Yaroslav Yurivich Vikulia v. U.S. Attorney General ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10343
Non-Argument Calendar
________________________
Agency No. A097-943-956
YAROSLAV YURIVICH VIKULIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 17, 2021)
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
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Yaroslav Vikulin, a Russian national and citizen of Kazakhstan, seeks
review of the Board of Immigration Appeals’ (“BIA”) order affirming the
Immigration Judge’s (“IJ”) denial of his application for asylum, pursuant to 8
U.S.C. § 1158(a); withholding of removal under 8 U.S.C. § 1231(b)(3); and relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (“CAT”), see 8 C.F.R. § 1208.16(c). He
challenges the BIA’s determination that he failed to show that he was persecuted
on account of a protected ground or that he could not reasonably relocate within
Kazakhstan to avoid persecution. He also asserts that he met the standard for
withholding of removal and CAT relief and that the BIA violated his due process
rights when it failed to consider all of the issues he raised on appeal from the IJ’s
decision.
Additionally, Vikulin seeks review of the BIA’s subsequent order denying
his application for adjustment of status and his motion for remand based on new
evidence. He argues that the BIA erred in its discretionary decision to deny him an
adjustment of status by failing to use certain positive factors to offset negative
factors, and the BIA abused its discretion when it denied his motion to remand.
Because we conclude that we lack jurisdiction over some of Vikulin’s claims and
he is not entitled to relief on the merits of his remaining claims, we dismiss the
petition in part and deny it in part.
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I. Background
Vikulin is a Russian national who was born in Kazakhstan in 1981. He was
admitted to the United States in January 2001 on an H-4 visa as a dependent of his
mother, who was at that time in the United States on an H-1B visa. Vikulin was 19
at the time of his admission. In 2002, he changed his visa status to that of a student
and started attending college in Georgia. In the fall of 2003, he stopped attending
classes. As a result, in September 2004, Vikulin was served with a Notice to
Appear, which charged him as being removable for failure to maintain or comply
with the conditions of his non-immigrant status, pursuant to 8 U.S.C.
§ 1227(a)(1)(C)(i). At a hearing in December 2004, Vikulin conceded his
removability and the IJ granted his request for voluntary departure, ordering him to
depart by September 20, 2005. Vikulin failed to depart, and his grant of voluntary
departure became a final order of removal to Kazakhstan.
After being arrested for a DUI in 2010, Vikulin successfully moved to
reopen his removal proceedings so that he could seek asylum, withholding of
removal, and CAT relief. He appeared again before the IJ in March 2011 and
conceded his removability. The IJ designated Kazakhstan as his country of
removal and set a hearing on his application for September 2013.
In his application for asylum, withholding of removal, and CAT relief,
Vikulin expressed a fear of persecution in Kazakhstan on account of his Russian
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ethnicity. Specifically, he asserted that Russians are the minority in Kazakhstan,
and, after the fall of the Soviet Union, Russians in Kazakhstan “became a target for
nationalistic oppression, abuse and discrimination.” He stated that in 1998, his
family was blackmailed and targeted for money because people knew his mother
was working in the United States. On one occasion, he was severely beaten by the
individuals who were demanding money and suffered a broken jaw, resulting in a
week-long hospitalization. Vikulin stated that he “was attacked many times” while
in Kazakhstan. He averred that he feared for his safety if returned to Kazakhstan
and believed he would be “a target for op[p]ression, discrimination and most likely
physical reprisal by Kazakh nationals.” He admitted that he had been arrested
twice for DUI—once in 2001 and once in 2010.
After many continuances over several years, the immigration court held a
merits hearing on Vikulin’s application in April 2017. Vikulin testified that he was
afraid to go back to Kazakhstan because, while he was living there “some criminal
elements found out that [his] mother [was] working abroad, and of course USA is a
source of money, so [he] was blackmailed and they kind of terrorized [him] for
money.” When he left Kazakhstan, those people told him they would look for him
if he came back. He also testified that within the last few years, his grandmother,
who at the time still lived in Kazakhstan, received a call from some individuals
who told her that Vikulin was in jail and that they needed money from her to help
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him. He stated that even though this incident was “a prank” and his grandmother
did not pay any money and was not harmed, the incident demonstrated that
individuals in Kazakhstan still remembered him and were waiting for him to come
back.
