19-2958 Chichilanov v. Garland BIA Palmer, IJ A209 024 176 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of March, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A, CABRANES, 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 ROMAN CHICHILANOV, 14 Petitioner, 15 16 v. 19-2958 17 NAC 18 MERRICK B. GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Julia Greenberg, Esq., New York, 24 NY.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Derek C. Julius, Assistant 2 Director; Anthony O. Pottinger, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Roman Chichilanov, a native and citizen of
12 Russia, seeks review of an August 29, 2019 decision of the
13 BIA affirming an April 5, 2019 decision of an Immigration
14 Judge (“IJ”) denying Chichilanov’s application for asylum,
15 withholding of removal, and protection under the Convention
16 Against Torture (“CAT”). In re Roman Chichilanov, No. A 209
17 024 176 (B.I.A. Aug. 29, 2019), aff’g No. A 209 024 176 (Immig.
18 Ct. N.Y. City April 5, 2019). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). Chichilanov asserts his due process rights were
23 violated as a result of interpreter error at his video hearing
24 before the IJ; he also challenges the agency’s adverse 2 1 credibility determination.
2 “To establish a violation of due process, an alien must
3 show that []he was denied a full and fair opportunity to
4 present [his] claims or that the IJ or BIA otherwise deprived
5 [him] of fundamental fairness.” Burger v. Gonzales, 498 F.3d
6 131, 134 (2d Cir. 2007) (internal quotation marks omitted).
7 An alien must also demonstrate that he suffered prejudice as
8 a result of the alleged deprivation. See Garcia-Villeda v.
9 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (requiring
10 allegation of “some cognizable prejudice” to state a due
11 process claim (internal quotation marks omitted)). Although
12 Chichilanov insists that the interpreter at the video hearing
13 was incompetent and that the video equipment used to conduct
14 the remote hearing prevented the interpreter from
15 understanding and correctly interpreting his complete
16 testimony, the hearing transcript reflects otherwise. In
17 fact, the transcript demonstrates that the IJ instructed
18 Chichilanov to speak directly into the microphone, informed
19 him that he should clarify any misunderstandings or
20 mistranslations, addressed the objections raised by
21 Chichilanov’s lawyer as to the accuracy of the translations,
3 1 and had the parties repeat questions to ensure Chichilanov’s
2 complete answers were translated. Based on this record,
3 Chichilanov has not shown he was deprived a full and fair
4 opportunity to be heard or that he was prejudiced by
5 interpreter error.
6 As for Chichilanov’s challenge to the agency’s adverse
7 credibility determination, the record clearly reveals that
8 the IJ’s findings were supported by substantial evidence.
9 See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
10 In making credibility findings, a trier of fact may rely on
11 “the inherent plausibility of the applicant’s or witness’s
12 account, the consistency between the applicant’s or witness’s
13 written and oral statements . . . , the internal consistency
14 of each such statement, the consistency of such statements
15 with other evidence of record . . . and any inaccuracies or
16 falsehoods in such statements,” without regard to whether an
17 inconsistency, inaccuracy, or falsehood “goes to the heart of
18 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
19 defer . . . to an IJ’s credibility determination unless, from
20 the totality of circumstances, it is plain that no reasonable
21 fact-finder could make such an adverse credibility ruling.”
4 1 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
2 accord Hong Fei Gao, 891 F.3d at 76.
3 Here, the IJ reasonably relied on (1) the discrepancy
4 between Chichilanov’s written statement and his testimony
5 about how the police abused his wife; (2) inconsistencies
6 between Chichilanov’s and his wife’s accounts of how long
7 they were detained and how they got home when they were
8 released; and (3) the fact that his wife’s written statement
9 omitted her own arrest and detention. And while an applicant
10 is not required to include every factual detail in his
11 application, the agency is permitted to consider the omission
12 of information “that a credible petitioner would reasonably
13 have been expected to disclose.” Hong Fei Gao, 891 F.3d at
14 78–79. Chichilanov’s failure to mention in his written
15 statement that the police tried to suffocate his wife is
16 exactly such an omission, and the IJ was not required to
17 accept Chichilanov’s attempted explanation that his wife
18 prepared his case. Majidi v. Gonzales, 430 F.3d 77, 80 (2d
19 Cir. 2005) (“A petitioner must do more than offer a plausible
20 explanation for his inconsistent statements to secure relief;
21 he must demonstrate that a reasonable fact-finder would be
5 1 compelled to credit his testimony.” (internal quotation marks
2 omitted)). Since Chichilanov was unable to explain the
3 differences between his and his wife’s versions of events or
4 why his wife did not mention her arrest in her written
5 statement, the IJ was fully justified in making an adverse
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19-2958 Chichilanov v. Garland BIA Palmer, IJ A209 024 176 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of March, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A, CABRANES, 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 ROMAN CHICHILANOV, 14 Petitioner, 15 16 v. 19-2958 17 NAC 18 MERRICK B. GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Julia Greenberg, Esq., New York, 24 NY.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Derek C. Julius, Assistant 2 Director; Anthony O. Pottinger, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Roman Chichilanov, a native and citizen of
12 Russia, seeks review of an August 29, 2019 decision of the
13 BIA affirming an April 5, 2019 decision of an Immigration
14 Judge (“IJ”) denying Chichilanov’s application for asylum,
15 withholding of removal, and protection under the Convention
16 Against Torture (“CAT”). In re Roman Chichilanov, No. A 209
17 024 176 (B.I.A. Aug. 29, 2019), aff’g No. A 209 024 176 (Immig.
