Raiymkulov v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2025
• Docket: 24-2426
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALMAZBEK RAIYMKULOV, No. 24-2426 Agency No. Petitioner, A087-958-345 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 19, 2025 El Centro, California

Before: TALLMAN and OWENS, Circuit Judges, and MONTENEGRO, District Judge.**

Almazbek Raiymkulov, a native and citizen of Kyrgyzstan, petitions for

review of an order from the Board of Immigration Appeals (“BIA”) affirming the

denial by an immigration judge (“IJ”) of his applications for withholding of removal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ruth Bermudez Montenegro, United States District Judge for the Southern District of California, sitting by designation. and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252(a)(1).

Where the BIA adopted the IJ’s decision, as it did here, we review “the reasons

explicitly identified by the BIA, and then examine the reasoning articulated in the

IJ’s oral decision in support of those reasons.” Dong v. Garland, 50 F.4th 1291,

1296 (9th Cir. 2022) (citation omitted). We review factual findings underlying the

BIA’s determination of eligibility for withholding of removal and CAT relief for

substantial evidence. Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir.

2023). “We review de novo claims of . . . due process violations in removal

proceedings.” Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). As the

parties are familiar with the facts, we do not recount them here. We deny the

petition.

1. Substantial evidence supports the IJ’s adverse credibility

determination, which the BIA adopted. The BIA cited four inconsistencies that the

IJ relied on in making the determination.

First, the BIA reasonably determined that Raiymkulov falsely stated in his

application for relief that he spoke out against government corruption in Kyrgyzstan.

See Li v. Garland, 13 F.4th 954, 960–61 (9th Cir. 2021). His testimony directly

contradicted the basis of his claims for relief—that he was persecuted on account of

his imputed political opinion for speaking out and resisting against corruption. See

2 24-2426 Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021). The record

does not compel the conclusion that he spoke out in any overt manner against the

government. See Garcia v. Holder, 749 F.3d 785, 790–91 (9th Cir. 2014).

Second, Raiymkulov’s testimony concerning the closure of his businesses by

the Kyrgyzstan government was inconsistent with his reasonable fear interview. As

he clearly told the asylum officer that he closed all the businesses himself, the record

does not “compel credence” to his explanation that the government essentially shut

down certain businesses through duress. See Dong, 50 F.4th at 1300.

Third, Raiymkulov inconsistently testified about the number of times he was

harmed by Kyrgyzstan government agents. As he affirmatively stated during his

reasonable fear interview that he had only been physically harmed once, these

additional instances of harm would have made his account a “more compelling . . .

story of persecution than [the] initial application.” Silva-Pereira v. Lynch, 827 F.3d

1176, 1185 (9th Cir. 2016) (citation omitted); see also Zamanov v. Holder, 649 F.3d

969, 973–74 (9th Cir. 2011).

Finally, Raiymkulov had an opportunity to explain the apparent inconsistency

in his signed affidavit stating that he did not fear returning to his home country. See

Kumar v. Garland, 18 F.4th 1148, 1154 (9th Cir. 2021). While his explanation may

be facially plausible, the BIA’s “specific and cogent” reason concerning his working

knowledge of English is supported by the record because Raiymkulov told the

3 24-2426 Border Patrol agents he spoke English and, in his application, attested that he was

fluent in it. See Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010).

2. Raiymkulov also argues that the agency applied incorrect legal

standards and controlling precedents. As he failed to support his legal-error

contentions with any analysis or argument, these issues have been waived. See Arpin

v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).1

3. Substantial evidence also supports the BIA’s determination that

Raiymkulov’s CAT claim fails. The record evidence does not compel the conclusion

that “he would be subject to a particularized threat of torture” if removed to

Kyrgyzstan. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam)

(citation and internal quotation marks omitted). As Raiymkulov’s CAT claim is

“based on the same statements . . . the BIA determined to be not credible in the

[withholding of removal] context,” the country reports do not support his contention

that any existing politically motivated violence is a threat to him personally. Yali

Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (citation and internal

quotation marks omitted); see also Shrestha, 590 F.3d 1049.

1 Citing Kalulu v. Garland, 94 F.4th 1095 (9th Cir. 2024), Raiymkulov asserted at oral argument that we should review the BIA’s adverse credibility finding for clear error. As he has waived the issue by failing to raise it in his opening brief, we decline to reach this argument. See Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

4 24-2426 4. Raiymkulov’s due process arguments on appeal—that the agency failed

to act as a neutral factfinder and erred by not considering “uncontested evidence”—

are unexhausted and thus forfeited. See 8 U.S.C. § 1252(d)(1); Santos-Zacaria v.

Garland, 598 U.S. 411, 424 (2023). As he failed to raise such contentions before

the BIA, they are not properly before us. See Sanchez-Cruz v. INS, 255 F.3d 775,

780 (9th Cir. 2001).

PETITION DENIED.2

2 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise DENIED.

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