DENYS HONCHAROV, AKA Denys Vitalyevich Honcharov v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENYS HONCHAROV, AKA Denys
Vitalyevich Honcharov,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-71554
Agency No. A099-235-092
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 16, 2019
San Francisco, California
Before: WALLACE, IKUTA, and CHRISTEN, Circuit Judges.
Denys Honcharov is a Ukrainian national who was admitted to the United
States in 2004 on a five-month visa. In removal proceedings, Honcharov conceded
removability but requested asylum, withholding of removal, and Convention
Against Torture (CAT) protection. The immigration judge (IJ) denied all relief and
the Board of Immigration Appeals (Board) affirmed. Honcharov timely petitioned
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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this court for review. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
1. Asylum. For the reasons explained in our concurrently filed per
curiam, the Board did not err by declining to consider the proposed particular
social groups that were raised for the first time on appeal.
As to the two proposed social groups that Honcharov properly preserved, the
Board did not err by rejecting Honcharov’s asylum claim. First, being a Ukrainian
businessperson is not an immutable characteristic within the meaning of “particular
social group” as used in 8 U.S.C. § 1158(b)(1)(B)(i). See Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1084 (9th Cir. 2013) (en banc) (citing In re Acosta, 19 I &
N Dec. 211, 234 (BIA 1985)). Second, the Board did not err by concluding that the
proposed particular social group “witness victim to crime” lacked sufficient
particularity because the group is too amorphous to be recognized as a class of
distinct persons. See Reyes v. Lynch, 842 F.3d 1125, 1139 (9th Cir. 2016). Further,
even assuming that “witness victim to crime” could be a particular social group,
substantial evidence supports the Board’s finding that Honcharov was not
persecuted “on account of” his membership in this group because he was targeted
for extortionary purposes. See 8 U.S.C. § 1158(b)(1)(B)(i). For the same reason,
substantial evidence supports the Board’s finding that Honcharov was not harmed
because he held a political opinion. See id.

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Because Honcharov did not demonstrate past persecution, he was not
entitled to a presumption of future persecution, and he did not otherwise
demonstrate a well-founded fear of future persecution. The Board therefore did not
err by rejecting Honcharov’s asylum claim. Because there was no error in the
Board’s decision as to Honcharov’s proposed social groups, there was no need to
remand his case for further fact-finding. The Board therefore did not abuse its
discretion by denying Honcharov’s motion to remand.
2. Withholding of removal. Because Honcharov failed to meet his
burden of proof on his asylum claim, he necessarily failed to meet his burden on
his withholding of removal claim. See Zehatye v. Gonzales, 453 F.3d 1182, 1190
(9th Cir. 2006). Although the Board did not have the benefit of Barajas-Romero v.
Lynch, any error in the Board’s application of the nexus standard was harmless
because the Board did not find that any protected ground was “a reason” for
persecution. See 846 F.3d 351, 359 (9th Cir. 2017).
3. CAT. Assuming, as the Board did, that all of Honcharov and Metz’s
testimony about the violence they suffered at the hands of criminal gangs in
Ukraine is true, the record does not “compel” the conclusion that Honcharov would
more likely than not be tortured if he returned to Ukraine. See Shrestha v. Holder,
590 F.3d 1034, 1049 (9th Cir. 2010). Substantial evidence therefore supports the
Board’s determination that Honcharov was not eligible for CAT relief.

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PETITION DENIED.

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