Oleg Zhuiko v. Attorney General United States of America

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 22-1397 ___________ OLEG ZHUIKO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A087-312-113) Immigration Judge: Kuyomars Q. Golparvar ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 5, 2023 Before: JORDAN, GREENAWAY, Jr., and NYGAARD, Circuit Judges (Opinion filed: January 17, 2023) ___________ OPINION * ___________ PER CURIAM Oleg Zhuiko, a native of Kazakhstan, entered the United States in 2001 and overstayed his visa. In November 2018, the Department of Homeland Security charged * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. him with removability under 8 U.S.C. § 1227(a)(1)(B) for remaining in the country longer than permitted. Zhuiko conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b). Following a hearing, an Immigration Judge (IJ) denied his application as a matter of discretion. 1 The Board of Immigration Appeals (BIA) dismissed the appeal, and we dismissed Zhuiko’s petition for review. See Zhuiko v. Att’y Gen., No. 19-3728, 2022 WL 385521 (3d Cir. Feb. 8, 2022). In February 2022, Zhuiko moved the BIA to reopen his removal proceedings to request asylum and withholding of removal. Recognizing that his motion was time- and number-barred under the applicable regulations, Zhuiko sought to satisfy the changed- country-conditions exception by presenting evidence that the Kazakh government had “stripped [him] of his Kazakh citizenship due to his non-Kazakh heritage, which constitutes persecution.” AR000060. That evidence included: (1) a letter from the Consulate General of the Republic of Kazakhstan stating that Zhuiko no longer has citizenship, in accordance with Article #21 of that country’s citizenship law, 2 AR000183; (2) a letter from the Department of Internal Affairs, City of Almaty, stating that Zhuiko’s passport/identification card had been “included in a Category INVALID on December 1 In finding that Zhuiko did not merit a favorable exercise of discretion, the IJ took into account that, in 2014, United States Citizenship and Immigration Services determined that Zhuiko had entered into a fraudulent marriage in an effort to adjust his status. 2 According to Zhuiko, Article 21 provides that “[c]itizenship of the Republic of Kazakhstan is lost . . . if an individual is permanently residing outside the [country] and has not reported to a Kazak mission abroad for five years without a valid reason.” AR000214. 2 13, 2019, in connection with the ‘Loss of Citizenship of Republic of Kazakhstan,’” AR000185; and (3) an affidavit by expert Steve M. Swerdlow opining that Zhuiko will likely be persecuted on account of his “nationality and ethnicity (Jewish) and religion (Judaism), which is considered both an ethnicity and a religious faith in Kazakhstan,” AR000192, and noting that Article 21 “is used disproportionately against Non-Kazakh nationals,” AR000211. Zhuiko also provided general country conditions evidence, including, for example, the State Department’s 2014 Human Rights Report: Kazakhstan, AR000154–168, Bulletins issued by Refugees …

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