Natalya Bobryvets v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed: The petition for review is DENIED. Decision not for publication pursuant to local rule 206. Boyce F. Martin, Jr. and Eric L. Clay, Circuit Judges; Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

Case: 11-3787

Document: 006111359725

Filed: 07/05/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0729n.06
No. 11-3787
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
NATALYA BOBRYVETS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

)
)
)
)
)
)
)
)
)

Jul 05, 2012
LEONARD GREEN, Clerk
ON PETITION FOR REVIEW
FROM A FINAL ORDER OF THE
BOARD OF IMMIGRATION
APPEALS

Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*

PER CURIAM. Natalya Bobryvets, a native and citizen of Ukraine who is represented by
counsel, petitions for review of a decision by the Board of Immigration Appeals (BIA) denying her
motion to reopen her prior applications for asylum, withholding of removal, and protection under
the Convention Against Torture.
In 2002, an immigration judge (IJ) denied Bobryvets’s applications for asylum, withholding
of removal, and protection under the Convention Against Torture after she entered the United States
without a valid entry document in April 2000. The IJ found that Bobryvets was not credible and that
she did not present any evidence demonstrating that she suffered any alleged harm on account of a
statutorily protected ground. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Therefore, the IJ denied
her requests for relief and ordered her removal to Ukraine. The BIA affirmed the IJ’s decision, and
we denied Bobryvets’s petition for review. See Bobryvets v. Gonzales, 132 F. App’x 602, 604 (6th
Cir. 2005).

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

Case: 11-3787

Document: 006111359725

Filed: 07/05/2012

Page: 2

No. 11-3787
-2In January 2010, Bobryvets moved the BIA to reopen her case. In her motion, she stated that
she married Oleksandr Sharykin, a Ukrainian citizen, on February 12, 2003, in the United States and
had known him since 1994. Bobryvets alleged that Sharykin, who was granted withholding of
removal on October 9, 2009, was involved with the KGB (former Soviet Committee for State
Security) and SBU (State Security Service of Ukraine) and that this involvement caused the troubles
that she claimed to have had while in Ukraine. She also claimed that Sharykin had not told her about
his SBU involvement until after her asylum hearing.
The BIA denied Bobryvets’s motion, holding that it was untimely pursuant to 8 U.S.C.
§ 1229a(c)(7)(C)(i) because she filed the motion more than ninety days after the BIA’s August 28,
2003, decision. The BIA declined to exercise its “authority to sua sponte reopen these proceedings”
because Bobryvets’s motion did not present “exceptional circumstances.” Additionally, the BIA
determined that Bobryvets’s arguments and new evidence did not “overcome the adverse credibility
finding made in this case, as they do not resolve, explain, or corroborate inconsistencies and
omissions noted by the Immigration Judge.” The BIA also noted that the new evidence “raise[d]
further concerns regarding consistencies with her prior affidavit and testimony as to the events in
Ukraine.” Bobryvets timely filed a petition for review.
“The BIA has ‘broad discretion’ to grant or deny a motion to reopen.” Bi Feng Liu v. Holder,
560 F.3d 485, 489 (6th Cir. 2009) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). Thus, we
review the BIA’s denial of a motion to reopen for an abuse of discretion. Id. “This Court will find
an abuse of discretion if the denial of the motion to reopen ‘was made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or group.’” Id. at 490 (citing Allabani v. Gonzales,
402 F.3d 668, 675 (6th Cir. 2005)). Because the BIA has broad discretion to grant or deny a motion
to reopen, “a party seeking reopening or reconsideration bears a ‘heavy burden.’” Alizoti v.
Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quoting Doherty, 502 U.S. at 323).
A motion to reopen must “be filed within 90 days of the date of entry of a final administrative
order of removal.” 8 U.S.C. § 1229a(c)(7). On August 28, 2003, the BIA affirmed the IJ’s decision

Case: 11-3787

Document: 006111359725

Filed: 07/05/2012

Page: 3

No. 11-3787
-3denying Bobryvets asylum and ordering her removal. Bobryvets does not assert that the BIA erred
in finding that her motion – filed more than six years after the IJ’s decision became final – was
untimely. She therefore has not demonstrated any abuse of discretion by the BIA in denying her
motion to reopen as untimely.
Rather than challenge the denial of her motion, Bobryvets argues that the BIA should have
exercised its discretion to sua sponte reopen her case. As she acknowledges, however, we lack
jurisdiction to review the refusal to reopen a case sua sponte. See Gor v. Holder, 607 F.3d 180,
187–88 (6th Cir. 2010), cert. denied, 131 S. Ct. 3058 (2011).
Moreover, the BIA noted that Bobryvets’s new claims about Sharykin’s involvement with
the state security agencies raised additional questions regarding her credibility. In several instances,
the affidavit she submitted with her motion to reopen conflicts with her prior testimony.
Additionally, Bobryvets asserted that she learned of Sharykin’s involvement with the KGB and SBU
in 2003, but she did not raise these facts until 2010, after Sharykin had been granted withholding of
removal. Thus, even if we had jurisdiction to review the BIA’s decision denying Bobryvets’s motion
to reopen sua sponte, Bobryvets has not demonstrated that the BIA made its decision without a
rational explanation, departed from established policies, or based its decision on an impermissible
basis. See Bi Feng Liu, 560 F.3d at 490.
The petition for review is denied.