Misirbiev v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: October 27, 2020
• Docket: 18-265
• Status: Unpublished

Opinion

18-265 Misirbiev v. Barr BIA Sichel, IJ A200 736 767 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 27th day of October, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 GERARD E. LYNCH, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LEMI MISIRBIEV, 14 Petitioner, 15 16 v. 18-265 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Tatiana S. Aristova, Plainsboro, 24 NJ. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Lyle D. Jentzer, Senior 28 Counsel for National Security; 29 Daniel I. Smulow, Senior Counsel 1 for National Security, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, 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 Lemi Misirbiev, a native of the former Soviet

10 Union and a citizen of Russia, seeks review of a January 3,

11 2018, decision of the BIA affirming a July 7, 2016, decision

12 of an Immigration Judge (“IJ”) denying Misirbiev’s

13 application for asylum, withholding of removal, and relief

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

15 Misirbiev, No. A 200 736 767 (B.I.A. Jan. 3, 2018), aff’g No.

16 A 200 736 767 (Immig. Ct. N.Y. City July 7, 2016). He also

17 seeks review of a January 3, 2018 decision of the BIA denying

18 reopening and reconsideration. In re Misirbiev, No. A 200

19 736 767 (B.I.A. Jan. 3, 2018). We assume the parties’

20 familiarity with the underlying facts and procedural history

21 in this case.

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

23 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 2 1 520, 522 (2d Cir. 2005). The standards of review are well

2 established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.

3 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse

4 credibility determination for substantial evidence);

5 Debeatham v. Holder, 602 F.3d 481, 484 (2d Cir. 2010)

6 (reviewing denial of reconsideration for abuse of

7 discretion); Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69

8 (2d Cir. 2008) (reviewing denial of reopening for abuse of

9 discretion and related country conditions findings for

10 substantial evidence).

11 Adverse Credibility Determination

12 The agency may, considering the totality of the

13 circumstances, base a credibility finding on an asylum

14 applicant’s “demeanor, candor, or responsiveness,” the

15 plausibility of his account, and inconsistencies in his

16 statements or between his statements and other evidence,

17 without regard to whether they go “to the heart of the

18 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We

19 defer . . . to an IJ’s credibility determination unless, from

20 the totality of the circumstances, it is plain that no

21 reasonable fact-finder could make such an adverse credibility

3 1 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

2 2008); accord Hong Fei Gao, 891 F.3d at 76. The agency’s

3 adverse credibility determination is supported by substantial

4 evidence.

5 First, the agency reasonably relied on the fact that

6 Misirbiev’s testimony omitted any mention of the December

7 2005 incident, described at length in his application, during

8 which he allegedly was kidnapped by the police, threatened

9 with the death of his family members, beaten to

10 unconsciousness with steel rods, chained to a radiator for

11 hours in freezing temperatures, moved to a second location

12 where he was again beaten and threatened with death, and then

13 left on the outskirts of town, after which he paid his former

14 captors a large sum of money. 1 See Xiu Xia Lin, 534 F.3d at

15 166 n.3 (“A lacuna in an applicant’s testimony . . . can serve

16 as a proper basis for an adverse credibility

17 determination.”). Misirbiev’s application included numerous

18 allegations of past persecution, but he addressed in his

19 testimony only the last two incidents during which he claimed

1 We note that the IJ describes this incident as occurring in October 2005, CAR 462, but the Petitioner’s application describes this incident as occurring in December 2005. See CAR 1224. 4 1 men came to his office, beat him, and took money from his

2 safe.

3 Misirbiev argues that the omission of the December 2005

4 incident does not impugn his credibility because the IJ asked

5 that he limit the scope of his testimony, he was not

6 specifically asked to describe this incident, and the

7 omission therefore reflected only “the IJ’s own failure to

8 inquire.” Petitioner’s Br. 14. But the IJ only requested

9 that Misirbiev limit his testimony in light of portions of

10 the affidavit predating Misirbiev’s birth and agreed with

11 counsel that it would be appropriate to narrow his testimony

12 “to some of the latest samples of his torture and

13 persecution,” not to the single incident to which Misirbiev

14 testified. CAR 518. Misirbiev is correct that he was not

15 directly asked about the October 2005 incident; however, he

16 was asked generally why he had applied for asylum. Moreover,

17 Misirbiev had the burden to prove eligibility for relief and

18 to present evidence “without prompting from the IJ.” Chuilu

19 Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (discussing

20 an applicant’s burden to present corroborating evidence).

21 And the December 2005 incident, which included the most

5 1 extreme allegations of violence that Misirbiev recounted in

2 his application, and involved more serious abuse than the

3 incident to which he did testify, is one that a witness would

4 “reasonably have been expected to disclose” in his testimony.

