Ruslana Melnik, also known as Ruslana Gnatyuk, et al., Petitioners,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.
FEBRUARY 6, 2018
Petitions for Review of Orders of the Board of Immigration
Appeals Nos. A906-207-913 & A099-197-430
Ripple, Sykes, and Barrett, Circuit Judges.
Ripple, Circuit Judge.
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.
Board also denied their subsequent motions to reconsider the
dismissal and to reopen proceedings, as well as their motions
to reconsider those denials. We have consolidated their timely
petitions for review. For the reasons set forth in this
opinion, we deny the petitions.
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
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. 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
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." 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.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. 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. She therefore does not experience
routine harassment because the racketeers "don't go
[to] the village."
Gnatyuk also testified. He said that the racketeers demanded
a "tax" every month,  and that he had suffered multiple
injuries over time, including a broken finger and stitches on
his head because of his unwillingness to
comply. 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." 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." Finally, he spoke about his life in the
described a business he had built, comprising fifteen trucks
and drivers. He estimated its value as one million dollars.
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.
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.
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." 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.
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"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." 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." The judge
could find, moreover, no motivation for the group's
victimization other than profit.
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.
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." 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.
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 ...