NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 29 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVGENII REDIN; NADEZDA REDINA, No. 23-1017

Petitioners, Agency Nos.

A205-326-700

v. A205-326-701

MERRICK B. GARLAND, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 25, 2024** Portland, Oregon

Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.

Petitioners seek review of a Board of Immigration Appeals (BIA) decision

dismissing an appeal of an Immigration Judge (IJ)’s denial of their claims for

asylum, withholding of removal, and Convention Against Torture (CAT) relief. We

have jurisdiction under 8 U.S.C. § 1252. “[U]nder the highly deferential substantial

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). evidence standard,” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir.

2023), findings of fact are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742,

748 (9th Cir. 2022) (citation and internal quotation marks omitted). We deny the

petition.

1. For asylum and withholding claims premised on political opinion,

petitioners must show (1) past persecution or an objectively reasonable fear of future

harm and (2) a causal nexus to the political opinion. Rodriguez-Zuniga, 69 F.4th at

1016. Petitioners must demonstrate that persecution occurs “because of th[e]

political opinion,” not another reason. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483

(1992), superseded by statute on other grounds, 8 U.S.C. § 1252(b)(4)(B). Because

“motive is a matter of fact, we review … for substantial evidence.” Vasquez-

Rodriguez v. Garland, 7 F.4th 888, 893 (9th Cir. 2021) (cleaned up).

Substantial evidence supports the agency’s determination that Redin’s past

persecution was motivated not by political opinion, but by a desire to discourage

business competition. Both the threatening phone calls he received after opening his

catering company and the unknown attackers who physically assaulted him

admonished that he close his restaurant, but never mentioned political opinion.

“[This] evidence at most shows that [Redin] ha[s] been the victim of criminal activity

2 in Russia,” not that he was harmed due to “political opinion.” See Bolshakov v.

I.N.S., 133 F.3d 1279, 1281 (9th Cir. 1998) (cleaned up).

Regarding potential future persecution, substantial evidence also supports the

agency’s conclusion that Redin’s police report neither expressed a political opinion

nor will result in a political opinion being attributed to him. Although Redin testified

that he shared the names of his suspected attackers with police, his signed statement

does not include any names, and he could not confirm the identity of his attackers.

Even if he had publicly named suspects, the agency reasonably understood his report

as being directed “only against individuals whose corruption was aberrational,” not

“toward a governing institution,” and therefore expressing an interest in legal

vindication or self-preservation rather than “protected political opinion.”

Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (citations and internal

quotation marks omitted); see Rodriguez-Zuniga, 69 F.4th at 1017 (explaining that

“resisting a robbery” is not “expressing a political opinion” because “most people

who resist criminal activity … do so for obvious non-political self-interested

reasons”). And finally, as to imputed political opinion, the threatening phone call to

Redina (after Redin filed his complaint with law enforcement) criticized only the

fact that the report was made, not any political opinion expressed therein.

2. Nor did the agency err by rejecting Redin’s and Redina’s particular social

groups (PSGs) for lacking, respectively, particularity and legal cognizability.

3 Particularity requires “a clear benchmark for determining who falls within the group,

such that the relevant society has a commonly accepted definition of the group.”

Macedo Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021) (citation and

internal quotation marks omitted). Regarding Redin’s PSGs, the agency correctly

observed that the meaning of the terms “law-abiding” and “independent” are unclear

when dealing with criminal organizations and corrupt government institutions, and

petitioners do not point to any evidence demonstrating that Russian society views

these as distinct groups. See id.

As for Redina, petitioners failed to challenge and thus waived any argument

about her PSG of “family members of a person being persecuted.” See Antonio v.

Garland, 58 F.4th 1067, 1072 n.7 (9th Cir. 2023) (finding the “claim waived” when

the petitioner “offers no substantive argument”). Even if it was preserved, it is a

“well-established principle that a particular social group must exist independently of

the harm asserted.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020).

Redina’s PSG does not exist independently of the harm asserted and is thus

impermissibly circular.

3. Substantial evidence also supports the agency’s conclusion that petitioners

lack a well-founded fear of future persecution based on their Pentecostal religion.

While the country conditions evidence contains some passing incidents supporting

the notion that Pentecostals are treated worse than the Orthodox majority in Russia,

4 such incidents are infrequent, merely discriminatory, and do not rise to the level of

persecution. See Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (characterizing

persecution as “an extreme concept that does not include every sort of treatment our

society regards as offensive” (citation and internal quotation marks omitted)).

Petitioners’ pastor testified that Jehovah’s Witnesses, Mormons, and Seventh Day

Adventists, for example, are more immediately “in line” for mistreatment than

Pentecostals. And although their pastor has stopped traveling to Russia due to fear

of harm, he did travel there for a large Pentecostal conference in 2011 without

incident. Taken together, these facts support a reasonable conclusion that petitioners

do not face “an individualized risk” or “a pattern or practice” of religious

persecution. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1198 (9th Cir. 2023) (citation

and internal quotation marks omitted).

Because petitioners failed to demonstrate (1) a nexus between past or future

persecution and a political opinion, (2) a sufficiently particular or legally cognizable

PSG, or (3) a well-founded fear of future religious persecution, substantial evidence

supports the agency’s denial of their claims for asylum and withholding.

4. Even assuming the CAT claim was not waived, substantial evidence

supports the denial of relief. CAT claims require proof “that it is more likely than

not” petitioners “would be tortured if removed to the proposed country … by or at

the instigation of or with the consent or acquiescence of a public official or other

5 person acting in an official capacity.” Rodriguez-Zuniga, 69 F.4th at 1023 (cleaned

up).

First, petitioners’ general commentary on the frequency of attacks on Russian

businessmen does not prove that any link in the highly speculative chain of events

supporting their fear of future torture is more likely than not to occur. Second, a

“government does not acquiesce to torture where [it] actively, albeit not entirely

successfully, combats the illegal activities.” Hussain v. Rosen, 985 F.3d 634, 650

n.8 (9th Cir. 2021) (citation and quotation marks omitted). Here, the record suggests

at least some willingness to help petitioners and rein in criminal activity. Police took

Redin’s statement and opened a criminal case, and even though no arrests were

made, one of the named individuals—Vitalyii Kirienko—was arrested and

imprisoned on other charges. For these reasons, substantial evidence supports the

agency’s conclusion that petitioners “did not demonstrate eligibility for protection

under the CAT.”

PETITON DENIED.

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