Nazarov v. Garland

Opinion

19-2518 Nazarov v. Garland BIA

Segal, IJ

A206 472 861/862

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 12th day of November, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 ABDISAMI KHAMIDOVICH NAZAROV, 14 ROKHILA JURAEVA, 15 Petitioners, 16 17 v. 19-2518 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Tatiana S. Aristova, Esq., 25 Khavinson & Associates, P.C., 26 Plainsboro, NJ. 27 28 FOR RESPONDENT: Brian Boynton, Acting Assistant 29 Attorney General; Erica B. Miles,

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1 Senior Litigation Counsel; Imran 2 R. Zaidi, Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioners Abdisami Khamidovich Nazarov and Rokhila 12 Juraeva, natives and citizens of Uzbekistan, seek review of 13 a July 24, 2019, decision of the BIA affirming a January 17, 14 2018, decision of an Immigration Judge (“IJ”) denying asylum, 15 withholding of removal, and relief under the Convention 16 Against Torture (“CAT”). In re Abdisami Khamidovich Nazarov 17 and Rokhila Juraeva, Nos. A206 472 861/862 (B.I.A. July 24, 18 2019), aff’g Nos. A206 472 861/862 (Immigr. Ct. N.Y. City 19 Jan. 17, 2018). We assume the parties’ familiarity with the 20 underlying facts and procedural history. 21 We have reviewed the IJ’s decision as supplemented by 22 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 23 Cir. 2005). The applicable standards of review are well 24 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 25 Holder, 562 F.3d 510, 513 (2d Cir. 2009). The agency did not

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1 err in finding that Petitioners failed to establish their 2 eligibility for asylum, withholding of removal, and CAT 3 relief based on their claims that Uzbek officials confiscated 4 merchandise from one of their stores on account of Nazarov’s 5 political opinion and would detain and harm them in the future 6 on account of that opinion and their violation of Uzbek exit 7 visa regulations, and that a private lender would harm them 8 on account of an outstanding debt. 9 Asylum and Withholding of Removal 10 To establish eligibility for asylum and withholding of 11 removal, an applicant must establish past persecution or a 12 well-founded fear or likelihood of persecution on account of 13 “race, religion, nationality, membership in a particular 14 social group, or political opinion.” 8 U.S.C. 15 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R. 16 § 1208.16(b)(1)(i), (2). “[P]ersecution is an extreme 17 concept that does not include every sort of treatment our 18 society regards as offensive.” Mei Fun Wong v. Holder, 633 19 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). 20 For economic harm to constitute persecution, “an asylum 21 applicant must offer some proof that he suffered a deliberate 22 imposition of substantial economic disadvantage.” Guan Shan

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1 Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) 2 (internal quotation marks omitted); see also Huo Qiang Chen 3 v. Holder, 773 F.3d 396, 407 (2d Cir. 2014) (“economic 4 persecution occurs only when a person is deprived of the 5 necessities of life or rendered impoverished”); In re T-Z-, 6 24 I. & N. Dec. 163, 170–73 (B.I.A. 2007). 7 The agency did not err in finding that Petitioners failed 8 to establish past persecution. They did not allege physical 9 mistreatment and “threats of persecution, no matter how 10 credible, do not demonstrate past persecution.” Huo Qiang 11 Chen, 773 F.3d at 406. Although government officials 12 confiscated some of Petitioners’ merchandise, Petitioners did 13 not demonstrate a severe financial disadvantage given that 14 they continued to operate several stores after the goods were 15 confiscated. See id.; Guan Shan Liao, 293 F.3d at 70. 16 Because Petitioners did not demonstrate past persecution, 17 they were not entitled to a presumption of a well-founded 18 fear of persecution. See 8 C.F.R. § 1208.13(b)(1). 19 The agency did not err in concluding that Petitioners 20 failed to establish a well-founded fear that Uzbek officials 21 would persecute them in the future based on either Nazarov’s 22 political opinion or their violation of exit visa laws.

