Talipov v. Holder ( 2014 )

12-4265 (L)
Talipov v. Holder
BIA
Page, IJ
A097 532 645
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of November, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 BAKHROM TALIPOV,
14 Petitioner,
15
16 v. 12-4265 (L);
17 13-586 (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Stacy Caplow, Of Counsel, Brooklyn
25 Law School Legal Services Crop.,
26 Brooklyn, NY.
27
28
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Cindy S. Ferrier, Assistant
3 Director; Sunah Lee, Trial Attorney,
4 Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of these petitions for review of
9 decisions of the Board of Immigration Appeals (“BIA”), it is
10 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
11 review in Dkt. No. 12-4265 (L) and Dkt. No. 13-586 (Con) are
12 DENIED.
13 Petitioner Bakhrom Talipov, a native of the former
14 Soviet Union and citizen of Uzbekistan, seeks review of a
15 September 27, 2012 order of the BIA, affirming the September
16 20, 2011 decision of an Immigration Judge (“IJ”), which
17 denied asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”), In re Bakhrom Talipov,
19 No. A097 532 645 (B.I.A. Sept. 27, 2012), aff’g No. A097 532
20 645 (Immig. Ct. N.Y. City Sept. 20, 2011), and a February 8,
21 2013 decision of the BIA denying his timely motion to
22 reopen, In re Bakhrom Talipov, No. A097 532 645 (B.I.A. Feb.
23 8, 2013). We assume the parties’ familiarity with the
24 underlying facts and procedural history in this case.
25
26
2
1 Petition for Review in Dkt No. 12-4265 (L)
2 Under the circumstances of this case, we review the
3 decisions of both the IJ and the BIA. Yun-Zui Guan v.
4 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
5 standards of review are well established. See 8 U.S.C.
6 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
7 510, 513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d
8 162, 165-66 (2d Cir. 2008) (per curiam).
9 A. Credibility. For applications such a Talipov’s,
10 governed by the REAL ID Act, the agency may base a
11 credibility finding on an applicant’s demeanor, the
12 plausibility of his account, and inconsistencies in his
13 statements, without regard to whether they go “to the heart
14 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
15 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).
16 “We defer therefore to an IJ’s credibility determination
17 unless, from the totality of the circumstances, it is plain
18 that no reasonable fact-finder could make such an adverse
19 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
20 Talipov does not contest the agency’s reliance on his
21 inconsistent testimony regarding when his passport was
22 stolen and has therefore waived review of that
3
1 determination. Talipov also concedes that he testified
2 inconsistently about when he received his civil summonses.
3 Although he argues that this inconsistency was not material,
4 the agency may base a credibility finding on inconsistencies
5 that do not go “to the heart of the applicant’s claim.” 8
6 U.S.C. § 1158(b)(1)(B)(iii). The agency therefore did not
7 err in basing the credibility finding on these
8 inconsistences.
9 Talipov contends that the agency erred by treating the
10 omissions from his supporting affidavit as inconsistencies.
11 However, for purposes of analyzing a credibility
12 determination, “[a]n inconsistency and an omission are . . .
13 functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166.
14 Specifically, the agency relied on the omission from
15 Talipov’s affidavit of the allegation that the individuals
16 who struck him with their car were wearing national security
17 officer uniforms. This omission was significant because it
18 was the driver’s status as a government agent that furnished
19 a nexus between the harm of being struck by the car and a
20 protected ground. See 8 U.S.C. § 1101(a)(42).
21 Talipov also challenges the agency’s reliance on other
22 omissions. But while the omissions may be minor, the agency
4
1 was entitled to rely on their cumulative effect. Tu Lin v.
2 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
3 The agency’s adverse credibility determination also
4 rests soundly on implausibilities in Talipov’s account. See
5 8 U.S.C. § 1158(b)(1)(B)(iii). Some of them are not in
6 themselves significant, and Talipov’s explanations could be
7 deemed plausible. However, the agency was not required to
8 credit explanations unless they would be compelling to a
9 reasonable fact-finder. Cf. Majidi v. Gonzales, 430 F.3d
10 77, 80 (2d Cir. 2005).
11 Having called Talipov’s credibility into question, the
12 agency reasonably determined that it was further undermined
13 by Talipov’s failure to provide corroboration. See 8 U.S.C.
14 § 1158(b)(1)(B)(ii). Failure to corroborate an applicant’s
15 testimony may bear on credibility, either because the
16 absence of particular corroborating evidence is viewed as
17 suspicious, or because the absence of corroboration makes an
18 applicant unable to rehabilitate testimony that has already
19 been called into question. See Biao Yang v. Gonzales, 496
20 F.3d 268, 273 (2d Cir. 2007) (per curiam). Talipov concedes
21 that he failed to provide: (1) any article published under
22 his own name; (2) articles published in the state-run
23 newspaper exposing his pseudonym; or (3) medical records
5
1 from his 2006 beating, which (he claimed) resulted in a
2 severe concussion, treatment by a neurosurgeon, and biannual
3 return visits to the hospital to receive two-week-long
4 injection therapy. His assertion that the IJ held him to an
5 overly stringent corroboration standard is therefore
6 misplaced.
7 Based on the foregoing, the IJ’s adverse credibility
8 determination is supported by substantial evidence: it
9 cannot be said “that no reasonable fact-finder could make
10 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
11 at 167. The agency therefore did not err in denying asylum,
12 withholding of removal, and CAT relief because all three
13 claims shared the same factual predicate. See Paul v.
