Djamkhur Vahidov v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4165
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DJAMKHUR T. VAHIDOV,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-082-819)
Immigration Judge: Honorable Mirlande Tadal
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 21, 2012
Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges
(Opinion filed May 23, 2012)
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OPINION
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PER CURIAM
Djamkhur Vahidov, proceeding pro se, petitions for review of the Board of
Immigration Appeals‟s (“BIA”) October 19, 2011 order denying his motion to remand.
For the reasons that follow, we will deny the petition for review.
In 2008, Vahidov appeared in removal proceedings before the Immigration Judge
(“IJ”), who ordered Vahidov removed to his native Uzbekistan and denied his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture. The BIA denied Vahidov‟s subsequent appeal. Vahidov filed a petition
for review; we denied the petition to the extent that Vahidov challenged the agency‟s
resolution of his requests for asylum and related relief, but we granted the petition in part
because the BIA failed to adjudicate Vahidov‟s motion to remand, which was
incorporated into his brief before the BIA. See Vahidov v. Att‟y Gen., 413 F. App‟x 462,
465-66 (3d Cir. 2011). The motion to remand, which comprised a single paragraph in his
brief, contended that the case should be remanded to the IJ to consider whether Vahidov
has a well-founded fear of persecution based on his status as an asylum applicant in the
United States. Notably, Vahidov did not raise that claim before the IJ, and his motion
relied only on the 2007 State Department Country Report on Uzbekistan, which indicates
that the Uzbekistani government pressured certain other countries to return individuals
who had sought asylum, and Lin v. United States Dep‟t of Justice, 459 F.3d 255 (2d Cir.
2006), both of which were available during the proceedings before the IJ.
On remand, the BIA held that Vahidov‟s claim for asylum based on his status as
an asylum applicant was waived and, in the alternative, that he had failed to meet his
burden of demonstrating that a remand was warranted. Accordingly, the BIA denied the
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motion to remand. Vahidov then filed a petition for review.
II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA‟s denial
of a motion to remand or to reopen for abuse of discretion, see Huang v. Att‟y Gen., 620
F.3d 372, 390 (3d Cir. 2010), and will not disturb that decision unless it is “arbitrary,
irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)
(internal citation omitted). “The BIA treats a motion to remand for the purpose of
submitting additional evidence in the same manner as motions to reopen the record.”
Huang, 620 F.3d at 389. Accordingly, the BIA may deny the motion if: “(1) the alien as
not established a prima facie case for the relief sought; (2) the alien „has not introduced
previously unavailable, material evidence‟; or (3) in the case of discretionary relief (such
as asylum), the alien would not be entitled to relief even if the motion was granted.”
Caushi v. Att‟y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (quoting INS v. Abudu, 485 U.S.
94, 104 (1988)).
In denying Vahidov‟s motion to remand, the BIA reasoned that Vahidov‟s new
asylum claim was waived and, in the alternative, that even if the new claim was not
waived, he would not be entitled to relief if the matter were remanded to the IJ. We need
not address the BIA‟s waiver analysis because we agree with the alternative holding that
Vahidov‟s motion lacked merit.
To demonstrate eligibility for asylum based on a fear of future persecution, an
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applicant must demonstrate that he “has a genuine fear, and that a reasonable person in
[his] circumstances would fear persecution if returned to [his] native country.”
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). To satisfy the objective
prong, a petitioner must show that he would be individually singled out for persecution or
demonstrate a pattern or practice of persecution of similarly situated individuals. See Lie
v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Here, the BIA first concluded that the
Country Report Vahidov relied on did not demonstrate that Uzbekistan persecutes
individuals who seek asylum in the United States. We agree. As the BIA noted,
although the Country Report indicates that Uzbekistan aggressively sought the return of
certain Uzbekistani refugees living in Russia, these refugees were, for the most part,
believed to have been involved in terrorist or anti-government activities, i.e., the 2005
events in Andijon, see AR 116-17, and there is no evidence in the Country Report that
asylum seekers are persecuted upon returning to Uzbekistan on the basis of having sought
asylum.
Likewise, we agree with the BIA that Vahidov‟s reliance on Lin v. United States
Dep‟t of Justice is inapposite. In Lin, the Second Circuit Court of Appeals reasoned that
the petitioner may have faced a new risk of persecution when the United States
government inadvertently notified Chinese authorities of the petitioner‟s asylum
application; accordingly, a remand was warranted for the agency to consider that claim.
See 495 F.3d at 267-68. As the BIA reasoned, Vahidov failed to demonstrate that any
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such circumstances exist in his case, as there is no evidence in the record that officials in
the United States have alerted the Uzbekistani government to his asylum application.
Accordingly, we will deny the petition for review.
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