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1 Other than confiscating merchandise, Petitioners did not 2 assert that officials threatened to physically harm them, 3 they admitted that they continued to own a couple of stores 4 for years after these accusations, and they admitted that 5 officials took no other actions against them before they left 6 the country using government-issued exit visas more than one 7 month after the confiscation. See Jian Xing Huang v. U.S. 8 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of 9 solid support in the record . . . [an applicant’s] fear is 10 speculative at best.”); cf. Melgar de Torres v. Reno, 191 11 F.3d 307, 313 (2d Cir. 1999) (finding fear of future 12 persecution weakened when similarly situated family members 13 remain unharmed in petitioner’s native country). As for 14 their assertion that the Uzbek government would detain them 15 for failing to renew their exit visas while in the United 16 States, the agency did not err in concluding that, without 17 more, such action would constitute prosecution under Uzbek 18 law rather than persecution. See Saleh v. U.S. Dep’t of 19 Justice, 962 F.2d 234, 239 (2d Cir. 1992) (“Punishment for 20 violation of a generally applicable criminal law is not 21 persecution.”). 22 The agency also did not err in concluding that

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1 Petitioners failed to establish a well-founded fear that 2 their private lender would persecute them on account of a 3 protected ground. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 4 1231(b)(3)(A). As the agency concluded, Petitioners’ fear 5 was on account of a personal financial dispute rather than a 6 protected ground given Nazarov’s testimony that the lender 7 threatened him only because of his outstanding debt. See id. 8 Nazarov asserted for the first time before the BIA that the 9 lender targeted him on account of his membership in the 10 protected social group of “delinquent borrowers who owe money 11 to private lenders,” but the BIA reasonably declined to 12 consider that social group claim in the first instance. See 13 Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) (“[T]he 14 BIA may refuse to consider an issue that could have been, but 15 was not, raised before an IJ.”). 16 Petitioners’ failure to demonstrate past persecution or 17 a well-founded fear of persecution on account of a protected 18 ground was dispositive of asylum and withholding of removal. 19 See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also 20 Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). 21 CAT Relief 22 Contrary to the Government’s argument that Petitioners

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1 have abandoned their CAT claim, they challenge the agency’s 2 denial of CAT in their brief. To obtain CAT relief, they had 3 to show that it is “more likely than not” that they will be 4 tortured. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). Unlike 5 asylum and withholding, CAT does not require a nexus to 6 protected grounds. 8 C.F.R. §§ 1208.16(c), 1208.17. 7 However, Petitioners’ failure to establish a well-founded 8 fear that government officials would persecute them for 9 Nazarov’s criticism of the government in the context of asylum 10 and withholding is dispositive of CAT relief to the extent 11 that claim is based on the same facts. See Lecaj, 616 F.3d 12 at 119–20. 13 Insofar as Petitioners asserted a fear of torture for 14 violation of Uzbekistan’s exit laws, the fact that they may 15 be prosecuted or imprisoned under those laws and evidence 16 that some prisoners have been tortured is insufficient to 17 establish that individuals “in [their] particular alleged 18 circumstances [are] more likely than not to be tortured if 19 imprisoned.” Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d 20 Cir. 2003) (explaining that evidence that some military 21 deserters are imprisoned and evidence of some torture in 22 Chinese prisons did not show that military deserters were

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1 more likely than not to be tortured). Indeed, Petitioners’ 2 country conditions evidence does not establish that similarly 3 situated individuals are tortured. 4 Finally, the agency did not err in concluding that 5 Petitioners failed to establish a likelihood of torture based 6 on their outstanding debt to a private lender. The lender 7 threatened them once in 2013, and did not harm their daughter 8 when he purportedly sought payment from her in 2017. On 9 these facts, the agency was not compelled to find that 10 Petitioners established that the lender will more likely than 11 not torture them. See Jian Xing Huang, 421 F.3d at 129; 12 Melgar de Torres, 191 F.3d at 313. Accordingly, the agency 13 did not err in concluding that Petitioners failed to satisfy 14 their burden of proof for CAT relief. See 8 C.F.R. 15 §§ 1208.16(c)(2), 1208.17(a). 16 For the foregoing reasons, the petition for review is 17 DENIED. All pending motions and applications are DENIED and 18 stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court