16-840 Okunev v. Sessions BIA Hom, IJ A205 895 089
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 1st day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 DENNIS JACOBS, 9 GERARD E. LYNCH 10 Circuit Judges. 11 _____________________________________ 12 13 ANDREY OKUNEV, 14 Petitioner, 15 16 v. 16-840 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Rakhvir Dhanoa, New York, NY. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal 26 Deputy Assistant Attorney 27 General; Nancy Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 30 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Andrey Okunev, a native of the former Soviet
9 Union and citizen of Russia, seeks review of a February 22,
10 2016, decision of the BIA affirming a July 28, 2015, decision
11 of an Immigration Judge (“IJ”) denying Okunev’s application
12 for asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Andrey Okunev, No.
14 A205 895 089 (B.I.A. Feb. 22, 2016), aff’g No. A205 895 089
15 (Immig. Ct. N.Y. City July 28, 2015). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA (i.e., excluding
19 the adverse credibility determination, which the BIA did
20 not reach). See Xue Hong Yang v. U.S. Dep’t of Justice,
21 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
22 of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
24 (2d Cir. 2009).
25 2 1 The agency did not err in denying relief based on
2 Okunev’s failure to submit reasonably available
3 corroborating evidence. “No court shall reverse a
4 determination made by a trier of fact with respect to the
5 availability of corroborating evidence . . . unless . . . a
6 reasonable trier of fact is compelled to conclude that such
7 corroborating evidence is unavailable.” 8 U.S.C.
8 § 1252(b)(4). Notwithstanding Okunev’s assertion to the
9 contrary, the agency reasonably determined that his
10 testimony alone was insufficient to demonstrate his
11 eligibly for relief:
12 The testimony of the applicant may be 13 sufficient to sustain the applicant’s 14 burden without corroboration, but only if 15 the applicant satisfies the trier of fact 16 that the applicant’s testimony is credible, 17 is persuasive, and refers to specific facts 18 sufficient to demonstrate that the 19 applicant is a refugee. In determining 20 whether the applicant has met the 21 applicant’s burden, the trier of fact may 22 weigh the credible testimony along with 23 other evidence of record. Where the trier 24 of fact determines that the applicant 25 should provide evidence that corroborates 26 otherwise credible testimony, such evidence 27 must be provided unless the applicant does 28 not have the evidence and cannot reasonably 29 obtain the evidence.
30 8 U.S.C. § 1158(b)(1)(B)(ii).
31 Although Okunev provided a detailed narrative, he
32 relied in part on hearsay and failed to describe injuries 3 1 sustained as a result of multiple beatings. He provided no
2 statement from the friend with whom he attended protests,
3 and acknowledged that he had no firsthand knowledge of what
4 happened to this friend at a 2007 protest. He described
5 multiple serious beatings but produced no medical records
6 or any other evidence to corroborate his injuries and
7 failed to describe the extent of his injuries. He did not
8 corroborate his United Civil Front membership or activism,
9 even though he testified that he had joined the
10 organization through its website. And he produced no
11 statements from family or friends in Russia, despite
12 testifying that his family told him over the phone that
13 they had been visited by people searching for him since he
14 arrived in the United States, and that his friend Dmitri
15 had called him in the United States to warn him that he was
16 in danger. Given this dearth of evidence, the agency did
17 not err in finding that Okunev failed to meet his burden of
18 proof. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1252(b)(4).
19 The agency did not err in rejecting Okunev’s
20 explanation for the absence of a statement from the friend
21 with whom Okunev was detained and beaten after the 2012
22 protest, and who was also beaten after the 2007 protest.
23 See 8 U.S.C. § 1252(b)(4) (“No court shall reverse a
4 1 determination made by a trier of fact with respect to the
2 availability of corroborating evidence . . . unless . . . a
3 reasonable trier of fact is compelled to conclude that such
4 corroborating evidence is unavailable.”). Okunev explained
5 that a statement from this friend was in a bag that was
6 stolen in New York City, that he reported the theft to the
7 police, but that he did not file a report because his visa
8 had expired and he did not want to present his passport
9 when asked for identification. The IJ rejected this
10 explanation, noting that New York City has adopted policies
11 that allow crime victims to access city services without
12 fear of immigration consequences. A reasonable adjudicator
13 would not be compelled to accept the explanation,
14 particularly given Okunev’s initial willingness to go to
15 the police and report the theft. Okunev does not challenge
16 the IJ’s rejection of his various explanations for the
17 absence of the other evidence and has therefore waived
18 review of the agency’s determination that the evidence was
19 reasonably available. See Norton v. Sam’s Club, 145 F.3d
20 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in
21 the briefs are considered waived and normally will not be
22 addressed on appeal.”).
5 1 While Okunev argues that his case should be remanded
2 because the Government did not provide evidence to
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16-840 Okunev v. Sessions BIA Hom, IJ A205 895 089
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 1st day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 DENNIS JACOBS, 9 GERARD E. LYNCH 10 Circuit Judges. 11 _____________________________________ 12 13 ANDREY OKUNEV, 14 Petitioner, 15 16 v. 16-840 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Rakhvir Dhanoa, New York, NY. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal 26 Deputy Assistant Attorney 27 General; Nancy Friedman, Senior 28 Litigation Counsel; Sharon M. 29 Clay, Trial Attorney, Office of 30 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Andrey Okunev, a native of the former Soviet
9 Union and citizen of Russia, seeks review of a February 22,
10 2016, decision of the BIA affirming a July 28, 2015, decision
11 of an Immigration Judge (“IJ”) denying Okunev’s application
12 for asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Andrey Okunev, No.