Vikulin stated that Russians are a minority in Kazakhstan and, since the
Soviet Union broke up, they cannot get good educations, jobs, or healthcare in
Kazakhstan. He further asserted that he was targeted “many times” because he
was Russian. When asked to elaborate, he explained that, in 1998, on New Years
Eve, Kazakh individuals broke his jaw because he “look[ed] different and [he] had
a source of money coming from [his] mom” in the United States, and he refused to
pay them. Although the people who attacked him wore masks, Vikulin stated he
knew they were Kazakh nationals because of their accents, and he believed they
worked for the police and their job was to extort money from people, particularly
Russians. He confirmed that those individuals harmed him because he refused to
pay and that they threatened him and tried to extort money from him “every week
pretty much.” If returned to Kazakhstan, Vikulin asserted that he believed these
same “criminal elements” would capture him at the airport because they said they
were “going to wait for [him].”
Vikulin filed a report with the Kazakhstan police regarding the beating
during which he suffered a broken jaw, but stated that “nothing” really happened
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after he filed it and that he was contacted by people that said they knew he had
filed a report and it would not do him any good. Because he was contacted by
these individuals about the police report after he filed it, Vikulin believed these
individuals worked for and were protected by the police. The case was closed
three months later by the police.
In addition to the broken jaw incident, Vikulin confirmed that he “was
beaten up a few times” and this was a “normal” routine in Kazakhstan to make sure
people “pay.” In fact, between 1998 and 2000, while Vikulin attended a university
in Kazakhstan, he would get “thrown between people” and pushed and kicked on
an almost weekly basis. He explained that Russians at the Kazakhstan University
were targeted by the “criminal elements.”
Tatiana Vikulin, Vikulin’s mother, testified that she was admitted to the
United States in 1998 on a visa and obtained citizenship in 2011. She explained
that when the Soviet Union collapsed, the situation in Kazakhstan changed and
there was a lot of animus toward Russians. She stated that her husband and other
son received anonymous phone calls while in Kazakhstan trying to extort money
from them, and that she knew from family that Vikulin was targeted, blackmailed,
and beaten by “racketeers” in Kazakhstan who knew she was working in the
United States and was a “good source of money.” She feared that Vikulin would
be harmed if he returned to Kazakhstan because there is “no Russian nationality
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left” in Kazakhstan, the country is not stable, and they have no family there.
Additionally, in 2010, a former neighbor told Tatiana’s mother that people in
Kazakhstan were searching for their family and waiting for Vikulin to return.
Yuri Vikulin, Vikulin’s father, testified that he came to the United States in
2002 and became a citizen in 2013. Yuri confirmed that he drove Vikulin to the
hospital after the beating in which Vikulin suffered a broken jaw. Yuri did not
know who had attacked his son, and stated that the police closed the case because
they could not find the culprits. He also stated that it was difficult for Russians to
be promoted in Kazakhstan and that he was forced to resign a leadership position
at an institute there so that it could be given to a Kazakh national instead.
Additionally, friends who were still in Kazakhstan told him that Russian owned
businesses were targeted for arson. Yuri confirmed that he believed Vikulin “will
have problems” if returned to Kazakhstan because of things he had read and heard
concerning the current state of affairs in Kazakhstan.
The IJ found Vikulin credible but denied his application for asylum,
withholding of removal, and CAT relief, concluding that he had failed to establish
his eligibility for such relief. In relevant part, the IJ found that Vikulin had not
demonstrated that he suffered past persecution or that he had a well-founded fear
of future persecution on account of his race, nationality, or his membership in a
particular social group. Rather, the evidence demonstrated that Vikulin was
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subject to “general criminal activity” and “acts of private violence” and was
targeted because of his family’s wealth and ability to pay bribes. Thus, the IJ
reasoned that Vikulin’s race or nationality was not a central reason for his
persecution. The IJ further found that Vikulin failed to establish a well-founded
fear of persecution because he did not submit any evidence showing that he would
be unable to reasonably relocate within Kazakhstan and avoid future persecution.
