Bannikov v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: August 25, 2025
• Docket: 24-1202
• Status: Unpublished

Opinion

24-1202 Bannikov v. Bondi BIA Reid, IJ A241 901 760/761/762/763

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of August, two thousand twenty-five.

PRESENT: WILLIAM J. NARDINI, MYRNA PÉREZ, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

PAVEL BANNIKOV, LIUBOV BANNIKOVA, N.B., A.B.,* Petitioners,

v. 24-1202 NAC

* In this publicly accessible order, we have used only initials to refer to the petitioners who were minors at the time of the petition, in accordance with Federal Rule of Civil Procedure 5.2(a)(3) and Federal Rule of Appellate Procedure 25(a)(5). PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONERS: Nataliya I. Gavlin, Gavlin & Associates, P.C., New York, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jessica E. Burns, Senior Litigation Counsel; Shelley K.G. Clemens, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioners Pavel Bannikov and Liubov Bannikova, natives of the former

Union of Soviet Socialist Republics and citizens of Russia, and their minor

children, natives and citizens of Russia, seek review of a decision of the BIA

affirming a decision of an Immigration Judge (“IJ”) denying asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). In re Pavel

Bannikov, et al., Nos. A 241 901 760/761/762/763 (B.I.A. Apr. 2, 2024), aff’g No. A 241

901 760/761/762/763 (Immigr. Ct. N.Y.C. Oct. 18, 2023). We assume the parties’

familiarity with the underlying facts and procedural history. 2 We have reviewed the IJ’s decision as modified and supplemented by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings,

including adverse credibility determinations, “under the substantial evidence

standard” and questions of law and application of law to fact de novo. See Hong

Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). When reviewing an adverse

credibility determination, “the ‘unless . . . compelled’ standard requires that the IJ

articulate ‘specific’ and ‘cogent’ reasons for finding an applicant not credible, that

the reasons provided by the IJ ‘be supported by reasonable, substantial and

probative evidence in the record when considered as a whole,’ and that they ‘bear

a legitimate nexus to the [adverse credibility] finding.’” Amardeep Singh v.

Garland, 6 F.4th 418, 426 (2d Cir. 2021) (alterations in original) (quoting Hong Fe

Gao, 891 F.3d at 76–77).

With respect to credibility determinations, the statute provides:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency 3 between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.

8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination

unless, from the totality of the circumstances, it is plain that no reasonable fact-

finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial

evidence supports both the agency’s adverse credibility determination with

respect to the alleged past persecution and its finding that Bannikov failed to

demonstrate a reasonable possibility of future persecution based on his activities

in the United States.

In making an adverse credibility determination, the agency reasonably

relied on Bannikov’s inconsistent testimony about the circumstances under which

he interacted with a prosecutor. This includes whether, after receiving a call from

a prosecutor’s office, he met with the prosecutor a few hours after the call or the

next day. The record confirms this inconsistency: Bannikov testified he went to

4 the prosecutor’s office the “next day, after they called me,” but his written

statement reflects that he received the call in the morning and appeared by 11:00

that morning. Compare Certified Administrative Record (“CAR”) at 237, with id.

at 610. “Where the IJ’s adverse credibility finding is based on specific examples

in the record of inconsistent statements by the asylum applicant about matters

material to his claim of persecution, or on contradictory evidence . . . a reviewing

court will generally not be able to conclude that a reasonable adjudicator was

compelled to find otherwise.” Majidi v. Gonzales, 430 F.3d 77, 79–80 (2d Cir. 2005)

(quotation marks omitted). Although, as Bannikov argues, a trivial error in a date

may not be material and will often be insufficient on its own to support an adverse

credibility finding, see Gurung v. Barr, 929 F.3d 56, 61 (2d Cir. 2019); Hong Fei Gao,

891 F.3d at 77, the inconsistency here is not so minor given Bannikov’s claim that

he fled Russia because the prosecutor threatened him with arrest. Under the

circumstances, he could reasonably be expected to know whether he met with the

prosecutor hours after receiving a phone call or the next day. See Amardeep Singh,

6 F.4th at 431 (“The more serious the inconsistency—i.e., the greater the

importance of the fact upon which inconsistency is found for the success of the

petition and the more likely it is that a truthful account would not have included

5 the inconsistency—the more substantial that evidence is in casting doubt on the

petitioner’s credibility.”). Moreover, Bannikov’s explanation that he must have

misunderstood the questioning does not compel a contrary conclusion. See

Majidi, 430 F.3d at 80 (“A petitioner must do more than offer a plausible

explanation for his inconsistent statements to secure relief; he must demonstrate

that a reasonable fact-finder would be compelled to credit his testimony.”

(quotation marks omitted)).

Bannikov’s lack of corroboration further supports the agency’s adverse

credibility determination. “An applicant’s failure to corroborate his or her

testimony may bear on credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has already been called

into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

Bannikov’s documentary evidence of his negative treatment at work and political

activity in Russia is limited to letters from his father and wife, to which the agency

reasonably gave limited weight because they were from interested parties not

subject to cross-examination. See Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020)

(holding that an “IJ acted within her discretion in according . . . little weight [to

letters] because the declarants . . . were interested parties and neither was

6 available for cross-examination”); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013)

(“We generally defer to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”).

Substantial evidence also supports the agency’s determination that

Bannikov did not establish a reasonable possibility of persecution in Russia based

on his political activity in the United States. “[T]o 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.” Hongsheng Leng v.

Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). For asylum, the applicant must show a

“reasonable possibility” of future persecution. Id. Bannikov has not made this

showing. Counsel states in the brief that Bannikov is on a “special list . . . in the

database of Center Against Extremism,” but there is no record citation, and review

of the record has not revealed testimony or other evidence that corroborates that

allegation or indicates that Russian authorities are aware of Bannikov’s minor

political activities in the United States. See INS v. Phinpathya, 464 U.S. 183, 188 n.6

(1984) (concluding that “[c]ounsel’s unsupported assertions in [a] brief” are not

evidence).

7 The adverse credibility determination and the agency’s determination that

Bannikov did not establish a reasonable possibility that Russian authorities will

discover his political activity in the United States and persecute him are dispositive

of asylum, withholding of removal, and CAT relief because all three forms of relief

are based on the same factual predicates. See Hong Fei Gao, 891 F.3d at 76; see also

Y.C., 741 F.3d at 335.

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

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court