[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12710

Non-Argument Calendar

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Agency No. A076-577-376

MYKOLA SHCHUPAK, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(April 12, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM: 

Mykola Shchupak seeks review of the Board of Immigration Appeals’ 

(“BIA”) ruling denying his motion to reopen his removal proceedings. Shchupak 

is an ethnic-Russian Ukrainian and a member of the Russian Orthodox Church, 

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who previously lived in western Ukraine while his brother lived in Russia. Years 

after his March 2013 removal hearing, he moved to reopen to pursue his claims of 

asylum and withholding of removal under the Immigration and Nationality Act 

(“INA”), and his claim of relief under the Convention Against Torture (“CAT”), 

alleging that he feared persecution based on his religion, ethnicity, and family ties, 

and feared being forced into military service in the eastern Ukrainian conflict. The 

BIA denied the motion, concluding that (1) the motion was untimely, because 

Shchupak did not demonstrate materially changed conditions pertaining to his 

claims, and (2) Shchupak had not made a prima facie showing of eligibility for 

asylum, withholding of removal, or CAT relief. On appeal, Shchupak argues that 

the BIA erred in its decision and abused its discretion when it determined that the 

expert opinions and mailed threat he submitted lacked probative value, failed to 

consider his supporting evidence -- including evidence of the Russian annexation 

of Crimea and invasion of eastern Ukraine -- and applied a wrong legal standard to 

his asylum claims.1

 After careful review, we deny the petition.

We review the denial of a motion to reopen for abuse of discretion, limiting 

our review to whether the BIA exercised its discretion in an arbitrary or capricious 

manner. Jiang v. U.S. Atty. Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). A motion 

 1 Shchupak also says the BIA engaged in improper appellate fact-finding, but he relies on case 

law about a regulation that prohibits the BIA from fact-finding when reviewing appeals from an 

Immigration Judge (“IJ”), not when deciding motions to reopen. 8 C.F.R. § 1003.1(d)(3)(iv) 

(“[T]he Board will not engage in factfinding in the course of deciding appeals.”). 

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to reopen removal proceedings must be filed no later than 90 days after the final 

administrative decision, but this limitation does not apply if the motion is 

predicated on changed country conditions that are material and could not have 

been discovered at the time of the removal proceedings. 8 U.S.C. § 

1229a(c)(7)(C)(i)–(ii). “An alien who attempts to show that the evidence is 

material bears a heavy burden and must present evidence that demonstrates that, if 

the proceedings were opened, the new evidence would likely change the result in 

the case.” Jiang, 568 F.3d at 1256–57; see also Ali v. U.S. Att’y Gen., 443 F.3d 

804, 813 (11th Cir. 2006) (noting that new evidence must be “of such a nature that 

the BIA is satisfied that . . . [it] would likely change the result in the case” 

(quotations and brackets omitted)). The BIA is not required to address every piece 

of evidence presented by the petitioner in its ruling. Ayala v. U.S. Att’y Gen., 605 

F.3d 941, 948 (11th Cir. 2010).

It is within the BIA’s discretion to deny a motion to reopen based on these

reasons: (1) a failure to establish a prima facie case for asylum, withholding of 

removal, or CAT relief; (2) a failure to introduce evidence that was material and 

previously unavailable; or (3) a determination that, despite the alien’s statutory 

eligibility for relief, he is not entitled to a favorable exercise of discretion. Jiang, 

568 F.3d at 1256. “The standard for granting a motion to reopen immigration 

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proceedings is high,” and the BIA has “significant discretion in deciding whether 

to do so.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). 

To establish a claim for asylum, an applicant must prove that he was 

persecuted, or has a well-founded fear of future persecution, on account of his race, 

religion, nationality, membership in a particular social group, or political opinion. 

Ayala, 605 F.3d at 948-49. To establish a well-founded fear of future persecution, 

an applicant must show that there is a reasonable possibility he will suffer this kind 

of persecution if returned to his native country. 8 C.F.R. § 1208.13(b)(2)(i)(B); 

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009). The applicant 

must establish that his fear is both subjectively genuine and objectively reasonable. 

Mehmeti, 572 F.3d at 1200. An applicant may successfully seek asylum based on 

a claim of forced conscription, but only if he proves that he “would be 

disproportionately punished for refusing to serve . . . or that he would be forced to 

join an internationally condemned military.” Mohammed v. U.S. Att’y Gen., 547 

F.3d 1340, 1346 (11th Cir. 2008). A particular social group has to be “socially 

distinct within the society in question.” Gonzalez v. U.S. Atty. Gen., 820 F.3d 

399, 404 (11th Cir. 2016) (quotations omitted). 

An alien seeking withholding of removal under the INA must demonstrate 

that it is more likely than not that he will be persecuted or tortured upon his return 

to his home country on account of his race, religion, nationality, membership in a 

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particular social group, or political opinion. Carrizo v. U.S. Att’y Gen., 652 F.3d 

1326, 1331 (11th Cir. 2011) (quotations omitted). To establish a claim for CAT 

relief, the alien has the burden of proving that it is more likely than not that he will 

be tortured by or with the acquiescence of the government if removed to his home 

country. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).

We’ve observed that the BIA, when reviewing a motion to reopen, may not 

overlook or “inexplicably discount[]” relevant record evidence that corroborates an 

applicant’s claim. Jiang, 568 F.3d at 1258 (addressing the BIA’s denial of a 

motion to reopen due to changed country conditions). However, the BIA is 

entitled to give no deference to unauthenticated documents. Mu Ying Wu v. U.S. 

Att’y Gen., 745 F.3d 1140, 1153 (11th Cir. 2014). We have held that an IJ and the 

BIA did not err in giving little or no weight to a document they concluded was 

unauthenticated, as they “properly considered [the] evidence and offered reasoned 

conclusions as to how to weigh it.” Id. at 1154. 

