Plakushchav v. Lynch ( 2016 )

14-4705
Plakushchav v. Lynch
BIA
Sagerman, IJ
A089-399-813
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 26th day of April, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 VIACHASLAV PLAKUSHCHAV, AKA
14 ALEXANDER KRASNIKOV,
15 Petitioner,
16
17 v. 14-4705
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas M. Griffin, Philadelphia,
25 PA.
26
27 FOR RESPONDENT: Benjamin Mizer, Principal Deputy
28 Assistant Attorney General, Dawn S.
1 Conrad, Senior Litigation Counsel,
2 Matthew A. Connelly, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DISMISSED for lack of jurisdiction.
11 Petitioner Viachaslav Plakushchav, a native and citizen of
12 Belarus, seeks review of a November 26, 2014 decision of the
13 BIA affirming a July 1, 2014 decision of an Immigration Judge
14 (“IJ”) denying Plakushchav’s application for relief under the
15 Convention Against Torture (“CAT”). In re Viachaslav
16 Plakushchav, No. A089 399 813 (B.I.A. Nov. 26, 2014), aff’g No.
17 A089 399 813 (Immig. Ct. Napanoch July 1, 2014). We assume the
18 parties’ familiarity with the underlying facts and procedural
19 history in this case.
20 Given the circumstances of this case, we have reviewed both
21 the IJ’s and the BIA’s opinions “for the sake of completeness.”
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
23 2006). We lack jurisdiction to review a final order of removal
24 against an alien, like Plakushchav, who is removable by reason
2
1 of having committed an aggravated felony. 8 U.S.C. §
2 1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir.
3 2015). We retain jurisdiction to review, de novo,
4 “constitutional claims or questions of law.” 8 U.S.C. §
5 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir.
6 2009). When assessing jurisdiction, we must “study the
7 arguments asserted” to “determine, regardless of the rhetoric
8 employed in the petition, whether it merely quarrels over the
9 correctness of the factual findings” or raises a true question
10 of law. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
11 329 (2d Cir. 2006).
12 Plakushchav attacks the agency’s finding that he failed to
13 demonstrate that he more likely than not will be tortured if
14 returned to Belarus. A determination of what will happen in
15 the future is a finding of fact. Hui Lin Huang v. Holder, 677
16 F.3d 130, 134 (2d Cir. 2012). Though Plakushchav frames his
17 arguments as questions of law, each is a variation on a factual
18 dispute: the agency should have given his evidence more weight.
19 That is a question beyond our jurisdiction.
20 Plakushchav challenges the BIA’s statement that his
21 expert’s testimony was “in the nature of informed speculation,
3
1 and relied upon assumptions for which there was no hard
2 evidence.” Plakushchav posits that an expert’s testimony is
3 “objective evidence,” that Federal Rule of Evidence 702 permits
4 an expert to testify in the form of an opinion, and that if the
5 IJ doubted the foundation for the expert’s opinion, he should
6 have excluded the testimony. In the same vein, he faults the
7 agency for failing to recognize that the expert testified
8 consistently with the Department of State’s country report on
9 Belarus. These arguments are another way of saying that the
10 IJ should have given more (indeed, dispositive) weight to the
11 expert’s testimony. That is a factual dispute that we lack
12 jurisdiction to decide. Cf. Mendez v. Holder, 566 F.3d 316,
13 323 (2d Cir. 2009) (identifying error of law where “important”
14 facts have been “totally overlooked and others have been
15 seriously mischaracterized”).
16 Plakushchav contends that the BIA mischaracterized the
17 expert’s testimony when it wrote that his opinion was predicated
18 on “the twin assumptions” that Plakushchav would be unable to
19 obtain a “propiska,” a government-issued identification card,
20 and that Belarusian authorities would learn about his criminal
21 history. But “the agency does not commit an ‘error of law’
4
1 every time an item of evidence . . . is described with imperfect
2 accuracy.” Id. The expert opined that factors beyond not
3 having a propiska may lead to Plakushchav’s arrest and that,
4 once arrested, factors beyond Plakushchav’s criminal history
5 could lead authorities to torture him. But the thrust of his
6 prediction was as the BIA described. There was no error of law.
7 Finally, Plakushchav contends that the agency ignored the
8 testimony of his expert and his mother that he will be unable
9 to obtain a propiska. See Xiao Ji Chen, 471 F.3d at 329
10 (postulating legal error “where the IJ states that his decision
11 was based on petitioner’s failure to testify to some pertinent
12 fact when the record of the hearing reveals unambiguously that
13 the petitioner did testify to that fact” (emphasis in
14 original)). The expert explained that Plakushchav would be in
15 catch-22: one needs property to get a propiska, but one needs
16 a propiska to rent an apartment. His mother testified that
17 Plakushchav owns no property in Belarus and would need a
18 propiska before finding a place to live. Plakushchav echoed
19 that he has no family there. But, as the BIA noted, this
20 testimony did not obligate the IJ “to assume that the United
21 States would repatriate Plakushchav without first obtaining
5
1 valid, unexpired, Belarussian travel documents on his behalf.”
2 And as the IJ noted, “the documentary record does not indicate
3 that the application process” for a propiska or passport “will
4 be problematic.” That is accurate: none of the country reports
5 mentioned a propiska.
6 In sum, Plakushchav “merely quarrels over the correctness
7 of the factual findings” that grounded the denial of relief.
8 Xiao Ji Chen, 471 F.3d at 329. Consequently, we lack
9 jurisdiction over this petition for review.
10 For the foregoing reasons, the petition for review is
11 DISMISSED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
6