     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, 546 F.3d 138, 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);         8     C.F.R.     § 1003.2(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 8 C.F.R. § 1003.2(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, 485 U.S. 94, 104–05 (1988); Poradisova v. Gonzales,

13   420 F.3d 70, 78 (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, 741 F.3d 324, 332 (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-, 24 I. & N. Dec. 163, 170, 173 (BIA 2007) (internal

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

 6   Dep’t of Justice, 293 F.3d 61, 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, 773 F.3d 396, 405 (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 8 C.F.R. § 1003.2(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, 546 F.3d

 3   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.”); id. at 168 (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




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