541 F. App'x 124

2d Cir.

2013

UNITED STATES of America, Appellee, v. Paul KURUZOVICH, Defendant-Appellant.

No. 12-1789-cr.

United States Court of Appeals, Second Circuit.

Nov. 14, 2013.

544 F. App‘x 124

Michael Bosworth (Andrew L. Fish, Michael A. Levy on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Daniel Nooter (Thomas H. Nooter, on the brief), Freeman, Nooter & Ginsberg, New York, NY, for Defendant-Appellant.

PRESENT: PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges, JANE A. RESTANI, District Judge.^*

SUMMARY ORDER

Defendant-Appellant Paul Kuruzovich (“Kuruzovich“) was charged in an information with blackmail in violation of 18 U.S.C. § 873. During trial, Kuruzovich pled guilty to the information, which alleged that he wrote emails to his former employer, Guidepoint Global LLC (“Guidepoint“), threatening that he would inform law enforcement authorities that Guidepoint had engaged in insider trading unless he received commissions, benefits, and severance payments he believed he was owed. At Kuruzovich‘s sentencing on January 9, 2012, the district court, Chin, J., imposed a sentence of incarceration of one year, a supervised release term of one year, and a mandatory special assessment of twenty-five dollars, but withheld entry of judgment pending a final determination of restitution. On April 13, 2012, the district court Chin, J., ordered Kuruzovich to pay $59,652.85 in restitution to Guidepoint under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, for legal expenses Guidepoint incurred assisting the government in investigating and prosecuting Kuruzovich. A written judgment was filed on April 18, 2012, including the restitution award. Kuruzovich appealed only the restitution portion of the judgment, challenging the district court‘s conclusion that restitution was mandatory as well as the amount ordered.

During the pendency of this appeal, but after completing his term of imprisonment, Kuruzovich died. This Court directed the parties to brief whether Kuruzovich‘s death abated the district court‘s restitution order. In that briefing, neither party challenged the dismissal of the present appeal under the unique circumstances of this case; both parties supported vacating or abating the restitution order. Additionally, Kuruzovich‘s prior employer, Guidepost, no longer seeks compensation from Kuruzovich or his estate for Guidepost‘s losses through the restitution order.

We therefore decline to decide the broader question of whether a defendant‘s death may abate a restitution order. We came to a similar conclusion in United States v. Wright, 160 F.3d 905, 909 (2d Cir. 1998), in which we held that, given that the deceased defendant‘s restitution payments were not due until he completed his period of incarceration and he died during his incarceration, the time to commence making payments could never arrive so the restitution order was futile and thus was abated. Id. Here, although the restitution payments are now due, the appellant has died and his estate apparently has no assets with which to satisfy the restitution order. Additionally, Guidepost has indicated that it no longer seeks to benefit from the restitution order. Finally, both parties, through their supplemental briefs, consented to vacating or abating the restitution order. Thus, in light of the positions of the parties and victim, we hold that the restitution order is abated, but that the judgment of conviction is affirmed in all other respects.

ZHI YU CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 12-2995.

United States Court of Appeals, Second Circuit.

Nov. 14, 2013.

544 F. App‘x 124

Joshua E. Bardavid, New York, NY, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General; Anthony P. Nicastro, Senior Litigation Counsel; Jeffery R. Leist, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges, JANE A. RESTANI, Judge.^*

SUMMARY ORDER

Petitioner Zhi Yu Chen, a native and citizen of the People‘s Republic of China, seeks review of a June 28, 2012, order of the BIA denying his motion to reopen. In re Zhi Yu Chen, No. A077 313 144 (B.I.A. June 28, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA‘s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the BIA denies a motion to reopen for failure to establish a prima facie case for the underlying relief sought, we review the BIA‘s finding of prima facie eligibility for substantial evidence. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). To establish prima facie eligibility for asylum, an applicant must show a realistic chance that he would be able to show he would be singled out for persecution. Id.

Chen‘s arguments that the BIA erred by failing to consider his evidence of country conditions and by requiring him to establish the Chinese government‘s awareness of his Falun Gong activities are unavailing as the BIA specifically mentioned Chen‘s evidence in its decision and reasonably concluded that the evidence did not establish an individualized fear of future persecution. See Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d 315, 338 n. 1 (2d Cir. 2006) (“we presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise“); Hongsheng Leng, 528 F.3d at 142 (“to establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.“).

Moreover, the BIA did not abuse its discretion by finding that Chen had failed to present sufficient evidence that the Chinese authorities were aware or likely to become aware of his activities, as his affidavit in support of his motion did not indicate his intent to practice Falun Gong publicly in China and he presented no evidence that the Chinese government monitored activities in the United States. See Jian Xing Huang, 421 F.3d at 129 (a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.“). Cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 570 (2d Cir. 2006) (finding alien‘s activities in this country could support a claim for relief where there was evidence that “the Burmese military regime maintains a thorough and systematic intelligence-gathering and surveillance apparatus directed specifically at deterring pro-democracy activities of Burmese citizens both inside and outside of Burma“). Consequently, the BIA did not abuse its discretion by denying Chen‘s motion to reopen on the ground that he did not demonstrate his prima facie eligibility of relief. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.

For the foregoing reasons, the petition for review is DENIED.

Notes

The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation. The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.