17-4012 Kamilova v. Barr BIA Leeds, IJ A205 444 888 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 14th day of August, two thousand nineteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 AMIRA TEMIROVNA KAMILOVA, 14 Petitioner, 15 16 v. 17-4012 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: Nicholas J. Mundy, Nicholas J. 24 Mundy, Esq., PLLC, Brooklyn, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Briena L. 28 Strippoli, Senior Litigation 29 Counsel; Deitz P. Lefort, Trial
* The Clerk of the Court is respectfully requested to conform the case caption to the above. 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Amira Temirovna Kamilova, a native and citizen
10 of Uzbekistan, seeks review of a November 27, 2017, decision
11 of the BIA affirming a March 21, 2017, decision of an
12 Immigration Judge (“IJ”) denying her asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”), and denying her motion to remand. In re Amira
15 Temirovna Kamilova, No. A205 444 888 (B.I.A. Nov. 27, 2017),
16 aff’g No. A205 444 888 (Immig. Ct. N.Y. City Mar. 21, 2017).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
24 F.3d 510, 513 (2d Cir. 2009). The agency did not err in
2 1 concluding that Kamilova failed to satisfy her burden of proof
2 for asylum, withholding of removal, and CAT relief based on
3 her claims that she (a) suffered past persecution, namely
4 because local government officials in Uzbekistan harassed her
5 when she worked as a school director on account of her Tajik
6 ethnicity and (b) has a well-founded fear of future
7 persecution, namely because officials will harm her in the
8 future on account of her Tajik ethnicity, her overstay of her
9 Uzbek exit visa, and her application for asylum.
10 A. Past Persecution
11 A valid past persecution claim can be based on harm other
12 than threats to life or freedom, including “non-life-
13 threatening violence and physical abuse,” Beskovic v.
14 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (alteration
15 and internal quotation marks omitted), but the harm must be
16 sufficiently severe, rising above “mere harassment,”
17 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
18 Cir. 2006). “‘[H]arassment’ is ‘words, conduct, or action
19 (usually repeated or persistent) that, being directed at a
20 specific person, annoys, alarms, or causes substantial
21 emotional distress in that person and serves no legitimate
22 purpose.’” Id. (alterations omitted)(quoting Harassment,
3 1 Black’s Law Dictionary 721 (7th ed. 1999)). In evaluating a
2 past persecution claim, the agency must consider the harm
3 suffered in the aggregate. Poradisova v. Gonzales, 420 F.3d
4 70, 79-80 (2d Cir. 2005).
5 The agency did not err in concluding that, even
6 considered in the aggregate, officials berating Kamilova in
7 front of others at work and a prosecutor questioning her about
8 a radicalized student was not sufficiently extreme to rise
9 beyond harassment to the level of persecution. See
10 Ivanishvili, 433 F.3d at 341; see also Mei Fun Wong v. Holder,
11 633 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that
12 persecution is an extreme concept that does not include every
13 sort of treatment our society regards as offensive.”
14 (internal quotation marks omitted)). Further, the agency did
15 not err in declining to consider the mafia’s murder of
16 Kamilova’s brother in Moscow based on his refusal to give up
17 his successful businesses in Uzbekistan because she was not
18 targeted for the same reason or present during his murder.
19 See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007)
20 (noting that persecution of a family member may constitute
21 persecution to an applicant only if the two share “the
22 characteristic that motivated persecutors” and the applicant
4 1 was “within the zone of risk when the family member was
2 harmed”); see also Shi Liang Lin v. U.S. Dep’t of Justice,
3 494 F.3d 296, 308 (2d Cir. 2007).
4 B. Well-Founded Fear of Future Persecution
5 Absent past persecution, an alien may establish
6 eligibility for asylum by demonstrating a well-founded fear
7 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must
8 be both subjectively credible and objectively reasonable,
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
10 To demonstrate a well-founded fear, an applicant must show
11 either “a reasonable possibility . . . she would be singled
12 out individually for persecution” or that the country of
13 removal has a “pattern or practice” of persecuting
14 individuals similarly situated to her. 8 C.F.R.
