Jamarjashvili v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: November 5, 2019
• Docket: 17-3263
• Status: Unpublished

Opinion

17-3263 Jamarjashvili v. Barr BIA Hom, IJ A087 665 046/047 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.

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 5th day of November, two thousand nineteen.

PRESENT: DENNIS JACOBS, ROSEMARY S. POOLER, ROBERT D. SACK, Circuit Judges. _____________________________________

ELENE JAMARJASHVILI, LEVAN IRAKLIEVICH JALIASHVILI, Petitioners,

v. 17-3263 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.1 _____________________________________

FOR PETITIONERS: Isabella Mayzel, Springfield, NJ.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Mona Maria Yousif, Trial Attorney, Office of Immigration Litigation, United

1 The Clerk of the Court is directed to amend the caption as above. 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 Elene Jamarjashvili and Levan Iraklievich

Jaliashvili, natives and citizens of Georgia, seek review

of a September 13, 2017, decision of the BIA affirming an

August 4, 2016, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”). In re Elene

Jamarjashvili, Levan Iraklievich Jaliashvili, No. A 087 665

046/047 (B.I.A. Sept. 13, 2017), aff’g No. A 087 665

046/047 (Immig. Ct. N.Y. City Aug. 4, 2016). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

We have reviewed the IJ’s decision as modified and

supplemented by the BIA and limit our review to the agency’s

adverse credibility determination and the BIA’s ineffective

assistance of counsel analysis. See Yun-Zui Guan v.

2 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005); Xue Hong Yang v.

U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

Adverse Credibility Determination

We review adverse credibility determinations under the

substantial evidence standard. Hong Fei Gao v. Sessions, 891

F.3d 67, 76 (2d Cir. 2018). The governing REAL ID Act

credibility standard provides as follows:

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 consistency between the applicant’s or witness’s written and oral statements . . . , the internal consistency of each such statement, the consistency of such statements with other evidence of record . . . , 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, or any other relevant factor.

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.

As an initial matter, the IJ did not err in failing to 3 consider whether Jamarjashvili had a claim of religious

persecution. The IJ acknowledged the sole incident in

question, in which the police allegedly pulled a crucifix off

the wall of Jamarjashvili’s home. Jamarjashvili did not

explicitly apply for asylum on religious grounds and included

no reference to this one incident in her application.

Moreover, she testified that Catholics in Georgia “officially

are not persecuted” but rather are “subjected to smirking,

harassment, and are repressed.” Because harassment, without

more, does not constitute persecution, Jamarjashvili failed

to state a claim of religious persecution on these facts.

See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

(2d Cir. 2006).

Substantial evidence supports the agency’s

determination that Jamarjashvili was not credible as to her

claim of political persecution. The agency reasonably

relied on discrepancies among Jamarjashvili’s testimony,

her application statement, and documentation of the sale of

her property. See 8 U.S.C. § 1158(b)(1)(B)(iii).

Jamarjashvili testified that the state targeted her, in

part, by seizing her property in a sham transaction. 4 However, a document she proffered shows that the property

in question was sold in an auction to offset a debt. This

inconsistency, which undermined Jamarjashvili’s credibility

as to the alleged incidents of persecution and as to her

allegation that the government was targeting her, provides

substantial support for the adverse credibility

determination. See Xian Tuan Ye v. Dep’t of Homeland Sec.,

446 F.3d 289, 295 (2d Cir. 2006) (holding that material

inconsistency relating to central aspect of asylum claim

provided substantial evidence for adverse credibility

determination). The IJ was not required to credit

Jamarjashvili’s explanation that the event described in the

document was fabricated. See Majidi v. Gonzales, 430 F.3d

77, 80 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for h[er] inconsistent

statements to secure relief; [s]he must demonstrate that a

reasonable fact-finder would be compelled to credit h[er]

testimony.” (quotation marks omitted)).

