Oksana Feshovets v. Attorney General United States
666 F. App'x 157
| 3rd Cir. | 2016Background
- Petitioners Oksana and Oleksandr Feshovets, Ukrainian natives, conceded removability; Oksana applied for asylum, withholding, and CAT protection, with husband as derivative.
- Oksana claims persecution after she assisted a domestic-violence victim whose husband, Nikolay Kmit, was a powerful businessman/politician.
- Alleged harms: anonymous threats, physical attacks, abuse by police, and short-term abduction/detention of her children.
- The IJ denied relief; the BIA dismissed the appeal, finding insufficient nexus between harms and a protected ground (political opinion or particular social group), concluding the actions were driven by a personal vendetta by Kmit.
- Oksana argued Kmit imputed a political basis to her actions because she sought to protect a woman from abuse by a politically powerful figure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether harms were "on account of" a protected ground (political opinion or social group) for asylum nexus | Feshovets: harms stemmed from her political activism in defending a domestic-violence victim and Kmit imputed political opposition to her | BIA/Respondent: harms arose from a personal dispute/retaliation for interfering in Kmit's private life, not from protected characteristic | Held: Substantial evidence supports BIA that nexus was insufficient; personal vendetta, not protected ground |
| Whether BIA erred applying REAL ID Act mixed-motive test (protected ground must be "one central reason") | Feshovets: protected ground was central because Kmit’s political power enabled impunity and motivated retaliation | Respondent: record lacks evidence that political animus was a central motive | Held: No error; petitioner failed to show protected ground was one central reason |
| Eligibility for withholding of removal (more likely than not standard) | Feshovets: same facts support withholding because of past persecution | Respondent: withholding requires meeting higher standard and cannot be met if asylum nexus fails | Held: Denied — asylum nexus failure forecloses withholding relief |
| Eligibility for CAT protection (torture by or with acquiescence of public official) | Feshovets: country conditions and past abuse support likelihood of torture | Respondent: must show individualized likelihood and nexus to public officials; Kmit no longer holds office | Held: Denied — petitioner failed to show individualized likelihood or acquiescence by public officials |
Key Cases Cited
- Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) (asylum/cat legal standards)
- Molina-Morales v. I.N.S., 237 F.3d 1048 (9th Cir. 2001) (personal disputes with powerful local figures do not automatically show political nexus)
- Ndayshimiye v. Attorney Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (REAL ID Act "one central reason" mixed-motive standard; nexus requirement)
- Gonzales-Posadas v. Attorney Gen. of U.S., 781 F.3d 677 (3d Cir. 2015) (personal conflicts and isolated crimes not persecution on account of protected ground)
- Valdiviezo-Galdamez v. Attorney Gen. of U.S., 663 F.3d 582 (3d Cir. 2011) (substantial-evidence review of BIA factual findings)
- Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (asylum nexus requirement also relevant to withholding eligibility)
- Denis v. Attorney Gen. of U.S., 633 F.3d 201 (3d Cir. 2011) (CAT requires individualized likelihood of torture)