Ivan Ivanovych Dutka v. ERIC H. HOLDER, JR., Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 17, 2013
Decided January 2, 2014
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13-2139
IVAN IVANOVYCH DUTKA, et al.,
Petitioners,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A088 910 379, A088 910 380,
A088 910 381 & A089 118 724
O R D E R
The Dutka family—Ivan Ivanovych Dutka (a 45-year-old native and citizen of
Ukraine), his wife, and their two children—was ordered removed after Ivan’s
temporary visa expired and he failed to obtain permanent residency. The Dutkas did
not apply for any discretionary relief during removal proceedings. Less than a month
after the final removal hearing, however, they filed a motion to reopen so that Ivan
could apply for asylum because (they said) the Ukrainian government had pivoted
away from democratic principles and forged closer ties with Russia. The IJ denied the
motion, the Board affirmed, and the Dutkas petition for review of the Board’s order. We
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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deny the petition because the evidence submitted by the Dutkas fails to establish that
Ivan is prima facie eligible for asylum.
Ivan entered the United States in 1996 on a three-month visitor’s visa and
overstayed. His wife and two children joined him by 2001; none of them were lawfully
admitted to the U.S. (how they managed to enter the U.S. without a visa is not reflected
in the record). Also in 2001, an Illinois construction company applied for labor
certification on Ivan’s behalf with the Department of Labor. This was the first step
towards his obtaining permanent residency based on employment. Six years later, the1
Department of Labor issued the certification. The company then filed a visa petition on
Ivan’s behalf, but the Department of Homeland Security denied the petition (the reason
for the denial also is not in the record).
In June 2009, DHS initiated removal proceedings against the Dutkas. The Dutkas
conceded removability and acknowledged through counsel that they were not eligible
for adjustment of status; they also declined to apply for asylum or withholding of
removal, telling the IJ that they had no fear of persecution if returned to Ukraine. At the
final removal hearing on October 13, 2010, the IJ entered voluntary departure orders,
and the Dutkas did not appeal.
Within a month the Dutkas moved to reopen, asserting that Ivan was eligible for
asylum, withholding of removal, and protection under the Convention Against Torture
because the February 2010 election of President Viktor Yanukovych ushered in major
political changes in Ukraine, including closer ties to Russia, making the country less
democratic. The Dutkas maintained that Ivan feared persecution based on his
membership in a particular social group: former members of special military units who
have also lived abroad. In support of the motion, Ivan submitted a vague affidavit in
An employer that wishes to hire a foreign worker to work permanently in the1
U.S. usually “must obtain a … labor certification … from the [Department of Labor’s]
Employment and Training Administration” before submitting a petition to the U.S.
Citizenship and Immigration Services. Permanent Labor Certification Details, U.S. DEP’T OF
LABOR EMP’T & TRAINING ADMIN., http://www.foreignlaborcert.doleta.gov/
perm_detail.cfm (last updated June 20, 2013). The labor certification confirms “that
there are not sufficient U.S. workers able, willing, qualified and available to accept the
job opportunity in the area of intended employment and that employment of the
foreign worker will not adversely affect the wages and working conditions of similarly
employed U.S. workers.” Id.

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which he attested that his relatives in Ukraine warned him that Ukraine’s current
government may target him because of his living abroad in the U.S., his former military
service, and his participation in the movement for Ukrainian independence more than
20 years ago. According to Ivan, he had belonged to a special military unit in the Soviet
Army from 1985 to 1987 (while Ukraine was part of the Soviet Union). After he left the
military, he participated in the movement for Ukrainian independence but stopped
after he was visited by security officers who warned him that, as a former member of
the special military unit, he could not participate in the movement. In addition to Ivan’s
affidavit, the Dutkas submitted nine newspaper articles (all in English) that discussed
Ukraine’s political tilt towards Russia; six of the articles were published before their
final removal hearing. In their reply brief, the Dutkas justified their failure to apply for
asylum at their removal proceedings by arguing that the changes in Ukraine did not
“crystallize” until local elections in October 2010 (two weeks after their hearing).
The IJ denied the motion to reopen. He concluded that the Dutkas’ evidence and
assertions were too vague to establish their eligibility for the requested relief. The IJ
explained that the Dutkas’ arguments were further undermined by the fact that they
had the opportunity to seek discretionary relief after the February 2010 elections in
Ukraine but chose not to do so.
The Dutkas appealed to the Board, repeating the arguments they had made to the
IJ but also referring to events that had occurred in the roughly three months since they
sought reopening: the arrest and prosecution of the president’s political opponents after
the October 2010 local elections, the physical attacks and detentions of political activists,
and the warnings issued by the U.S. government and others to Ukraine’s leadership
expressing concern about the politically motivated arrests. The Dutkas also slightly
revised Ivan’s social group claim as belonging “to a particular social group of
individuals who have lived outside of the Ukraine and support Ukrainian
independence.”
The Board affirmed, adopting the IJ’s reasoning. The Board concluded that the
Dutkas had not presented new material evidence establishing Ivan’s prima facie
eligibility for asylum, withholding of removal, or protection under the Convention
Against Torture. The Board noted that Ivan did not claim ever to have suffered
persecution in Ukraine and emphasized that vague statements from relatives were
insufficient to establish a material change in country conditions. The Board also pointed
out that the election of Vicktor Yanukovych and much of the Dutkas’ evidence preceded
the removal hearing at which they disclaimed having any fear of persecution. The

