Chichilanov v. Garland

C
     19-2958
     Chichilanov v. Garland
                                                                               BIA
                                                                          Palmer, IJ
                                                                       A209 024 176
                              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 12th day of March, two thousand twenty-one.
 5
 6   PRESENT:
 7            JOSÉ A, CABRANES,
 8            SUSAN L. CARNEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   ROMAN CHICHILANOV,
14            Petitioner,
15
16                     v.                                    19-2958
17                                                           NAC
18   MERRICK B. GARLAND,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent. 1
21   _____________________________________
22
23   FOR PETITIONER:                     Julia Greenberg, Esq., New York,
24                                       NY.

     1
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Merrick B. Garland is automatically substituted as Respondent.
 1   FOR RESPONDENT:                   Derek C. Julius, Assistant
 2                                     Director; Anthony O. Pottinger,
 3                                     Trial Attorney, Office of
 4                                     Immigration Litigation, United
 5                                     States Department of Justice,
 6                                     Washington, DC.

 7         UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11         Petitioner Roman Chichilanov, a native and citizen of

12   Russia, seeks review of an August 29, 2019 decision of the

13   BIA affirming an April 5, 2019 decision of an Immigration

14   Judge (“IJ”) denying Chichilanov’s application for asylum,

15   withholding of removal, and protection under the Convention

16   Against Torture (“CAT”).          In re Roman Chichilanov, No. A 209

17   024 176 (B.I.A. Aug. 29, 2019), aff’g No. A 209 024 176 (Immig.

18   Ct.   N.Y.   City    April   5,   2019).   We    assume   the    parties’

19   familiarity with the underlying facts and procedural history.

20         We have reviewed the IJ’s decision as supplemented by

21   the BIA.     See Yan Chen v. Gonzales, 

417 F.3d 268

, 271 (2d

22   Cir. 2005).    Chichilanov asserts his due process rights were

23   violated as a result of interpreter error at his video hearing

24   before   the   IJ;    he   also   challenges    the   agency’s   adverse
                                          2
 1   credibility determination.

 2         “To establish a violation of due process, an alien must

 3   show that []he was denied a full and fair opportunity to

 4   present [his] claims or that the IJ or BIA otherwise deprived

 5   [him] of fundamental fairness.”           Burger v. Gonzales, 

498 F.3d 6

  131, 134 (2d Cir. 2007) (internal quotation marks omitted).

 7   An alien must also demonstrate that he suffered prejudice as

 8   a result of the alleged deprivation.              See Garcia-Villeda v.

 9   Mukasey,     

531 F.3d 141

,   149     (2d    Cir.   2008)      (requiring

10   allegation of “some cognizable prejudice” to state a due

11   process claim (internal quotation marks omitted)).                   Although

12   Chichilanov insists that the interpreter at the video hearing

13   was incompetent and that the video equipment used to conduct

14   the    remote      hearing    prevented         the     interpreter      from

15   understanding      and     correctly      interpreting       his     complete

16   testimony, the hearing transcript reflects otherwise.                      In

17   fact, the transcript demonstrates that the IJ instructed

18   Chichilanov to speak directly into the microphone, informed

19   him   that    he    should    clarify      any    misunderstandings        or

20   mistranslations,         addressed       the    objections      raised     by

21   Chichilanov’s lawyer as to the accuracy of the translations,

                                          3
 1   and had the parties repeat questions to ensure Chichilanov’s

 2   complete   answers    were   translated.      Based   on    this   record,

 3   Chichilanov has not shown he was deprived a full and fair

 4   opportunity   to     be   heard   or   that   he   was     prejudiced    by

 5   interpreter error.

 6       As for Chichilanov’s challenge to the agency’s adverse

 7   credibility determination, the record clearly reveals that

 8   the IJ’s findings were supported by substantial evidence.

 9   See Hong Fei Gao v. Sessions, 

891 F.3d 67

, 76 (2d Cir. 2018).

10   In making credibility findings, a trier of fact may rely on

11   “the inherent plausibility of the applicant’s or witness’s

12   account, the consistency between the applicant’s or witness’s

13   written and oral statements . . . , the internal consistency

14   of each such statement, the consistency of such statements

15   with other evidence of record . . . and any inaccuracies or

16   falsehoods in such statements,” without regard to whether an

17   inconsistency, inaccuracy, or falsehood “goes to the heart of

18   the applicant’s claim.”       8 U.S.C. § 1158(b)(1)(B)(iii).            “We

19   defer . . . to an IJ’s credibility determination unless, from

20   the totality of circumstances, it is plain that no reasonable

21   fact-finder could make such an adverse credibility ruling.”

                                        4
 1   Xiu Xia Lin v. Mukasey, 

534 F.3d 162

, 167 (2d Cir. 2008);

 2   accord Hong Fei 

Gao, 891 F.3d at 76

.

 3       Here, the IJ reasonably relied on (1) the discrepancy

 4   between Chichilanov’s written statement and his testimony

 5   about how the police abused his wife; (2) inconsistencies

 6   between Chichilanov’s and his wife’s accounts of how long

 7   they were detained and how they got home when they were

 8   released; and (3) the fact that his wife’s written statement

 9   omitted her own arrest and detention.    And while an applicant

10   is not required to include every        factual   detail in his

11   application, the agency is permitted to consider the omission

12   of information “that a credible petitioner would reasonably

13   have been expected to disclose.”   Hong Fei 

Gao, 891 F.3d at 14

  78–79.   Chichilanov’s failure to mention in his written

15   statement that the police tried to suffocate his wife is

16   exactly such an omission, and the IJ was not required to

17   accept Chichilanov’s attempted explanation that his wife

18   prepared his case.   Majidi v. Gonzales, 

430 F.3d 77

, 80 (2d

19   Cir. 2005) (“A petitioner must do more than offer a plausible

20   explanation for his inconsistent statements to secure relief;

21   he must demonstrate that a reasonable fact-finder would be

                                  5
 1   compelled to credit his testimony.” (internal quotation marks

 2   omitted)).   Since Chichilanov was unable to explain the

 3   differences between his and his wife’s versions of events or

 4   why his wife did not mention her arrest in her written

 5   statement, the IJ was fully justified in making an adverse

 6   credibility finding against Chichilanov.

Id. 7

      The IJ was also justified in questioning the plausibility

 8   of Chichilanov’s assertion that he became friends with the

 9   neighbor who falsely accused him of assault.      That skepticism

10   was compounded by the fact that Chichilanov did not know

11   whether his neighbor withdrew the complaint against him, or

12   explain why neither he nor his wife ever attempted to contact

13   the neighbor for a statement corroborating their claim of a

14   false prosecution against them in Russia.      See Wensheng Yan

15   v. Mukasey, 

509 F.3d 63

, 66–68 (2d Cir. 2007) (recognizing

16   that “the fact that there could conceivably be a scenario in

17   which [petitioner’s] behaviors would be plausible will not

18   compel this Court to label unreasonable an IJ’s finding of

19   implausibility”).

20       In short, the IJ’s adverse credibility determination was

21   supported by substantial evidence.   And since Chichilanov’s

                                   6
 1   asylum, withholding of removal, and CAT claims all rely on

 2   the same factual predicate, that adverse credibility finding

 3   is dispositive as to all three claims for relief.      See Paul

 4   v. Gonzales, 

444 F.3d 148

, 156–57 (2d Cir. 2006).

 5       For the foregoing reasons, the petition for review is

 6   DENIED.   All pending motions and applications are DENIED and

 7   stays VACATED.

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe,
10                               Clerk of Court




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