14-3877 

Zubar v. Lynch 

BIA 

 A076 164 655 

A076 164 656 

A076 164 657 

A076 164 658 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED 

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

4th day of January, two thousand seventeen. 

PRESENT: 

RALPH K. WINTER,

GUIDO CALABRESI, 

PETER W. HALL,

 Circuit Judges. 

_____________________________________ 

OLGA ZUBAR, ALEKSANDR ZUBAR, 

VLADIMIR ZUBAR, INNA ZUBAR, 

 Petitioners, 

v. 14-3877 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Alexander J. Segal, The Law Offices 

 of Grinberg & Segal, P.L.L.C., New 

 York, NY. 

 
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FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Anthony 

C. Payne, Assistant Director; 

Yedidya Cohen, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review is 

GRANTED in part and DENIED in part. 

 Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar, 

and Inna Zubar, natives and citizens of Ukraine, seek review 

of a September 15, 2014, decision of the BIA denying their motion 

to reopen. In re Olga Zubar, Aleksandr Zubar, Vladimir Zubar, 

Inna Zubar, Nos. A076 164 655/656/657/658 (B.I.A. Sept. 15, 

2014). We assume the parties’ familiarity with the underlying 

facts and procedural history in this case. 

We review the BIA’s denial of a motion to reopen “for abuse 

of discretion, mindful that motions to reopen ‘are 

disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) 

(quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). An alien 

seeking to reopen proceedings may move to reopen once, no later 

than 90 days after the final administrative decision was 

rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 
3

§ 1003.2(c)(2). These limitations may be excused, however, if 

the motion to reopen is “based on changed country conditions 

arising in the country of nationality or the country to which 

removal has been ordered, if such evidence is material and was 

not available and would not have been discovered or presented 

at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 

8 C.F.R. § 1003.2(c)(3)(ii). 

In their motion to reopen, the Zubars alleged that they fear 

persecution in Crimea, in eastern Ukraine (from which they 

emigrated) on account of their Ukrainian ethnicity. The BIA 

failed to address that claim. The Government argues that 

remand would be futile given the BIA’s determination that the 

Zubars’ evidence was insufficient to establish a specific 

threat of harm. We disagree. 

“[A] judicial judgment cannot be made to do service for an 

administrative judgment.” Li Hua Lin v. U.S. Dep’t of Justice, 

453 F.3d 99, 106 (2d Cir. 2006) (internal quotation marks 

omitted). We have recognized certain exceptions to that 

general rule, which reconcile the “twin commands neither to 

disturb substantially supported factual determinations nor to 

let stand determinations that rely, in whole or in part, on legal 

error.” Id. Among those exceptions is the proposition cited 
4

by the Government, that “remand should not be required 

where—notwithstanding admitted errors—overwhelming evidence 

supporting the administrative adjudicator’s findings makes it 

clear that the same decision would have been reached in the 

absence of the errors.” Cao He Lin v. U.S. Dep’t of Justice, 

428 F.3d 391, 402 (2d Cir. 2005). Our futility doctrine thus 

contemplates an agency finding that rests in part on error, but 

is otherwise amply supported by the record. Here, however, 

there was no agency finding; so, this exception is inapplicable. 

We therefore must remand for the limited purpose of allowing 

the BIA to decide, in the first instance, whether the Zubars’ 

ethnicity claim warrants reopening. 

The petition is otherwise denied. The BIA was within its 

discretion to find that the Zubars failed to establish prima 

facie asylum eligibility based on their membership in a 

particular social group (Russian speakers) or their pro-Ukraine 

political opinions. Singh v. Mukasey, 536 F.3d 149, 155 (2d 

Cir. 2008). The Zubars claimed to have a well-founded fear of 

future persecution; they did not claim to have been persecuted 

in the past. To be eligible for asylum on that basis, they had 

to “make some showing that authorities in [their] country of 

nationality are either aware of [their] activities or likely 
5

to become aware of [their] activities.” Hongsheng Leng v. 

Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). To do so, the Zubars 

could demonstrate that they will be singled out for persecution, 

or that Crimea has a pattern or practice of persecuting those 

similarly situated to them. 8 C.F.R. § 1208.13(b)(2). 

The Zubars submitted newspaper articles and human rights 

reports about the political situation in Crimea for Ukrainians. 

Those reports describe heavily armed “self-defence” groups 

beating and detaining pro-Ukrainian activists, statements that 

favoring Ukrainian unity is perceived negatively by Crimeans, 

and quote ethnic Ukrainians expressing fear of violence, 

harassment, and losing their employment rights. The BIA 

reasonably found that this evidence did not demonstrate that 

a particular social group made up of Russian speakers face 

persecution. 

The BIA was likewise entitled to find that the Zubars failed 

to corroborate their pro-Ukraine political opinions or show 

that Crimean authorities would discover those opinions. A 

motion to reopen must be supported “by affidavits and other 

evidentiary material.” 8 C.F.R. § 1003.2(c)(1). The Zubars’ 

only individualized evidence was an affidavit from Olga Zubar 

stating, in relevant part, “We do not support the pro-Putin 
6

political views for the majority of Crimean residents.” That 

statement was uncorroborated by, for example, documents showing 

that the Zubars joined a political organization, engaged in 

pro-Ukraine activism, wrote pro-Ukraine articles, or even that 

they planned to do so. The record was also devoid of evidence 

that the Crimean government will learn about the Zubars’ 

political opinions. See Y.C. v. Holder, 741 F.3d 324, 334 (2d 

Cir. 2013) (explaining that even if the Chinese government 

monitors electronic communications, that does not mean it “is 

aware of every anti-Communist or pro-democracy piece of 

commentary published online”). 

 For the foregoing reasons, the petition for review is 

GRANTED in part and DENIED in part, and the case is REMANDED 

for further proceedings consistent with this order. As we have 

completed our review, the pending motion for a stay of removal 

in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk