Gulnara Gafurova v. Jefferson B. Sessions, III

712 F. App'x 540
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 8, 2017
Docket16-4688
StatusUnpublished
Cited by2 cases

This text of 712 F. App'x 540 (Gulnara Gafurova v. Jefferson B. Sessions, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulnara Gafurova v. Jefferson B. Sessions, III, 712 F. App'x 540 (6th Cir. 2017).

Opinion

CLAY, Circuit Judge.

Petitioner Gulnara Gafurova (“Gafuro-va”), a native of the former Soviet Union and a citizen of Uzbekistan, petitions for review of the decisions of the Board of Immigration Appeals (“BIA”) and the immigration judge (“IJ”) denying her motion to change venue and barring her from filing a second asylum application. On appeal, Gafurova argues that the BIA and IJ erred when they found Gafurova had failed to show changed circumstances materially affecting her eligibility for asylum and when they denied her motion to change venue. She also argues that the BIA and IJ violated due process by failing to specify the burden of proof for establishing changed circumstances and that the IJ improperly prejudged or was biased against her. For the reasons set forth below, we DENY the petition.

BACKGROUND

Gafurova is a native of the former Soviet Union and a citizen of Uzbekistan. She was admitted to the United States on June 24, 2003 as a non-immigrant visitor with authorization to remain in the U.S. until December 21, 2003. She remained in the U.S. beyond this date without authorization. On June 21, 2004, Gafurova filed an Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (“USCIS”). USCIS referred her application to immigration court.

On July 29, 2004, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) charging Gafurova with removability pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act. On September 24, 2004, Ga-furova appeared in immigration court and admitted the allegations in the NTA and conceded the charge of removability. Gafu-rova sought asylum, withholding of removal, and protection under the Convention Against Torture. She indicated that she would be relying on the same application she had previously filed with USCIS.

On May 4, 2005, the IJ denied Gafuro-va’s application and ordered her removal. Gafurova filed an appeal with the BIA. On January 12, 2007, the BIA sustained the appeal and remanded her case to the IJ. On September 17, 2008, the IJ denied Ga-furova’s application for asylum and withholding of removal and found the application frivolous. Gafurova filed an appeal. On October 26, 2010, the Board denied Gafu-rova’s appeal, but reversed the frivolous finding.

On January 21, 2011, Gafurova filed a motion to reopen with the BIA to pursue an adjustment of status based on a pending 1-130 visa petition filed on her behalf by her husband. On May 12, 2011, the BIA initially denied her motion because Gafuro-va had not submitted sufficient evidence that the marriage was bona fide. Gafurova filed a motion to reconsider with the BIA. On June 23, 2011, the BIA granted the motion, vacated its May 12, 2011 decision, reopened Gafurova’s proceedings, and remanded her case to the IJ.

On November 1, 2011, Gafurova filed an application for adjustment of status. On February 6, 2014, the IJ denied her application because she had filed a frivolous asylum application and was statutorily ineligible for relief. Gafurova filed an appeal. On November 9, 2015, the BIA concluded the IJ was without the authority to revisit the issue of whether the application was frivolous and remanded Gafurova’s case to the IJ to reconsider whether any additional bars to relief applied to her case.

On November 30,2015, the IJ instructed Gafurova and DHS to provide additional information regarding her application to adjust status. On December 29, 2015, DHS submitted evidence showing that Gafuro-va’s 1-130 petition had been revoked by USCIS, meaning that Gafurova was no longer eligible to seek an adjustment of status.

On January 15, 2016, Gafurova filed a motion to change venue to New York so that she could submit a second asylum application. Gafurova alleged two bases for her second asylum application: (1) she converted to Christianity in 2011 and (2) she would be viewed as a traitor in Uzbekistan because information is publicly available that she filed for asylum in the U.S.

On January 27, 2016, the IJ denied Ga-furova’s motion to change venue, found her statutorily barred from filing a second asylum application, and ordered her removed to Uzbekistan. With regard to her application, the IJ explained that because Gafuro-va had previously applied for asylum and that application had been denied, she was barred from filing a second application unless she could demonstrate “the existence of changed circumstances that materially affect her eligibility for asylum.” The IJ determined that Gafurova had “not established that she had converted to Christianity,” which meant her conversion did not qualify as a changed circumstance that affected her eligibility for asylum. The IJ also determined that “there is no evidence that arresting people who applied for asylum is a common practice in Uzbekistan.” Thus, the IJ concluded that Gafurova had not established a change in circumstances materially affecting her eligibility for asylum and she was barred from filing a second asylum application. With regard to her motion to change venue, the IJ determined that Gafurova failed'to show “good cause” for a change of venue, especially as she would be unable to file a second asylum application.

On February 16, 2016, Gafurova filed an appeal with the BIA. In her Memorandum in Support of Appeal, Gafurova argued that she presented sufficient evidence to prove changed circumstances and that the IJ should have held a hearing to allow her to present additional evidence. She also argued that the IJ prematurely found Ga-furova to lack credibility.

On November 10, 2016, the BIA dismissed Gafurova’s appeal. The BIA affirmed the IJ’s order and largely adopted the IJ’s reasoning. The BIA agreed that the evidence Gafurova presented did not show changed circumstances materially affecting her eligibility for asylum. The BIA also rejected Gafurova’s claim that the IJ should have held a hearing on her motion and allowed her to present additional evidence. The BIA explained that Gafurova “had the burden to produce evidence to fully support her request at the time it was filed.” Finally, the BIA concluded the IJ appropriately considered Gafurova’s lack of credibility. Consequently, the BIA dismissed Ga&rova’s appeal.

On December 7, 2016, Gafurova timely filed a petition for review in this Court.

DISCUSSION

I. Burden of Proof and Due Process

Gafurova argues that the IJ failed to “specify what burden of proof she held Petitioner to for ‘establishing’ changed country circumstances.” She argues the IJ and BIA should have stated “to what standard” Gafurova was held — “Clear and convincing? Clear convincing and unequivocal? Preponderance? Beyond a reasonable doubt?” Gafurova does not state in her brief which standard the BIA and IJ should have applied. Gafurova asserts that the failure to identify this standard is a “Due Process legal error requiring remand to the IJ in the first instance.”

A. Standard of Review

“Where the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than summarily affirming the immigration judge’s decision, [the Court] review[s] the BIA’s decision as the final agency determination.” Khalili v.

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712 F. App'x 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulnara-gafurova-v-jefferson-b-sessions-iii-ca6-2017.