Georgii Tambiev v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 2021
• Docket: 19-72589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGII TAMBIEV, Nos. 19-72589 20-71280 Petitioner, Agency No. A201-682-084 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Georgii Tambiev, a native and citizen of Russia, petitions pro se for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”)

* 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). (petition No. 19-72589), and the BIA’s order denying his motion to reopen

(petition No. 20-71280). Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales,

453 F.3d 1182, 1184-85 (9th Cir. 2006). We review for abuse of discretion the

BIA’s denial of a motion to reopen. Martinez-Hernandez v. Holder, 778 F.3d

1086, 1088 (9th Cir. 2015). We dismiss in part and deny in part the petition for

review in No. 19-72589, and we deny the petition for review in No. 20-71280.

As to petition No. 19-72589, to the extent Tambiev raises a political opinion

claim in his opening brief, we lack jurisdiction to consider it because he failed to

raise the claim to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004) (court lacks jurisdiction to review claims not presented below).

Substantial evidence supports the agency’s determination that Tambiev

failed to establish he suffered harm that rises to the level of persecution. See Gu v.

Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006) (“persecution is an extreme

concept, it does not include of every sort of treatment our society regards as

offensive” (internal quotation and citation omitted)). Substantial evidence also

supports the agency’s determination that Tambiev failed to establish a well-

founded fear of future persecution. See id. at 1022 (petitioner failed to present

“compelling, objective evidence demonstrating a well-founded fear of

persecution”). Thus, Tambiev’s asylum claim fails.

2 In this case, because Tambiev failed to establish eligibility for asylum, he

failed to establish eligibility for withholding of removal. See Zehatye, 453 F.3d at

1190.

Substantial evidence also supports the agency’s denial of CAT relief because

Tambiev failed to show it is more likely than not he will be tortured by or with the

consent or acquiescence of the government if returned to Russia. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

As to petition No. 20-71280, the BIA did not abuse its discretion in denying

Tambiev’s motion to reopen removal proceedings where he failed to submit an

appropriate application for relief. See 8 C.F.R. § 1003.2(c)(1); see also Romero-

Ruiz v. Mukasey, 538 F.3d 1057, 1063-64 (9th Cir. 2008) (no abuse of discretion in

denying motion to reopen, in part, because the motion was not accompanied by an

application for the relief sought).

We reject as unsupported by the record Tambiev’s contentions that the BIA

failed to appropriately credit his testimony following the IJ’s determination that he

was credible.

3 The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

No. 19-72589: PETITION FOR REVIEW DISMISSED in part;

DENIED in part.

No. 20-71280: PETITION FOR REVIEW DENIED.