and 09-1309 OXANA DATS; BOGDAN DATS v. Attorney General of the United States

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-2475 and 09-1309
___________
OXANA DATS; BOGDAN DATS,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency Nos. A99 423 438; A99-423-439
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 20, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed: January 28, 2010)
_____________
OPINION
_____________
PER CURIAM.
Oxana and Bogdan Dats, husband and wife, petition for review of an order
of the Board of Immigration Appeals (“BIA”), which denied their appeal from an

-- 1 of 8 --

The petitions were consolidated for review pursuant to 8 U.S.C. § 1252(b)(6).1
Their daughter Solonia Dats was originally included on the application. However,2
Solonia's motion to remand to apply to adjust her status based on a petition filed by her
U.S. citizen husband was granted. Accordingly, she is not included on the petition for
review.
Asylum claims generally must be filed within one year of an alien’s arrival in the3
United States. 8 U.S.C. § 1158(a)(2)(B). Petitioners have not challenged the IJ’s finding
that their asylum claims were untimely.
2
Immigration Judge’s (“IJ”) final order of removal, and from a BIA order denying their
motion to reopen. We will deny the petitions for review.1
I.
Petitioners are natives of the former Soviet Union and citizens of the
Ukraine. They entered the United States in 1995 and stayed longer than permitted. In
2005, they filed applications for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”), and applied for cancellation of removal.2
Petitioners’ claims were based on their fear that they will be persecuted in
the future in the Ukraine due to the fact that they are Catholic, and also that they will be
persecuted or tortured because of their wealth and ties to the West. The IJ found their
asylum claims to be time-barred, but considered their applications for withholding of3
removal and protection under the CAT. The IJ found they did not meet their burden of
showing a clear probability that they would be persecuted on account of being Catholic.
A.R. 947-48. The IJ noted that the State Department’s 2005 Country Reports on Human
Rights Practices for Ukraine stated that the Russian Orthodox Church is the church of the

-- 2 of 8 --

The couple applied for cancellation of removal pursuant to 8 U.S.C. § 1229b4
[Immigration and Nationality Act (“INA”) § 240A], which provides, in part, that the
Attorney General may cancel the removal of an alien who has been in the United States
for the requisite period of time, who is of good character, and who has not committed
certain crimes, and who has established that his or her removal would result in
exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is
a permanent resident or citizen of the United States.
The couple originally based its cancellation claim on the hardship that would befall5
Oxana’s mother, who was a permanent resident, and who was sick with cancer.
However, the mother returned to the Ukraine and died before the date of the IJ’s decision.
3
government, but it did not indicate that Catholics cannot practice or that Catholics would
be persecuted. A.R. 947, 1288. The IJ did not find their second claim, persecution on the
basis of wealth and ties to the West, to be a valid ground for relief. A.R. 946-47. The IJ
did not find any nexus to a protected ground, and declined to “expand the concept of
particular social group to include anybody that is perceived to have wealth, or anybody
that is returning from a long period of time abroad would be [sic] perceived as wealthy
. . . .” A.R. 947.
Petitioners’ cancellation claim is based on the allegation that their removal4
would result in exceptional and extremely unusual hardship to their U.S. citizen daughter,
who was born in 2005. According to the IJ’s decision, she is a “perfectly healthy little
girl.” A.R. 949. The IJ noted that educational opportunities would be better in the U.S.5
for the child, and that the economic situation might be better here, but did not find those
circumstances sufficient to find exceptional and extremely unusual hardship. A.R. 950-
51.

-- 3 of 8 --

In Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA outlined the6
procedural requirements for raising a claim of ineffective assistance of counsel in an
immigration proceeding. To raise such a claim, the alien generally must: (1) provide an
affidavit attesting to the relevant facts; (2) inform former counsel of the allegations and
allow him the opportunity to respond; and (3) provide information about whether a
complaint has been filed with disciplinary authorities regarding the representation, or if
not, why not. Id. at 639.
4
Petitioners appealed to the BIA, with new counsel. They filed a motion to
remand to the IJ to submit more evidence concerning the hardship that their daughter
would experience, citing ineffective assistance of prior counsel. A.R. 201-311. The
Board found that they met the Lozada requirements for an ineffectiveness claim, but6
denied the motion to remand, noting that the evidence Oxana and Bogdan submitted
tended to show more that they personally would experience hardship as opposed to their
daughter; e.g., they will need to sell several homes in the United States, change jobs, etc.
A.R. 167. The Board found the information regarding the psychological harm that would
befall their young daughter speculative, and also noted that anxiety and discomfort at
relocating were not exceptional hardships. Id.
The Board agreed that the asylum applications were untimely, and also
agreed that the IJ properly relied on the (unrebutted) country reports for evidence that
Oxana and Bogdan would not be persecuted or tortured on the basis of religious practice
or belief. The BIA also agreed that “extortion and violence towards wealthy individuals
is not a basis for finding persecution on account of a protected ground in the Act.” A.R.
165. The BIA thus denied Petitioners’ appeal and their motion to remand. The couple

