18-2634 Antipov v. Barr BIA A205 824 200 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.

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 19th day of August, two thousand twenty. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 MIKHAIL DIMITRIEVICH ANTIPOV, 14 Petitioner, 15 16 v. 18-2634 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Aygul Charles, New York, NY. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; 28 Linda Y. Cheng, Trial Attorney, 29 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

5 AND DECREED that this petition for review of a decision of

6 the Board of Immigration Appeals (“BIA”) is DENIED.

7 Petitioner Mikhail Dimitrievich Antipov, a native and

8 citizen of Russia, seeks review of an August 9, 2018, decision

9 of the BIA denying his motion to reopen his removal

10 proceedings. In re Mikhail Dimitrievich Antipov, No. A205

11 824 200 (B.I.A. Aug. 9, 2018). We assume the parties’

12 familiarity with the underlying facts and procedural history.

13 We have reviewed the BIA’s denial of the motion to reopen

14 for abuse of discretion and considered whether its conclusion

15 regarding country conditions is supported by substantial

16 evidence. See Jian Hui Shao v. Mukasey,

, 168–

17 69 (2d Cir. 2008). Antipov moved to reopen his removal

18 proceedings to reapply for asylum, asserting that he is a

19 priest of the True Russian Orthodox Church and that conditions

20 in Russia have worsened for him under Russia’s July 2016

21 “Yarovaya Law,” which criminalizes missionary activity in

22 certain circumstances. It is undisputed that Antipov’s

23 motion was untimely because he filed it more than a year after

24 the BIA’s 2017 decision affirming his removal order. See 8

2 1 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2).

2 However, the time limitation for filing a motion to reopen

3 does not apply if reopening is sought to apply for asylum and

4 the motion “is based on changed country conditions in the

5 country of nationality . . . , if such evidence is material

6 and was not available and would not have been discovered or

7 presented at the previous proceeding.” 8 U.S.C.

8 § 1229a(c)(7)(C)(ii); see also

(c)(3)(ii).

9 Even if a movant has shown changed conditions, the agency may

10 deny the motion if the new evidence does not demonstrate the

11 applicant’s prima facie eligibility for asylum. See INS v.

12 Abudu,

, 104–05 (1988); Poradisova v. Gonzales,

13

(2d Cir. 2005) (concluding that the prima

14 facie standard requires an applicant to show a “‘realistic

15 chance’ that he will be able to establish eligibility” for

16 relief). Substantial evidence supports the BIA’s

17 determination that Antipov’s new evidence did not demonstrate

18 his prima facie eligibility for relief.

19 The exhibits that Antipov submitted with his motion

20 support the BIA’s conclusion that Antipov’s religious

21 activities of proselytizing and performing religious rites

22 would likely result in, at most, a fine. Antipov argues that

3 1 the BIA overlooked sections of his exhibits stating that

2 belonging to an “extremist” religious association or

3 distributing extremist materials could result in

4 imprisonment. That argument is unavailing because he does

5 not allege that his church has been designated as extremist

6 or that he intends to distribute extremist materials. He

7 also asserts that the BIA should have given more weight to

8 the recommendation of the U.S. Commission on International

9 Religious Freedom (“USCIRF”) to designate Russia as a country

10 of particular concern for its violations of religious

11 freedom; however, “[w]e generally defer to the agency’s

12 evaluation of the weight to be afforded an applicant’s

13 documentary evidence,” Y.C. v. Holder,

(2d

14 Cir. 2013), and Antipov has offered no reason to withhold

15 deference here because the USCIRF recommendation focused on

16 restrictions against Muslims and Jehovah’s Witnesses, without

17 mention of Antipov’s church.

18 Further, the BIA reasonably concluded that Antipov did

19 not show that the possible fines would rise to the level of

20 persecution. In order for economic harm to constitute

21 persecution, the harm must be “so severe” that it would

22 “constitute a threat to an individual’s life or freedom,” but

4 1 an applicant “need not demonstrate a total deprivation of

2 livelihood or a total withdrawal of all economic opportunity

3 in order to demonstrate harm amounting to persecution.” In

4 re T-Z-,

(BIA 2007) (internal

5 quotation marks omitted); see also Guan Shan Liao v. U.S.

6 Dep’t of Justice,

, 70 (2d Cir. 2002) (requiring

7 applicant to present testimony or other evidence of his

8 financial situation to show “that he suffered a deliberate

9 imposition of substantial economic disadvantage” (internal

10 quotation marks omitted)). “[W]hether a given economic

11 sanction constitutes persecution turns on its ‘impact’ on the

12 victim.” Huo Qiang Chen v. Holder,

(2d

13 Cir. 2014). Because Antipov provided no evidence of his

14 economic circumstances, the BIA did not err in concluding

15 that he failed to show that a fine would rise to the level of

16 persecution. See id.; Guan Shan Liao, 293 F.3d at 70

17 (“applicant must offer some proof . . . of substantial

18 economic disadvantage” (internal quotation marks omitted)).

19 Antipov argues that his case should be remanded to the IJ for

20 a hearing on his personal economic circumstances, but he was

21 required to provide such information in his motion to reopen,

22 see

(c)(1) (“A motion to reopen proceedings

5 1 shall state the new facts that will be proven at a hearing to

2 be held if the motion is granted.”); Jian Hui Shao,

at 157–58 (“[W]hen a petitioner bears the burden of proof,

4 his failure to adduce evidence can itself constitute the

5 ‘substantial evidence’ necessary to support the agency’s

6 challenged decision.”);

(explaining that movant

7 carries a “heavy burden” on reopening (quoting Abudu, 485

8 U.S. at 110)).

9 Finally, Antipov argues that his affidavit submitted in

10 support of his motion to reopen overcame the immigration

11 judge’s determination in the underlying proceeding that he

12 lacked a subjective fear of future persecution. In his

13 affidavit, Antipov asserted that he was “in constant danger”

14 when he lived in Russia, “but now the persecution [has] spread

15 even wider and acquired a systemic character” because of the

16 Yarovaya law. Even if this statement called into question

17 the initial finding that Antipov was not credible as to his

18 subjective fear, the BIA never adopted that finding and it

19 did not abuse its discretion in denying the motion to reopen

20 because, as explained above, Antipov did not establish his

21 prima facie eligibility for relief by showing that the fines

22 he might face in Russia for violating the Yarovaya law would

6 1 rise to the level of persecution.

2 For the foregoing reasons, the petition for review is

3 DENIED. All pending motions and applications are DENIED and

4 stays VACATED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court

7