20-1941

Petrova v. Garland

BIA

Conroy, IJ

A202 042 704/05

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL.

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

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 24th 4 day of January, two thousand twenty5 three.

6

7 PRESENT:

8 RICHARD J. SULLIVAN,

9 MYRNA PÉREZ,

10 ALISON J. NATHAN,

11 Circuit Judges.

12 _____________________________________

13

14 ANGELINA PETROVA, ILIA 

15 GURASPISHVILI,

16 Petitioners,

17

18 v. 20-1941

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONERS: Alexander J. Segal, Esq., New 

26 York, NY.

27

28 FOR RESPONDENT: Brian Boynton, Acting Assistant
2

1 Attorney General; Kohsei Ugumori, 

2 Holly M. Smith, Senior Litigation 

3 Counsel, Office of Immigration 

4 Litigation, United States 

5 Department of Justice, Washington, 

6 DC. 

7 UPON DUE CONSIDERATION of this petition for review of a 

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

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

10 is DENIED.

11 Petitioners Angelina Petrova and Ilia Guraspishvili, 

12 citizens of Georgia, seek review of a May 27, 2020 decision 

13 of the BIA affirming a July 12, 2018 decision of an 

14 Immigration Judge (“IJ”) denying Petrova’s application for 

15 asylum, withholding of removal, and relief under the 

16 Convention Against Torture (“CAT”),1 on which Guraspishvili 

17 was listed as a derivative asylum applicant. In re Angelina 

18 Petrova, Ilia Guraspishvili, Nos. A 202 042 704/05 (B.I.A. May 

19 27, 2020), aff’g Nos. A 202 042 704/05 (Immigr. Ct. N.Y.C.

20 July 12, 2018). We assume the parties’ familiarity with the 

21 underlying facts and procedural history.

1 Petrova does not raise her CAT claim in this court or challenge 

the BIA’s denial of her motion to remand.
3

1 Standard of Review

2 We have reviewed both the IJ’s and the BIA’s decisions 

3 “for the sake of completeness.” Wangchuck v. Dep’t of 

4 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 

5 factual findings for substantial evidence and questions of 

6 law de novo. See Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 

7 2015). Under the substantial evidence standard, 

8 “administrative findings of fact are conclusive unless any 

9 reasonable adjudicator would be compelled to conclude to the 

10 contrary.” 8 U.S.C. § 1252(b)(4)(B). 

11 Legal Standard

12 To establish eligibility for asylum, an applicant must 

13 establish that he or she has suffered past persecution or has 

14 a well-founded fear of future persecution and that “race, 

15 religion, nationality, membership in a particular social 

16 group, or political opinion was or will be at least one 

17 central reason for persecuting the applicant.” 8 U.S.C. 

18 § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b). “To qualify as 

19 persecution[,] the conduct at issue must be attributable to 

20 the government [of the country of removal], whether directly 

21 because engaged in by government officials, or indirectly 
4

1 because engaged in by private persons whom the government is

2 unable or unwilling to control.” Scarlett v. Barr, 957 F.3d 

3 316, 328 (2d Cir. 2020) (internal quotation marks omitted). 

4 “Under the unwilling-or-unable standard, a finding of 

5 persecution ordinarily requires a determination that 

6 government authorities, if they did not actually perpetrate 

7 or incite the persecution, condoned it or at least 

8 demonstrated a complete helplessness to protect the 

9 victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 

10 2021) (internal quotation marks omitted). 

11 Discussion

12 Petrova challenges two findings by the agency. As 

13 relevant to past persecution, she challenges the finding that 

14 she failed to meet her burden of showing that the Georgian 

15 government was unwilling or unable to protect her. As 

16 relevant to her well-founded fear of future persecution, she 

17 challenges the finding that her alleged persecutors were

18 motivated by criminal desires rather than her ethnicity. We 

19 conclude that substantial evidence supports both of the 

20 agency’s challenged findings, and accordingly, we deny the 

21 petition for review. 8 U.S.C. § 1252(b)(4)(B). 
5

1 I. Past Persecution

2 Petrova claimed that Guraspishvili’s ethnically Georgian 

3 family abused her on account of her Russian ethnicity, and 

4 that such abuse was indirectly attributable to the Georgian 

5 government because it was unable or unwilling to protect her. 

