FILED NOT FOR PUBLICATION MAY 26 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGOR VLADIMIROVICH No. 21-864 LEKOMTSEV,
Petitioner, Agency No. A216-160-251
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 11, 2023 Seattle, Washington
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Igor Vladimirovich Lekomtsev, a native and citizen of Russia, petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision of an Immigration Judge (IJ) denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition.
The agency’s adverse credibility determination is supported by substantial
evidence. The agency based its determination in part on inconsistencies between
Lekomtsev’s 2017 application for asylum (the 2017 Application) and his 2020
application for asylum, withholding of removal, and CAT relief (the 2020
Application). The 2017 Application claimed past persecution and fear of future
persecution on account of his sexual orientation, and reported only one past
experience of harm: a 2016 arrest for “propaganda of homosexuality.” After the
government learned that Lekomtsev was wanted in Russia for allegedly
committing an online sex crime against a minor under the age of 14 (for which he
was arrested in 2015), Lekomtsev filed the 2020 Application, in which he disclosed
the 2015 arrest and prosecution for the first time, as an additional past experience
of harm. In explaining the inconsistency between the two applications to the IJ,
Lekomtsev stated, among other reasons, that he deliberately omitted his 2015 arrest
and prosecution because he feared he would be “deported right away” if he
disclosed that there was an active criminal case against him in Russia for an
alleged online sex crime against a minor. Lekomtsev’s admission that he
2 deliberately omitted highly relevant information that goes “to the heart” of his
claim for persecution based on sexual orientation is substantial evidence
supporting the agency’s adverse credibility determination. Shrestha v. Holder, 590
F.3d 1034, 1046–47 (9th Cir. 2010).
The agency’s adverse credibility determination is also supported by the
discrepancies between Lekomtsev’s written declaration accompanying his 2020
Application and his testimony in immigration proceedings. In his declaration,
Lekomtsev stated that “it was likely that the [prosecution for sexual abuse of a
minor] would be thrown out” because the Russian government had yet to produce
the requisite second witness against him. By contrast, in his testimony before the
IJ, Lekomtsev admitted the Russian government had procured the second witness
and that he was likely to be convicted. Such “[i]nconsistencies . . . may support an
adverse credibility determination.” Dong v. Garland, 50 F.4th 1291, 1297 (9th
Cir. 2022); see also 8 U.S.C. § 1158(b)(1)(B)(iii).
We also uphold the agency’s denial of Lekomtsev’s applications for asylum,
8 U.S.C. § 1158(b)(2)(A)(iii), withholding of removal, id. § 1231(b)(3)(B)(iii), and
withholding of removal under the CAT, 8 C.F.R. § 1208.16(c)(4), (d)(2), based on
the serious nonpolitical crime bar to eligibility, 8 U.S.C. § 1158(b)(2)(A)(iii). The
agency’s conclusion that “there are serious reasons for believing” (akin to probable
3 cause), that Lekomtsev “committed a serious nonpolitical crime before arriving in
the United States,” Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011), is supported
by the Interpol Red Notice for Lekomtsev’s arrest, which contained biometric
evidence such as Lekomtsev’s fingerprints and which set forth the details of the
online sex crime against a minor younger than 14. The agency’s conclusion is
further supported by a Russian criminal resolution (akin to an arrest warrant) and
Lekomtsev’s admission that he fled Russia before a hearing after learning that the
Russian government had secured two witnesses to testify against him. See
Villalobos Sura v. Garland, 8 F.4th 1161, 1167–68 (9th Cir. 2021). Taken
together, this evidence is sufficient to support the agency’s determination that there
was a “fair probability” that Lekomtsev had committed a serious nonpolitical
crime, Gonzalez-Castillo v. Garland, 47 F.4th 971, 977 (9th Cir. 2022), rendering
him ineligible as a matter of law for relief other than deferral under the CAT, 8
C.F.R. § 1208.16(c)(4), (d)(2); see also Villalobos Sura, 8 F.4th at 1167.1
The agency did not err in determining that Lekomtsev filed a frivolous
asylum application, 8 U.S.C. § 1158(d)(6), because he deliberately fabricated a
“material element” of his claim for asylum, Yan Liu v. Holder, 640 F.3d 918, 927
1 Lekomtsev could have rebutted the agency’s determination by showing by a preponderance of evidence that the bar does not apply, see Villalobos Sura, 8 F.4th 1168, but was unable to do so because his testimony was not credible. 4 (9th Cir. 2011) (citation omitted), which we have defined as “a constituent part of a
claim that must be proved for the claim to succeed,” Udo v. Garland, 32 F.4th
1198, 1206 (9th Cir. 2022) (cleaned up). Because “a well founded fear of
persecution” is a constituent part of an asylum claim, Lekomtsev’s deliberate
omission of his 2015 arrest for an online sex crime with a minor from the 2017
Application—which was integrally related to his claim of past and future
persecution for his sexual orientation—constitutes the deliberate fabrication of a
material element of his claim. Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000).
