Mirpochoeva v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: July 13, 2022
• Docket: 19-2757
• Status: Unpublished

Opinion

19-2757 Mirpochoeva v. Garland BIA Lopez-Defillo, IJ A205 899 163/164 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 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 13th day of July, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C. WESLEY, EUNICE C. LEE, Circuit Judges. _____________________________________

OLESIA MIRPOCHOEVA, ABDURAHIM MIRPOCHOEV, Petitioners,

v. 19-2757 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONERS: Thomas E. Moseley, Law Offices of Thomas E. Moseley, Newark, NJ.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Enitan O. Otunla, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.

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 Olesia Mirpochoeva, a native of the former

Soviet Union and citizen of Russia, and her husband Abdurahim

Mirpochoev, a native and citizen of Tajikistan, seek review

of an August 13, 2019, decision of the BIA affirming a

December 21, 2017, decision of an Immigration Judge (“IJ”),

denying Mirpochoeva’s application for asylum on which

Mirpochoev was a derivative beneficiary. 1 In re Olesia

Mirpochoeva, Abdurahim Mirpochoev, Nos. A 205 899 163/164

(B.I.A. Aug. 13, 2019), aff’g Nos. A 205 899 163/164 (Immig.

Ct. N.Y. City Dec. 21, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

Mirpochoeva applied for withholding of removal and relief 1

under the Convention Against Torture before the agency, but she petitions for review only of the denial of the asylum claim on which Mirpochoev is a derivative beneficiary. 2 of this petition.

We have reviewed the IJ’s decision as modified by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520,

522 (2d Cir. 2005). We review factual findings for

substantial evidence and questions of law and application of

law to fact de novo. See Paloka v. Holder, 762 F.3d 191, 195

(2d Cir. 2014). An asylum applicant has the burden to

demonstrate that she suffered past persecution, or has a well-

founded fear of future persecution, on account of race,

religion, nationality, membership in a particular social

group, or political opinion. See 8 U.S.C. § 1158(b); 8 C.F.R.

§ 1208.13(b).

Mirpochoeva argues that she established past persecution

on account of her political opinion, and that she has a well-

founded fear of future persecution on that basis. For the

reasons set forth below, we find no error in the agency’s

denial of relief.

I. Past Persecution

A valid past persecution claim may be based on harm other

than “threats to life or freedom,” including “non-life-

threatening violence and physical abuse.” Beskovic v.

Gonzales, 467 F.3d 223, 225 (2d Cir. 2006) (citation, internal 3 quotation marks, and alteration omitted). But “persecution

is an extreme concept that does not include every sort of

treatment our society regards as offensive.” Mei Fun Wong v.

Holder, 633 F.3d 64, 72 (2d Cir. 2011) (citation and internal

quotation marks omitted). The harm must therefore be

sufficiently severe, rising above “mere harassment.”

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

Cir. 2006).

Mirpochoeva contends that the BIA erred as a matter of

law in finding that her detention did not constitute

persecution under Beskovic. But in Beskovic, we noted that

“the difference between harassment and persecution is

necessarily one of degree,” and we did not hold that all

physical harm while detained on account of a protected ground

is per se persecution. Beskovic, 467 F.3d at 226 (citation

and internal quotation marks omitted); see id. (“[A] minor

beating . . . may rise to the level of persecution if it

occurred in the context of an arrest or detention on the basis

of a protected ground.” (emphasis added) (quotation marks

omitted)). Indeed, “[w]e have never held that a beating that

occurs within the context of an arrest or detention

constitutes persecution per se.” Jian Qiu Liu v. Holder, 632 4 F.3d 820, 822 (2d Cir. 2011). “Rather, . . . a beating that

occurs in the context of an arrest or detention may constitute

persecution, and . . . the agency must be keenly sensitive to

context in evaluating whether the harm suffered rises to the

level of persecution.” Id. (citation and quotation marks

omitted).

Here, the agency reasonably determined that the degree

of harm Mirpochoeva suffered, albeit while detained on a

protected ground, did not amount to past persecution.

