Pavel Kalbass v. Eric Holder, Jr. ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0795n.06
No. 10-3527
FILED
UNITED STATES COURT OF APPEALS Nov 29, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
PAVEL KALBASS, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM A FINAL ORDER OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
Before: MARTIN, GUY, and GRIFFIN, Circuit Judges.
BOYCE F. MARTIN, JR. Pavel Kalbass, a Michigan resident represented by counsel,
petitions for review of an order of the Board of Immigration Appeals (BIA) that affirmed an
Immigration Judge’s (IJ) denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT).
Kalbass is a native and citizen of Romania. He entered the United States in 1978 and became
a lawful permanent resident in 1980. In 1988, the Immigration and Naturalization Service placed
Kalbass in deportation proceedings following his conviction for several theft offenses in 1987. An
IJ granted Kalbass a waiver of removability. In 1997, Kalbass was convicted of receiving stolen
property, and, in 2003, he was again placed in deportation proceedings because he had been
convicted of two or more crimes involving moral turpitude. In 2004, Kalbass applied for asylum,
withholding of removal, and relief under the CAT, alleging that he had been persecuted in Romania
because he was Hungarian and a gypsy. The IJ denied Kalbass’s application, concluding that he
conceded his asylum application was untimely, that his testimony was not credible, and that he failed
No. 10-3527
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to demonstrate entitlement to withholding of removal or relief under the CAT. The BIA affirmed
the IJ’s decision.
On appeal, Kalbass argues that the IJ and BIA erred in the following ways: (1) by concluding
that he conceded his asylum application was untimely; (2) by concluding that he was removable
based in part on his 1987 convictions for which he had previously received a waiver of removability;
(3) by concluding that his testimony was not credible; and (4) by concluding that he failed to
demonstrate entitlement to withholding of removal and relief under the CAT.
When the BIA does not summarily affirm or adopt the IJ’s reasoning and provides an
explanation for its decision, we review the BIA’s decision as the final agency determination. Ilic-Lee
v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). We review de novo questions of law involving
immigration proceedings, and we review factual determinations under a substantial evidence
standard. Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). Under the substantial evidence
standard, a factual determination will not be reversed unless “the evidence not only supports a
contrary conclusion, but compels it.” Id. (citation omitted).
The BIA properly concluded that Kalbass waived his claim that his asylum application was
timely based on changed or extraordinary circumstances, see 8 U.S.C. § 1158(a)(2)(B), (D), because
his counsel expressly acknowledged to the IJ that she was not alleging that such circumstances
existed to excuse the untimely filing. See Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440 (8th Cir.
2008) (holding that the BIA may apply a waiver rule to issues not raised before the IJ). The BIA also
properly concluded that Kalbass was removable based on his prior convictions, despite the fact that
he received a waiver of removability following his 1987 convictions, because that waiver did not
preclude future consideration of the offenses for immigration purposes. See Molina-Amezcua v. INS,
6 F.3d 646, 647 (9th Cir. 1993); Molenda v. INS, 998 F.2d 291, 294-95 (5th Cir. 1993).
The adverse credibility determination was supported by substantial evidence, see
Khozhaynova v. Holder, 641 F.3d 187, 193 (6th Cir. 2011), and the determination was based on
issues that go to the heart of Kalbass’s claim of persecution. See Singh v. Ashcroft, 398 F.3d 396,
402 (6th Cir. 2005). There were significant discrepancies between Kalbass’s testimony and his
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asylum application concerning his fear of his wife’s extended family in Romania and of Romanian
nationals who knew that he renounced his citizenship. There were also significant discrepancies
between Kalbass’s testimony and his supplemental statement concerning the details of harassment
he allegedly endured as a truck driver. Given the adverse credibility determination and the lack of
other evidence supporting Kalbass’s claim that he would be persecuted or tortured if removed to
Romania, he has not established that he is entitled to either withholding of removal or relief under
the CAT. See El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009).
Accordingly, we deny the petition for review.