22-6504 Satymbaev v. Bondi BIA
Driscoll, IJ
A220 836 341
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 25th day of July, two thousand twenty- 4 five. 5 6 PRESENT: 7 DENNY CHIN, 8 RAYMOND J. LOHIER, JR., 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ 12 13 CHYNGYZ SATYMBAEV, 14 Petitioner, 15 16 v. 22-6504 17 NAC 18 PAMELA BONDI, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Godfrey Y. Muwonge, Milwaukee, WI.
1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Paul Fiorino, Senior 3 Litigation Counsel; Brooke M. Maurer, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of 8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the petition for review is DENIED. 10 Petitioner Chyngyz Satymbaev, a native of Kyrgyzstan and citizen of 11 Russia, seeks review of a September 22, 2022 decision of the BIA affirming an April 12 18, 2022 decision of an Immigration Judge (“IJ”) denying his application for 13 asylum, withholding of removal, and relief under the Convention Against Torture 14 (“CAT”). In re Chyngyz Satymbaev, No. A220 836 341 (B.I.A. Sept. 22, 2002), aff’g 15 No. A220 836 341 (Immigr. Ct. Batavia Apr. 18, 2022). We assume the parties’ 16 familiarity with the underlying facts and procedural history. 17 We review the decision of the IJ as supplemented by the BIA. See Yan Chen 18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for 19 substantial evidence and questions of law de novo. Wei Sun v. Sessions, 883 F.3d 20 23, 27 (2d Cir. 2018). An initial determination that corroborating evidence is 21 needed is subject to de novo review, while a determination that such evidence is
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1 reasonably available is a factual finding. See Pinel-Gomez v. Garland, 52 F.4th 523, 2 526, 530–31 (2d Cir. 2022). “[T]he administrative findings of fact are conclusive 3 unless any reasonable adjudicator would be compelled to conclude to the 4 contrary[.]” 8 U.S.C. § 1252(b)(4)(B). 5 As an initial matter, Satymbaev has failed to exhaust dispositive grounds 6 for the denial of relief. As the Government points out, his appeal to the BIA did 7 not challenge the IJ’s dispositive findings that he had not suffered harm rising to 8 the level of persecution, shown that Russian officials were unable or unwilling to 9 control the private actors who had attacked him in the past, or established that he 10 has a well-founded fear of persecution or torture in Kyrgyzstan or Russia. See Ud 11 Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023). His conclusory 12 statement to this court that “[i]t is unfortunate that [his] counsel did not challenge 13 [these] alternative rulings,” Petitioner’s Br. at 46–47, is insufficient to raise an 14 ineffective assistance of counsel claim. See Yueqing Zhang v. Gonzales, 426 F.3d 15 540, 545 n.7 (2d Cir. 2005) (recognizing that “a single conclusory sentence” is 16 insufficient to raise a claim). In any event, such a claim is unexhausted because it 17 was not first presented to the BIA. See Yi Long Yang v. Gonzales, 478 F.3d 133, 142 18 (2d Cir. 2007) (“We generally require that ineffective assistance claims be
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1 presented in the first instance to the BIA, either through a motion to reopen or on 2 direct appeal.”). 3 Even setting aside Satymbaev’s failure to exhaust these claims, we find no 4 error in the agency’s conclusion that Satymbaev failed to sufficiently corroborate 5 his claims. An asylum applicant bears the burden of proof to demonstrate 6 eligibility for relief. See 8 U.S.C. § 1158(b)(1)(B)(i). An applicant must establish 7 either past persecution or a well-founded fear of future persecution on account of 8 a protected ground. See 8 C.F.R. § 1208.13(b). “The testimony of the applicant 9 may be sufficient to sustain the applicant’s burden without corroboration, but only 10 if the applicant satisfies the trier of fact that the applicant’s testimony is credible, 11 is persuasive, and refers to specific facts sufficient to demonstrate that the 12 applicant is a refugee. In determining whether the applicant has met the 13 applicant’s burden, the trier of fact may weigh the credible testimony along with 14 other evidence of record. Where the trier of fact determines that the applicant 15 should provide evidence that corroborates otherwise credible testimony, such 16 evidence must be provided unless the applicant does not have the evidence and 17 cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). 18 A lack of corroboration can be an independent basis for the denial of relief
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1 if the agency identifies reasonably available evidence that should have been 2 presented. Wei Sun, 883 F.3d at 28–31. Before denying a claim solely on an 3 applicant’s failure to provide corroborating evidence, an IJ should “(1) point to 4 specific pieces of missing evidence and show that it was reasonably available, 5 (2) give the applicant an opportunity to explain the omission, and (3) assess any 6 explanation given.” Id. at 31. “No court shall reverse a determination made by 7 a trier of fact with respect to the availability of corroborating evidence . . . unless 8 the court finds . . . that a reasonable trier of fact is compelled to conclude that such 9 corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D). We find no 10 error in the agency’s conclusion that Satymbaev did not adequately corroborate 11 his claim that Russian nationalists attacked him in Russia and that he fears future 12 harm in Kyrgyzstan on account of his political and anti-corruption opinions. 13 The agency did not err in requiring corroboration because Satymbaev was 14 repeatedly unresponsive when testifying, thereby diminishing the persuasiveness 15 of his testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Wei Sun, 883 F.3d at 28. 16 Further, the IJ identified the specific evidence that was missing: medical evidence 17 that Satymbaev suffered a concussion after being attacked in Russia, which was 18 the most significant alleged harm, and a statement from his wife who attended
