NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALISHER MEVLYUDOV, No. 19-70694
Petitioner, Agency No. A213-089-162
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted July 9, 2020** Seattle, Washington
Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,*** District Judge.
Alisher Mevlyudov (“Petitioner”), a native and citizen of Uzbekistan,
petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing
* 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). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. his appeal from an Immigration Judge’s (“IJ”) decision denying his applications
for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3); 8 C.F.R.
§ 1208.16(c)(2). Petitioner further petitions for review of the BIA’s denial of his
motion to remand, and requests that we remand his case for reconsideration by a
new IJ because the previous IJ’s “prejudicial attitude” violated his due process
rights.
Our jurisdiction is governed by 8 U.S.C. § 1252. When the BIA conducts its
own review of the evidence and the law, “our review ‘is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon–Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000)). We review denials of asylum, withholding of
removal, CAT relief, and all purely factual findings for substantial evidence. Wang
v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA’s factual findings “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s determination of
purely legal questions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004). We review the BIA’s denial of a motion to remand for abuse of discretion.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We review due
2 19-70694 process violations in immigration proceedings de novo. Lopez-Urenda v. Ashcroft,
345 F.3d 788, 791 (9th Cir. 2003).
I. Asylum & Withholding of Removal
Substantial evidence supports the BIA’s determination that Petitioner has not
shown that the harm he fears if returned to Uzbekistan would be attributable to a
statutorily protected ground. See 8 U.S.C. § 1158(a); INS v. Elias-Zacarias, 502
U.S. 478, 483–84 (1992) (requiring direct or circumstantial evidence of
persecutors’ motive to establish causal nexus). Petitioner’s proposed social group
related to his being a car salesman lacks the requisite particularity and social
distinction to qualify as a particular social group within the meaning of the
Immigration and Nationality Act. See Reyes v. Lynch, 842 F.3d 1125, 1134–37 (9th
Cir. 2016) (discussing particularity and social distinction requirements).
Substantial evidence also supports the BIA’s determination that the police
officers’ extortive acts described by Petitioner were not motivated by any political
opinion held by or imputed to him. While Petitioner may have declined to comply
with the officers’ demands, simply demonstrating resistance to criminal extortion
efforts and consequent retaliation is insufficient to establish a nexus between past
or feared harm and a protected ground. Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated
3 19-70694 by theft . . . bears no nexus to a protected ground.”). We agree with the BIA that
Petitioner is ineligible for asylum and withholding of removal.
II. CAT Protection
Substantial evidence supports the BIA’s conclusion that Petitioner has failed
to show that it is more likely than not that he would be tortured if returned to
Uzbekistan. 8 C.F.R. § 1208.16(c)(2). Petitioner has not presented evidence of a
particularized threat of torture by or because of the Uzbek government. See 8
C.F.R. § 1208.18(a)(1) (limiting CAT relief to torture “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity”). Critically, Petitioner’s claims of generalized
corruption among police officers are not particular to him and are therefore
insufficient to meet the CAT standard. Delgado-Ortiz v. Holder, 600 F.3d 1148,
1152 (9th Cir. 2010) (stating that “generalized evidence of violence and crime” is
insufficient to meet CAT standard). We agree with the BIA that Petitioner is
ineligible for CAT protection.
III. Motion to Remand
The BIA did not abuse its discretion in denying Petitioner’s motion to
remand to reapply for asylum, withholding of removal, and CAT protection
because Petitioner failed to demonstrate prima facie eligibility for relief. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is
4 19-70694 entitled to deny a motion to reopen where the applicant fails to demonstrate prima
facie eligibility for the underlying relief.”); see also Romero-Ruiz v. Mukasey, 538
F.3d 1057, 1063 (9th Cir. 2008) (“The formal requirements of a motion to remand
and a motion to reopen are the same.”). Petitioner claims that he “is certain to be
persecuted based on his opinion that he should have the right to apply for asylum.”
Yet most of the “new” evidence submitted alongside his motion predates his
February 23, 2018 hearing before the IJ. Indeed, the only new evidence that was
not previously available pertains to country conditions unrelated to Petitioner’s
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALISHER MEVLYUDOV, No. 19-70694
Petitioner, Agency No. A213-089-162
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted July 9, 2020** Seattle, Washington
Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,*** District Judge.
Alisher Mevlyudov (“Petitioner”), a native and citizen of Uzbekistan,
petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing
* 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). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. his appeal from an Immigration Judge’s (“IJ”) decision denying his applications
for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3); 8 C.F.R.
§ 1208.16(c)(2). Petitioner further petitions for review of the BIA’s denial of his
motion to remand, and requests that we remand his case for reconsideration by a
new IJ because the previous IJ’s “prejudicial attitude” violated his due process
rights.