Because Vikulin failed to meet his burden of establishing his eligibility for asylum,
the IJ determined he could not satisfy the higher burden for withholding of
removal. Lastly, with regard to CAT relief, the IJ determined that Vikulin failed to
show that he would more likely than not be tortured by, at the instigation of, or
with the consent or acquiescence of, any public official. 1 Vikulin appealed the IJ’s
decision to the BIA.
While Vikulin’s appeal was pending before the BIA, he filed a motion to
remand his case to the IJ so that the IJ could consider an application for adjustment
1
The IJ made other findings when ruling on Vikulin’s application, including that
Vikulin’s application for asylum was time-barred; the incidents of extortion, harassment, and
harm Vikulin suffered did not rise to the level of persecution; Vikulin failed to establish that the
government of Kazakhstan would be unable or unwilling to protect him; and that Vikulin’s fear
of future persecution was not objectively reasonable because Vikulin provided no evidence to
corroborate that individuals were attacked upon arrival to the airport or that his assailants were
still awaiting his return 16 years later. Vikulin challenged these findings on appeal to the BIA,
but because, as discussed further in this opinion, the BIA found other issues dispositive of
Vikulin’s application, it declined to address these other issues. To the extent Vikulin seeks to
challenge any of the IJ’s findings on those issues in the instant appeal, those issues are not before
us. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (“We do not consider issues
that were not reached by the BIA.”).
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of status based on an approved immigrant visa petition that his mother had filed on
his behalf.
Upon review, the BIA affirmed the IJ’s decision, dismissed Vikulin’s
appeal, and granted his motion for remand for the IJ to consider Vikulin’s
application for adjustment of status. Specifically, the BIA agreed with the IJ’s
determination that Vikulin had not established that he had been persecuted or had a
well-founded fear of future persecution on account of a statutorily protected
ground. The BIA reasoned that the record supported the IJ’s finding that the
individuals who targeted Vikulin were criminally motivated, the targeting was not
based on animus towards Vikulin’s Russian ethnicity, and private acts of violence
or criminal activity do not constitute persecution on account of a statutorily
protected ground. Additionally, the BIA agreed with the IJ’s determination that
Vikulin failed to demonstrate that he could not reasonably relocate within
Kazakhstan. The BIA concluded that these matters were dispositive of Vikulin’s
claim for asylum and withholding of removal. With regard to Vikulin’s CAT
claim, the BIA agreed with the IJ that the evidence did not establish that Vikulin
would more likely than not suffer torture by, or with the acquiescence of, the
government.
Following a hearing on remand, the IJ denied Vikulin’s application for
adjustment of status, concluding that Vikulin failed to demonstrate good moral
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character. The IJ remarked that he was “troubled” by the appearance that Vikulin
had attempted to manipulate the immigration system to his advantage, noting that
Vikulin knew his immigration status was tied to his being a student and yet he
knowingly left school. The IJ also noted that Vikulin had “several brushes with the
law” since entering the United States, including two DUIs, a revocation of
probation due to a positive drug test, and a recent possession of cocaine charge. 2
Vikulin appealed the IJ’s denial of his application for adjustment of status to
the BIA. While this appeal was pending, he filed a new motion to remand with the
BIA, asserting that a remand of his application for adjustment of status was
appropriate in light of new evidence that the Alabama case for possession of
cocaine had been dismissed because the state had failed to produce the evidence
against him after more than two years. Vikulin noted that his criminal history was
a significant factor in the IJ’s decision to deny his application; thus, remand was
appropriate because the dismissal of the Alabama charge could possibly change the
outcome.
The BIA denied Vikulin’s application for adjustment of status, dismissed his
appeal, and denied his motion for remand. The BIA noted that the grant or denial
2
During the hearing on Vikulin’s application for adjustment of status, the government
established that he was arrested in Alabama in 2017 for possession of a substance believed to be
cocaine, but that the case was still open because Vikulin contested that the substance was cocaine
and lab testing of the substance had yet to be completed.
