Jamarjashvili v. Barr ( 2019 )

17-3263
Jamarjashvili v. Barr
BIA
Hom, IJ
A087 665 046/047
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
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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 5th day of November, two thousand nineteen.
PRESENT:
DENNIS JACOBS,
ROSEMARY S. POOLER,
ROBERT D. SACK,
Circuit Judges.
_____________________________________
ELENE JAMARJASHVILI, LEVAN
IRAKLIEVICH JALIASHVILI,
Petitioners,
v. 17-3263
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
FOR PETITIONERS: Isabella Mayzel, Springfield, NJ.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Mona Maria
Yousif, Trial Attorney, Office of
Immigration Litigation, United
1 The Clerk of the Court is directed to amend the caption as above.
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.
Petitioners Elene Jamarjashvili and Levan Iraklievich
Jaliashvili, natives and citizens of Georgia, seek review
of a September 13, 2017, decision of the BIA affirming an
August 4, 2016, decision of an Immigration Judge (“IJ”)
denying asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). In re Elene
Jamarjashvili, Levan Iraklievich Jaliashvili, No. A 087 665
046/047 (B.I.A. Sept. 13, 2017), aff’g No. A 087 665
046/047 (Immig. Ct. N.Y. City Aug. 4, 2016). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the IJ’s decision as modified and
supplemented by the BIA and limit our review to the agency’s
adverse credibility determination and the BIA’s ineffective
assistance of counsel analysis. See Yun-Zui Guan v.
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Gonzales, 432 F.3d 391, 394 (2d Cir. 2005); Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
Adverse Credibility Determination
We review adverse credibility determinations under the
substantial evidence standard. Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018). The governing REAL ID Act
credibility standard 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 or witness . . .
the consistency between the applicant’s or witness’s
written and oral statements . . . , the internal
consistency of each such statement, the consistency
of such statements with other evidence of record .
. . , and any inaccuracies or falsehoods in such
statements, 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). “We 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.
As an initial matter, the IJ did not err in failing to
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consider whether Jamarjashvili had a claim of religious
persecution. The IJ acknowledged the sole incident in
question, in which the police allegedly pulled a crucifix off
the wall of Jamarjashvili’s home. Jamarjashvili did not
explicitly apply for asylum on religious grounds and included
no reference to this one incident in her application.
Moreover, she testified that Catholics in Georgia “officially
are not persecuted” but rather are “subjected to smirking,
harassment, and are repressed.” Because harassment, without
more, does not constitute persecution, Jamarjashvili failed
to state a claim of religious persecution on these facts.
See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
(2d Cir. 2006).
Substantial evidence supports the agency’s
determination that Jamarjashvili was not credible as to her
claim of political persecution. The agency reasonably
relied on discrepancies among Jamarjashvili’s testimony,
her application statement, and documentation of the sale of
her property. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Jamarjashvili testified that the state targeted her, in
part, by seizing her property in a sham transaction.
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However, a document she proffered shows that the property
in question was sold in an auction to offset a debt. This
inconsistency, which undermined Jamarjashvili’s credibility
as to the alleged incidents of persecution and as to her
allegation that the government was targeting her, provides
substantial support for the adverse credibility
determination. See Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (holding that material
inconsistency relating to central aspect of asylum claim
provided substantial evidence for adverse credibility
determination). The IJ was not required to credit
Jamarjashvili’s explanation that the event described in the
document was fabricated. See Majidi v. Gonzales, 430 F.3d
77, 80 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for h[er] inconsistent
statements to secure relief; [s]he must demonstrate that a
reasonable fact-finder would be compelled to credit h[er]
testimony.” (quotation marks omitted)).
The agency also properly relied on a discrepancy in how
Jamarjashvili described the identities of her July 2009
assailants. She testified that undercover police officers
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in civilian clothing attacked her, but her application
reported that “goons” assaulted her. The agency was
permitted to rely on this inconsistency because Jamarjashvili
differentiated between the police and criminals, or “goons,”
throughout her written statement, and the difference
implicates the question of whether the alleged persecutors
were government actors. See Xian Tuan Ye, 446 F.3d at 295;
Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (requiring
asylum applicant to show persecution by the government or by
actor(s) the government is “unable or unwilling to control”).
