Talipov v. Holder

591 F. App'x 4
CourtCourt of Appeals for the Second Circuit
DecidedNovember 19, 2014
DocketNos. 12-4265 (L), 13-586(Con)
StatusPublished

This text of 591 F. App'x 4 (Talipov v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Talipov v. Holder, 591 F. App'x 4 (2d Cir. 2014).

Opinion

SUMMARY ORDER

Petitioner Bakhrom Talipov, a native of the former Soviet Union and citizen of Uzbekistan, seeks review of a September 27, 2012 order of the BIA, affirming the September 20, 2011 decision of an Immigration Judge (“IJ”), which denied asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), In re Bakhrom Talipov, No. A097 532 645 (BIA Sept. 27, 2012), aff'g No. A097 532 645 (Immig.Ct.N.Y. City Sept. 20, 2011), and a February 8, 2013 decision of the BIA denying his timely motion to reopen, In re Bakhrom Talipov, No. A097 532 645 (BIA Feb. 8, 2013). We assume the parties’ [6]*6familiarity with the underlying facts and procedural history in this case.

Petition for Review in Dkt No. 12-4265(L)

Under the circumstances of this ease, we review the decisions of both the IJ and the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008) (per curiam).

A. Credibility. For applications such a Talipov’s, governed by the REAL ID Act, the agency may base a credibility finding on an applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). “We defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

Talipov does not contest the agency’s reliance on his inconsistent testimony regarding when his passport was stolen and has therefore waived review of that determination. Talipov also concedes that he testified inconsistently about when he received his civil summonses. Although he argues that this inconsistency was not material, the agency may base a credibility finding on inconsistencies that do not go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). The agency therefore did not err in basing the credibility finding on these inconsistences.

Talipov contends that the agency erred by treating the omissions from his supporting affidavit as inconsistencies. However, for purposes of analyzing a credibility determination, “[a]n inconsistency and an omission are ... functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166. Specifically, the agency relied on the omission from Talipov’s affidavit of the allegation that the individuals who struck him with their car were wearing national security officer uniforms. This omission was significant because it was the driver’s status as a government agent that furnished a nexus between the harm of being struck by the car and a protected ground. See 8 U.S.C. § 1101(a)(42).

Talipov also challenges the agency’s reliance on other omissions. But while the omissions may be minor, the agency was entitled to rely on their cumulative effect. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006).

The agency’s adverse credibility determination also rests soundly on implausibilities in Talipov’s account. See 8 U.S.C. § 1158(b)(l)(B)(iii). Some of them are not in themselves significant, and Talipov’s explanations could be deemed plausible. However, the agency was not required to credit explanations unless they would be compelling to a reasonable fact-finder. Cf. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005).

Having called Talipov’s credibility into question, the agency reasonably determined that it was further undermined by Talipov’s failure to provide corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii). Failure to corroborate an applicant’s testimony may bear on credibility, either because the absence of particular corroborating evidence is viewed as suspicious, or because the absence of corroboration makes an applicant unable to rehabilitate testimony that has already been called into question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007) (per curiam). Talipov [7]*7concedes that he failed to provide: (1) any article published under his own name; (2) articles published in the state-run newspaper exposing his pseudonym; or (3) medical records from his 2006 beating, which (he claimed) resulted in a severe concussion, treatment by a neurosurgeon, and biannual return visits to the hospital to receive two-week-long injection therapy. His assertion that the IJ held him to an overly stringent corroboration standard is therefore misplaced.

Based on the foregoing, the IJ’s adverse credibility determination is supported by substantial evidence: it cannot be said “that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The agency therefore did not err in denying asylum, withholding of removal, and CAT relief because all three claims shared the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).

B. Due Process. Talipov raises a due process challenge to the IJ’s conduct of proceedings, based on: the proceedings lasted too long and thereby impaired the assessment of his credibility; he appeared via video conference; and the IJ excessively interrupted him with questions. However, Talipov does not show how any of these supposed deficiencies impaired the assessment of his credibility, and it is unclear how the credibility finding — which was properly based on inconsistencies, omissions, the implausibility of his account, and a lack of corroborative evidence— could have been impaired by the IJ’s questioning, the length of the proceedings, or the use of video conferencing. In short, Talipov’s due process challenge fails because he does not “allege some cognizable prejudice fairly attributable to the challenged process.” Garcia-Villeda v. Mukasey,

Related

Jian Hui Shao v. Mukasey
546 F.3d 138 (Second Circuit, 2008)
Biao Yang v. Gonzales
496 F.3d 268 (Second Circuit, 2007)
Immigration & Naturalization Service v. Abudu
485 U.S. 94 (Supreme Court, 1988)
Immigration & Naturalization Service v. Doherty
502 U.S. 314 (Supreme Court, 1992)
Tu Lin v. Alberto R. Gonzales
446 F.3d 395 (Second Circuit, 2006)
Sedigheh and Hessmaddin Norani v. Gonzales 1
451 F.3d 292 (Second Circuit, 2006)
Xiu Xia Lin v. Mukasey
534 F.3d 162 (Second Circuit, 2008)
Weng v. Holder
562 F.3d 510 (Second Circuit, 2009)
Garcia-Villeda v. Mukasey
531 F.3d 141 (Second Circuit, 2008)
J-Y-C
24 I. & N. Dec. 260 (Board of Immigration Appeals, 2007)

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591 F. App'x 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talipov-v-holder-ca2-2014.