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of an application for adjustment of status is a matter of discretion, and in making
the discretionary determination, it balances the alien’s positive and negative factors
to determine whether granting relief is in the best interest of the United States.
And, in Vikulin’s case, the adverse factors—including his 15-year immigration
history in removal proceedings based on his failure to maintain his student status,
his failure to abide by the terms of his voluntary departure, and his failure to seek
to extend his voluntary departure status or seek relief from removal until after an
arrest in 2010, his DUIs in 2001 and 2011, and a 2012 violation of probation based
on a positive drug test for cocaine—outweighed the positive factors—including his
entering the United States lawfully, consistent employment history, paid income
taxes, and substantial family ties to the United States, among others. Accordingly,
the BIA denied his application for adjustment of status.
Regarding the motion for remand, the BIA concluded that remand was not
warranted because the adverse factors still outweighed the positive factors even
without consideration of the 2017 Alabama arrest for cocaine possession.
Accordingly, the BIA denied the motion to remand. This appeal followed.
II. Discussion
A. Application for asylum, withholding of removal and CAT relief
We review only the decision of the BIA, except to the extent that it adopts
the IJ’s decision or expressly agrees with the IJ’s reasoning. Gonzalez v. U.S. Att’y
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Gen., 820 F.3d 399, 403 (11th Cir. 2016). When the BIA explicitly agrees with the
findings of the IJ, we will review the decisions of both the BIA and the IJ as to
those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
We review conclusions of law de novo and factual determinations under the
substantial evidence standard. Gonzalez, 820 F.3d at 403. Under the substantial
evidence standard, we review the evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). The agency’s
decision will be affirmed “if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Id. (quoting Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)). We cannot “reweigh the
evidence from scratch” and will reverse findings of fact “only when the record
compels a reversal.” Id. (quotation marks omitted).
A petitioner seeking asylum must present specific, credible evidence that
establishes either (1) that he was persecuted in the past “on account of race,
religion, nationality, membership in a particular social group, or political opinion,”
or (2) that he has a “well founded fear” of persecution in the future “on account of”
any of those enumerated grounds. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1);
Sanchez Jimenez v. U.S. Att’y. Gen., 492 F.3d 1223, 1232 (11th Cir. 2007).
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The applicant must show a nexus between the alleged persecution and a
protected status, i.e., “that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for
persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). To
show a nexus, the alien must “present specific, detailed facts showing a good
reason to fear that he . . . will be singled out for persecution on account of” the
statutorily protected ground. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005) (quotation and emphasis omitted).
If the alien demonstrates that he was subject to past persecution, he is
“presumed to have a well-founded fear of persecution on the basis of the original
claim.” 8 C.F.R. § 208.13(b)(1). But where the alien has not demonstrated past
persecution, to establish a well-founded fear of persecution, he “must prove (1) a
subjectively genuine and objectively reasonable fear of persecution, that is (2) on
account of a protected ground.” Silva, 448 F.3d at 1236 (quotation omitted).
To qualify for withholding of removal under the INA, an alien must
demonstrate that, if removed to his country, his “life or freedom would be
threatened in that country because of [his] race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). The alien
must show that it is “more likely than not” that he will be persecuted or tortured
upon returning to his country. Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1331
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(11th Cir. 2011) (quotation marks omitted). Generally, if a petitioner is unable to
meet the standard of proof for asylum, he will be precluded from qualifying for
withholding of removal. Id.To be eligible for CAT relief, an alien must show that he will, more likely
than not, be tortured if removed to his country of removal by or at the instigation
of, or with the consent or acquiescence of, a public official or other person acting
in an official capacity. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1).
Vikulin argues that he is eligible for asylum and that he established that he
was targeted on account of his Russian ethnicity. In support, he points to his
testimony and that of his parents that, since the dissolution of the Soviet Union,
Russians have been repeatedly targeted by Kazakh nationals.