The agency also properly relied on a discrepancy in how

Jamarjashvili described the identities of her July 2009

assailants. She testified that undercover police officers 5 in civilian clothing attacked her, but her application

reported that “goons” assaulted her. The agency was

permitted to rely on this inconsistency because Jamarjashvili

differentiated between the police and criminals, or “goons,”

throughout her written statement, and the difference

implicates the question of whether the alleged persecutors

were government actors. See Xian Tuan Ye, 446 F.3d at 295;

Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (requiring

asylum applicant to show persecution by the government or by

actor(s) the government is “unable or unwilling to control”).

Because the IJ’s finding is “tethered to record evidence, and

there is nothing else in the record from which a firm

conviction of error could properly be derived,” we decline to

disturb the finding. Wensheng Yan v. Mukasey, 509 F.3d 63,

67 (2d Cir. 2007).

The agency’s demeanor finding bolsters the adverse

credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii)

(allowing IJ to rely on “demeanor, candor, or responsiveness

of the applicant”). We generally “give particular deference”

to adverse credibility determinations “that are based on the

adjudicator’s observation of the applicant’s demeanor.” Li 6 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

2006). The record supports the IJ’s conclusion that

Jamarjashvili did not adequately explain how she was able to

identify police officers out of uniform. She testified that

police officers in civilian clothes attacked her at least

five times. When asked how she could identify them as police

officers, she failed to give a direct or responsive answer:

she reiterated that they were not dressed like police officers

and posited that their physical appearances and the way they

spoke set them apart. Accordingly, the IJ reasonably viewed

her demeanor as undermining her credibility. See Tu Lin v.

Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness

is . . . one of the many outward signs a fact-finder may

consider in evaluating demeanor and in making an assessment

of credibility.”).

Furthermore, the agency reasonably found that

Jamarjashvili failed to rehabilitate her testimony with

reliable corroborating evidence. “An applicant’s failure

to corroborate . . . her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already 7 been called into question.” Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007). First, the IJ was permitted

to afford witness statements limited weight because their

authors were not available for cross examination. See Y.C.

v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (reasoning

that courts “generally defer to the agency’s evaluation of

the weight to be afforded an applicant’s documentary

evidence” and deferring to agency’s decision to give

limited weight to letter from applicant’s spouse in China).

Second, the IJ was permitted to give the letters from

the Ministry of Internal Affairs diminished weight. Id. at

332. Jamarjashvili rightfully notes that 8 C.F.R. § 1287.6 is

not the sole method of authenticating a foreign document and

that it would be difficult to authenticate documents from her

alleged persecutor. See Cao He Lin v. U.S. Dep’t of Justice,

428 F.3d 391, 404 (2d Cir. 2005). Her argument that the IJ

should have allowed her to “attempt to authenticate the

documents in some other fashion,” PB at 17, fails to persuade

given that she had more than six years to authenticate the

documents between the time she filed her application and her

merits hearing. Even if fully credited, the documents are 8 not probative of her alleged persecution because they show

that she was instructed to report for questioning as a suspect

but do not specify what she was suspected of having done.

See Jin Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010)

(reasoning that prosecution is not persecution absent

evidence that prosecution is a pretext to target the applicant

on account of a protected ground).

Given the inconsistencies relating to the alleged

incidents of persecution, Jamarjashvili’s vague responses,

and the insufficient corroborating evidence, the totality of

the circumstances supports the adverse credibility

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 166-67. That determination is dispositive

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

three claims rely on Jamarjashvili’s credibility. See Paul

v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

Ineffective Assistance of Counsel

Finally, despite her attorney’s errors, Jamarjashvili

failed to establish ineffective assistance of counsel. To

demonstrate ineffective assistance, an applicant must show

that counsel’s allegedly deficient performance prejudiced 9 her. See Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.

2010). Jamarjashvili argues that her attorney failed to

highlight and tab background evidence, but fails to establish

prejudice because she did not identify evidence that would

have changed the outcome of her case had the IJ afforded it

more weight. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir.

1993) (reasoning that, to allege prejudice, petitioner must

show that “result would have been different” had counsel not

erred). Similarly, although she argues that she was not able

to fully present her case before the IJ because her attorney

interrupted her cross examination, she does not identify what

information she was unable to convey to the IJ.

For the foregoing reasons, the petition for review is

DENIED. The motion for a stay of removal is DISMISSED as

moot.

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