Zhunusov v. Garland

Z
   19-3704
   Zhunusov v. Garland
                                                                               BIA
                                                                        Montante, IJ
                                                                       A215 671 266
                         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 10th
   day of May, two thousand twenty-one.

   PRESENT:
             DENNIS JACOBS,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
   _____________________________________

   BAKTIIAR ZHUNUSOV,
             Petitioner,

                    v.                                       19-3704

   MERRICK B. GARLAND, UNITED STATES
   ATTORNEY GENERAL,
             Respondent.
   _____________________________________

   FOR PETITIONER:                  JILLIAN   E. NOWAK, ESQ. (Karen Murtagh-
                                    Monks,    Executive Director, on the
                                    brief)    for Prisoners’ Legal Services
                                    of New    York, Buffalo, NY.

   FOR RESPONDENT:                  JONATHAN ROBBINS, Senior Litigation
                                    Counsel, (Anthony P. Nicastro,
                                    Assistant Director, on the brief)
                                    for Brian Boynton, Acting Assistant
                                    Attorney General, Civil Division,
                                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 Baktiiar Zhunusov, a native of Kyrgyzstan and

citizen of Russia, seeks review of a BIA decision affirming an

Immigration Judge’s (“IJ”) denial of his application for asylum,

withholding   of   removal,    and   protection   under   the   Convention

Against Torture (“CAT”).       In re Baktiiar Zhunusov, No. A215 671

266 (B.I.A. Oct. 8, 2019), aff’g No. A 215 671 266 (Immigr. Ct.

Batavia Apr. 23, 2019).       We assume the parties’ familiarity with

the underlying facts and procedural history. 1

    We have reviewed the IJ’s decision as modified by the BIA and

reach only the grounds that the BIA relied on in sustaining the




1 The government argues that Zhunusov’s petition is now moot
because of his removal and his failure to maintain contact with
his counsel during the intervening 18 months. Resp’t Ltr. Br.
at 5-6. A petitioner’s removal ordinarily does not deprive the
Court of jurisdiction to consider a petition for review. See
Nken v. Holder, 

556 U.S. 418

, 424 (2009); Swaby v. Ashcroft, 

357
F.3d 156

, 161 (2d Cir. 2004). Zhunusov’s counsel has informed
the Court that Zhunusov authorized counsel to pursue the present
petition for review, and the government conceded at oral
argument that, if Zhunusov’s petition is granted, it would be
obligated to attempt to facilitate his return to the United
States. Accordingly, we conclude that Zhunusov’s petition for
review is not moot. We therefore consider it on the merits.

                                     2
IJ’s adverse credibility determination.           See Xue Hong Yang v. U.S.

Dep’t of Justice, 

426 F.3d 520

, 522 (2d Cir. 2005).            The applicable

standards       of   review   are    well   established.      See     8    U.S.C.

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 

891 F.3d 67

, 76 (2d

Cir.    2018)    (reviewing    adverse      credibility    determination      for

substantial evidence).          In relevant part, the Immigration and

Naturalization Act provides as follows:


       Considering the totality of the circumstances, and all
       relevant factors, a trier of fact may base a credibility
       determination on the demeanor, candor, or responsiveness
       of the applicant . . . , the consistency between the
       applicant’s . . . written and oral statements (whenever
       made and whether or not under oath, and considering the
       circumstances under which the statements were made), the
       internal consistency of each such statement, [and] the
       consistency of such statements with other evidence of
       record . . . without regard to whether an inconsistency,
       inaccuracy, or falsehood goes to the heart of the
       applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). Our precedent teaches that “[w]e

[will] defer . . . 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 v. Mukasey, 

534 F.3d 162

, 167 (2d Cir. 2008);

accord Hong Fei 

Gao, 891 F.3d at 76

.            On such review, we conclude

that    substantial       evidence     supports    the     agency’s       adverse

credibility determination.

       We defer to the agency’s finding that Zhunusov’s evasive

                                        3
demeanor undermined his credibility. The IJ was “in the best

position to evaluate whether apparent problems in the witness’s

testimony      suggest    a    lack   of     credibility       or,   rather,    can   be

attributed to an innocent cause such as difficulty understanding

the question.”       Jin Chen v. U.S. Dep’t of Justice, 

426 F.3d 104

,

113   (2d    Cir.   2005);     see    also       8   U.S.C.    § 1158(b)(1)(B)(iii).

Moreover, the record supports the agency’s adverse credibility

finding.      As the BIA noted, the IJ repeatedly instructed Zhunusov

to answer questions directly, reflective of an assessment that

Zhunusov was being evasive.

      Zhunusov argues that the BIA engaged in improper fact-finding.

He observes that the IJ made only a general finding that Zhunusov

was evasive. Although the BIA is not authorized to make findings

of fact, it reviews the IJ’s findings for clear error.                           See 8

C.F.R. § 1003.1(d)(3).            Here, the IJ found that Zhunusov was

evasive, and the BIA did not fact-find on its own. Rather, it

merely determined that there was no clear error in the IJ’s finding

that Zhunusov was evasive by reviewing the hearing record and

noting      where   the   IJ   called      attention      to    Zhunusov’s     relevant

conduct.

      In making its adverse credibility finding, the agency also

properly considered inconsistencies in Zhunusov’s submissions.                        It

pointed out that during his border and credible fear interviews,

                                             4
Zhunusov failed to mention the threats that he later said prompted

him to leave Kyrgyzstan in 2010 and then to leave Russia in 2018. 2

See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

Lin, 534 F.3d at 166

–

67 & n.3 (in credibility determinations, allowing reliance on

omissions).   Zhunusov testified that he left Kyrgyzstan in 2010

after his political work led to him receiving telephonic threats

from “the mafia” three to four times over an unspecified period.

