MARTA GAVRILOVA, AKA Marta Istrin v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTA GAVRILOVA, AKA Marta Istrin,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-73189
Agency No. A071-586-409
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 7, 2017**
Pasadena, California
Before: BERZON and WATFORD, Circuit Judges, and PAYNE,*** District
Judge.
1. On July 11, 2014, Marta Gavrilova filed a motion to reopen deportation
proceedings with the BIA to pursue asylum, withholding of removal, and
* 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 Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
FILED
JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Convention Against Torture (CAT) relief. The BIA denied her motion and
Gavrilova petitioned this Court for review. We hold that the BIA did not abuse its
discretion and, therefore, deny her petition. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1150 (9th Cir. 2010) (per curiam).
2. Ordinarily, “a party may file only one motion to reopen deportation or
exclusion proceedings . . . and that motion must be filed no later than 90 days after
the date on which the final administrative decision was rendered in the proceeding
sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). These limitations do not apply,
however, if the motion is for the purposes of seeking asylum, withholding of
removal, or CAT relief “based on changed circumstances arising in . . . the country
to which deportation has been ordered, if such evidence is material and was not
available and could not have been discovered or presented at the previous hearing.”
See id. § 1003.2(c)(3)(ii); Agonafer v. Sessions, 859 F.3d 1198, 1203–04 (9th Cir.
2017). “To prevail on a motion to reopen on the basis of changed country
conditions,” a movant must, inter alia, “demonstrate that the new evidence, when
considered together with the evidence presented at the original hearing, would
establish prima facie eligibility for the relief sought.” Agonafer, 859 F.3d at 1204
(citation omitted). Under this prima facie standard, a movant need show only “a
reasonable likelihood that the statutory requirements for relief have been satisfied.”
Salim v. Lynch, 831 F.3d 1133, 1139 (9th Cir. 2016) (citation omitted). “The BIA

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is required to credit evidence supporting [the motion] unless it is ‘inherently
unbelievable.’” Id. at 1140–41 (citation omitted).
Here, Gavrilova has been subject to an order of deportation since 1998 and
has filed six motions to reopen.1 Hence, her motion is time- and number-barred
unless she can avail herself of an exception. See 8 C.F.R. § 1003.2(c)(3).
Gavrilova claims that the changed country conditions exception applies because
Ukraine, her country of removal, is embroiled in a civil war between the
government and Russian separatists. Gavrilova avers that she is eligible for
asylum, withholding of removal, and CAT protection because she speaks only
Russian and English and, therefore, will be perceived as pro-Russian and
persecuted or tortured if removed to Ukraine.
The BIA rejected this argument, finding that Gavrilova had failed to
establish prima facie eligibility for these forms of relief from removal. See 8
C.F.R. §§ 1208.13(b), 1208.16, 1208.18. This finding is supported by substantial
evidence. See Salim, 831 F.3d at 1137–38, 1140–41; Madrigal v. Holder, 716 F.3d
499, 503 (9th Cir. 2013).
3. To be eligible for asylum, Gavrilova “must show that [s]he is unable or
unwilling to return to h[er] country of nationality ‘because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
1 The BIA stated that Gavrilova has submitted five motions to reopen.
The parties, however, agree that there have been six.

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in a particular social group, or political opinion.’” Madrigal, 716 F.3d at 503
(quoting 8 U.S.C. § 1101(a)(42)(A)). She must also prove that the persecution
stems from “the government or forces that the government is unwilling or unable
to control.” Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). In short,
Gavrilova is required to demonstrate that, because of changed country conditions,
she can now make a prima facie showing of: (1) government persecution in
Ukraine; (2) that has a nexus to a protected ground. Her claim falters at the first
step.
To satisfy the “persecution” element, an applicant who, like Gavrilova, does
not allege past persecution must exhibit a well-founded fear of future persecution.
Al-Harbi v. INS, 242 F.3d 882, 888–90 (9th Cir. 2001). This fear needs to be not
only “subjectively genuine” but also “objectively reasonable,” although a mere ten
percent chance of persecution will suffice. Sael v. Ashcroft, 386 F.3d 922, 924–25
(9th Cir. 2004). To establish objectively reasonable fear, an applicant must show
“that there is a ‘reasonable possibility’ that [s]he will be ‘singled out individually
for persecution’ if removed” or “that there is a systematic ‘pattern or practice’ of
persecution against the group to which [s]he belongs.” Wakkary v. Holder, 558
F.3d 1049, 1060 (9th Cir. 2009) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
To show that changed country conditions have created a “reasonable
likelihood” that she would be persecuted if removed to Ukraine, see Salim, 831