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1 protests with him in Kyrgyzstan, which was the primary reason he feared future 2 harm. See Wei Sun, 883 F.3d at 31. The agency did not err in finding that the 3 missing evidence was reasonably available. Satymbaev was treated for his 4 concussion at the campus medical office of the university he attended in Russia, 5 he conceded that he did not attempt to obtain those records, and his assumption 6 that the records would not be available was unsupported. See 8 U.S.C. 7 § 1252(b)(4)(D) (providing that no court shall reverse the decision “with respect to 8 the availability of corroborating evidence” unless the court is “compelled to 9 conclude that such corroborating evidence is unavailable”). In addition, a 10 statement from Satymbaev’s wife was reasonably available given his testimony 11 that he was in contact with her, she helped him prepare his application over the 12 phone, and he received statements from others in Kyrgyzstan. See id. The 13 agency was not compelled to credit Satymbaev’s explanations that the IJ failed to 14 tell him to supply a statement from his wife and that he believed her statement 15 would not be of much evidentiary value because “the alien bears the ultimate 16 burden of introducing such evidence without prompting from the IJ.” Wei Sun, 17 883 F.3d at 31 (quotation marks omitted). The IJ reasonably declined to accord 18 significant weight to other evidence, including statements from Satymbaev’s
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1 mother, brother, and friend and a summons to appear as a witness in an 2 unspecified investigation conducted by the Directorate of Internal Affairs, because 3 Satymbaev did not provide required certificates of translation. See 8 C.F.R. 4 § 1003.33 (“Any foreign language document offered by a party in a proceeding 5 shall be accompanied by an English language translation and a certification signed 6 by the translator that must be printed legibly or typed.”); Immigration Court 7 Practice Manual Ch. 3.3(a) (same); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 8 2013) (“We generally defer to the agency’s evaluation of the weight to be afforded 9 an applicant’s documentary evidence.”). 10 There is no merit to Satymbaev’s argument that the IJ should have granted 11 another continuance to await receipt of certificates of translation. The IJ granted 12 Satymbaev’s initial request for a one-week continuance to await evidence that 13 purportedly was in the mail, but the evidence did not arrive by the time set and 14 Satymbaev did not ask for another continuance at his last hearing. See Wei Sun, 15 883 F.3d at 29–31 (noting that there is no statutory requirement that an IJ continue 16 proceedings for an applicant to gather evidence and finding no requirement that 17 an IJ sua sponte continue proceedings before denying relief for a lack of 18 corroboration). Likewise, Satymbaev’s due process arguments—that the IJ did
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1 not fully consider his right to apply for relief or give him sufficient time to retain 2 a lawyer and obtain corroborating evidence—are belied by the record. The IJ 3 twice gave Satymbaev application forms, accepted his application, and heard 4 testimony in support of it; the IJ provided a list of lawyers and Satymbaev had 5 time to contact them and others, all of whom either could not speak Russian or 6 declined to represent him; Satymbaev had time to obtain and submit several 7 documents and statements from Kyrgyzstan; and he did not show that he was 8 prejudiced by the lack of a continuance to obtain additional evidence, as he never 9 submitted the missing evidence that had purportedly been in the mail. See Burger 10 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a violation of due 11 process, an alien must show that []he was denied a full and fair opportunity to 12 present h[is] claims or that [he was] otherwise deprived . . . of fundamental 13 fairness.” (quotation marks omitted)); Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 14 (2d Cir. 2008) (“Parties claiming denial of due process in immigration cases must, 15 in order to prevail, allege some cognizable prejudice fairly attributable to the 16 challenged process.” (quotation marks omitted)). 17 Ultimately, the agency did not err in concluding that Satymbaev failed to 18 satisfy his burden of proof with reliable evidence corroborating his claims. See
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1 8 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun, 883 F.3d at 28. The lack of corroboration is 2 dispositive because asylum, withholding of removal, and CAT relief were all 3 based on the same factual predicate. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d 4 Cir. 2010); Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is DENIED. All pending 6 motions and applications are DENIED and stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court