    14-3877
    Zubar v. Lynch
                                                                                       BIA
                                                                               A076 164 655
                                                                               A076 164 656
                                                                               A076 164 657
                                                                               A076 164 658
                          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.

         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
    4th day of January, two thousand seventeen.

    PRESENT:
             RALPH K. WINTER,
             GUIDO CALABRESI,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

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

                     v.                                              14-3877
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Alexander J. Segal, The Law Offices
                                         of Grinberg & Segal, P.L.L.C., New
                                         York, NY.
FOR RESPONDENT:                Benjamin C. Mizer, Principal Deputy
                               Assistant Attorney General; Anthony
                               C.   Payne,   Assistant    Director;
                               Yedidya Cohen, Trial Attorney,
                               Office of Immigration Litigation,
                               United States Department of Justice,
                               Washington, D.C.

     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

GRANTED in part and DENIED in part.

     Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,

and Inna Zubar, natives and citizens of Ukraine, seek review

of a September 15, 2014, decision of the BIA denying their motion

to reopen.   In re Olga Zubar, Aleksandr Zubar, Vladimir Zubar,

Inna Zubar, Nos. A076 164 655/656/657/658 (B.I.A. Sept. 15,

2014).   We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

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

of   discretion,     mindful    that   motions   to   reopen    ‘are

disfavored.’”     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

(quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).      An alien

seeking to reopen proceedings may move to reopen once, no later

than 90 days after the final administrative decision was

rendered.    8     U.S.C.      § 1229a(c)(7)(C)(i);     8      C.F.R.



                                  2
§ 1003.2(c)(2).    These limitations may be excused, however, if

the motion to reopen is “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 proceeding.”      8 U.S.C. § 1229a(c)(7)(C)(ii);

8 C.F.R. § 1003.2(c)(3)(ii).

    In their motion to reopen, the Zubars alleged that they fear

persecution in Crimea, in eastern Ukraine (from which they

emigrated) on account of their Ukrainian ethnicity.      The BIA

failed to address that claim.         The Government argues that

remand would be futile given the BIA’s determination that the

Zubars’ evidence was insufficient to establish a specific

threat of harm.    We disagree.

    “[A] judicial judgment cannot be made to do service for an

administrative judgment.”    Li Hua Lin v. U.S. Dep’t of Justice,

453 F.3d 99, 106 (2d Cir. 2006) (internal quotation marks

omitted).   We have recognized certain exceptions to that

general rule, which reconcile the “twin commands neither to

disturb substantially supported factual determinations nor to

let stand determinations that rely, in whole or in part, on legal

error.”   Id.   Among those exceptions is the proposition cited



                                  3
by   the   Government,   that   “remand    should   not   be   required

where—notwithstanding admitted errors—overwhelming evidence

supporting the administrative adjudicator’s findings makes it

clear that the same decision would have been reached in the

absence of the errors.”     Cao He Lin v. U.S. Dep’t of Justice,

428 F.3d 391, 402 (2d Cir. 2005).         Our futility doctrine thus

contemplates an agency finding that rests in part on error, but

is otherwise amply supported by the record.           Here, however,

there was no agency finding; so, this exception is inapplicable.

We therefore must remand for the limited purpose of allowing

the BIA to decide, in the first instance, whether the Zubars’

ethnicity claim warrants reopening.

     The petition is otherwise denied.        The BIA was within its

discretion to find that the Zubars failed to establish prima

facie asylum eligibility based on their membership in a

particular social group (Russian speakers) or their pro-Ukraine

political opinions.      Singh v. Mukasey, 536 F.3d 149, 155 (2d

Cir. 2008).    The Zubars claimed to have a well-founded fear of

future persecution; they did not claim to have been persecuted

in the past.   To be eligible for asylum on that basis, they had

to “make some showing that authorities in [their] country of

nationality are either aware of [their] activities or likely



                                  4
to become aware of [their] activities.”       Hongsheng Leng v.

Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).   To do so, the Zubars

could demonstrate that they will be singled out for persecution,

or that Crimea has a pattern or practice of persecuting those

similarly situated to them.   8 C.F.R. § 1208.13(b)(2).

    The Zubars submitted newspaper articles and human rights

reports about the political situation in Crimea for Ukrainians.

Those reports describe heavily armed “self-defence” groups

beating and detaining pro-Ukrainian activists, statements that

favoring Ukrainian unity is perceived negatively by Crimeans,

and quote ethnic Ukrainians expressing fear of violence,

harassment, and losing their employment rights.         The BIA

reasonably found that this evidence did not demonstrate that

a particular social group made up of Russian speakers face

persecution.

    The BIA was likewise entitled to find that the Zubars failed

to corroborate their pro-Ukraine political opinions or show

that Crimean authorities would discover those opinions.        A

motion to reopen must be supported “by affidavits and other

evidentiary material.”   8 C.F.R. § 1003.2(c)(1).    The Zubars’

only individualized evidence was an affidavit from Olga Zubar

stating, in relevant part, “We do not support the pro-Putin



                               5
political views for the majority of Crimean residents.”         That

statement was uncorroborated by, for example, documents showing

that the Zubars joined a political organization, engaged in

pro-Ukraine activism, wrote pro-Ukraine articles, or even that

they planned to do so.     The record was also devoid of evidence

that the Crimean government will learn about the Zubars’

political opinions.     See Y.C. v. Holder, 741 F.3d 324, 334 (2d

Cir. 2013) (explaining that even if the Chinese government

monitors electronic communications, that does not mean it “is

aware   of   every   anti-Communist   or   pro-democracy   piece   of

commentary published online”).

    For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part, and the case is REMANDED

for further proceedings consistent with this order.        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




                                 6
