, support the agency’s determination that she did not show either that she would be singled out for persecution or that Jehovah’s Witnesses face “systemic or pervasive” harm in Ukraine. In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005); see Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (providing that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best”). Struk’s claim that all religious minorities in Ukraine are persecuted is not supported and she has not identified evidence compelling the conclusion that she would be subject to persecution.

Moreover, the agency reasonably found that Struk’s fear of future persecution was undercut by her testimony that her parents had not been harmed since 2008. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding fear of future persecution diminished when similarly-situated relatives continued to live in applicant’s native country without harm).

For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DENIED as moot.

Reference

Full Case Name
Liudmyla Volodymyrivna STRUK, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished