                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               JAN 16 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

NATALYA LVOVNA CHERNYKH,                         Nos. 11-70992 & 10-70310

              Petitioner,                        Agency No. A-088-906-743

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 3, 2013
                            San Francisco, California

Before: GOULD and PAEZ, Circuit Judges, and HUFF, District Judge.**


       In these consolidated petitions for review, Natalya Lvovna Chernykh

(“Chernykh”), a native and citizen of Kazakhstan, petitions for review of a decision

of the Board of Immigration Appeals (“BIA”) affirming the denial of her


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **    The Honorable Marilyn L. Huff, District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.
application for asylum, withholding of removal and relief under the Convention

Against Torture (“CAT”), and denying her motion to reopen. She also petitions for

review of a decision by the BIA denying her second motion to reopen. In number

10-70310, we deny the petition for review of Chernykh’s application for asylum,

withholding of removal and relief under CAT, and her first motion to reopen.

However, in number 11-70992, we grant the petition for review of the BIA’s denial

of Chernykh’s second motion to reopen and remand for further consideration.

No. 10-70310

1.    Where, as here, the BIA adopts and affirms the immigration judge’s (“IJ”)

decision with a citation to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), we

review the IJ’s decision as if it were the decision of the BIA. Ahmed v. Holder,

569 F.3d 1009, 1012 (9th Cir. 2009). We review the factual findings underlying

the denial of Chernykh’s applications for relief for substantial evidence. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992).

      Chernykh does not argue that she suffered past persecution. Rather, she

claims that she will be persecuted because of her religion if she is removed to

Kazakhstan. In order to establish the well-founded fear of persecution necessary to

support a claim of asylum or withholding of removal, Chernykh must show that

her fear is both subjectively genuine and objectively reasonable. Ahmed v. Keisler,


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504 F.3d 1183, 1191 (9th Cir. 2007). Although Chernykh credibly testified to her

subjective fear of persecution, the documentary evidence that she presented

suggests only that she would face harassment, disruption of religious services and

possible fines or detention if returned to Kazakhstan. Such harms do not rise to the

level of persecution. See Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007);

Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006). Chernykh likewise failed to

present any evidence that she would face torture if she returned to Kazakhstan.

Accordingly, substantial evidence supports the BIA’s conclusion that Chernykh

did not establish that her fear of persecution was objectively reasonable, and that

she was not eligible for asylum or withholding of removal. Substantial evidence

also supports the BIA’s determination that Chernykh is not entitled to relief under

the CAT.

2.    We review the denial of a motion to reopen for abuse of discretion.

Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). A motion to reopen

requires a showing that the “evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c)(1).

      Chernykh’s first motion to reopen included fourteen additional documents

that were not presented to the IJ, including two declarations, additional news


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articles, and country conditions reports. Four of these documents were available at

the time of her asylum hearing. Moreover, Chernykh provided no explanation for

why the declarations included in her motion were unavailable at the time of the

hearing. The remaining documents discussed continued efforts to regulate and

harass religious organizations in Kazakhstan and reiterated experiences of fines

and seizures of property already addressed by the IJ. Because the evidence

presented in Chernykh’s first motion to reopen was either previously available, or

not material to her claims, the BIA did not abuse its discretion in denying

Chernykh’s first motion to reopen.

No. 11-70992

3.       Chernykh’s second motion to reopen was untimely. A motion to reopen

must be filed no later than ninety days after the date of that decision. 8 C.F.R. §

1003.2(c)(2). Equitable tolling of this time limit may be allowed where a

petitioner has been prejudiced by ineffective assistance of counsel or conditions in

the petitioner’s home country have changed. See Iturribarria v. INS, 321 F.3d 889,

897-98 (9th Cir. 2003); 8 C.F.R. § 1003.2(c)(3)(ii). Chernykh argues that both

exceptions apply here. We first consider her ineffective assistance of counsel

claim.




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4.     Due process violations, including claims of ineffective assistance of

counsel, are reviewed de novo. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). Ineffective assistance of counsel in an immigration proceeding

results in the denial of due process “‘if the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his case.’” Ortiz v. INS,

179 F.3d 1148, 1153 (9th Cir. 1999) (quoting Lopez v. INS, 775 F.2d 1015, 1017

(9th Cir. 1985)). To prevail, Chernykh must show (1) that counsel failed to

perform with sufficient competence, and (2) that she was prejudiced by her

counsel’s performance. See Mohammed, 400 F.3d at 793.

      Chernykh argues that she received ineffective assistance of counsel during

her asylum hearing because her counsel failed to investigate fully and present the

factual basis for her asylum claim and, therefore, did not properly obtain the

necessary documentary evidence to support her claim that Evangelical Christians

in Kazakhstan are subject to persecution. Chernykh’s counsel submitted to the IJ

several news articles concerning the treatment of religious minorities, including

Evangelical Christians, in Kazakhstan. These documents discussed the registration

requirements imposed on religious organizations by the government of

Kazakhstan, as well as the harassment, raids, fines and detention that unregistered

religious organizations and their members experienced.


                                          5
      None of the documents submitted by Chernykh’s counsel presented any

information on the violence or physical persecution faced by Evangelical

Christians. Accordingly, although the IJ found Chernykh’s testimony credible, she

could not find within the documentary evidence, “any form of persistent harm

being visited on religious minorities that would . . . rise to the level of

persecution.” The IJ noted, in particular, that “the Court heard the testimony of no

witnesses . . . regarding the likelihood of persecution of evangelical Christians in

Kazakhstan.” According to Chernykh’s sworn declaration, however, she and her

counsel had access to three witnesses who had personal knowledge of the

experiences of Evangelical Christians in Kazakhstan and were willing to provide

declarations on the topic. Moreover, two of these witnesses were willing to testify

regarding the violence and harassment Evangelical Christians experienced in

Kazakhstan, and may have provided the necessary evidence of persecution to

establish Chernykh’s claim as objectively reasonable had they been called to testify

at Chernykh’s hearing.

       Considering the failure of Chernykh’s counsel to provide material

documentary evidence to support Chernykh’s subjectively genuine claim, the

inexplicable omission of declarations and testimony readily available from material

witnesses, and the IJ’s conclusion that, had counsel been able to provide evidence


                                            6
of persecution of Evangelical Christians in Kazakhstan, “the Court’s view of the

case would likely be different,” we conclude that Chernykh’s counsel acted

without sufficient competence. In failing to provide any documentary evidence of

persecution in Kazakhstan, or to draw upon the resources readily available to her,

Chernykh’s counsel failed to reasonably present her client’s case, denying

Chernykh due process. See Ortiz, 179 F.3d at 1153. Accordingly, we grant the

petition on this limited basis.

5.    Because the BIA concluded that Chernykh’s counsel acted with sufficient

competence, it did not address the second question of whether counsel’s

performance prejudiced Chernykh. Therefore, we remand to the BIA for

consideration of the question of prejudice and whether Chernykh’s untimely

motion to reopen should be equitably tolled.

6.    In light of the above disposition, we need not address whether the BIA

abused its discretion in rejecting Chernykh’s claim of changed country conditions,

the alternative basis for her motion to reopen.

      PETITION GRANTED IN PART, DENIED IN PART, AND

REMANDED.

             The parties shall bear its own costs on appeal.




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