5 Hong Fei Gao, 891 F.3d at 79.

6 Second, the agency reasonably concluded that Misirbiev’s

7 testimony regarding hostages held by the Chechen militia at

8 a hospital in January 1996 was inconsistent with other

9 evidence, implausible, vague, and nonresponsive. Misirbiev

10 confirmed that he was at the hospital as a militia commander,

11 but repeatedly gave nonresponsive answers when asked whether

12 he was aware that the militia used hostages as human shields,

13 and he made contradictory claims about whether civilians were

14 held by force, both at the hospital and when the fighters

15 attempted to return to Chechnya. His assertion that the

16 civilians were not taken against their will when the Chechen

17 militia left the hospital contradicted a human rights report

18 in the record, which stated that militants “used a group of

19 160 hostages as human shields.” CAR 933. Given this

20 evidence, the IJ did not err in concluding that Misirbiev was

21 “trying to obfuscate” and “minimize his culpability” during

6 1 this portion of his testimony. CAR 462-63. Contrary to

2 Misirbiev’s argument on appeal, the agency was not required

3 to attribute this testimony to Misirbiev’s “nervousness.”

4 See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

5 Cir. 2005) (recognizing that “the IJ’s ability to observe the

6 witness’s demeanor places her in the best position to evaluate

7 whether apparent problems in the witness’s testimony suggest

8 a lack of credibility or, rather, can be attributed to an

9 innocent cause such as difficulty understanding the

10 question”).

11 Third, having questioned Misirbiev’s credibility, the

12 agency reasonably relied on his failure to rehabilitate his

13 testimony with reliable corroborating evidence. “An

14 applicant’s failure to corroborate his or her testimony may

15 bear on credibility, because the absence of corroboration in

16 general makes an applicant unable to rehabilitate testimony

17 that has already been called into question.” Biao Yang v.

18 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency did

19 not err in assigning diminished weight to letters submitted

20 by Misirbiev’s family and friends because Misirbiev did not

21 adequately demonstrate how these letters came into his

7 1 possession. He presented only copies of the letters to the

2 agency, and he claimed that he had received them by email.

3 The agency reasonably questioned Misirbiev’s claim that he

4 relied on email because he believed that physical letters

5 were screened, as he testified that email was also screened,

6 and some of the authors were located outside Russia (in

7 Austria and France). Contrary to Misirbiev’s argument, he

8 was provided an opportunity to explain the omitted evidence

9 regarding the letters’ origins. The agency was not required

10 to credit Misirbiev’s explanation that he had not saved the

11 email chains showing how he had received the letters,

12 particularly as some of the letters were obtained after the

13 IJ questioned the origins of the letters already in the record

14 and Misirbiev’s counsel committed to submitting emails

15 documenting those origins. Shunfu Li v. Mukasey, 529 F.3d

16 141, 149 (2d Cir. 2008) (affording IJs “considerable

17 flexibility in determining the authenticity of . . . documents

18 from the totality of the evidence and in using documents found

19 to be authentic in making an overall assessment of the

20 credibility of a petitioner’s testimony and, ultimately, of

21 [his] persecution claim”). The remaining documents did not

8 1 corroborate his allegations of persecution. Although

2 Misirbiev argues that the agency failed to adequately

3 consider the country conditions evidence, he does not

4 identify any particular evidence in the record that the agency

5 should have addressed, and “we presume that [the agency] has

6 taken into account all of the evidence before [it], unless

7 the record compellingly suggests otherwise.” Xiao Ji Chen

8 v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir.

9 2006). 2

10 Misirbiev’s remaining arguments are meritless.

11 Misirbiev argues that the BIA should have referred his appeal

12 to a three-member panel, but he does not identify which of

13 the six bases for such a referral enumerated in 8 C.F.R.

14 § 1003.1(e)(6) is present here, and none is apparent. He

15 also asserts in passing that he is entitled to relief based

16 on his Chechen ethnicity and his recent Facebook postings

17 critical of the government. The Facebook postings were not

2 Misirbiev argues that the agency should have considered an expert’s report that he submitted after his hearing, but he does not challenge the agency’s conclusion that this report (and accompanying country conditions evidence) was not part of the record because it was filed after his hearing and closing arguments. 9 1 raised before the IJ and are therefore not a proper basis to

2 challenge the IJ’s ruling. Misirbiev does not argue that the

3 country conditions evidence establishes a pattern or practice

4 of persecution of ethnic Chechens in Russia, and he has thus

5 waived this issue. See 8 C.F.R. § 1208.13(b)(2)(iii)(A) (an

6 applicant may qualify for asylum by proving “that there is a

7 pattern or practice in his or her country . . . of persecution

8 of a group of persons similarly situated to the applicant on

9 account of race, religion, nationality, membership in a

10 particular social group, or political opinion”); Norton v.