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Board acknowledged the Dutkas’ argument about the later local elections but agreed
with the IJ that, even taking those elections into account, Ivan had not established prima
facie eligibility for relief.
In their petition for review, the Dutkas argue that the Board abused its discretion
by failing to consider evidence (a single newspaper article from The Ukrainian Weekly in
November 2010) showing that the local elections in 2010 constituted changed country
conditions in Ukraine. The single article describes the October 2010 local elections, and
the arrest and intimidation of journalists, scholars, activists, and political opponents in
the run-up to those elections.
In order to reopen removal proceedings, the Dutkas had to offer evidence that was
“material and was not available and could not have been discovered or presented” at
their removal hearing. 8 C.F.R. § 1003.23(b)(3). Because they had forgone the2
opportunity to apply for discretionary relief at their removal hearing, they also had to
establish that they sought relief “on the basis of circumstances that ha[d] arisen
subsequent to the hearing.” Id. But even if the Dutkas’ motion to reopen satisfied these
requirements, it could still be denied properly if “it fail[ed] to establish [their] prima
facie eligibility for the underlying relief sought.” Boika v. Holder, 727 F.3d 735, 738 ( 7th
Cir. 2013); Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). Because Ivan never
contended that he had suffered past persecution in Ukraine, establishing prima facie
eligibility for asylum would require him to present evidence of a well-founded fear of
future persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. See Bathula v. Holder, 723 F.3d 889, 898 (7th Cir. 2013);
Cece v. Holder, 733 F.3d 662, 668 (7th Cir. 2013) (en banc). Such evidence must consist of
“specific, detailed facts supporting the reasonableness of [the petitioner’s] fear that [he]
will be singled out for persecution.” Salim v. Holder, 728 F.3d 718, 724 (7th Cir. 2013).
As the government’s brief points out, the Board cited the wrong provisions of2
the statute and regulations. The Board cited 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R.
§ 1003.23(b)(4)(i), which require a showing of “changed country conditions when” an
alien files an untimely motion to reopen or seeks to file more than one such motion. But
the Board’s error was harmless because it later cited the correct regulation and correctly
analyzed the Dutkas’ motion as a timely motion to reopen.

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We conclude that the Board did not abuse its discretion by concluding that the
Dutkas’ evidence failed to establish Ivan’s prima facie eligibility for asylum. The3
Dutkas failed to present specific, detailed facts supporting the reasonableness of Ivan’s
fear that he will be singled out for persecution based on his membership in a special
military unit, his support of Ukrainian independence in 1989 and 1990, or his having
lived outside of Ukraine. True, the Board did not specifically mention the article about
the local elections, but the Board was required to address only material evidence.
See Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007). The article here addresses only the
persecution of journalists, scholars, activists, media owners, and opposition figures, and
Ivan is none of those things. And although the “rampant corruption” that the article4
identifies undoubtedly affects all who live in Ukraine, “[g]eneral conditions of hardship
that affect entire populations … are not persecution.” Moosa, 644 F.3d at 387 (internal
quotation marks omitted). Moreover, Ivan’s statement in his affidavit that relatives
warned him that he “may become a target” of the Ukrainian administration “lack[s] …
specificity, particularity, or substantiality.” Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir.
2009) (petitioner’s fear of persecution was objectively unreasonable where the testimony
regarding threats to petitioner’s son and family did not “identify the source of the
threat” or “indicate that they [were] motivated by any animus towards” the petitioner
and the rest of petitioner’s evidence also lacked clarity).
The Dutkas ask us to take judicial notice of “statements from the U.S. State
Department and international governmental monitoring bodies show[ing] that the
October 2010 local elections … marked a defining point in Ukraine’s turn away from
democratic norms.” Although we may, as a general matter, “take judicial notice of
changed conditions in the alien’s country of origin,” these statements, like the Dutkas’
other evidence, “fail to demonstrate how these changes affect [Ivan’s] individual
Because Ivan did not establish prima facie eligibility for asylum, he necessarily3
failed to establish prima facie eligibility for withholding of removal or protection under
the Convention Against Torture, see Singh v. Holder, 720 F.3d 635, 643 (7th Cir. 2013), so
it was unnecessary for the Board to consider these alternative grounds for relief.
Ivan was politically active 25 years ago. He attested that he was active in the4
movement for Ukrainian independence at some point between 1987 and 1990, but he
stopped participating in the movement after security officers warned him to cease his
political activities. There is no evidence in the record—and Ivan does not assert—that he
has been politically active since 1990 or that he will be politically active if he returns to
Ukraine.

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situation.” Jamal-Daoud v. Gonzales, 403 F.3d 918, 925 (7th Cir. 2005). And though
governmental repression, political unrest, and the movement to topple the current
Ukrainian president all continue to grow, even the current country conditions do not
establish Ivan’s prima facie eligibility for asylum, given his vague and general
explanation of why he fears persecution.
The petition for review is DENIED.

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