Both Vikulin and his parents testified that Russian nationals have suffered
generalized discrimination and persecution in Kazakhstan since the dissolution of
the Soviet Union. However, when testifying about specific past harms Vikulin
suffered between 1998 and 2000, their testimony established that the threats,
harassment, and beatings were because the assailants wanted to extort money from
Vikulin due to the fact they knew that his mother was working in the United States.
Evidence consistent with acts of private violence, or that merely shows that the
petitioner was the victim of criminal activity, does not establish a nexus between a
protected ground and the alleged persecution. See, e.g., Ruiz v. Att’y Gen., 440
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F.3d 1247, 1258 (11th Cir. 2006) (holding that the petitioner failed to establish a
nexus between her political opinion and alleged persecution by a guerrilla group
because the evidence established that she was harassed due to her refusal to
cooperate with the group); Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310–11
(11th Cir. 2013) (holding that the record established that the harm the applicant’s
family members suffered was due to their failure to cooperate with drug traffickers
or that that they were victims of criminal activity, and, therefore, the applicant
failed to show that the harm he feared was on account of a protected ground).
Additionally, while it is undisputed that Vikulin suffered a particularly severe
beating that resulted in a broken jaw and a hospital stay because he refused to pay
the assailants money, it is not enough to show that he was or will be persecuted due
to his refusal to cooperate with the criminals. See Sanchez v. U.S. Att’y Gen., 392
F.3d 434, 438 (11th Cir. 2004). Rather, Vikulin must establish that the alleged
persecution is motivated, at least in part, by a protected ground. Id.; see also I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that central to the asylum
statute is that persecution must be on account of a statutorily protected ground,
making the assailant’s “motive critical”). Vikulin failed to provide any evidence,
other than his own speculation, that the assailants’ actions towards him were
motivated by his Russian ethnicity. Thus, substantial evidence supports the BIA’s
conclusion that Vikulin failed to establish persecution on account of a statutorily
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protected ground. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 823 (11th Cir.
2007) (holding that, even where other inference as to the assailants’ motives may
be drawn, “it is not our task to do so as long as substantial evidence supports the
[BIA’s] conclusion.” (quotation omitted)). Accordingly, Vikulin failed to meet the
standard for asylum relief. 3
Although Vikulin argues that he is eligible for withholding of removal and
CAT relief, because he failed to meet the standard for asylum, it follows
necessarily that he cannot meet the higher standard for withholding of removal or
CAT relief. Carrizo, 652 F.3d at 1331; Forgue, 401 F.3d at 1288 n.4 (“Because
Forgue has failed to establish a claim of asylum on the merits, he necessarily fails
to establish eligibility for withholding of removal or protection under CAT.”); Al
Najjar v. Ashcroft, 257 F.3d 1262, 1292–93, 1303 (11th Cir. 2001) (holding that
because the applicants “failed to demonstrate a ‘well-founded fear of persecution’
sufficient to support an asylum claim, they likewise cannot establish ‘torture’
sufficient to warrant relief under CAT” because the burden of proof under the
Convention “is higher than the burden imposed on the asylum applicant”).
3
To the extent Vikulin argues that the evidence was sufficient to establish a pattern or
practice of persecution against Russian nationals in Kazakhstan, this claim is unexhausted, and
we lack jurisdiction to consider it. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1249–
50 (11th Cir. 2006) (explaining that we lack jurisdiction to consider claims in a petition for
review that were not raised before the BIA). Additionally, because we conclude that substantial
evidence supports the BIA’s conclusion that Vikulin failed to establish persecution on account of
a statutorily protected ground, we decline to consider Vikulin’s argument that the BIA erred in
concluding that he could reasonably relocate to avoid persecution.
