17-797 Shiyanov v. Sessions BIA Poczter, IJ A088 447 180 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of June, two thousand eighteen.
PRESENT: JON O. NEWMAN, BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________
SERGEY ALEKSANDROVICH SHIYANOV, AKA SERGEY SHIYANOV, AKA ANTOM BAKLOV, AKA AMTOM BAYKLOV, Petitioner,
v. 17-797 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Richard W. Chen, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Sergey Aleksandrovich Shiyanov, a native and
citizen of Russia, seeks review of a February 16, 2017,
decision of the BIA affirming an October 22, 2015, decision
of an Immigration Judge (“IJ”) denying Shiyanov’s application
for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Sergey Aleksandrovich
Shiyanov, No. A 088 447 180 (B.I.A. Feb. 16, 2017), aff’g No.
A 088 447 180 (Immig. Ct. N.Y. City Oct. 22, 2015). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). We find no error in the agency’s conclusion that
Shiyanov failed to meet his burden of proof as to either his
claim of past persecution or his fear of future persecution
and torture.
I. Past Persecution
An applicant bears the burden of establishing eligibility
for withholding of removal. 8 C.F.R. § 1208.16(b). To
establish past persecution, Shiyanov had to show that the
harm he suffered rose to the level of persecution and that it
was on account of his religion. See 8 C.F.R. § 1208.16(b)(1);
Beskovic v. Gonzales, 467 F.3d 223, 225-26 (2d Cir. 2006).
An applicant’s testimony alone may be sufficient to meet his
burden of proof, if the testimony “is credible, is persuasive,
and refers to specific facts sufficient to demonstrate that
the applicant is a refugee,” but the IJ weighs the testimony
and other evidence and may require corroboration of the
applicant’s claims. 8 U.S.C. § 1158(b)(1)(B)(ii).
The agency reasonably determined that Shiyanov’s
testimony about minor injuries was insufficient to establish
past persecution, particularly given the single beating, 3 which did not occur in relation to any arrest or detention.
See Beskovic, 467 F.3d at 226 (noting that the difference
between harassment and persecution “is necessarily one of
degree” (internal quotation marks omitted)); Jian Qiu Liu v.
Holder, 632 F.3d 820, 822 (2d Cir. 2011) (upholding BIA’s
conclusion that minor beating outside of detention with no
permanent injuries did not constitute persecution). Further,
as the agency found, Shiyanov was unable to remember many
details when asked to describe the first time he went to a
Baptist church, despite it being a significant event in his
decision to become a Baptist. See, e.g., Yan Juan Chen v.
Holder, 658 F.3d 246, 252 (2d Cir. 2011) (applicant’s vague
testimony was insufficient to sustain burden of proof when it
lacked “details that one would expect from the victim of a
coerced abortion”).
Moreover, Shiyanov’s documentary evidence did not
otherwise satisfy his burden of proof. See 8 U.S.C.
§§ 1158(b)(1)(B)(i), (ii), 1231(b)(3)(C). First, the IJ was
not required to credit an email purportedly written by a
former classmate in Russia that confirmed that Shiyanov
sustained bruises from a beating because the email was unsworn 4 and Shiyanov offered no evidence concerning the identity of
its author. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2013) (deferring to IJ’s determination that unsworn letter
submitted by an interested witness was entitled to little
evidentiary weight); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that the IJ has
discretion to determine the weight of each piece of evidence);
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (B.I.A.
2010) (discounting documents that “were obtained for the
purpose of the hearing, are unsigned and unauthenticated and
fail to even identify the authors”), vacated on other grounds
by Hui Lin Lang v. Holder, 677 F.3d 130 (2d Cir. 2012).
Further, even if the IJ had given the email weight, it would
not have established past persecution because it only showed
that Shiyanov sustained bruises. See Jian Qiu Liu, 632 F.3d
at 822. Second, Shiyanov offered a police certificate, which
reflected that it was documenting Shiyanov’s personal
statements. The agency was not required to credit that
certificate because Shiyanov testified that he did not go to
the police after being attacked. See Xiao Ji Chen, 471 F.3d
at 342. 5 II. Future Persecution
Because he did not show past persecution, Shiyanov was
not entitled to any presumption of future persecution. 8
C.F.R. § 1208.16(b)(2). The agency reasonably determined
that Shiyanov failed to independently meet his burden of
demonstrating that he would “more likely than not” be
persecuted. 8 C.F.R.
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17-797 Shiyanov v. Sessions BIA Poczter, IJ A088 447 180 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of June, two thousand eighteen.
PRESENT: JON O. NEWMAN, BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________
SERGEY ALEKSANDROVICH SHIYANOV, AKA SERGEY SHIYANOV, AKA ANTOM BAKLOV, AKA AMTOM BAYKLOV, Petitioner,
v. 17-797 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Richard W. Chen, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Sergey Aleksandrovich Shiyanov, a native and
citizen of Russia, seeks review of a February 16, 2017,
decision of the BIA affirming an October 22, 2015, decision
of an Immigration Judge (“IJ”) denying Shiyanov’s application
for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Sergey Aleksandrovich
Shiyanov, No. A 088 447 180 (B.I.A. Feb. 16, 2017), aff’g No.