Our jurisdiction is governed by 8 U.S.C. § 1252. When the BIA conducts its
own review of the evidence and the law, “our review ‘is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon–Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000)). We review denials of asylum, withholding of
removal, CAT relief, and all purely factual findings for substantial evidence. Wang
v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA’s factual findings “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s determination of
purely legal questions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004). We review the BIA’s denial of a motion to remand for abuse of discretion.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We review due
2 19-70694 process violations in immigration proceedings de novo. Lopez-Urenda v. Ashcroft,
345 F.3d 788, 791 (9th Cir. 2003).
I. Asylum & Withholding of Removal
Substantial evidence supports the BIA’s determination that Petitioner has not
shown that the harm he fears if returned to Uzbekistan would be attributable to a
statutorily protected ground. See 8 U.S.C. § 1158(a); INS v. Elias-Zacarias, 502
U.S. 478, 483–84 (1992) (requiring direct or circumstantial evidence of
persecutors’ motive to establish causal nexus). Petitioner’s proposed social group
related to his being a car salesman lacks the requisite particularity and social
distinction to qualify as a particular social group within the meaning of the
Immigration and Nationality Act. See Reyes v. Lynch, 842 F.3d 1125, 1134–37 (9th
Cir. 2016) (discussing particularity and social distinction requirements).
Substantial evidence also supports the BIA’s determination that the police
officers’ extortive acts described by Petitioner were not motivated by any political
opinion held by or imputed to him. While Petitioner may have declined to comply
with the officers’ demands, simply demonstrating resistance to criminal extortion
efforts and consequent retaliation is insufficient to establish a nexus between past
or feared harm and a protected ground. Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated
3 19-70694 by theft . . . bears no nexus to a protected ground.”). We agree with the BIA that
Petitioner is ineligible for asylum and withholding of removal.
II. CAT Protection
Substantial evidence supports the BIA’s conclusion that Petitioner has failed
to show that it is more likely than not that he would be tortured if returned to
Uzbekistan. 8 C.F.R. § 1208.16(c)(2). Petitioner has not presented evidence of a
particularized threat of torture by or because of the Uzbek government. See 8
C.F.R. § 1208.18(a)(1) (limiting CAT relief to torture “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity”). Critically, Petitioner’s claims of generalized
corruption among police officers are not particular to him and are therefore
insufficient to meet the CAT standard. Delgado-Ortiz v. Holder, 600 F.3d 1148,
1152 (9th Cir. 2010) (stating that “generalized evidence of violence and crime” is
insufficient to meet CAT standard). We agree with the BIA that Petitioner is
ineligible for CAT protection.
III. Motion to Remand
The BIA did not abuse its discretion in denying Petitioner’s motion to
remand to reapply for asylum, withholding of removal, and CAT protection
because Petitioner failed to demonstrate prima facie eligibility for relief. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is
4 19-70694 entitled to deny a motion to reopen where the applicant fails to demonstrate prima
facie eligibility for the underlying relief.”); see also Romero-Ruiz v. Mukasey, 538
F.3d 1057, 1063 (9th Cir. 2008) (“The formal requirements of a motion to remand
and a motion to reopen are the same.”). Petitioner claims that he “is certain to be
persecuted based on his opinion that he should have the right to apply for asylum.”
Yet most of the “new” evidence submitted alongside his motion predates his
February 23, 2018 hearing before the IJ. Indeed, the only new evidence that was
not previously available pertains to country conditions unrelated to Petitioner’s
claim that returning Uzbek asylum seekers are subject to persecution or torture.
And Petitioner, who seeks remand on account of his status as a “known asylum
seeker[],” has failed to demonstrate that he is similarly situated to those referenced
in the evidence submitted alongside his motion. It is unclear, for example, how
Petitioner resembles the returning Uzbeks from Central Asian nations who were
subjected to religious persecution, or the returning Uzbeks from Norway who were
accused of lying to obtain asylum. We agree with the BIA that the new evidence
does not demonstrate Petitioner’s prima facie eligibility for relief or otherwise
affect the outcome of the case.
IV. Due Process Violation
We may reverse the BIA’s decision on due process grounds only if the
underlying proceeding before the IJ was “so fundamentally unfair that the alien
5 19-70694 was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015,
1017 (9th Cir. 1985); see Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (stating
that petitioner must show error and prejudice to establish due process violation).
Here, the underlying IJ proceeding was not tainted by such fundamental unfairness.
Petitioner only alleges that the IJ’s “incorrect credibility findings [] illustrate her
prejudiced attitude towards [him].” However, despite identifying inconsistencies in
Petitioner’s hearing testimony and application for asylum, the IJ ultimately made a
positive credibility determination—which the BIA acknowledged as well. Cf. Rizo
v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016) (stating that even “showing that the IJ
was unfriendly, confrontational, or acted in an adversarial manner is not enough”
to establish due process violation). We reject Petitioner’s due process claim
because he has demonstrated neither error nor prejudice on the IJ’s part.
PETITION FOR REVIEW DENIED.
6 19-70694