Grigorii Duralev v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2021
• Docket: 19-71703
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GRIGORII DURALEV, No. 19-71703

Petitioner, Agency No. A208-814-399

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 30, 2021** Pasadena, California

Before: OWENS and R. NELSON, Circuit Judges, and HELLERSTEIN,*** District Judge.

Grigorii Duralev, a native and citizen of Russia, petitions pro se for review

of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

* 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 Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. Judge’s (“IJ”) order denying his applications for asylum, withholding of removal,

and deferral of removal under the Convention Against Torture (“CAT”). We deny

the petition.

1. “An applicant is ineligible for asylum and withholding if there are

‘serious reasons’ to believe that he ‘committed a serious nonpolitical crime’

outside the United States prior to his arrival.” Guan v. Barr, 925 F.3d 1022, 1031

(9th Cir. 2019) (citing 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii)); see also

8 C.F.R. § 1208.16(d)(2). We have interpreted the “serious reasons” standard as

“tantamount to probable cause.” Go v. Holder, 640 F.3d 1047, 1052 (9th Cir.

2011) (citation omitted). Probable cause exists when there is a “fair probability”

that the defendant was involved in the crime. Silva-Pereira v. Lynch, 827 F.3d

1176, 1189 (9th Cir. 2016) (citation omitted). The Russian arrest warrant and the

Interpol Red Notice, containing detailed factual allegations, are sufficient to

establish the requisite probable cause. See Villalobos Sura v. Garland, No. 20-

71839, 2021 WL 3627251, at *4–5 (9th Cir. Aug. 17, 2021).

Nor can Duralev meet his burden of showing by a preponderance of the

evidence that there are not serious reasons to believe he committed the crime. See

8 C.F.R. § 1208.16(d)(2). He provides several news sources reporting that the

Russian government brings false charges against political opponents and abuses

Red Notices. A letter from his Russian attorney also outlines how Duralev was

2 allegedly framed for fraud. But Duralev does not dispute that he was the subject of

an investigation for fraud. The thorough investigation presented in the extensive

record shows that Duralev was provided numerous opportunities to assert his

innocence. Moreover, Duralev does not proffer sufficient evidence that the

Russian government was either misusing the Red Notice process in this instance or

that it was targeting him based on his politics. Consequently, his evidence does

not compel this court to find a lack of probable cause. See Silva-Pereira, 827 F.3d

at 1184, 1189.

2. Duralev is not entitled to deferral of removal under CAT because

“[s]ubstantial evidence supports the BIA’s finding that it is not more likely than

not that [he] will be tortured” by or with the consent or acquiescence of the

Russian government. Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir.

2016) (per curiam). He did not challenge the IJ’s finding that he failed to establish

past torture, “the principal factor” in determining the likelihood of future torture.

Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010). The record also shows that he

entered and departed Russia several times during the investigation, and “[i]t is well

established in this court that an alien’s history of willingly returning to his or her

home country militates against a finding of past persecution or a well-founded fear

of future persecution.” Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008).

And the future torture standard under CAT is “narrower than the asylum standard.”

3 Khup v. Ashcroft, 376 F.3d 898, 906 (9th Cir. 2004). Taken together, substantial

evidence supports the BIA’s decision that Duralev has not established a likelihood

of future torture.

3. Duralev alleges six errors in his agency proceedings, but he fails to

demonstrate these errors are both supported by the record and prejudicial. See

Lacsina Pangilinan v. Holder, 568 F.3d 708, 709–10 (9th Cir. 2009).

First, Duralev argues that the IJ did not apply the same critical eye to the

Russian-to-English translations produced by the government as he did to Duralev’s

translations. Second, he contends that the IJ’s failure to reject government

documents using the “wrong spelling initials” in Duralev’s last name shows bias.

But he did not object to the admission of these documents.

Third, he highlights the time allotted to the government compared to the

time allotted to him during different portions of the hearing to show unfairness.

But he cannot show prejudice, because he concedes that extra time would not have

changed the IJ’s decision.

Fourth, Duralev notes the IJ and the BIA referred to the amount of money

involved in the fraud charge as equivalent to $20 million instead of $2 million.

Likewise, for the fifth alleged error, he highlights that the agency said he was

charged with fraud and embezzlement instead of just fraud. But these facts were

not relied upon in determining that the alleged crime was a serious nonpolitical

4 crime. Duralev does not otherwise show these errors prejudiced him.

Sixth, Duralev contends he should have been able to further develop his

account of a threat from the Russian mafia. But he had confirmed that his

declaration was a “complete account” of his fears.1

4. Duralev raises two additional issues for the first time: (1) whether the

IJ applied the proper standard of proof, and (2) whether he was removable for

overstaying his visa given that his receipt for his asylum application stated that he

was permitted to remain in the United States pending disposition of his application.

However, because Duralev failed to raise these arguments to the BIA, they have

not been preserved and are not properly before this court.

PETITION DENIED.

1 Duralev faults the IJ and the BIA for failing to credit his testimony despite the absence of an express adverse credibility determination. But failure to make an adverse credibility determination does not mean his testimony is per se credible. See Garland v. Dai, 141 S. Ct. 1669, 1677, 1681 (2021).