A 088 447 180 (Immig. Ct. N.Y. City Oct. 22, 2015). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). We find no error in the agency’s conclusion that
Shiyanov failed to meet his burden of proof as to either his
claim of past persecution or his fear of future persecution
and torture.
I. Past Persecution
An applicant bears the burden of establishing eligibility
for withholding of removal. 8 C.F.R. § 1208.16(b). To
establish past persecution, Shiyanov had to show that the
harm he suffered rose to the level of persecution and that it
was on account of his religion. See 8 C.F.R. § 1208.16(b)(1);
Beskovic v. Gonzales, 467 F.3d 223, 225-26 (2d Cir. 2006).
An applicant’s testimony alone may be sufficient to meet his
burden of proof, if the testimony “is credible, is persuasive,
and refers to specific facts sufficient to demonstrate that
the applicant is a refugee,” but the IJ weighs the testimony
and other evidence and may require corroboration of the
applicant’s claims. 8 U.S.C. § 1158(b)(1)(B)(ii).
The agency reasonably determined that Shiyanov’s
testimony about minor injuries was insufficient to establish
past persecution, particularly given the single beating, 3 which did not occur in relation to any arrest or detention.
See Beskovic, 467 F.3d at 226 (noting that the difference
between harassment and persecution “is necessarily one of
degree” (internal quotation marks omitted)); Jian Qiu Liu v.
Holder, 632 F.3d 820, 822 (2d Cir. 2011) (upholding BIA’s
conclusion that minor beating outside of detention with no
permanent injuries did not constitute persecution). Further,
as the agency found, Shiyanov was unable to remember many
details when asked to describe the first time he went to a
Baptist church, despite it being a significant event in his
decision to become a Baptist. See, e.g., Yan Juan Chen v.
Holder, 658 F.3d 246, 252 (2d Cir. 2011) (applicant’s vague
testimony was insufficient to sustain burden of proof when it
lacked “details that one would expect from the victim of a
coerced abortion”).
Moreover, Shiyanov’s documentary evidence did not
otherwise satisfy his burden of proof. See 8 U.S.C.
§§ 1158(b)(1)(B)(i), (ii), 1231(b)(3)(C). First, the IJ was
not required to credit an email purportedly written by a
former classmate in Russia that confirmed that Shiyanov
sustained bruises from a beating because the email was unsworn 4 and Shiyanov offered no evidence concerning the identity of
its author. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2013) (deferring to IJ’s determination that unsworn letter
submitted by an interested witness was entitled to little
evidentiary weight); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that the IJ has
discretion to determine the weight of each piece of evidence);
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (B.I.A.
2010) (discounting documents that “were obtained for the
purpose of the hearing, are unsigned and unauthenticated and
fail to even identify the authors”), vacated on other grounds
by Hui Lin Lang v. Holder, 677 F.3d 130 (2d Cir. 2012).
Further, even if the IJ had given the email weight, it would
not have established past persecution because it only showed
that Shiyanov sustained bruises. See Jian Qiu Liu, 632 F.3d
at 822. Second, Shiyanov offered a police certificate, which
reflected that it was documenting Shiyanov’s personal
statements. The agency was not required to credit that
certificate because Shiyanov testified that he did not go to
the police after being attacked. See Xiao Ji Chen, 471 F.3d
at 342. 5 II. Future Persecution
Because he did not show past persecution, Shiyanov was
not entitled to any presumption of future persecution. 8
C.F.R. § 1208.16(b)(2). The agency reasonably determined
that Shiyanov failed to independently meet his burden of
demonstrating that he would “more likely than not” be
persecuted. 8 C.F.R. § 1208.16(b)(1)(ii). Shiyanov failed
to show that he would likely be persecuted for practicing his
Baptist faith because he admitted to only briefly attending
a church in the United States and refused to explain why the
priest and an usher at the church did not trust him enough to
testify on his behalf. Accordingly, because he did not show
that he was practicing his faith, there was no basis for
finding that he would be targeted on account of that practice.
See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
2004) (requiring that fear be “objectively reasonable”).
Shiyanov’s arguments to the contrary fail. Although
Shiyanov argues that the agency failed to account for his
subjective fear, a fear must be both subjectively credible
and “objectively reasonable.” Id. In addition, Shiyanov’s
country conditions evidence reflects that Baptists and other 6 religious communities have been persecuted in Russia, but any
claim of a pattern or practice of persecution fails because
Shiyanov failed to establish that he is similarly situated
given the lack of evidence of his religious practice. See 8
C.F.R. § 1208.16(b)(2) (requiring applicant to show either
that he “would be singled out individually” or that “there is
a pattern or practice of persecution of a group of persons
similarly situated to the applicant . . . .” (emphasis
added)).
In sum, Shiyanov’s evidence failed to show past harm
rising to the level of persecution or that he would engage in
any practice of religion that would more likely than not make
him a target of persecution in Russia. See Beskovic, 467
F.3d at 226; Ramsameachire, 357 F.3d at 178. Because he did
not show that he would more likely than not suffer harm rising
to the level of persecution, he similarly could not show that
he would more likely than not be tortured as needed for a
grant of CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-
20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal 7 that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court