We reject Lekomtsev’s argument that the 2020 Application merely
supplemented and corrected the 2017 Application because the 2020 Application
was an entirely new application: it introduced Lekomtsev’s 2015 arrest for the first
time and was therefore “predicated on a new . . . factual basis.” Matter of M-A-F-,
26 I. & N. Dec. 651, 655 (BIA 2015). Nor is it relevant that the 2017 Application
“remained unadjudicated” until Lekomtsev filed the 2020 Application, because
“the only action required to trigger a frivolousness inquiry is the filing of an
asylum application,” and “[t]here is no requirement . . .
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FILED NOT FOR PUBLICATION MAY 26 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGOR VLADIMIROVICH No. 21-864 LEKOMTSEV,
Petitioner, Agency No. A216-160-251
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 11, 2023 Seattle, Washington
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Igor Vladimirovich Lekomtsev, a native and citizen of Russia, petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision of an Immigration Judge (IJ) denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition.
The agency’s adverse credibility determination is supported by substantial
evidence. The agency based its determination in part on inconsistencies between
Lekomtsev’s 2017 application for asylum (the 2017 Application) and his 2020
application for asylum, withholding of removal, and CAT relief (the 2020
Application). The 2017 Application claimed past persecution and fear of future
persecution on account of his sexual orientation, and reported only one past
experience of harm: a 2016 arrest for “propaganda of homosexuality.” After the
government learned that Lekomtsev was wanted in Russia for allegedly
committing an online sex crime against a minor under the age of 14 (for which he
was arrested in 2015), Lekomtsev filed the 2020 Application, in which he disclosed
the 2015 arrest and prosecution for the first time, as an additional past experience
of harm. In explaining the inconsistency between the two applications to the IJ,
Lekomtsev stated, among other reasons, that he deliberately omitted his 2015 arrest
and prosecution because he feared he would be “deported right away” if he
disclosed that there was an active criminal case against him in Russia for an
alleged online sex crime against a minor. Lekomtsev’s admission that he
2 deliberately omitted highly relevant information that goes “to the heart” of his
claim for persecution based on sexual orientation is substantial evidence
supporting the agency’s adverse credibility determination. Shrestha v. Holder, 590
F.3d 1034, 1046–47 (9th Cir. 2010).
The agency’s adverse credibility determination is also supported by the
discrepancies between Lekomtsev’s written declaration accompanying his 2020
Application and his testimony in immigration proceedings. In his declaration,
Lekomtsev stated that “it was likely that the [prosecution for sexual abuse of a
minor] would be thrown out” because the Russian government had yet to produce
the requisite second witness against him. By contrast, in his testimony before the
IJ, Lekomtsev admitted the Russian government had procured the second witness
and that he was likely to be convicted. Such “[i]nconsistencies . . . may support an
adverse credibility determination.” Dong v. Garland, 50 F.4th 1291, 1297 (9th
Cir. 2022); see also 8 U.S.C. § 1158(b)(1)(B)(iii).