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F.3d at 1139–40, Gavrilova offered her declaration and a collection of newspaper
and magazine articles. Gavrilova’s declaration reveals that she wishes to avoid the
“generalized lawlessness and violence between diverse populations” attending the
Ukrainian conflict, which is not persecution. See Singh v. INS, 134 F.3d 962, 967
(9th Cir. 1998). The only statements in her declaration denoting more than fear of
the conflict itself, moreover, merely indicate that the government perceives
Russian speakers to be separatists, treats them as terrorists, and is conducting an
anti-terrorism operation. But these vague allegations in no way describe what
mistreatment Gavrilova fears, let alone evince an individual risk or systematic
pattern or practice of abuse amounting to persecution. See Halim v. Holder, 590
F.3d 971, 975 (9th Cir. 2009) (“[O]ur caselaw characterizes persecution as an
extreme concept, marked by the infliction of suffering or harm . . . in a way
regarded as offensive.” (citation omitted)).2 The articles presented by Gavrilova do
not show that, because of changed country conditions, the government would now
likely attempt to inflict suffering upon a person for speaking Russian or even for
harboring pro-Russia or pro-separation sentiments, absent involvement in
combatant activities or, perhaps, protests. In sum, Gavrilova’s fear of persecution,
however sincere, is not objectively reasonable, and she has not made out a prima
facie case that she is eligible for asylum. The BIA thus appropriately rejected her
2 Other allegations that appear in Gavrilova’s brief are conclusory, are
unsupported by the record, or mischaracterize the record evidence.

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motion to reopen to pursue her asylum claim.
Because Gavrilova has not shown any objectively reasonable fear of
persecution based on changed country conditions, we need not address whether she
has demonstrated a nexus between the persecution that she apprehends and a
protected ground.
4. Gavrilova is likewise not prima facie eligible for withholding of removal.
Withholding is governed by a standard almost identical to that of asylum. The
only difference relevant here is that it is more challenging to satisfy the persecution
prong of the withholding analysis. See Tamang v. Holder, 598 F.3d 1083, 1091
(9th Cir. 2010). Unlike asylum, withholding requires an applicant to demonstrate a
“clear probability” of persecution, i.e., that persecution is “more likely than not.”
Id. (citations omitted). Gavrilova has not made that showing, and the BIA
therefore correctly found that she was not entitled to reopen to pursue withholding
relief. See Singh, 134 F.3d at 967, 971.
5. The BIA also properly rejected Gavrilova’s motion to reopen to pursue
her CAT claim. To be eligible for CAT relief, an “applicant must show both a
greater than 50 percent likelihood that [s]he will be tortured, and that a public
official would . . . acquiesce in that torture.” Madrigal, 716 F.3d at 508 (citations
omitted). Gavrilova has not made a prima facie showing of a likelihood of torture
sufficient to support a CAT protection claim. See Nuru v. Gonzales, 404 F.3d

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1207, 1224 (9th Cir. 2005) (“[T]orture is more severe than persecution and the
standard of proof for the CAT claim is higher than the standard of proof for an
asylum claim.”). Furthermore, she offered no evidence that government officials
would acquiesce in her torture. Lastly, as with her other claims, Gavrilova’s CAT
claim is largely based on fear of generalized violence, which the BIA correctly
held does not justify relief. See Delgado-Ortiz, 600 F.3d at 1152.
6. Gavrilova additionally asked the BIA to reopen to allow her to pursue
adjustment of status on the ground that she is married to a U.S. citizen and has
obtained approval of an I-130 petition. She appears to argue that the BIA failed to
provide sufficient reasoning for rejecting her request. Gavrilova’s adjustment
eligibility argument, however, in no way describes the governing legal standards or
explains how they apply to this case. Her insufficient reasoning argument,
likewise, is conclusory and details no specific deficiencies in the BIA’s opinion.
These contentions are therefore waived. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259 (9th Cir. 1996); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).3
After this matter was submitted for consideration, Gavrilova notified the
Court that she has been approved for an IW6 visa and, accordingly, intends to
request that the government stipulate to reopening and remand. In light of this
3 Gavrilova seems also to be asserting that the asylum, withholding of
removal, and CAT relief aspects of the BIA’s opinion were inadequately reasoned.
If so, those arguments are similarly conclusory and thus waived.

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development, the parties should be aware that this opinion is limited to Gavrilova’s
sixth motion to reopen and that nothing herein prevents her from again requesting
reopening to the extent permitted by law.
PETITION DENIED.

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