14 A205 895 089 (B.I.A. Feb. 22, 2016), aff’g No. A205 895 089
15 (Immig. Ct. N.Y. City July 28, 2015). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA (i.e., excluding
19 the adverse credibility determination, which the BIA did
20 not reach). See Xue Hong Yang v. U.S. Dep’t of Justice,
21 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
22 of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
24 (2d Cir. 2009).
25 2 1 The agency did not err in denying relief based on
2 Okunev’s failure to submit reasonably available
3 corroborating evidence. “No court shall reverse a
4 determination made by a trier of fact with respect to the
5 availability of corroborating evidence . . . unless . . . a
6 reasonable trier of fact is compelled to conclude that such
7 corroborating evidence is unavailable.” 8 U.S.C.
8 § 1252(b)(4). Notwithstanding Okunev’s assertion to the
9 contrary, the agency reasonably determined that his
10 testimony alone was insufficient to demonstrate his
11 eligibly for relief:
12 The testimony of the applicant may be 13 sufficient to sustain the applicant’s 14 burden without corroboration, but only if 15 the applicant satisfies the trier of fact 16 that the applicant’s testimony is credible, 17 is persuasive, and refers to specific facts 18 sufficient to demonstrate that the 19 applicant is a refugee. In determining 20 whether the applicant has met the 21 applicant’s burden, the trier of fact may 22 weigh the credible testimony along with 23 other evidence of record. Where the trier 24 of fact determines that the applicant 25 should provide evidence that corroborates 26 otherwise credible testimony, such evidence 27 must be provided unless the applicant does 28 not have the evidence and cannot reasonably 29 obtain the evidence.
30 8 U.S.C. § 1158(b)(1)(B)(ii).
31 Although Okunev provided a detailed narrative, he
32 relied in part on hearsay and failed to describe injuries 3 1 sustained as a result of multiple beatings. He provided no
2 statement from the friend with whom he attended protests,
3 and acknowledged that he had no firsthand knowledge of what
4 happened to this friend at a 2007 protest. He described
5 multiple serious beatings but produced no medical records
6 or any other evidence to corroborate his injuries and
7 failed to describe the extent of his injuries. He did not
8 corroborate his United Civil Front membership or activism,
9 even though he testified that he had joined the
10 organization through its website. And he produced no
11 statements from family or friends in Russia, despite
12 testifying that his family told him over the phone that
13 they had been visited by people searching for him since he
14 arrived in the United States, and that his friend Dmitri
15 had called him in the United States to warn him that he was
16 in danger. Given this dearth of evidence, the agency did
17 not err in finding that Okunev failed to meet his burden of
18 proof. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1252(b)(4).
19 The agency did not err in rejecting Okunev’s
20 explanation for the absence of a statement from the friend
21 with whom Okunev was detained and beaten after the 2012
22 protest, and who was also beaten after the 2007 protest.
23 See 8 U.S.C. § 1252(b)(4) (“No court shall reverse a
4 1 determination made by a trier of fact with respect to the
2 availability of corroborating evidence . . . unless . . . a
3 reasonable trier of fact is compelled to conclude that such
4 corroborating evidence is unavailable.”). Okunev explained
5 that a statement from this friend was in a bag that was
6 stolen in New York City, that he reported the theft to the
7 police, but that he did not file a report because his visa
8 had expired and he did not want to present his passport
9 when asked for identification. The IJ rejected this
10 explanation, noting that New York City has adopted policies
11 that allow crime victims to access city services without
12 fear of immigration consequences. A reasonable adjudicator
13 would not be compelled to accept the explanation,
14 particularly given Okunev’s initial willingness to go to
15 the police and report the theft. Okunev does not challenge
16 the IJ’s rejection of his various explanations for the
17 absence of the other evidence and has therefore waived
18 review of the agency’s determination that the evidence was
19 reasonably available. See Norton v. Sam’s Club, 145 F.3d
20 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in
21 the briefs are considered waived and normally will not be
22 addressed on appeal.”).
5 1 While Okunev argues that his case should be remanded
2 because the Government did not provide evidence to
3 establish the conditions in Russia, it was Okunev’s burden
4 to prove his claim; “[t]he burden of proof is on the
5 applicant to establish that the applicant is a
6 refugee . . . .” 8 U.S.C. § 1158(b)(1)(B)(i). “[T]he
7 alien bears the ultimate burden of introducing
8 [corroborating] evidence without prompting from the IJ.”
9 Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009). The
10 statute “clearly states that corroborative evidence may be
11 required, placing immigrants on notice of the consequences
12 for failing to provide corroborative evidence.” Rapheal v.
13 Mukasey, 533 F.3d 521, 530 (7th Cir. 2008). Moreover, “the
14 instructions for the Application for Asylum and Withholding
15 of Removal (Form I-589) provide . . . notice to an
16 applicant that he ‘must submit reasonably available
17 corroborative evidence’ relating to both general country
18 conditions and the specific facts upon which the claim is
19 based.” Matter of L-A-C-, 26 I. & N. Dec. 516, 520 (B.I.A.
20 2015) (emphasis added). Okunev also failed to exhaust this
21 argument before the BIA. See Lin Zhong v. U.S. Dep’t of
22 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that
23 judicially imposed issue exhaustion is mandatory).
6 1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5