We also uphold the agency’s denial of Lekomtsev’s applications for asylum,
8 U.S.C. § 1158(b)(2)(A)(iii), withholding of removal, id. § 1231(b)(3)(B)(iii), and
withholding of removal under the CAT, 8 C.F.R. § 1208.16(c)(4), (d)(2), based on
the serious nonpolitical crime bar to eligibility, 8 U.S.C. § 1158(b)(2)(A)(iii). The
agency’s conclusion that “there are serious reasons for believing” (akin to probable
3 cause), that Lekomtsev “committed a serious nonpolitical crime before arriving in
the United States,” Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011), is supported
by the Interpol Red Notice for Lekomtsev’s arrest, which contained biometric
evidence such as Lekomtsev’s fingerprints and which set forth the details of the
online sex crime against a minor younger than 14. The agency’s conclusion is
further supported by a Russian criminal resolution (akin to an arrest warrant) and
Lekomtsev’s admission that he fled Russia before a hearing after learning that the
Russian government had secured two witnesses to testify against him. See
Villalobos Sura v. Garland, 8 F.4th 1161, 1167–68 (9th Cir. 2021). Taken
together, this evidence is sufficient to support the agency’s determination that there
was a “fair probability” that Lekomtsev had committed a serious nonpolitical
crime, Gonzalez-Castillo v. Garland, 47 F.4th 971, 977 (9th Cir. 2022), rendering
him ineligible as a matter of law for relief other than deferral under the CAT, 8
C.F.R. § 1208.16(c)(4), (d)(2); see also Villalobos Sura, 8 F.4th at 1167.1
The agency did not err in determining that Lekomtsev filed a frivolous
asylum application, 8 U.S.C. § 1158(d)(6), because he deliberately fabricated a
“material element” of his claim for asylum, Yan Liu v. Holder, 640 F.3d 918, 927
1 Lekomtsev could have rebutted the agency’s determination by showing by a preponderance of evidence that the bar does not apply, see Villalobos Sura, 8 F.4th 1168, but was unable to do so because his testimony was not credible. 4 (9th Cir. 2011) (citation omitted), which we have defined as “a constituent part of a
claim that must be proved for the claim to succeed,” Udo v. Garland, 32 F.4th
1198, 1206 (9th Cir. 2022) (cleaned up). Because “a well founded fear of
persecution” is a constituent part of an asylum claim, Lekomtsev’s deliberate
omission of his 2015 arrest for an online sex crime with a minor from the 2017
Application—which was integrally related to his claim of past and future
persecution for his sexual orientation—constitutes the deliberate fabrication of a
material element of his claim. Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000).
We reject Lekomtsev’s argument that the 2020 Application merely
supplemented and corrected the 2017 Application because the 2020 Application
was an entirely new application: it introduced Lekomtsev’s 2015 arrest for the first
time and was therefore “predicated on a new . . . factual basis.” Matter of M-A-F-,
26 I. & N. Dec. 651, 655 (BIA 2015). Nor is it relevant that the 2017 Application
“remained unadjudicated” until Lekomtsev filed the 2020 Application, because
“the only action required to trigger a frivolousness inquiry is the filing of an
asylum application,” and “[t]here is no requirement . . . that the alien subsequently
follow through with the application until a final decision is made on the merits.”
Matter of X-M-C-, 25 I. & N. Dec. 322, 324 (BIA 2010). Because Lekomtsev
knowingly filed a frivolous application, he is “permanently ineligible for any
5 benefits under [the Immigration and Nationality Act],” including asylum and
withholding of removal. 8 U.S.C. § 1158(d)(6).
Finally, the agency did not err in denying Lekomtsev’s request for deferral
of removal under the CAT. Because we uphold the agency’s adverse credibility
determination, Lekomtsev must show that other evidence in the record “alone
compelled the conclusion that [he] is more likely than not to be tortured.”
Shrestha, 590 F.3d at 1048–49 (citation omitted). The record, which included
country conditions reports on Russia as well as a letter from a Russian human
rights attorney, did not contain such compelling evidence because it showed
extrajudicial killings and torture by local government officials only in Chechnya,
and showed abuses against human rights activists and critics of government
policies, but not on the basis of sexual orientation alone. Because Lekomtsev did
not live in Chechnya and is not a human rights activist or government critic, the
agency’s determination that Lekomtsev did not show an individualized risk of
torture is supported by substantial evidence. See, e.g., Mukulumbutu v. Barr, 977
F.3d 924, 927–28 (9th Cir. 2020).2
PETITION DENIED.
2 Lekomtsev’s motion for a stay of removal is denied. 6