Here, the BIA did not abuse its discretion when it determined that Shchupak 

failed to demonstrate a material change in country conditions or a prima facie case 

for asylum, withholding of removal, or CAT relief. For starters, the BIA did not 

abuse its discretion when it discounted the probative value of the opinions of 

purported experts Igor A. Kotler and Adriana Helbig, Ph.D. The BIA noted that 

the opinions did not indicate how Kotler and Helbig obtained the information 

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underlying their opinions or when they had visited Ukraine, that Kotler did not 

attach his curriculum vitae (“CV”), and that Helbig’s expertise was primarily 

related to music. As the record reflects, Kotler cited to some sources for the 

information in his opinion, but he did not indicate how he obtained the information

underlying the key parts of his opinion pertaining to Shchupak’s claims. Likewise, 

Helbig’s opinion did not provide any sources for the information underlying her 

opinion. As for Kotler’s qualifications, they included broad experience in the area 

of the Soviet Union and post-Soviet states, yet did not demonstrate expertise 

pertaining specifically to Ukraine. And while Helbig’s CV reflected a focus on 

Ukraine, it was primarily in the area of music. In contrast, the expert in Matter of 

Marshi, File No. A26 980 386 (A.G. Feb. 13, 2004) -- in which the Attorney 

General had said there was no requirement that a witness be formally qualified as 

an expert before giving testimony on country conditions in an administrative 

hearing -- had extensive and relevant training, qualifications, and experience in the 

country at issue. Thus, the BIA did not “inexplicably discount” Helbig’s and 

Kotler’s opinions in this case. Jiang, 568 F.3d at 1258. 

As for the BIA’s determination that the threat mailed to Shchupak lacked 

indicia of reliability, it was not an abuse of discretion. Shchupak did not present 

any evidence with his motion to reopen explaining the context of the letter -- for 

example, how the sender would know his address and that he was returning to 

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Ukraine, how he knew that the substance it was smeared with was likely animal’s 

blood, whether Shchupak knew who the sender was, and whether and how 

Shchupak was on the radar of Ukrainian nationalists. Shchupak did not expressly 

indicate that the letter arrived in the attached envelope, and there is no explanation 

of who Ivan Zayaci is or whether Shchupak knew him. Further, neither the letter 

nor the envelope had been authenticated. On this record, the BIA did not abuse its

discretion by giving little weight to the largely unexplained and unauthenticated 

document. See Mu Ying Wu, 745 F.3d at 1153–54. 

Nor did the BIA abuse its discretion when it concluded that Shchupak failed 

to present evidence of a change in country conditions material to his proposed 

claims for relief based on religion or nationality. Shchupak presented evidence 

that significant changes have occurred in Ukraine since March 2013, resulting in 

violent conflict between pro-Ukrainian and pro-Russian groups. The reports he 

submitted, however, showed that most of the violence has occurred in eastern 

Ukraine, and Shchupak is from western Ukraine. Moreover, while he submitted 

evidence of torture of detainees and societal discrimination and harassment of 

ethnic and religious minorities, he did not demonstrate that ethnic Russians or 

members of the Russian Orthodox Church in Ukraine are singled out as victims of 

this abuse. Nor is there evidence showing that these conditions did not exist at the 

time of his removal hearing, other than a statement by Kotler that Ukrainian 

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nationalists began viewing Russians in Ukraine as traitors and separatists sometime 

after the invasion of Crimea. Accordingly, the BIA did not abuse its discretion 

when it determined that Shchupak failed to establish materially changed country 

conditions. See Jiang, 568 F.3d at 1256.

Similarly, the BIA did not abuse its discretion when it concluded that 

Shchupak failed to establish a prima facie case for asylum, withholding of 

removal, or CAT relief based on his political opinion or membership in a particular 

social group. To begin with, Shchupak failed to articulate in his motion what 

particular social group he was part of or, because, even assuming he adequately 

asserted a proposed group of ethnic Russians belonging to the Russian Orthodox 

Church, he failed to present evidence that this group constitutes a socially distinct 

group in Ukraine. Gonzalez, 820 F.3d at 404. Indeed, the only evidence Shchupak 

presented showing that a dissenting political opinion might be imputed to him was 

in Kotler’s opinion, which, as we’ve already said, the BIA properly concluded 

lacked evidentiary value. Moreover, when the BIA determined that Shchupak had 

not presented a prima facie case for these claims, it applied the correct legal

standard, because it accepted Shchupak’s assertions in his proposed application as 

true before determining that he had not presented a reasonable likelihood that he 

would be persecuted upon return to Ukraine. See C.F.R. § 1208.13(b)(2)(i)(B); 

Jiang, 568 F.3d at 1256.

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Nor did the BIA abuse its discretion when it concluded that Shchupak failed 

to assert a claim based on forced conscription. As the record reveals, Shchupak

did not present any evidence, other than his own unsupported assertion and the 

properly discounted opinion of Kotler, that he “would be disproportionately 

punished for refusing to serve . . . or that he would be forced to join an 

internationally condemned military.” Mohammed, 547 F.3d at 1346. Shchupak

did not establish that it was more likely than not that he would be tortured by or 

with the acquiescence of the government if removed to Ukraine, because the only 

evidence he presented of torture either pertained to events in eastern Ukraine or did 

not specify that ethnic Russians in Ukraine were being tortured. See ReyesSanchez, 369 F.3d at 1242. Finally, Shchupak has abandoned his claim based on 

being targeted for extortion based on imputed wealth, because he failed to argue 

this issue in his brief. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th 

Cir. 2005). 

Accordingly, we deny Shchupak’s petition. 

PETITION DENIED. 

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