Soumkine v. Holder , 499 F. App'x 49 ( 2012 )

11-2358
Soumkine v. Holder
BIA
Videla, IJ
A097 531 119
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of September, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 ALEXEI V. SOUMKINE, AKA ALEX SOUMKINE,
14 Petitioner,
15 11-2358
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Alexei V. Soumkine, Pro Se, New
24 York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director;
29 Charles S. Greene, III, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Alexei V. Soumkine, a native of the former Soviet Union
6 and a citizen of Russia, seeks review of a May 12, 2011,
7 decision of the BIA affirming the April 27, 2009, decision
8 of immigration judge (“IJ”) Gabriel C. Videla, denying his
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Alexei V.
11 Soumkine, No. A097 531 119 (B.I.A. May 12, 2011), aff’g No.
12 A097 531 119 (Immig. Ct. N.Y. City Apr. 27, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20 562 F.3d 510, 513 (2d Cir. 2009). As a preliminary matter,
21 we lack jurisdiction to consider Soumkine’s unexhausted
22 arguments regarding the IJ’s denial of CAT relief, the
23 service of his Notice to Appear, and prosecutorial
2
1 discretion, see 8 U.S.C. § 1252(d)(1); Severino v. Mukasey,
2 549 F.3d 79, 83 (2d Cir. 2008); Karaj v. Gonzales, 462 F.3d
3 113, 119 (2d Cir. 2006), and we decline to consider the
4 issues Soumkine failed to exhaust, including his arguments
5 challenging the IJ’s findings that he failed to establish
6 his eligibility for withholding of removal independent of
7 his claim for past persecution, and that he could have
8 safely relocated to another part of Russia, see Lin Zhong v.
9 U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 119-22 (2d
10 Cir. 2007). Accordingly, we address only his application
11 for withholding of removal based on past persecution.
12 Substantial evidence supports the agency’s
13 determination that Soumkine failed to establish his Jewish
14 ethnicity and religious practice. Although credible
15 testimony may be sufficient alone to satisfy an applicant’s
16 burden for withholding of removal, see 8 C.F.R.
17 § 1208.16(b), the IJ may nonetheless require that testimony
18 be corroborated if one would reasonably expect corroborating
19 evidence to be available. See 8 U.S.C. § 1158(b)(1)(B)(ii);
20 Chuilu Liu v. Holder, 575 F.3d 193, 196-98 (2d Cir. 2009).
21 Here, the IJ reasonably found that Soumkine’s vague
22 testimony was insufficient alone to carry his burden, given
3
1 that: (1) he observed only one Jewish holiday in Russia;
2 (2) his principal basis for believing that he was Jewish was
3 his mother’s assertion that his grandmother and great-
4 grandmother were of Jewish heritage; and (3) he did not
5 identify any particular conduct in which he engaged that
6 would indicate to others that he was Jewish. Moreover,
7 because Soumkine’s mother was alive and, despite her
8 advanced age, could have confirmed his testimony by
9 dictating a letter, the IJ reasonably expected that
10 evidence. It was also reasonable for the IJ to expect a
11 letter from the synagogue Soumkine attends in the United
12 States because, despite his alleged fear that doing so would
13 create rumors regarding his immigration status, he could
14 have confidentially reserved the task to a rabbi. Given the
15 lack of reasonably available corroboration, the IJ did not
16 err in finding that Soumkine failed to establish that he is
17 Jewish. See Chuilu Liu, 575 F.3d at 196-98.
18 Moreover, the IJ did not err in finding that the slurs
19 and minor beatings Soumkine suffered did not rise to the
20 level of persecution because he suffered only mild injuries
21 that did not require medical treatment. See Mei Fun Wong v.
22 Holder, 633 F.3d 64, 72 (2d Cir. 2011); Beskovic v.
23 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). To the
4
1 extent that Soumkine attempts to supplement the record with
2 evidence that he did require medical attention, we cannot
3 consider evidence outside the administrative record. See
4 8 U.S.C. § 1252(b)(4)(A). Accordingly, because Soumkine
5 failed to demonstrate past persecution on account of his
6 Jewish ethnicity or religion, the agency did not err in
7 concluding that he failed to establish his eligibility for
8 withholding of removal. See 8 C.F.R. § 1208.16(b).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DENIED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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