Ilkhom Rakhmatov v. Eric Holder, Jr. , 511 F. App'x 522 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0066n.06
No. 12-3079
FILED
UNITED STATES COURT OF APPEALS Jan 15, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ILKHOM RAKHMATOV, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM A
v. ) FINAL ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, Jr., Attorney General, )
)
Respondent. )
)
Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Ilkhom Rakhmatov, a native and citizen of Uzbekistan, seeks judicial review
of a decision by the Board of Immigration Appeals (Board) dismissing his appeal from a decision
by an Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and relief
under the Convention Against Torture.
Rakhmatov entered the United States in June 2006 on a student visa, but he never attended
school. He timely filed his applications for relief in October 2006 based on his Muslim religion.
The government initiated removal proceedings in September 2007, and Rakhmatov conceded
removability.
After a hearing, the IJ found that Rakhmatov had failed to present credible evidence that he
suffered from past persecution in Uzbekistan. The IJ determined that, even if Rakhmatov had
established persecution, he failed to show that it was because of his Muslim religion. The IJ also
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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found that Rakhmatov had failed to show a well-founded fear of future persecution. The IJ denied
Rakhmatov’s requests for relief and the Board subsequently upheld the IJ’s decision on review.
We have jurisdiction over the Board’s decision affirming the denial of relief pursuant to 8
U.S.C. § 1252(a)(1). See Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). Where the Board
reviews an IJ’s decision and issues a separate opinion rather than summarily affirming the IJ’s
decision, as in this case, we review the Board’s decision as the final agency determination. Shaya
v. Holder, 586 F.3d 401, 405 (6th Cir. 2009). To the extent that the Board adopted the IJ’s
reasoning, however, we also review the IJ’s decision. Id. We review “factual findings, including
credibility determinations, under a substantial evidence standard” and uphold these factual findings
if they are “supported by reasonable, substantial, and probative evidence on the record considered
as a whole.” Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012) (citation and internal quotation
marks omitted). We reverse a factual determination only if the evidence not only supports a contrary
conclusion, but compels it. Rreshpja v. Gonzales, 420 F.3d 551, 554 (6th Cir. 2005).
The resolution of an asylum request involves a two-part inquiry: 1) whether the alien
qualifies as a refugee; and 2) whether the alien merits a favorable exercise of administrative
discretion by the Attorney General. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005). “Refugee”
is defined as an alien who is unable or unwilling to return to his home country “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Rreshpja,
420 F.3d at 554. To prevail on a request to withhold removal, an alien must show that there is a
clear probability that the alien would be subject to persecution if he or she returned to the country
in question. Pablo-Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010). In order to establish
entitlement to relief under the Convention Against Torture, an alien must prove that it is more likely
than not that the alien will be tortured with the consent or acquiescence of public officials if he or
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she returns to the country in question. 8 C.F.R. § 208.16(c)(2); Khozhaynova v. Holder, 641 F.3d
187, 197 (6th Cir. 2011).
Rakhmatov’s primary argument is that his right to due process was denied because of faulty
translation of his testimony, and he disagrees with the adverse credibility determination that was
based on the translation. An alien must be afforded a full and fair hearing, but to prevail on a due
process claim, an alien must show substantial prejudice that materially affected the outcome of the
case. Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009). The alien must show that an
alleged defect “led to a denial of justice.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir.
2007) (quoting Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001)).
Adverse credibility findings should be “based on the ‘totality of the circumstances’ and take
into account ‘all relevant factors.’” El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009) (quoting
8 U.S.C. § 1158(b)(1)(B)(iii)). Under this standard, we must uphold an adverse credibility
determination if supported by the evidence, even if we would have come to a different conclusion.
El-Moussa, 569 F.3d at 256. In addition, “where it is reasonable to expect corroborating evidence
for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be
provided.” Lin v. Holder, 565 F.3d 971, 977 (6th Cir. 2009) (citations and internal quotation marks
omitted).
The lack of a competent interpreter may form the basis for a due process violation in removal
proceedings. See Amadou v. INS, 226 F.3d 724, 726–28 (6th Cir. 2000). However, any differences
between the original transcript and the translation submitted by Rakhmatov were not material to the
outcome of the case and, thus, do not establish that injustice took place that would support a due
process argument. Moreover, the transcripts do not show that the interpreter was “incapable of
interpreting the language petitioner spoke or that he spoke a different dialect.” See id. at 725. The
IJ had broad discretion in conducting the hearing and took proper action to ensure that the interpreter
was competent and that Rakhmatov had a full and fair hearing. See Ahmed v. Gonzales, 398 F.3d
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722, 725 (6th Cir. 2005). The evidence does not compel a conclusion contrary to the Board’s
determination that Rakhmatov failed to show prejudice. Therefore, his due process claim is without
merit. See Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir. 2004).
Rakhmatov’s challenge to the Board’s adverse credibility finding is also without merit. The
Board set forth several valid reasons for finding Rakhmatov not credible. Contrary to Rakhmatov’s
argument, the Board made an explicit adverse credibility finding upon which it could rely in rejecting
his claims of persecution and a well-founded fear of future persecution, and this finding was not
based “solely” upon problems with Rakhmatov’s testimony. The Board noted inconsistencies
between his oral statements and his written statements, the lack of corroborating documents that
could have reasonably been expected, the unresponsive nature of Rakhmatov’s answers, and
Rakhmatov’s tendency to override the interpreter’s questions before they were completed. We will
not disturb the Board’s adverse credibility finding because it is supported by substantial evidence.
The petition for review is denied.