Svitlana Zonova v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SVITLANA ZONOVA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71211
Agency No. A079-392-301
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2022**
Pasadena, California
Before: TASHIMA and LEE, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Svitlana Zonova, a Jewish citizen of Ukraine, petitions for review
of the decision of the Board of Immigration Appeals (BIA) denying her motion to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAY 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reconsider (“Motion”), which the BIA construed as a both a motion to reconsider
and a motion to reopen based on changed country conditions.1 We deny the
petition in part and dismiss in part.
We review the BIA’s denial of a motion to reopen or reconsider for abuse of
discretion. Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017). The BIA
abuses its discretion when its denial is “arbitrary, irrational, or contrary to law.”
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (quoting Ahwazi v. INS, 751
F.2d 1120, 1122 (9th Cir. 1985)).
1. The BIA did not abuse its discretion by denying Petitioner’s Motion with
respect to reconsideration. A motion to reconsider must “specify[] the errors of
fact or law in the prior Board decision and shall be supported by pertinent
authority.” 8 C.F.R. § 1003.2(b)(1). Petitioner did not point to any legal errors in
the prior BIA decision, nor did she identify previously submitted evidence that the
BIA overlooked or misinterpreted. As such, the petition is denied as to
reconsideration.
1 Petitioner purports to “seek[] review of [the BIA’s] decisions” to deny both her
first motion to reopen, filed in May 2019, and her motion to reconsider. Petitioner
did not timely appeal the denial of her first motion to reopen. See 8 U.S.C.
§ 1252(b)(1) (setting thirty-day deadline for appealing final removal orders).
Because the time limit for appealing removal orders “has been treated as
mandatory and jurisdictional in this Circuit,” we lack jurisdiction to review the
denial of her first motion. Martinez v. Sessions, 873 F.3d 655, 658 (9th Cir. 2017).

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2. Neither did the BIA abuse its discretion by denying the Motion with respect to
reopening. To prevail on a motion to reopen based on changed country conditions,
a movant must produce previously unavailable material evidence, which, “when
considered together with the evidence presented at the original hearing, would
establish prima facie eligibility for the relief sought.” Bhasin v. Gonzales, 423
F.3d 977, 984 (9th Cir. 2005); see 8 C.F.R. § 1003.2(c)(3)(ii). Petitioner argues
that she is prima facie eligible for relief based on several theories of eligibility, all
of which fail.
Petitioner first contends that she is prima facie eligible for asylum based on a
pattern or practice of persecution of Jews in Ukraine. An applicant may be eligible
for asylum based on a “pattern or practice of persecution of a group of persons
similarly situated to the applicant” on account of protected grounds including
religion, such that the applicant’s inclusion in the group makes it “more likely than
not that his or her life or freedom would be threatened upon return to that country.”
8 C.F.R. § 208.16(b)(2)(i)–(ii). An applicant may prevail based on a showing of
persecution by private actors, “so long as the persecution is sufficiently widespread
and the government is unable or unwilling to control those actors.” Wakkary v.
Holder, 558 F.3d 1049, 1061 (9th Cir. 2009).
Petitioner argues that the treatment of Jews in Ukraine by anti-Semitic
groups constitutes widespread persecution and that the Ukrainian government is

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unable or unwilling to stop it. She cites reports that anti-Semitic attacks are more
common in Ukraine than in other ex-Soviet countries and that radical groups have
carried out at least two dozen acts of physical violence or intimidation against Jews
in Ukrainian cities since 2018. Although these reports are appalling, they evidence
“sporadic”—not widespread—violence, which does not itself establish a pattern or
practice of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1180 (9th Cir.
2007).
Furthermore, the BIA did not abuse its discretion in finding insufficient
evidence that the Ukrainian government is unable or unwilling to stop anti-Semitic
violence. The evidence suggests that the Ukrainian government has, at times,
failed to respond to attacks by far-right groups but that it has been more responsive
when such attacks were clearly anti-Semitic. In fact, the government has opened
criminal investigations related to those attacks, supporting the BIA’s
determination. See Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005)
(concluding that the BIA did not abuse its discretion in finding that the
Bangladeshi government was not unable or unwilling to stop private persecution
when it “did not countenance attacks . . . and intervened in such attacks to the
extent that it was able”). As such, the BIA did not abuse its discretion in finding
Petitioner had not established prima facie eligibility for asylum based on a pattern
or practice of persecution of Jews in Ukraine.

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We lack jurisdiction to consider Petitioner’s remaining arguments for prima
facie eligibility for relief, as she failed to raise them before the BIA. See 8 U.S.C.
§ 1252(d)(1) (providing for judicial review a final order of removal if “the alien
has exhausted all administrative remedies available to the alien as of right”);
Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). We also lack
jurisdiction to consider her argument that her proceedings should be reopened sua
sponte. See Menendez-Gonzalez v. Barr 929 F.3d 1313, 1315 (9th Cir. 2019
(“This court generally lacks jurisdiction to review a decision by the [BIA] not to
exercise its sua sponte authority to reopen removal proceedings.” (citation
omitted)).
3. Finally, Petitioner’s due process claim fails. To the extent that Petitioner
purports to appeal the denial of her first motion on due process grounds, we lack
jurisdiction. See Martinez, 873 F.3d at 658. To the extent that Petitioner appeals
the denial of reconsideration of the denial of her first motion, her claim fails
because the record does not support her assertion that she did not receive the
Government’s response to her first motion.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.

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