14 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
15 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
16 B. Due Process. Talipov raises a due process
17 challenge to the IJ’s conduct of proceedings, based on: the
18 proceedings lasted too long and thereby impaired the
19 assessment of his credibility; he appeared via video
20 conference; and the IJ excessively interrupted him with
21 questions. However, Talipov does not show how any of these
22 supposed deficiencies impaired the assessment of his
23 credibility, and it is unclear how the credibility finding--
6
1 which was properly based on inconsistencies, omissions, the
2 implausibility of his account, and a lack of corroborative
3 evidence--could have been impaired by the IJ’s questioning,
4 the length of the proceedings, or the use of video
5 conferencing. In short, Talipov’s due process challenge
6 fails because he does not “allege some cognizable prejudice
7 fairly attributable to the challenged process.”
8 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
9
10 Petition for Review in Dkt No. 13-586 (Con).
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23
14 (1992)). “A motion to reopen proceedings shall not be
15 granted unless it appears to the [BIA] that evidence sought
16 to be offered is material and was not available and could
17 not have been discovered or presented at the former
18 hearing.” 8 C.F.R. § 1003.2(c)(1) (2005). Failure to offer
19 such evidence is, therefore, a proper ground on which the
20 BIA may deny a motion to reopen, as is the movant’s failure
21 to establish a prima facie case for the underlying
22 substantive relief sought. Abudu, 485 U.S. at 104-05.
23 However, the BIA has an obligation to consider the “record
7
1 as a whole,” and it may be an abuse of discretion to deny a
2 motion to reopen without addressing “all the factors
3 relevant to [a] petitioner’s claim.” Ke Zhen Zhao v. U.S.
4 Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001).
5 A. Journalism and Human Rights Activism. The BIA did
6 not err in declining to reopen proceedings on the basis of a
7 letter from Talipov’s work acquaintance, corroborating the
8 existence of Zones Grises. As the BIA observed, the letter
9 recounted events that took place from 2005 to 2006 and was
10 therefore neither new nor previously unavailable. See
11 Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006).
12 The letter writer asserted that she at first ignored an
13 April 2011 email from Talipov’s counsel because she thought
14 it was spam; but the BIA did not err in finding that Talipov
15 failed to establish that his evidence was still unavailable
16 by the time the merits hearing concluded. Cf. 8 U.S.C.
17 § 1254(b)(4).
18 The BIA also did not err in denying reopening on the
19 basis of the Russian internet database printout reflecting
20 an outstanding warrant for Talipov in Uzbekistan. See Jian
21 Hui Shao v. Mukasey, 546 F.3d 138, 159-60 (2d Cir. 2008)
22 (observing that motions to reopen must be supported by
23 “reliable” evidence). The BIA reasonably determined that
8
1 this evidence was unreliable because the database was not
2 well-established and there was insufficient information
3 concerning its affiliations. See Xiao Ji Chen v. U.S. Dep’t
4 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that
5 the weight accorded to the applicant’s evidence in
6 immigration proceedings lies largely within the discretion
7 of the agency).
8 B. Transgender Identity. The BIA did not abuse its
9 discretion in denying reopening based on the evidence
10 concerning Talipov’s male-to-female transgender identity.
11 The BIA concluded that evidence of Talipov’s transgender
12 identity and sexual orientation could have been presented at
13 his merits hearing because Talipov was aware of his gender
14 identity since childhood. Talipov relies on evidence that
15 he only recently began hormone therapy, started using
16 makeup, started wearing women’s clothes, and began living
17 openly as a male-to-female transgender person. These events
18 may have been recent, but for all the record shows, the
19 recent hormonal therapy may have had no obvious outward
20 effect, and he could at any time have assumed a woman’s
21 habit and presentation. See Singh v. Gonzales, 468 F.3d
22 135, 139 (2d Cir. 2006) (“Motions to reopen are designed to
23 allow consideration of circumstances that have arisen
9
1 subsequent to the applicant’s previous hearing.”). In
2 short, Talipov’s gender identity evidence was not new or
3 previously unavailable because it shows only the recent
4 expression by him of his unchanged psychological self-
5 perception.
6
7 Pending Motions
8 A. Additional Evidence. The government moves to
9 strike Talipov’s reply, which contains evidence outside the
10 administrative record but does not advance legal arguments.
11 Talipov moves for inclusion of his additional evidence,
12 which relates to his physical transformation as a
13 male-to-female transgender person, in the administrative
14 record. Because our review is limited to the administrative
15 record upon which each final order is based, 8 U.S.C.
16 § 1252(b)(4)(A), we grant the government’s motion to strike
17 Talipov’s reply and deny Talipov’s motion to supplement the
18 record with additional evidence.
19 B. Case Captions. Talipov moves to amend the case
20 captions in Dkt. Nos. 12-4265 (L) and 13-586 (Con) to
21 reflect his legally changed name: Victoria Jacobs. His
22 motion is supported by an order from the Civil Court of the
23 City of New York reflecting his name change. The government
10
1 does not oppose Talipov’s request. We grant the motion to
2 amend the case captions to reflect Talipov’s legally changed
3 name.
4
5 For the foregoing reasons, the petitions for review in
6 Dkt. No. 12-4265 (L) and Dkt. No. 13-586 (Con) are DENIED.
7 It is further ORDERED that the government’s motion to strike
8 Talipov’s reply and Talipov’s motion to amend the case
9 captions are GRANTED and that Talipov’s motion for inclusion
10 of his additional evidence is DENIED.
11 As we have completed our review, any stay of removal
12 that the Court previously granted in these petitions is
13 VACATED, and any pending motion for a stay of removal in
14 these petitions is DISMISSED as moot. Any pending request
15 for oral argument in these petitions is DENIED in accordance
16 with Federal Rule of Appellate Procedure 34(a)(2), and
17 Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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