Mykola Shchupak v. U.S. Attorney General

Case: 17-12710 Date Filed: 04/12/2018 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-12710 Non-Argument Calendar ________________________ Agency No. A076-577-376 MYKOLA SHCHUPAK, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (April 12, 2018) Before MARCUS, WILSON and JORDAN, Circuit Judges. PER CURIAM: Mykola Shchupak seeks review of the Board of Immigration Appeals’ (“BIA”) ruling denying his motion to reopen his removal proceedings. Shchupak is an ethnic-Russian Ukrainian and a member of the Russian Orthodox Church, Case: 17-12710 Date Filed: 04/12/2018 Page: 2 of 9 who previously lived in western Ukraine while his brother lived in Russia. Years after his March 2013 removal hearing, he moved to reopen to pursue his claims of asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and his claim of relief under the Convention Against Torture (“CAT”), alleging that he feared persecution based on his religion, ethnicity, and family ties, and feared being forced into military service in the eastern Ukrainian conflict. The BIA denied the motion, concluding that (1) the motion was untimely, because Shchupak did not demonstrate materially changed conditions pertaining to his claims, and (2) Shchupak had not made a prima facie showing of eligibility for asylum, withholding of removal, or CAT relief. On appeal, Shchupak argues that the BIA erred in its decision and abused its discretion when it determined that the expert opinions and mailed threat he submitted lacked probative value, failed to consider his supporting evidence -- including evidence of the Russian annexation of Crimea and invasion of eastern Ukraine -- and applied a wrong legal standard to his asylum claims. 1 After careful review, we deny the petition. We review the denial of a motion to reopen for abuse of discretion, limiting our review to whether the BIA exercised its discretion in an arbitrary or capricious manner. Jiang v. U.S. Atty. Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). A motion 1 Shchupak also says the BIA engaged in improper appellate fact-finding, but he relies on case law about a regulation that prohibits the BIA from fact-finding when reviewing appeals from an Immigration Judge (“IJ”), not when deciding motions to reopen. 8 C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will not engage in factfinding in the course of deciding appeals.”). 2 Case: 17-12710 Date Filed: 04/12/2018 Page: 3 of 9 to reopen removal proceedings must be filed no later than 90 days after the final administrative decision, but this limitation does not apply if the motion is predicated on changed country conditions that are material and could not have been discovered at the time of the removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(i)–(ii). “An alien who attempts to show that the evidence is material bears a heavy burden and must present evidence that demonstrates that, if the proceedings were opened, the new evidence would likely change the result in the case.” Jiang, 568 F.3d ...

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