15 § 1208.13(b)(2)(iii). “Pattern-and-practice analysis
16 affords a petitioner who cannot credibly demonstrate a
17 reasonable possibility that [s]he will be targeted as an
18 individual for future persecution an alternative means to
19 demonstrate that h[er] fear of persecution is objectively
20 reasonable.” Jian Hui Shao v.
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17-4012 Kamilova v. Barr BIA Leeds, IJ A205 444 888 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 14th day of August, two thousand nineteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 AMIRA TEMIROVNA KAMILOVA, 14 Petitioner, 15 16 v. 17-4012 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: Nicholas J. Mundy, Nicholas J. 24 Mundy, Esq., PLLC, Brooklyn, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Briena L. 28 Strippoli, Senior Litigation 29 Counsel; Deitz P. Lefort, Trial
* The Clerk of the Court is respectfully requested to conform the case caption to the above. 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Amira Temirovna Kamilova, a native and citizen
10 of Uzbekistan, seeks review of a November 27, 2017, decision
11 of the BIA affirming a March 21, 2017, decision of an
12 Immigration Judge (“IJ”) denying her asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”), and denying her motion to remand. In re Amira
15 Temirovna Kamilova, No. A205 444 888 (B.I.A. Nov. 27, 2017),
16 aff’g No. A205 444 888 (Immig. Ct. N.Y. City Mar. 21, 2017).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
24 F.3d 510, 513 (2d Cir. 2009). The agency did not err in
2 1 concluding that Kamilova failed to satisfy her burden of proof
2 for asylum, withholding of removal, and CAT relief based on
3 her claims that she (a) suffered past persecution, namely
4 because local government officials in Uzbekistan harassed her
5 when she worked as a school director on account of her Tajik
6 ethnicity and (b) has a well-founded fear of future
7 persecution, namely because officials will harm her in the
8 future on account of her Tajik ethnicity, her overstay of her
9 Uzbek exit visa, and her application for asylum.
10 A. Past Persecution
11 A valid past persecution claim can be based on harm other
12 than threats to life or freedom, including “non-life-
13 threatening violence and physical abuse,” Beskovic v.
14 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (alteration
15 and internal quotation marks omitted), but the harm must be
16 sufficiently severe, rising above “mere harassment,”
17 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
18 Cir. 2006). “‘[H]arassment’ is ‘words, conduct, or action
19 (usually repeated or persistent) that, being directed at a
20 specific person, annoys, alarms, or causes substantial
21 emotional distress in that person and serves no legitimate
22 purpose.’” Id. (alterations omitted)(quoting Harassment,
3 1 Black’s Law Dictionary 721 (7th ed. 1999)). In evaluating a
2 past persecution claim, the agency must consider the harm
3 suffered in the aggregate. Poradisova v. Gonzales, 420 F.3d
4 70, 79-80 (2d Cir. 2005).
5 The agency did not err in concluding that, even
6 considered in the aggregate, officials berating Kamilova in
7 front of others at work and a prosecutor questioning her about
8 a radicalized student was not sufficiently extreme to rise
9 beyond harassment to the level of persecution. See
10 Ivanishvili, 433 F.3d at 341; see also Mei Fun Wong v. Holder,
11 633 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that
12 persecution is an extreme concept that does not include every
13 sort of treatment our society regards as offensive.”
14 (internal quotation marks omitted)). Further, the agency did
15 not err in declining to consider the mafia’s murder of
16 Kamilova’s brother in Moscow based on his refusal to give up
17 his successful businesses in Uzbekistan because she was not
18 targeted for the same reason or present during his murder.
19 See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007)
20 (noting that persecution of a family member may constitute
21 persecution to an applicant only if the two share “the
22 characteristic that motivated persecutors” and the applicant
4 1 was “within the zone of risk when the family member was
2 harmed”); see also Shi Liang Lin v. U.S. Dep’t of Justice,
3 494 F.3d 296, 308 (2d Cir. 2007).