11 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

12 sufficiently argued in the briefs are considered waived and

13 normally will not be addressed on appeal.”).

14 In sum, given the significant omissions from Misirbiev’s

15 testimony, his vague, nonresponsive, and implausible

16 responses to questioning, and the lack of reliable

17 corroborating evidence, the adverse credibility determination

18 is supported by substantial evidence. See 8 U.S.C.

19 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64. This

20 determination is dispositive of all forms of relief because

21 Misirbiev’s claims for asylum, withholding of removal, and

10 1 CAT relief all relied on the same factual predicate. See

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

3 Motion for Reconsideration

4 The BIA did not abuse its discretion in denying

5 Misirbiev’s motion for reconsideration. A motion for

6 reconsideration must specify errors of fact or law in the

7 BIA’s decision and be supported with pertinent authority, and

8 the BIA does not abuse its discretion by denying a motion to

9 reconsider that merely repeats arguments that the BIA had

10 previously rejected. See 8 C.F.R. § 1003.2(b)(1); Jin Ming

11 Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Ke Zhen

12 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

13 Misirbiev’s motion largely reiterated prior arguments, and

14 the remainder of the motion failed to specify errors of fact

15 or law in the agency’s decision.

16 Motion to Reopen

17 Finally, even if Misirbiev’s motion to reopen were

18 considered timely filed, the agency did not abuse its

19 discretion in denying reopening because Misirbiev did not

20 establish prima facie eligibility for asylum, withholding of

21 removal, or CAT relief. INS v. Abudu, 485 U.S. 94, 104 (1988)

11 1 (the BIA may deny a motion to reopen if “the movant has not

2 established a prima facie case for the underlying substantive

3 relief sought”). To demonstrate prima facie eligibility for

4 asylum, a movant “must show a realistic chance that []he will

5 be able to obtain such relief.” Jian Hui Shao, 546 F.3d at

6 168 (internal quotation marks omitted).

7 Misirbiev did not carry the “heavy burden” to make this

8 showing. Id. (quoting Abudu, 485 U.S. at 110). “[I]n order

9 to establish eligibility for relief based exclusively on

10 activities undertaken after his arrival in the United States,

11 an alien must make some showing that authorities in his

12 country of nationality are (1) aware of his activities or

13 (2) likely to become aware of his activities.” Hongsheng

14 Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008). As the

15 BIA noted, Misirbiev alleges that he learned that the Russian

16 government knew of his posts and threatened him only through

17 his wife. But the letters from Misirbiev’s family are vague—

18 they do not specify, among other things, when authorities

19 spoke to them or the nature of their threats. Further, his

20 wife’s letter, dated June 17, 2017, suggests Misirbiev had

21 published multiple dissenting Facebook posts by that time,

12 1 but only one of the two posts Misirbiev submitted is dated

2 prior to June 17. And his brother’s letter indicates that

3 people other than Misirbiev’s wife had been threatened—a

4 significant fact that was omitted from Misirbiev’s own

5 statement. The record also lacked envelopes or other

6 evidence explaining when and how Misirbiev obtained these

7 letters. Misirbiev thus failed to establish a “reasonable

8 chance” that the agency would conclude he was entitled to

9 relief based on the Russian government’s knowledge of his

10 internet activity in the United States. See Jian Hui Shao,

11 546 F.3d at 168; Hongsheng Leng, 528 F.3d at 138.

12 Nor did Misirbiev show that the government would likely

13 become aware of his Facebook posts and persecute him as a

14 result. This claim, in essence that there is a pattern or

15 practice of persecution of individuals who criticize the

16 government online, was not supported because the country

17 conditions evidence did not show systemic persecution. See

18 8 C.F.R. § 1208.13(b)(2)(iii)(A); Mufied v. Mukasey, 508 F.3d

19 88, 92 (2d Cir. 2007) (quoting In re A-M-, 23 I. & N. Dec.

20 737, 741 (BIA 2005)) (to prevail on a “pattern or practice”

21 claim, an alien must demonstrate harm that is “so systemic or

13 1 pervasive as to amount to a pattern or practice of

2 persecution”). The country conditions evidence reflected

3 that at least five Russians were convicted of offenses related

4 to material posted online, mostly pertaining to Russia’s

5 actions in Crimea, between mid-2014 and 2016. This is

6 insufficient to show that the Russian government engages in

7 “systemic or pervasive” abuse of people who have published

8 social media posts critical of the government. Mufied, 508

9 F.3d at 92.

10 For the foregoing reasons, the petition for review is

11 DENIED. All pending motions and applications are DENIED and

12 stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court