         12-5027
         Struk v. Holder
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A200 738 680
                            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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       LIUDMYLA VOLODYMYRIVNA STRUK,
14                Petitioner,
15
16                         v.                                   12-5027
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Robert C. Ross, West Haven,
24                                     Connecticut.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Jonathan
29                                     Robbins, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5        Petitioner Liudmyla Volodymyrivna Struk, a native and

 6   citizen of Ukraine, seeks review of a November 27, 2012,

 7   decision of the BIA affirming a November 9, 2010, decision

 8   of an Immigration Judge (“IJ”), pretermitting her

 9   application for asylum and denying her application for

10   withholding of removal.     In re Liudmyla Volodymyrivna Struk,

11   No. A200 738 680 (B.I.A. Nov. 27, 2012), aff’g No. A200 738

12   680 (Immig. Ct. Hartford Nov. 9, 2010).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15        Under the circumstances of this case, we have reviewed

16   both the BIA’s and the IJ’s opinions “for the sake of

17   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (citation omitted).    The applicable standards of

19   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

20   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21   I.   Pretermission of Asylum

22        Our jurisdiction to review the pretermission of an

23   asylum application as untimely is limited to constitutional

                                     2
 1   claims and questions of law.    See 8 U.S.C. §§ 1158(a)(2),

 2   (3), 1252(a)(2)(D).   Struk contends that her asylum

 3   application was timely because she could not have applied

 4   until she was baptized.   Insofar as she argues that she

 5   could not seek asylum based on religious persecution unless

 6   the faith recognized her as a member, she raises a

 7   reviewable question of law, but her claim is without merit.

 8   An asylum applicant bears the burden of establishing that

 9   the alleged persecution is on account of a protected ground.

10   See 8 U.S.C. § 1158(b)(1)(B)(i).   However, “[p]ersecution

11   for ‘imputed’ grounds (e.g., where one is erroneously

12   thought to hold particular political opinions or mistakenly

13   believed to be a member of a religious sect) can satisfy the

14   ‘refugee’ definition.”    In re S-P-, 21 I. & N. Dec. 486, 489

15   (BIA 1996); see Rizal v. Gonzales, 442 F.3d 84, 90 n.7 (2d

16   Cir. 2006).

17       Moreover, Struk’s argument ignores the agency’s

18   determination that her baptism did not materially affect her

19   eligibility for asylum because she alleged she had been

20   raised in the faith, had been persecuted in Ukraine on the

21   basis of her religion, and had begun the process of becoming

22   baptized within one year of her arrival in the country.


                                    3
 1   Struk has not identified any error of law in this

 2   determination.

 3   II. Withholding of Removal

 4       In her brief, Struk abandons her claim of past

 5   persecution and, accordingly, must make an independent

 6   showing of a likelihood of persecution.     See 8 C.F.R.

 7   § 1208.16(b).     The agency reasonably found that Struk did

 8   not meet this standard.

 9       The country reports, which Struk admits include little

10   information about Jehovah’s Witnesses, support the agency’s

11   determination that she did not show either that she would be

12   singled out for persecution or that Jehovah’s Witnesses face

13   “systemic or pervasive” harm in Ukraine.     In re A-M-, 23 I.

14   & N. Dec. 737, 741 (BIA 2005); see Jian Xing Huang v. INS,

15   421 F.3d 125, 129 (2d Cir. 2005) (providing that a fear is

16   not objectively reasonable if it lacks “solid support” in

17   the record and is merely “speculative at best”).     Struk’s

18   claim that all religious minorities in Ukraine are

19   persecuted is not supported and she has not identified

20   evidence compelling the conclusion that she would be subject

21   to persecution.

22



                                     4
 1       Moreover, the agency reasonably found that Struk’s fear

 2   of future persecution was undercut by her testimony that her

 3   parents had not been harmed since 2008.     See Melgar de

 4   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding

 5   fear of future persecution diminished when

 6   similarly-situated relatives continued to live in

 7   applicant’s native country without harm).

 8       For the foregoing reasons, the petition for review is

 9   DENIED. The pending motion for a stay of removal in this

10   petition is DENIED as moot.

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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