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Finally, Vikulin maintains that the BIA violated his due process rights when
it failed to consider all of the issues he raised on appeal from the IJ’s decision. We
disagree. “To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. U.S. Att’y Gen., 352
F.3d 1338, 1341–42 (11th Cir. 2003). As we have previously emphasized, the BIA
is “not required to address specifically each claim the petitioner made or each piece
of evidence the petitioner presented, but [it] must consider the issues raised and
announce [its] decision in terms sufficient to enable a reviewing court to perceive
that [it] ha[s] heard and thought and not merely reacted.” Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010) (quotation omitted). In Vikulin’s case, the IJ
provided multiple grounds for denying his application for relief from removal and
Vikulin challenged many of these grounds on appeal to the BIA. The record
establishes that the BIA expressly considered whether Vikulin was eligible for
each form of relief sought and agreed with the IJ that he had not met his burden of
establishing that he was entitled to relief. Although the BIA did not address every
one of the IJ’s findings that Vikulin challenged, it did not need to do so because it
determined that other grounds were dispositive of his application. The BIA gave a
sufficient explanation for its decision that demonstrated that it gave reasoned
consideration to Vikulin’s claims. As a result, Vikulin cannot show that the BIA’s
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failure to address the other findings he challenged “deprived [him] of liberty
without due process of law,” and “caused [him] substantial prejudice.” Lonyem,
352 F.3d at 1341–42.
B. Application for adjustment of status and motion to remand
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction to review the
BIA’s discretionary decision regarding adjustment of status.4 Nevertheless, we
may review constitutional questions and questions of law. 8 U.S.C.
§ 1252(a)(2)(D). However, we have jurisdiction only over genuine, colorable
constitutional or legal claims, and “a party may not dress up a claim with legal or
constitutional clothing to invoke our jurisdiction.” Patel v. U.S. Att’y Gen., 971
F.3d 1258, 1272 (11th Cir. 2020) (en banc). An argument couched as a legal
question that essentially challenges the BIA’s or IJ’s weighing of evidence is a
“garden-variety abuse of discretion argument” that does not state a legal or
constitutional claim. Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1252–53 (11th Cir.
4
The BIA has discretion to grant an adjustment of status to an alien who was “inspected
and admitted or paroled into the United States” “if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is immediately available to him at the
time his application is filed.” 8 U.S.C. § 1255(a). The burden is on the alien to establish that he
warrants relief as a matter of discretion. 8 U.S.C. § 1229a(c)(4)(A)(ii). In making its
discretionary determination, the BIA and the IJ are “not bound by an inflexible test in
determining whether to grant [adjustment of status] as a matter of discretion.” Cobourne v.
I.N.S., 779 F.2d 1564, 1566 (11th Cir. 1986). Rather, the BIA and IJ should balance the alien’s
positive and negative factors, and it can accord more weight to certain factors over others. Id. at
1566–67; Matter of C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998).
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2014) (quotation omitted). Vikulin argues that the BIA violated his due process
rights in denying his application for adjustment of status when it failed to use the
positive factors present in his case to offset the negative ones. We have held
previously that this type of claim, although couched in due process terms, does not
state a colorable constitutional claim and instead is a challenge to the BIA’s
exercise of its discretion. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th
Cir. 2007). Therefore, we have no jurisdiction to consider it. Id.; see also
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (“Adjustment of
an alien’s status . . . is a discretionary form of relief. . . . Because [an alien] has no
constitutionally protected interest either in the granting of his motions or in
adjustment of status, he cannot establish a due process violation based on the
BIA’s decisions.”). Accordingly, we dismiss this portion of Vikulin’s petition.
Lastly, Vikulin argues that the BIA abused its discretion in denying his
motion to remand his application for adjustment of status so that the IJ could
consider the new evidence of the dismissal of the Alabama drug possession charge.
We review a motion to remand that seeks to introduce new evidence for an abuse
of discretion. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008).
“This review is limited to determining whether the BIA exercised its discretion in
an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009).
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The denial of Vikulin’s motion to remand was not an abuse of discretion.
The BIA reasoned that, even without taking into consideration the Alabama arrest,
the adverse factors still outweighed the positive factors, and a favorable exercise of
discretion was not warranted. Thus, remand was not warranted under the
circumstances and the BIA did not “exercise[] its discretion in an arbitrary or
capricious manner.” Id.III. Conclusion
In light of the foregoing, we dismiss the portions of the petition over which
we lack jurisdiction and deny the rest of the petition.
DISMISSED IN PART, DENIED IN PART.
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