18 Ct. N.Y. City April 5, 2019). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). Chichilanov asserts his due process rights were
23 violated as a result of interpreter error at his video hearing
24 before the IJ; he also challenges the agency’s adverse 2 1 credibility determination.
2 “To establish a violation of due process, an alien must
3 show that []he was denied a full and fair opportunity to
4 present [his] claims or that the IJ or BIA otherwise deprived
5 [him] of fundamental fairness.” Burger v. Gonzales, 498 F.3d
6 131, 134 (2d Cir. 2007) (internal quotation marks omitted).
7 An alien must also demonstrate that he suffered prejudice as
8 a result of the alleged deprivation. See Garcia-Villeda v.
9 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (requiring
10 allegation of “some cognizable prejudice” to state a due
11 process claim (internal quotation marks omitted)). Although
12 Chichilanov insists that the interpreter at the video hearing
13 was incompetent and that the video equipment used to conduct
14 the remote hearing prevented the interpreter from
15 understanding and correctly interpreting his complete
16 testimony, the hearing transcript reflects otherwise. In
17 fact, the transcript demonstrates that the IJ instructed
18 Chichilanov to speak directly into the microphone, informed
19 him that he should clarify any misunderstandings or
20 mistranslations, addressed the objections raised by
21 Chichilanov’s lawyer as to the accuracy of the translations,
3 1 and had the parties repeat questions to ensure Chichilanov’s
2 complete answers were translated. Based on this record,
3 Chichilanov has not shown he was deprived a full and fair
4 opportunity to be heard or that he was prejudiced by
5 interpreter error.
6 As for Chichilanov’s challenge to the agency’s adverse
7 credibility determination, the record clearly reveals that
8 the IJ’s findings were supported by substantial evidence.
9 See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
10 In making credibility findings, a trier of fact may rely on
11 “the inherent plausibility of the applicant’s or witness’s
12 account, the consistency between the applicant’s or witness’s
13 written and oral statements . . . , the internal consistency
14 of each such statement, the consistency of such statements
15 with other evidence of record . . . and any inaccuracies or
16 falsehoods in such statements,” without regard to whether an
17 inconsistency, inaccuracy, or falsehood “goes to the heart of
18 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
19 defer . . . to an IJ’s credibility determination unless, from
20 the totality of circumstances, it is plain that no reasonable
21 fact-finder could make such an adverse credibility ruling.”
4 1 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
2 accord Hong Fei Gao, 891 F.3d at 76.
3 Here, the IJ reasonably relied on (1) the discrepancy
4 between Chichilanov’s written statement and his testimony
5 about how the police abused his wife; (2) inconsistencies
6 between Chichilanov’s and his wife’s accounts of how long
7 they were detained and how they got home when they were
8 released; and (3) the fact that his wife’s written statement
9 omitted her own arrest and detention. And while an applicant
10 is not required to include every factual detail in his
11 application, the agency is permitted to consider the omission
12 of information “that a credible petitioner would reasonably
13 have been expected to disclose.” Hong Fei Gao, 891 F.3d at
14 78–79. Chichilanov’s failure to mention in his written
15 statement that the police tried to suffocate his wife is
16 exactly such an omission, and the IJ was not required to
17 accept Chichilanov’s attempted explanation that his wife
18 prepared his case. Majidi v. Gonzales, 430 F.3d 77, 80 (2d
19 Cir. 2005) (“A petitioner must do more than offer a plausible
20 explanation for his inconsistent statements to secure relief;
21 he must demonstrate that a reasonable fact-finder would be
5 1 compelled to credit his testimony.” (internal quotation marks
2 omitted)). Since Chichilanov was unable to explain the
3 differences between his and his wife’s versions of events or
4 why his wife did not mention her arrest in her written
5 statement, the IJ was fully justified in making an adverse
6 credibility finding against Chichilanov. Id.
7 The IJ was also justified in questioning the plausibility
8 of Chichilanov’s assertion that he became friends with the
9 neighbor who falsely accused him of assault. That skepticism
10 was compounded by the fact that Chichilanov did not know
11 whether his neighbor withdrew the complaint against him, or
12 explain why neither he nor his wife ever attempted to contact
13 the neighbor for a statement corroborating their claim of a
14 false prosecution against them in Russia. See Wensheng Yan
15 v. Mukasey, 509 F.3d 63, 66–68 (2d Cir. 2007) (recognizing
16 that “the fact that there could conceivably be a scenario in
17 which [petitioner’s] behaviors would be plausible will not
18 compel this Court to label unreasonable an IJ’s finding of
19 implausibility”).
20 In short, the IJ’s adverse credibility determination was
21 supported by substantial evidence. And since Chichilanov’s
6 1 asylum, withholding of removal, and CAT claims all rely on
2 the same factual predicate, that adverse credibility finding
3 is dispositive as to all three claims for relief. See Paul
4 v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court