-- 4 of 8 --

5
filed a timely, counseled, petition for review.
Petitioners also filed a timely motion to reopen with the BIA, A.R. 10-163;
based on “new and material evidence and changed country conditions.” A.R. 10. They
included the report of an expert who described numerous reports of police corruption and
attacks on foreigners in the Ukraine, and who opined that Petitioners would face
persecution and/or torture as wealthy “foreigners” if they returned to the Ukraine.
Petitioners also provided reports and articles which purported to show the deterioration of
conditions in the Ukraine.
The BIA noted that much of the information included with the motion pre-
dated the couple’s hearing before the IJ, and almost all of the information predated the
BIA’s previous decision. A.R. 3. The BIA noted that although the expert’s report
postdated its previous decision, Petitioners did not explain why the expert could not have
been consulted earlier. Id. The BIA found, even considering the substance of the
documents, that none of the material related to Petitioners’ fear of persecution on the
basis of religion, and that the BIA had previously explained that “extortion and violence
towards wealthy individuals has not been shown to be a basis for finding persecution on
account of a protected ground in the [INA].” Id. The BIA also found that Petitioners
had not shown that they “face[d] a clear probability of becoming targets” of attacks on
foreigners or government corruption, and had not shown a nexus to a protected ground as
specified in the INA. Id. The BIA found that Petitioners “also failed to establish that it

-- 5 of 8 --

However, this Court lacks jurisdiction to consider the denial of Petitioners’7
cancellation claim. Section 1252(a)(2)(B)(i) removes jurisdiction for denials of
discretionary relief under 8 U.S.C. § 1229b. Mendez-Moranchel v. Ashcroft, 338 F.3d
176, 178 (3d Cir. 2003). The determination whether the alien has established the
requisite hardship is a “quintessential discretionary judgment.” Id. at 179. The Court
would have jurisdiction, however, over any legal or constitutional claims raised in
conjunction with this issue. See 8 U.S.C. § 1252(a)(2)(D). Assuming, arguendo that
Petitioners intended to raise a due process claim by arguing that “the BIA essentially
ignored fifteen (15) exhibits submitted in support of the motion to remand,” see
Petitioners’ brief at 30, we deny the claim. The BIA clearly took into account the
evidence Petitioners sought to introduce. A.R. 166-67.
6
is more likely than not that they will be seriously harmed by, or at the instigation of, or
with the consent or acquiescence of, a public official or person acting in an official
capacity,” as would be required to merit protection under the CAT. Id. The BIA further
concluded that the materials proffered were “not sufficiently relevant to hardship to the
qualifying relative to warrant reopening” for reconsideration of cancellation of removal.
Id. The BIA thus denied the motion to reopen. Petitioners filed a timely petition for
review of the decision.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review factual7
findings for substantial evidence and may not disturb them unless any reasonable
adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B).
We exercise plenary review over conclusions of law, subject to established principles of
deference on agency review. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d
Cir. 2008). To be entitled to withholding of removal to a particular county, an applicant

-- 6 of 8 --

In any event, Petitioners have not pointed to record evidence supporting their claim8
that they would be persecuted on the basis of religion, and we agree with the IJ and BIA
that “extortion and violence towards wealthy individuals has not been shown to be a
basis” for persecution based on membership in a particular social group. A.R. 3; Abdille
v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001).
7
must prove that his or her “life or freedom would be threatened in that country because of
[his or her] race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3). An applicant for protection under the CAT must
“establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
Aside from a few conclusory sentences in their brief stating that the BIA
and IJ erred in denying relief (see Petitioners’ brief at 16, 31-32); and statements that the
BIA “failed to provide adequate analysis” and “relied heavily on the Department of State
Country Reports” (see id. at 32); Petitioners have not argued that they will be persecuted
on the basis of their religion or their particular social group in the Ukraine. They have
therefore waived these arguments. See Kopec v. Tate, 361 F.3d 772, 775 n. 5 (3d Cir.
2004) (“An issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue . . . will not suffice to bring that issue before this
court”) (citation omitted).8
Petitioners do argue, however, particularly in connection with their
argument that the BIA erred in denying their motion to reopen, that the IJ and BIA erred
in denying their application for protection under the CAT. Petitioners argue that if they

-- 7 of 8 --

are removed to the Ukraine, they will have to present themselves to the Ukrainian police
in order to obtain a residency permit. They argue that because the police often engage in
criminal activity, they will more likely than not be subjected to torture by government
officials. While the record is replete with reports of incidents of violence against
foreigners (which, strictly speaking, would not include Petitioners), and also a report of a
Ukrainian businessman who was tortured by police, we must agree with the BIA that
Petitioners have not established that they will be targeted for torture. The BIA thus
properly denied Petitioners’ claim for protection under the CAT. As the information
provided with the motion to reopen still did not establish that petitioners would likely be
targeted, the BIA did not abuse its discretion in denying the motion to reopen. Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (BIA’s denial of motion to reopen may only
be reversed if it is arbitrary, irrational, or contrary to law).
For the foregoing reasons, we will deny the consolidated petitions for
review.
8

-- 8 of 8 --