Special App’x 3 (B.I.A. Decision).          He also testified that his

political work led to death threats against him in the two weeks

preceding his departure from Russia.           But, during his border

interview, Zhunusov stated that he was seeking “political asylum”

only because he experienced “racial discrimination” in Russia.

Further,   although   Zhunusov   asserted   during   his   credible   fear

interview, which was conducted through a Russian interpreter, that

he left Kyrgyzstan because of “political prosecution” (as stated

by the interpreter) and was afraid to return to Russia because he



2 In his appeal to the BIA, Zhunusov did not challenge the
reliability of the interview records. See Lin Zhong v. U.S. Dep’t
of Justice, 

480 F.3d 104

, 107 n.1 (2d Cir. 2007) (holding that
“usually . . . issues not raised to the BIA will not be examined
by the reviewing court”). Nor would he have had obvious grounds
to do so. The records bear “hallmarks of reliability”: they are
typewritten lists of questions and answers; Zhunusov had an
interpreter; his responses to the questions indicate that he
understood the interviewers; and the interviewers asked questions
designed to elicit an asylum claim. See Ming Zhang v. Holder, 

585
F.3d 715

, 725 (2d Cir. 2009).

                                   5
feared the Kyrgyz government would send someone to Russia to harm

him, he did not elaborate further on these isolated comments and

instead focused on the racial persecution he allegedly suffered in

Russia.       A.R. 848, 849.     Nor did Zhunusov refer to the 2010 threats

that he later identified as motivating him to flee Kyrgyzstan or

the 2018 threats that he said prompted him to flee Russia.                          The

agency did not err in relying on these omissions together with its

demeanor      and    other   inconsistency       findings,      since    the   threats

formed a material part of Zhunusov’s claim.                 See Hong Fei 

Gao, 891

F.3d at 78

, 82 (holding that “the probative value of a witness’s

prior silence on particular facts depends on whether those facts

are    ones    the   witness   would     reasonably      have     been   expected    to

disclose”); see also Ming Zhang v. Holder, 

585 F.3d 715

, 726 (2d

Cir.    2009)    (the   agency    may    “draw    an    adverse    inference     about

petitioner’s credibility based, inter alia, on h[is] failure to

mention” important details or events in prior statements).

       Finally,      the     agency     reasonably       relied     on    Zhunusov’s

inconsistent         representations      regarding        when    he    resided     in

Kazakhstan and when he was detained in that country.                     See 8 U.S.C.

§ 1158(b)(1)(B)(iii).            Because      the      contradictions     among     his

statements were apparent (that is, whether he was detained in 2006,

2007, 2010, or 2016), the agency was entitled to rely on these

inconsistencies without first soliciting explanations.                     See Majidi

                                          6
v. Gonzales, 

430 F.3d 77

, 81 (2d Cir. 2005); Ming Shi Xue v. BIA,

439 F.3d 111

, 114 (2d Cir. 2006). In any event, the record reveals

that the attorney for the Department of Homeland Security cross-

examined Zhunusov about both the timing and length of his detention

in Kazakhstan by pointing to inconsistencies between his testimony

and his I-589.

    Having called Zhunusov’s credibility into question on these

sound   bases,   the   agency   reasonably     relied     on    his   failure   to

rehabilitate his testimony with reliable corroborating evidence.

See Biao Yang v. Gonzales, 

496 F.3d 268

, 273 (2d Cir. 2007) (“An

applicant’s failure to corroborate his or her testimony may bear

on credibility, because the absence of corroboration in general

makes an applicant unable         to rehabilitate         testimony that has

already   been    called   into    question.”).           Zhunusov       submitted

extensive country conditions evidence, but provided no evidence

tending to corroborate his claim that he was involved in high-

profile political work. Further, Zhunusov affirmatively stated

that he had not attempted to obtain medical records or letters

from his former employer or attorney in Russia to corroborate his

account of alleged beatings.

    Considered     together,    the    IJ’s    demeanor        finding    and   the

omissions,   inconsistencies,         and     lack   of    corroboration         in

Zhunusov’s record amount to substantial evidence supporting the

                                      7
agency’s adverse credibility determination.              See Xiu Xia 

Lin, 534

F.3d at 165

–66.        The   adverse     credibility   determination      is

dispositive        of   Zhunusov’s   claims    for   asylum,    withholding    of

removal, and CAT relief because all three forms of relief rest on

the same factual predicate.          See Paul v. Gonzales, 

444 F.3d 148

,

156–57 (2d Cir. 2006).

       We do not reach Zhunusov’s argument that, even absent his own

credible testimony, his country conditions evidence established

that he has a well-founded fear of persecution in Russia.              Zhunusov

did not exhaust the argument that the evidence showed a pattern or

practice in Russia of persecuting similarly situated individuals

as would establish a well-founded fear of persecution under 8

C.F.R. § 1208.13(b)(2)(iii).            See Lin Zhong v. U.S. Dep’t of

Justice, 

480 F.3d 104

, 122–23 (2d Cir. 2007) (holding that “we may

consider only those issues that formed the basis for [the BIA’s]

decision”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 

471

F.3d 315

, 334–35 (2d Cir. 2006) (explaining that we may not “engage

in an independent evaluation of the cold record” or sit as “fact-

finders in the first instance”).

       For   the    foregoing     reasons,    the    petition   for   review   is

DENIED.      Zhunusov’s pending motions for a stay of removal and to

compel his return are DENIED as moot and the order granting a

temporary emergency stay is VACATED.                 The joint motion by the

                                        8
American Immigration Council and Immigrant Defense Project for

leave to file a brief amici curiae is GRANTED.

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




                               9

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