4 B. Well-Founded Fear of Future Persecution
5 Absent past persecution, an alien may establish
6 eligibility for asylum by demonstrating a well-founded fear
7 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must
8 be both subjectively credible and objectively reasonable,
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
10 To demonstrate a well-founded fear, an applicant must show
11 either “a reasonable possibility . . . she would be singled
12 out individually for persecution” or that the country of
13 removal has a “pattern or practice” of persecuting
14 individuals similarly situated to her. 8 C.F.R.
15 § 1208.13(b)(2)(iii). “Pattern-and-practice analysis
16 affords a petitioner who cannot credibly demonstrate a
17 reasonable possibility that [s]he will be targeted as an
18 individual for future persecution an alternative means to
19 demonstrate that h[er] fear of persecution is objectively
20 reasonable.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 150 n.6
21 (2d Cir. 2008).
22 The agency found that Kamilova failed to satisfy her
5 1 burden of proving that she would be singled out for
2 persecution because she did not adequately corroborate her
3 testimony that government officials looked for her after she
4 left Uzbekistan, or that there was a pattern or practice of
5 persecution of ethnic Tajiks or individuals who return from
6 the United States having violated the terms of an Uzbek exit
7 visa or having applied for asylum. As the Government argues,
8 Kamilova does not challenge these findings in her opening
9 brief and thus we need not consider them. See Yueqing Zhang
10 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
11 (noting that the Court does not consider issues that a
12 petitioner abandons by failing to raise them in an opening
13 brief).
14 We note, however, that the agency did not err in
15 requiring Kamilova to corroborate her claim that officials
16 had interrogated and harmed her son and father while looking
17 for her because her testimony was vague and evasive in this
18 regard. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of
19 the applicant may be sufficient to sustain the applicant’s
20 burden without corroboration, but only if the applicant
21 satisfies the trier of fact that the applicant’s testimony is
22 credible, is persuasive, and refers to specific facts
6 1 sufficient to demonstrate that the applicant is a refugee.”);
2 see also Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir. 2018).
3 Further, although Kamilova submitted letters from her husband
4 and son, those letters did not corroborate her testimony but
5 rather undermined it given inconsistencies among them. See
6 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that inconsistencies
7 between an applicant’s and witness’s statements supports an
8 adverse credibility determination).
9 The agency also did not err in determining that the
10 country conditions evidence failed to establish a well-
11 founded fear of persecution by showing a pattern or practice
12 of persecution of Tajiks or Uzbek nationals who have
13 overstayed their Uzbek exit visa and applied for asylum. A
14 pattern or practice of persecution is the “systemic or
15 pervasive” persecution of a group. In re A-M-, 23 I. & N.
16 Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508 F.3d 88,
17 92-93 (2d Cir. 2007) (recognizing as reasonable the
18 “systemic, pervasive, or organized” standard for finding a
19 pattern or practice of persecution claim). But Kamilova’s
20 evidence described discrimination against Tajiks and only one
21 incident of persecution against a Tajik individual, and did
22 not discuss the persecution of any individuals who overstayed
7 1 an Uzbek exit visa or who had applied for asylum in the United
2 States.
3 The agency’s conclusion that Kamilova failed to establish
4 a well-founded fear of persecution was dispositive of asylum,
5 withholding of removal, and CAT relief because all three
6 claims were based on the same factual predicates. See Paul
7 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Moreover,
8 the record equally supports the agency’s separate finding
9 that Kamilova failed to satisfy her burden for CAT relief
10 because she failed to submit any evidence that she would be
11 singled out for torture. See Mu-Xing Wang v. Ashcroft, 320
12 F.3d 130, 144 (2d Cir. 2003) (noting requirement that CAT
13 applicant establish that “someone in his particular alleged
14 circumstances is more likely than not to be tortured”).
15 We do not reach the BIA’s denial of Kamilova’s motion to
16 remand because she does not raise it in her opening brief.
17 See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT: 21 Catherine O=Hagan Wolfe Clerk of Court 22 23