FILED
NOT FOR PUBLICATION JAN 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREY SERGEYEVICH LYABAKH, No. 09-72159
Petitioner, Agency No. A071-382-001
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Andrey Sergeyevich Lyabakh, a native and citizen of Ukraine, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to remand and dismissing his appeal from an immigration judge’s decision
denying his application for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence factual findings, Nagoulko v. INS, 333
F.3d 1012, 1015 (9th Cir. 2003), and for abuse of discretion the denial of a motion
to remand, Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We
deny the petition for review.
The agency found Lyabakh ineligible for asylum based on his conviction for
an aggravated felony. Lyabakh does not challenge this dispositive finding in his
opening brief.
Substantial evidence supports the agency’s denial of withholding of removal
because Lyabakh failed to demonstrate a clear probability of persecution based on
either his religion or his refusal to serve in the Ukrainian military due to his
religion. See Nagoulko, 333 F.3d at 1018 (fear of future harm is too speculative);
Zehatye v. Gonzales, 453 F.3d 1182, 1187-88 (9th Cir. 2006) (evidence did not
compel the conclusion that petitioner would be singled out for severe
disproportionate punishment on the basis of a protected ground for refusal to serve
in the military on religious grounds). Lyabakh’s assertion that the agency failed to
consider his and his mother’s testimony is belied by the record. Accordingly, his
withholding of removal claim fails.
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Substantial evidence supports the agency’s finding that Lyabakh did not
establish it is more likely than not he will be tortured upon return to Ukraine. See
Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009). Accordingly, his
CAT claim fails.
Finally, the agency was within its discretion in denying Lyabakh’s motion to
remand because the BIA considered the evidence submitted and acted within its
broad discretion in determining that the evidence was insufficient to warrant
remand. See Romero-Ruiz, 538 F.3d at 1063-64; see also 8 C.F.R. § 1003.2(c)
(evidence submitted with a motion to reopen must be material and previously
unavailable at the former hearing).
PETITION FOR REVIEW DENIED.
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