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Melnik v. Sessions

United States Court of Appeals, Seventh Circuit

May 25, 2018

Ruslana Melnik, also known as Ruslana Gnatyuk, et al., Petitioners,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          ARGUED FEBRUARY 6, 2018

          Petitions for Review of Orders of the Board of Immigration Appeals Nos. A906-207-913 & A099-197-430

          Before Ripple, Sykes, and Barrett, Circuit Judges.

          Ripple, Circuit Judge.

         Ruslana Melnik and Mykhaylo Gnatyuk, a married couple who are citizens of Ukraine, petition for review of decisions of the Board of Immigration Appeals ("Board"). The Board dismissed their appeal from the decision of an immigration judge, denying their applications for asylum and ordering their removal from the United States.

         The Board also denied their subsequent motions to reconsider the dismissal and to reopen proceedings, as well as their motions to reconsider those denials.[1] We have consolidated their timely petitions for review. For the reasons set forth in this opinion, we deny the petitions.

         I

         BACKGROUND

         A.

         Mr. Gnatyuk entered the United States on a visitor's visa in 2003 and overstayed. Ms. Melnik joined him a year later, but immigration authorities apprehended her on entry because they determined that she had presented a fraudulent passport. After she requested asylum and passed a credible fear interview, authorities referred her case to the Asylum Office of United States Citizenship and Immigration Services. The Government later denied her affirmative application for asylum and placed her in removal proceedings. A delay of nearly a decade ensued. Mr. Gnatyuk also filed his own affirmative application for asylum in 2010, but the Government denied this application as well, placed Mr. Gnatyuk in removal proceedings, and consolidated the two cases.

         The record reveals that, for the six years preceding their travel to the United States, Ms. Melnik and Mr. Gnatyuk operated a clothing business in Ukraine. In the course of their work, they traveled to Poland and Hungary to purchase clothing. They then resold this merchandise in a market in their hometown in Western Ukraine. Ms. Melnik testified that, during that period, men, whom she described as "racketeers, " victimized them through extortion.[2] She claimed that, in an effort to force them to hand over money, these individuals beat Mr. Gnatyuk on multiple occasions and once set his car on fire. She further testified that they went to the local police but that the authorities did nothing. She also stated that they closed their business and decided to live separately to ensure her safety and the safety of her daughter, who continues to live in Ukraine.

         Ms. Melnik said that she feared returning to Ukraine because she now lives in the west and "the racketeers and everybody, they don't like western people."[3] Addressing the situation in Ukraine after her departure, Ms. Melnik told the immigration judge that her husband's brother-in-law had been a recent victim of extortion and beating, although she did not know who was responsible. She described her hometown as "destroyed" and identified photos of "burning places" in her village, but she could not say what had happened or why.[4]She also stated that she owed money for the false Ukrainian passport that she had used to travel to the United States. She claimed that her family had faced "constant threats" after her departure.[5] She later stated, however, that individuals demanded money from her mother once in 2004, but there had been no repetition of the incident in later years. She explained this isolated incident by noting that her mother lives "in the village" and that the racketeers live in the town.[6] She therefore does not experience routine harassment because the racketeers "don't go [to] the village."[7]

         Mr. Gnatyuk also testified. He said that the racketeers demanded a "tax" every month, [8] and that he had suffered multiple injuries over time, including a broken finger and stitches on his head because of his unwillingness to comply.[9] He claimed that when he had complained to the police, they arrested him along with the racketeers and placed them in the same cell. He also claimed that there were few economic opportunities in Ukraine and that he had come to the United States to live in a country "that takes care of its residents" and has police that will "come up and help you if you're in trouble."[10] In reply to a question about the recent extortion of his brother-in-law, Mr. Gnatyuk said that he believed the men who had extorted him "now … all have government badges."[11] Finally, he spoke about his life in the United States.

         He described a business he had built, comprising fifteen trucks and drivers. He estimated its value as one million dollars.

         The petitioners also called a friend who is a Ukrainian priest, Fr. Kalynyuk. He stated that before Mr. Gnatyuk came to the United States, he had lived with Fr. Kalynyuk's brother for safety and that the police were unable to protect him. He believed Mr. Gnatyuk would be killed if he returned.

         B.

         Both petitioners requested asylum before the immigration judge. The immigration judge first determined that Mr. Gnatyuk's application in 2010 was untimely and that, he had not established changed circumstances to justify his late filing. The immigration judge therefore ruled that although he would consider only Mr. Gnatyuk's application for withholding of removal, he would consider him a derivative applicant on his wife's application for asylum.

         Reaching the merits of the petitioners' claims, the immigration judge recognized that they have a "generalized fear of returning to the Ukraine because of the present country conditions, " which he described as an "upheaval."[12] He further acknowledged that, at the time of his decision, the Department of Homeland Security was not deporting to Ukraine even those with final orders of removal. This action, he further noted, was an exercise of discretion on the part of the Department and was not a matter within his purview.

         After an examination of our case law, the immigration judge determined that the petitioners' proffered social group of "business owners in the Ukraine who have been extorted by criminal elements and not protected by the government"[13]was not cognizable under the Immigration and Nationality Act. He explained that characterizing the group in this manner amounted to defining it primarily by the harm suffered in the past, which was "circular."[14] When the prior harm was removed from the definition, the proffered social group became all small business owners, a group that was, in the immigration judge's view, "too broad."[15] The judge could find, moreover, no motivation for the group's victimization other than profit.

         The judge also expressed skepticism about the petitioners' documentary evidence. The material lacked a substantial update since the original filings in 2004 and 2010. He also questioned the credibility of Mr. Gnatyuk's claim that the police had arrested him when he complained about the extortion. In the judge's view, evidence of the beating of Mr. Gnatyuk's brother-in-law by criminal elements in Ukraine did not establish that the present government would not protect the petitioners if they returned.

         Finally, the immigration judge remarked that the couple had resided in the United States for more than ten years "largely due to the ineffectiveness of the Department of Homeland Security and the Immigration courts."[16] The judge estimated that an appeal to the Board might take years and informed the petitioners that, if country conditions in Ukraine change or there are materially changed circumstances, they may request a further hearing.

         The immigration judge denied Ms. Melnik's request for asylum and Mr. Gnatyuk's application for withholding of removal. Because neither petitioner argued that the Ukrainian government would harm them upon their ...


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