Because the IJ’s finding is “tethered to record evidence, and
there is nothing else in the record from which a firm
conviction of error could properly be derived,” we decline to
disturb the finding. Wensheng Yan v. Mukasey, 509 F.3d 63,
67 (2d Cir. 2007).
The agency’s demeanor finding bolsters the adverse
credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii)
(allowing IJ to rely on “demeanor, candor, or responsiveness
of the applicant”). We generally “give particular deference”
to adverse credibility determinations “that are based on the
adjudicator’s observation of the applicant’s demeanor.” Li
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Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006). The record supports the IJ’s conclusion that
Jamarjashvili did not adequately explain how she was able to
identify police officers out of uniform. She testified that
police officers in civilian clothes attacked her at least
five times. When asked how she could identify them as police
officers, she failed to give a direct or responsive answer:
she reiterated that they were not dressed like police officers
and posited that their physical appearances and the way they
spoke set them apart. Accordingly, the IJ reasonably viewed
her demeanor as undermining her credibility. See Tu Lin v.
Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness
is . . . one of the many outward signs a fact-finder may
consider in evaluating demeanor and in making an assessment
of credibility.”).
Furthermore, the agency reasonably found that
Jamarjashvili failed to rehabilitate her testimony with
reliable corroborating evidence. “An applicant’s failure
to corroborate . . . her testimony may bear on credibility,
because the absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
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been called into question.” Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007). First, the IJ was permitted
to afford witness statements limited weight because their
authors were not available for cross examination. See Y.C.
v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (reasoning
that courts “generally defer to the agency’s evaluation of
the weight to be afforded an applicant’s documentary
evidence” and deferring to agency’s decision to give
limited weight to letter from applicant’s spouse in China).
Second, the IJ was permitted to give the letters from
the Ministry of Internal Affairs diminished weight. Id. at
332. Jamarjashvili rightfully notes that 8 C.F.R. § 1287.6 is
not the sole method of authenticating a foreign document and
that it would be difficult to authenticate documents from her
alleged persecutor. See Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 404 (2d Cir. 2005). Her argument that the IJ
should have allowed her to “attempt to authenticate the
documents in some other fashion,” PB at 17, fails to persuade
given that she had more than six years to authenticate the
documents between the time she filed her application and her
merits hearing. Even if fully credited, the documents are
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not probative of her alleged persecution because they show
that she was instructed to report for questioning as a suspect
but do not specify what she was suspected of having done.
See Jin Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010)
(reasoning that prosecution is not persecution absent
evidence that prosecution is a pretext to target the applicant
on account of a protected ground).
Given the inconsistencies relating to the alleged
incidents of persecution, Jamarjashvili’s vague responses,
and the insufficient corroborating evidence, the totality of
the circumstances supports the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 166-67. That determination is dispositive
of asylum, withholding of removal, and CAT relief because all
three claims rely on Jamarjashvili’s credibility. See Paul
v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
Ineffective Assistance of Counsel
Finally, despite her attorney’s errors, Jamarjashvili
failed to establish ineffective assistance of counsel. To
demonstrate ineffective assistance, an applicant must show
that counsel’s allegedly deficient performance prejudiced
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her. See Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.
2010). Jamarjashvili argues that her attorney failed to
highlight and tab background evidence, but fails to establish
prejudice because she did not identify evidence that would
have changed the outcome of her case had the IJ afforded it
more weight. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir.
1993) (reasoning that, to allege prejudice, petitioner must
show that “result would have been different” had counsel not
erred). Similarly, although she argues that she was not able
to fully present her case before the IJ because her attorney
interrupted her cross examination, she does not identify what
information she was unable to convey to the IJ.
For the foregoing reasons, the petition for review is
DENIED. The motion for a stay of removal is DISMISSED as
moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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