    17-2449
    Zubar v. Barr
                                                                                      BIA
                                                                  A076 164 655/656/657/658

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 14th day of June, two thousand nineteen.

    PRESENT:
             JOSÉ A. CABRANES,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    OLGA ZUBAR, ALEKSANDR ZUBAR,
    VLADIMIR ZUBAR, INNA ZUBAR,
             Petitioners,

                    v.                                           17-2449
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                  Alexander J. Segal, The Law
                                      Offices of Grinberg & Segal,
                                      P.L.L.C., New York, NY.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Anthony C.
                                      Payne, Assistant Director; Yedidya
                                      Cohen, Trial Attorney, Office of
                                      Immigration Litigation, United
                          States Department of Justice,
                          Washington, DC.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,1

and Inna Zubar, who are family members and natives and

citizens of Ukraine, seek review of a BIA decision denying

their motion to reopen.   In re Olga Zubar, Aleksandr Zubar,

Vladimir Zubar, Inna Zubar, Nos. A 076 164 655/656/657/658

(B.I.A. July 13, 2017).   We assume the parties’ familiarity

with the underlying facts and procedural history, to which we

refer only as needed to explain our decision to deny the

petition.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006).   When the BIA considers evidence of country



1 The Zubars’ counsel has informed the Court that Vladimir
Zubar died in April 2018. We therefore address the petition
only as to the remaining family members.
                              2
conditions in evaluating a motion to reopen, we review the

BIA’s     factual   findings    under      the     substantial         evidence

standard.      Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

Cir. 2008).

      An alien seeking to reopen may file one motion to reopen

and may do so no later than 90 days after issuance of the

final administrative decision.             8 U.S.C. § 1229a(c)(7)(A),

(C)(i);    8 C.F.R.     § 1003.2(c)(2).        These        time     and    number

limitations do not apply, however, if the motion is filed to

permit    application    for   asylum     “based       on    changed        country

conditions arising in the country of nationality or the

country to which removal has been ordered, if such evidence

is material and was not available and would not have been

discovered     or   presented    at      the     previous       proceedings.”

8 U.S.C.       § 1229a(c)(7)(C)(ii);             see         also          8 C.F.R.

§ 1003.2(c)(3)(ii).       An alien who seeks reopening must also

establish prima facie eligibility for the relief sought.

Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).

Although in its decision the BIA noted the applicable time

and   number    limitations,    it       recognized         recent    political

                                     3
changes in the Crimean peninsula in Eastern Ukraine—where

Petitioners last resided before coming to the United States—

and denied reopening based on Petitioners’ failure to show

prima facie eligibility for asylum.              Accordingly, we review

only that determination.           See Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial of

immigration relief stands or falls on the reasons given by

the IJ or BIA” (internal quotation marks and alterations

omitted)).

      At the threshold, movants seeking asylum must demonstrate

“a ‘realistic chance’ that [they] will be able to establish

eligibility.”    Poradisova, 420 F.3d at 78.                   To establish

asylum   eligibility       based    on   a    well-founded           fear   of

persecution,    an   applicant      must     show       that    he    or    she

subjectively    fears   persecution        and        that   this    fear   is

objectively reasonable.       Ramsameachire v. Ashcroft, 357 F.3d

169, 178 (2d Cir. 2004).           An alien may make this showing

either by offering evidence that “he or she would be singled

out   individually   for    persecution”         or    by    “prov[ing]     the

existence of a ‘pattern or practice in his or her country

                                    4
. . . of persecution of a group of persons similarly situated

to the applicant.’”        Kyaw Zwar Tun v. INS, 445 F.3d 554, 564

(2d   Cir.   2006)   (quoting     8   C.F.R.    §    208.13(b)(2)(iii)).

Because the Zubars did not offer evidence that they “would be

singled out individually for persecution,” they were required

to establish a “pattern or practice” of persecution of ethnic

Ukrainians in their home country.            See id.

      The Zubars, ethnic Ukrainians with roots in Western

Ukraine, argue that they were not required to demonstrate a

pattern    or   practice    of   persecution    of     ethnic   Ukrainians

across the country, but only in the Crimean peninsula in

Eastern Ukraine, the family’s last place of residence in the

country.     Even if we accept this proposition, however, we

identify no error in the BIA’s determination that the Zubars

failed to carry their burden.             Although the record contains

evidence of human rights abuses in the Crimean peninsula, the

Zubars presented little evidence that any danger that ethnic

Ukrainians may be facing in Crimea rises to the level of

persecution.




                                      5
       One record report by an international organization notes

in its discussion of disappearances occurring there that,

“[i]n Crimea, the targeted individuals primarily included

pro-Maidan activists, journalists and members of the Armed

Forces of Ukraine.”       Certified Administrative Record (“CAR”)

at 282 (Human Rights Assessment Mission in Ukraine, Report by

the Organization for Security and Co-operation in Europe

(“OSCE Report”)).         The Zubars point to the OSCE Report’s

statement that “[i]dentifying as Ukrainian and supporting

Ukrainian    unity   is    allegedly   perceived   negatively    by   a

significant proportion of the population in Crimea.”            Id. at

340.    But, that some individuals who identify as Ukrainian

may be “perceived negatively” by many in Crimea does not

establish that ethnic Ukrainians are persecuted there.                As

we have observed, “persecution is an extreme concept that

does not include every sort of treatment our society regards

as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

Cir. 2011) (internal quotation marks omitted). Nor does it

“encompass all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional.” Id.

                                  6
       The OSCE Report also describes how individuals speaking

Ukrainian     in   public     have    been    “harassed.”   CAR    at   340.

Similarly, harassment does not amount to persecution.                    See

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

Cir. 2006).        Further, even if individuals in Crimea are

harassed for speaking Ukrainian, it appears from the record

that    the   Zubars    are    not     similarly    situated      to    these

individuals because Russian is their native language.                     In

addition,     reports    that        ethnic   Ukrainians    have       become

generally fearful since the Russian annexation, e.g., CAR at

408, 434, are also insufficient, either alone or considered

together with the descriptions discussed above, to make a

prima facie showing of a pattern or practice of harm rising

to the level of persecution.           See In re A-M-, 23 I. & N. Dec.

737, 741 (BIA 2005) (describing a pattern or practice of

persecution as the “systemic or pervasive” persecution of a

group).

       For these reasons, the BIA did not abuse its discretion

in concluding that the country conditions evidence adduced by

the Zubars does not establish that they have a “realistic

                                       7
chance”   of   showing   a   pattern   or   practice    amounting   to

persecution    of   ethnic    Ukrainians     residing    in   Crimea.

Poradisova, 420 F.3d at 78; see In re A-M-, 23 I. & N. Dec.

at 741.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe,
                                Clerk of Court




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