Abduvokhid Ismailov v. Eric Holder, Jr. , 502 F. App'x 423 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1058n.06
No. 11-4367
FILED
UNITED STATES COURT OF APPEALS Oct 09, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ABDUVOKHID ABDUAKHATOV )
ISMAILOV, )
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
v. ) BOARD OF IMMIGRATION
) APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
)
BEFORE: GUY, DAUGHTREY, and STRANCH, Circuit Judges.
PER CURIAM. Abduvokhid Abduakhatov Ismailov, a native and citizen of Uzbekistan,
petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from an immigration judge’s (IJ) decision denying his asylum application. We DENY the petition
for review.
On May 15, 2005, Ismailov entered the United States as a non-immigrant student with
authorization to remain until August 8, 2005. After Ismailov remained in the United States beyond
that date, the Department of Homeland Security served him with a notice to appear charging him
with removability under § 237(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1227(a)(1)(B), as a non-immigrant who remained in the United States for a time longer than
permitted. Ismailov appeared before an IJ, admitted the notice’s factual allegations, and conceded
removability under INA § 237(a)(1)(B). Ismailov subsequently applied for adjustment of status,
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Ismailov v. Holder
asylum, withholding of removal, relief under the Convention Against Torture, and voluntary
departure. At the conclusion of the merits hearing, the IJ denied Ismailov’s applications and ordered
his removal to Uzbekistan. Ismailov filed an appeal, which the BIA dismissed.
Ismailov now petitions this court for review of the BIA’s decision upholding the IJ’s denial
of his asylum application on the basis that he failed to establish a well-founded fear of future
persecution in Uzbekistan. Ismailov does not address his other applications for relief, waiving those
claims. See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).
Where, as here, “the BIA reviews the immigration judge’s decision and issues a separate
opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s
decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
“To the extent the BIA adopted the immigration judge’s reasoning, however, this Court also reviews
the immigration judge’s decision.” Id. We review factual findings under a substantial-evidence
standard, upholding the agency’s determination “as long as it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Parlak v. Holder, 578 F.3d 457, 462
(6th Cir. 2009) (internal quotation marks and citation omitted). Under this standard, “the
administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
An asylum applicant bears the burden of proving refugee status by demonstrating either past
persecution or a well-founded fear of future persecution on account of a protected ground. 8 C.F.R.
§ 1208.13(a)-(b); see Ndrecaj v. Mukasey, 522 F.3d 667, 674 (6th Cir. 2008). Ismailov does not
claim past persecution, instead asserting that he has a well-founded fear of future persecution. To
establish a well-founded fear of future persecution, Ismailov must demonstrate: “(1) that he has a
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Ismailov v. Holder
fear of persecution in his home country on account of” a protected ground; “(2) that there is a
reasonable possibility of suffering such persecution if he were to return to that country; and (3) that
he is unable or unwilling to return to that country because of such fear.” Pilica v. Ashcroft, 388 F.3d
941, 950 (6th Cir. 2004); see 8 C.F.R. § 1208.13(b)(2)(i). Ismailov’s fear of future persecution
“must be both subjectively genuine and objectively reasonable.” Mapouya v. Gonzales, 487 F.3d
396, 412 (6th Cir. 2007) (internal quotation marks and citation omitted). Ismailov “cannot rely on
speculative conclusions or mere assertions of fear of possible persecution, but instead must offer
reasonably specific information showing a real threat of individual persecution.” Id. (internal
quotation marks and citation omitted).
Ismailov allegedly fears that he will be persecuted on account of his imputed political opinion
if he returns to Uzbekistan. In support of his claimed fear of persecution, Ismailov testified that, on
August 20, 2009, he read on websites critical of the Uzbekistan government that the government
planned to set off explosions on September 1, Independence Day, and blame the explosions on the
opposition. Ismailov called his grandmother in Uzbekistan and warned her and his other family
members not to go to the celebrations in the central districts of Tashkent because “[s]omething bad
might happen.” According to Ismailov, there were four explosions in Tashkent. After Ismailov’s
phone call, two police officers visited his grandmother, questioned her about his activities and
whereabouts, and asked her to tell him to check in with the police because they wanted to talk to
him. While Ismailov acknowledged that he had been monitored by the police and asked to check
in on a periodic basis prior to his departure from Uzbekistan, he asserted that this instance was
different because the police officers did not leave any paperwork, “which is the legal way to call you
to the police station.”
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Substantial evidence supports the BIA’s conclusion that Ismailov failed to demonstrate an
objectively reasonable fear that he would be targeted for persecution in Uzbekistan, much less that
he would be targeted because of any imputed political opinion. Ismailov testified that the police
officers told his grandmother that they were making a “security request,” which “they’ve been doing
to everybody because of the . . . situation in the country.” In light of these law enforcement efforts
in the aftermath of the explosions, Ismailov failed to show that he “would be singled out individually
for persecution.” 8 C.F.R. § 1208.13(b)(2)(iii); see Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.
2008) (“To establish persecution, the applicant must prove that the foreign government ‘specifically
targeted’ the person for abuse.” (quoting Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005))).
According to Ismailov’s testimony, the police officers wanted to collect information on young people
who had traveled abroad; his testimony failed to establish that the police officers were interested in
him because of any imputed political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)
(“[S]ince the statute makes motive critical, [the applicant] must provide some evidence of it, direct
or circumstantial.”). Asserting that the police monitored his phone calls, Ismailov acknowledged
that the police may have heard that he had warned his family that something bad was going to
happen. Ismailov failed to explain why the police officers’ interest in him would constitute
persecution, given that his advance knowledge of possible explosions provided a basis for their
interest. See Cruz-Samayoa v. Holder, 607 F.3d 1145, 1151 (6th Cir. 2010) (“[T]here is a marked
distinction between persecution and criminal prosecution.”). The record does not compel a contrary
conclusion regarding Ismailov’s asylum claim.
Ismailov argues that the IJ failed to recognize the correct basis for his fear of future
persecution, focusing on his twenty-seven-day detention rather than the police officers’ visit to his
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grandmother. Because Ismailov did not raise the IJ’s alleged error before the BIA, we lack
jurisdiction to consider this argument. See Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006).
Regardless, both the IJ and the BIA sufficiently addressed the basis of Ismailov’s claimed fear of
future persecution.
For the foregoing reasons, we DENY Ismailov’s petition for review.
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