Mirpochoeva testified that she was arrested at a political

protest, detained overnight, and slapped twice in the face,

resulting in a red mark but no injury requiring medical

attention. On these facts, the agency did not err by

concluding that this harm was not sufficiently severe to

establish past persecution. Cf. Baba v. Holder, 569 F.3d 79,

81–82, 86 (2d Cir. 2009) (finding past persecution where the

petitioner was detained on account of his participation in

political demonstrations, held in a small room with more than

ten people, put on a near-starvation diet, provided no access

to a bathroom, beaten daily by police with wooden sticks, and

threatened with death).

II. Future Persecution 5 Where, as here, an applicant fails to demonstrate past

persecution, she bears the burden to establish a well-founded

fear of future persecution. See 8 C.F.R. § 1208.13(b)(1).

Mirpochoeva raises three arguments in support of that claim:

that the agency applied the wrong standard, that the agency

erred by declining to follow her expert witness’s conclusion,

and that the agency erred by determining that her marriage to

Mipochoev and her status as a Russian who has spent time in

the United States do not give rise to a well-founded fear of

future persecution. As set forth below, each argument fails.

To establish a well-founded fear of future persecution,

an applicant must “establish that h[er] fear is objectively

reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178

(2d Cir. 2004). “Objective reasonableness entails a showing

that a reasonable person in the petitioner’s circumstances

would fear persecution if returned to h[er] native country.”

Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005).

“An alien’s fear may be well-founded even if there is only a

slight, though discernible, chance of persecution,” Diallo v.

INS, 232 F.3d 279, 284 (2d Cir. 2000), but a fear is not

objectively reasonable if it lacks “solid support” in the

record and is merely “speculative at best,” Jian Xing Huang, 6 421 F.3d at 129.

The record does not support Mirpochoeva’s argument that

the agency applied the wrong standard. The BIA cited Diallo

and acknowledged that a fear of future persecution “may be

well-founded even if there is only a slight, though

discernable, chance of persecution.” Addendum to Br. of

Petitioners at 23–24. It then concluded that Mirpochoeva

failed to establish an objectively reasonable fear based on

her political opinion. The record supports the conclusion

that Mirpochoeva’s fear of future harm on account of her

political opinion was speculative.

The IJ also did not err in rejecting the expert witness’s

conclusion that Mirpochoeva would experience persecution on

account of her political opinion. Neither the expert’s

testimony nor his written report included examples of

individuals similarly situated to Mirpochoeva being

persecuted by the Russian government. The expert referenced

individuals who were arrested for participating in anti-

government rallies and protests, as Mirpochoeva had been, but

he did not state that those individuals were subsequently

monitored, harassed, interrogated, or repeatedly arrested by

the Russian government after they were released. His examples 7 of the Russian government imprisoning or assassinating people

involved prominent scholars, journalists, human rights

activists, and political opponents. Accordingly, the IJ did

not err by concluding that the expert’s evidence did not

provide “solid support” for Mirpochoeva’s fear of future

persecution based on her past arrest for attending one

political protest, particularly given that she had not

otherwise engaged in any political activities. See Jian Xing

Huang, 421 F.3d at 129.

Finally, Mirpochoeva asserted before the agency that she

would suffer persecution on account of her marriage because

Mirpochoev was a non-Russian and a Muslim and because she had

spent a substantial amount of time in the United States. Her

argument concerning these claims is brief and unclear, but

she appears to contend that the BIA erred by finding both

that her fear on these grounds was not objectively reasonable

and that the feared harm would not amount to persecution.

There is no error in that determination because Mirpochoeva

had the burden to show that her fear was well-founded, i.e.,

that it was objectively reasonable, and that the feared harm

would rise to the level of persecution. See Ivanishvili, 433

F.3d at 341; Ramsameachire, 357 F.3d at 178. She does not 8 otherwise challenge the agency’s denial of these claims. See

Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on

appeal.”).

Finally, we emphasize that in rendering this decision,

we are constrained to “decide the petition only on the

administrative record on which the order of removal is based.”

8 U.S.C. § 1252(b)(4)(A). We have not, therefore, taken into

account the sweeping changes that have occurred in Russia in

recent months, which the IJ and BIA were not able to consider.

We note, however, that “[a]n alien may file one motion to

reopen proceedings,” id. § 1229a(c)(7)(A), and that there is

no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 1158 or 1231(b)(3) of this title and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding,

id. § 1229a(c)(7)(C)(ii).

9 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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