6 The agency found that Petrova did not establish that Georgian 

7 authorities were unwilling or unable to protect her, citing 

8 (1) the fact that she had never reported the abuse by 

9 Guraspishvili’s family to the police and (2) the

10 insufficiency of evidence substantiating Petrova’s belief

11 that the police would be unwilling to intervene. An

12 applicant’s failure to report mistreatment is not fatal to 

13 her application, but absent such reporting, there must be 

14 other evidence establishing the government’s unwillingness or 

15 inability to protect. See Pan, 777 F.3d at 544–45. Petrova 

16 did not produce country-conditions evidence addressing police 

17 responses to reports of violence, much less evidence that the 

18 police treat ethnic Russians differently than other victims. 

19 Therefore, we are not “compelled to conclude to the contrary”

20 of the agency’s determination. 8 U.S.C. § 1252(b)(4)(B). 
6

1 II. Future Persecution

2 Petrova argues that the agency failed to consider the 

3 harm her father had experienced at the hands of Shalva 

4 Obgaidze and Georgian government officials as evidence that 

5 the authorities would be unwilling to protect her from future 

6 persecution. The agency did consider this evidence, but 

7 expressly found that Obgaidze’s threats to Petrova’s family 

8 were not indicative of Georgian authorities’ unwillingness or 

9 inability to protect Petrova from persecution of ethnic 

10 Russians. Indeed, Obgaidze himself appears to have been 

11 motivated by his desire to take over Petrova’s father’s 

12 business, rather than any animus related to her family’s 

13 membership in a group of “highly successful ethnic Russians.” 

14 Certified Admin. Record at 100–01; see, e.g., Pucha 

15 Quituizaca v. Garland, 52 F.4th 103, 115 (2d Cir. 2022)

16 (upholding agency’s finding that, when asylum applicant was 

17 robbed by gang members of a different ethnicity, there was a 

18 “greater probability that the gang was motivated to harm him 

19 based on [the pecuniary] incentives presented to ordinary 

20 criminals[,] rather than [ethnically motivated] persecution” 

21 (internal quotation marks omitted)). Letters from Petrova’s 
7

1 father and brother describe Obgaidze’s actions against them 

2 as part of his effort to take over their businesses. The 

3 only evidence that Obgaidze was motivated by the family’s 

4 Russian ethnicity is the testimony from Petrova and her 

5 brother. But neither provided a reason why they believed the 

6 harm was on account of their ethnicity, and Petrova did not 

7 submit any evidence to corroborate that belief. See INS v. 

8 Elias-Zacarias, 502 U.S. 478, 483 (1992) (requiring “some

9 evidence” of motive, either “direct or circumstantial”). 

10 The record further supports the agency’s conclusion that 

11 Petrova failed to establish that the Georgian police – either 

12 due to Obgaidze’s influence or otherwise – would be unwilling 

13 or unable to protect her. In fact, Petrova offered no 

14 evidence that the police persecute ethnic Russians or stand 

15 by while they are abused by others. To be sure, the evidence 

16 includes reports of anti-Russian sentiment in Georgian 

17 society at large, but those reports nowhere indicate that 

18 police are targeting individuals on account of their 

19 ethnicity or refusing to aid ethnic Russians who seek police

20 protection. Accordingly, we do not disturb the agency’s

21 finding that Petrova did not establish past persecution or a 
8

1 well-founded fear of future persecution. See Singh, 11 F.4th 

2 at 114–15. 

3 For the foregoing reasons, the petition for review is 

4 DENIED. All pending motions and applications are DENIED and 

5 stays VACATED.

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe,

8 Clerk of Court

9