17-2449 

Zubar v. Barr 

BIA 

A076 164 655/656/657/658 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 14th day of June, two thousand nineteen. 

PRESENT: 

JOSÉ A. CABRANES,

GERARD E. LYNCH, 

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________ 

OLGA ZUBAR, ALEKSANDR ZUBAR, 

VLADIMIR ZUBAR, INNA ZUBAR, 

 Petitioners, 

v. 17-2449 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONERS: Alexander J. Segal, The Law 

Offices of Grinberg & Segal, 

P.L.L.C., New York, NY. 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Anthony C. 

Payne, Assistant Director; Yedidya 

Cohen, Trial Attorney, Office of 

Immigration Litigation, United 
2

States Department of Justice, 

Washington, DC. 

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 DENIED. 

Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,1

and Inna Zubar, who are family members and natives and 

citizens of Ukraine, seek review of a BIA decision denying 

their motion to reopen. In re Olga Zubar, Aleksandr Zubar, 

Vladimir Zubar, Inna Zubar, Nos. A 076 164 655/656/657/658 

(B.I.A. July 13, 2017). We assume the parties’ familiarity 

with the underlying facts and procedural history, to which we 

refer only as needed to explain our decision to deny the 

petition. 

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

abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 

Cir. 2006). When the BIA considers evidence of country 

 

1 The Zubars’ counsel has informed the Court that Vladimir 

Zubar died in April 2018. We therefore address the petition 

only as to the remaining family members. 
3

conditions in evaluating a motion to reopen, we review the 

BIA’s factual findings under the substantial evidence 

standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d 

Cir. 2008). 

 An alien seeking to reopen may file one motion to reopen 

and may do so no later than 90 days after issuance of the 

final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), 

(C)(i); 8 C.F.R. § 1003.2(c)(2). These time and number 

limitations do not apply, however, if the motion is filed to 

permit application for asylum “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 proceedings.” 

8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

§ 1003.2(c)(3)(ii). An alien who seeks reopening must also 

establish prima facie eligibility for the relief sought. 

Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). 

Although in its decision the BIA noted the applicable time 

and number limitations, it recognized recent political 
4

changes in the Crimean peninsula in Eastern Ukraine—where 

Petitioners last resided before coming to the United States—

and denied reopening based on Petitioners’ failure to show 

prima facie eligibility for asylum. Accordingly, we review 

only that determination. See Lin Zhong v. U.S. Dep’t of 

Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial of 

immigration relief stands or falls on the reasons given by 

the IJ or BIA” (internal quotation marks and alterations 

omitted)). 

 At the threshold, movants seeking asylum must demonstrate 

“a ‘realistic chance’ that [they] will be able to establish 

eligibility.” Poradisova, 420 F.3d at 78. To establish 

asylum eligibility based on a well-founded fear of 

persecution, an applicant must show that he or she 

subjectively fears persecution and that this fear is 

objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 

169, 178 (2d Cir. 2004). An alien may make this showing 

either by offering evidence that “he or she would be singled 

out individually for persecution” or by “prov[ing] the 

existence of a ‘pattern or practice in his or her country 
5

. . . of persecution of a group of persons similarly situated 

to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 

(2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)). 

Because the Zubars did not offer evidence that they “would be 

singled out individually for persecution,” they were required 

to establish a “pattern or practice” of persecution of ethnic 

Ukrainians in their home country. See id. 

 The Zubars, ethnic Ukrainians with roots in Western 

Ukraine, argue that they were not required to demonstrate a 

pattern or practice of persecution of ethnic Ukrainians 

across the country, but only in the Crimean peninsula in 

Eastern Ukraine, the family’s last place of residence in the 

country. Even if we accept this proposition, however, we 

identify no error in the BIA’s determination that the Zubars 

failed to carry their burden. Although the record contains 

evidence of human rights abuses in the Crimean peninsula, the 

Zubars presented little evidence that any danger that ethnic 

Ukrainians may be facing in Crimea rises to the level of 

persecution. 
6

 One record report by an international organization notes 

in its discussion of disappearances occurring there that, 

“[i]n Crimea, the targeted individuals primarily included 

pro-Maidan activists, journalists and members of the Armed 

Forces of Ukraine.” Certified Administrative Record (“CAR”) 

at 282 (Human Rights Assessment Mission in Ukraine, Report by 

the Organization for Security and Co-operation in Europe 

(“OSCE Report”)). The Zubars point to the OSCE Report’s 

statement that “[i]dentifying as Ukrainian and supporting 

Ukrainian unity is allegedly perceived negatively by a 

significant proportion of the population in Crimea.” Id. at 

340. But, that some individuals who identify as Ukrainian 

may be “perceived negatively” by many in Crimea does not 

establish that ethnic Ukrainians are persecuted there. As 

we have observed, “persecution is an extreme concept that 

does not include every sort of treatment our society regards 

as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d 

Cir. 2011) (internal quotation marks omitted). Nor does it 

“encompass all treatment that our society regards as unfair, 

unjust, or even unlawful or unconstitutional.” Id.
7

 The OSCE Report also describes how individuals speaking 

Ukrainian in public have been “harassed.” CAR at 340. 

Similarly, harassment does not amount to persecution. See 

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d 

Cir. 2006). Further, even if individuals in Crimea are 

harassed for speaking Ukrainian, it appears from the record 

that the Zubars are not similarly situated to these 

individuals because Russian is their native language. In 

addition, reports that ethnic Ukrainians have become 

generally fearful since the Russian annexation, e.g., CAR at 

408, 434, are also insufficient, either alone or considered 

together with the descriptions discussed above, to make a 

prima facie showing of a pattern or practice of harm rising 

to the level of persecution. See In re A-M-, 23 I. & N. Dec. 

737, 741 (BIA 2005) (describing a pattern or practice of 

persecution as the “systemic or pervasive” persecution of a 

group). 

 For these reasons, the BIA did not abuse its discretion 

in concluding that the country conditions evidence adduced by 

the Zubars does not establish that they have a “realistic 
8

chance” of showing a pattern or practice amounting to 

persecution of ethnic Ukrainians residing in Crimea. 

Poradisova, 420 F.3d at 78; see In re A-M-, 23 I. & N. Dec. 

at 741. 

 For the foregoing reasons, the petition for review is 

DENIED. 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 of Court