Bayanmunkh Darinchuluun v. Loretta E. Lynch ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2212
BAYANMUNKH DARINCHULUUN,
Petitioner,
v.
LORETTA E. LYNCH, * Attorney
General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A088-703-777
____________________
ARGUED JANUARY 7, 2015 — DECIDED OCTOBER 8, 2015
____________________
Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Bayanmunkh Darinchuluun filed an
application for asylum in which he claimed that he had been
persecuted in his native Mongolia as a result of his attempts
*We substitute Loretta E. Lynch, the current Attorney General of the
United States, as the Respondent in this action. See Fed. R. App. P. 43(c).
2 No. 14-2212
to bring to light an illegal smuggling operation. Following a
hearing, an immigration judge (“IJ”) found that
Mr. Darinchuluun was credible, but that he had failed to of-
fer sufficient corroborating evidence to substantiate his
claims. The Board of Immigration Appeals (“BIA”) similarly
denied Mr. Darinchuluun relief and also denied his request
for a remand so that he could supplement the administrative
record.
The record supports the conclusion that Mr. Darin-
chuluun did not provide evidence that corroborated the key
elements of his claim. Mr. Darinchuluun also did not meet
his burden of establishing that the supplemental evidence
could not have been obtained prior to his merits hearing. We
therefore deny the petition for review.
I
BACKGROUND
A.
Mr. Darinchuluun is a resident and citizen of Mongolia.
He is married and has one son; both his wife and son still
live in Mongolia. At his removal hearing, he testified to the
following events.
Mr. Darinchuluun studied at a railroad college in Mon-
golia and later was employed by a railroad in the capital of
Ulaanbaatar. The railroad, which Mr. Darinchuluun de-
scribed as a “private company,” 1 was a joint venture be-
1 A. at 150.
No. 14-2212 3
tween Russia and Mongolia. His employment duties includ-
ed receiving and reviewing cargo that entered the city by
rail. Mr. Darinchuluun worked for the railroad for six years,
ending in 2006.
The events that prompted Mr. Darinchuluun to leave
Mongolia began in 2004. In November 2004, Mr. Darin-
chuluun discovered guns and ammunition in a box that was
supposed to contain coal. On that same day, Mr. Darin-
chuluun was approached on the railroad platform by an un-
known individual; that individual instructed Mr. Darin-
chuluun not to say anything about the illegal cargo. At the
end of his shift that day, several men forced Mr. Darin-
chuluun into a car and threatened him with harm if he re-
vealed the contents of the box.
The illegal shipments continued and, in January 2005,
Mr. Darinchuluun reported them to his supervisor to no
avail. A few months later, approximately ten young men at-
tacked Mr. Darinchuluun in the hallway of his apartment
building. One inquired whether Mr. Darinchuluun was in-
volved in something that was “not relevant to [him].” 2 When
Mr. Darinchuluun responded that he did not know what his
attacker was referring to, he was beaten. Mr. Darinchuluun
suffered a broken arm and two other broken bones as a re-
sult of the attack. He was hospitalized for twenty days.
Mr. Darinchuluun did not provide any medical records re-
garding his hospitalization or injuries.
Sometime in February 2006, Mr. Darinchuluun reported
the illegal shipments to the Russian director of the railroad, a
2 Id. at 174.
4 No. 14-2212
man by the name of Magdei. On August 15, 2006, Mr. Darin-
chuluun had a second conversation with Magdei; later that
day, Mr. Darinchuluun was stabbed in the back as he was
entering his apartment building. He described his injuries as
severe, and he remained in the hospital recuperating for ap-
proximately one month. Mr. Darinchuluun provided medi-
cal documentation of an injury and hospitalization, but the
description of the injury was cryptic, stating: “He was knit-
ted into his left hollow and vein and nerve was broke. He
made surgery.” 3 The document further noted that he was
“diseased since August 14, 2006 to August 24, 2006.” 4
In October 2006, Mr. Darinchuluun and Magdei inspect-
ed a shipment of illegal cargo with the police, who confiscat-
ed the goods. Shortly after this took place, Magdei died. Alt-
hough Mr. Darinchuluun believed that Magdei was mur-
dered, a newspaper account of his death reported that Mag-
dei was on a fishing trip when he and his companion died of
accidental carbon monoxide poisoning from a heater. The
article reported that there was no evidence of foul play.
Magdei’s death prompted Mr. Darinchuluun to leave
Mongolia for Switzerland on October 22, 2006. Mr. Darin-
chuluun traveled to Switzerland on a student visa, but he
testified that his true intent was to apply for asylum there.
He did not do so, however, because he returned to Mongolia
after receiving news that his father had been attacked and
hospitalized. Mr. Darinchuluun maintains that his father
3 Id. at 266.
4 Id.
No. 14-2212 5
was attacked as a result of voicing complaints to the Minis-
try of Justice about his (Mr. Darinchuluun’s) treatment.
Mr. Darinchuluun testified that, when he returned to
Mongolia in July 2007 to be with his father, he was abducted
and beaten. According to Mr. Darinchuluun, his attackers
confronted him with a newspaper article, which featured an
interview he had given while in Switzerland concerning the
illegal shipments. His attackers forced him to drink three or
four bottles of vodka. When he woke up, he was on a rail-
road track and only narrowly escaped being run over by a
train. He believes, but is not certain, that he was discovered
by a railroad inspector. He spent three days in the hospital
recovering. Mr. Darinchuluun did not present documenta-
tion of his injuries or hospitalization.
In August 2007, Mr. Darinchuluun again left Mongolia,
this time for Russia. He remained in Russia until the fall of
2009, when he returned to Mongolia. Mr. Darinchuluun stat-
ed that he considered applying for asylum in Russia but de-
cided against it because he believed that the authorities
would deport him to Mongolia.
Mr. Darinchuluun returned to Mongolia and applied for
a visa to the United States. In his visa application,
Mr. Darinchuluun misrepresented the nature of his travels to
the United States, stating that he wanted to purchase poker-
game software. He used that visa to enter the United States
in February 2010.
In April 2010, Mr. Darinchuluun was stabbed by another
Mongolian national during an altercation in a bar in Illinois.
Mr. Darinchuluun stated in his application for asylum that
he had “no doubt” that the man who stabbed him was hired
6 No. 14-2212
by those who had tried to hurt him in Mongolia. 5 The police
report of the incident, however, indicated that Mr. Darin-
chuluun knew the assailant and that the incident was
prompted by an argument about who had the superior im-
migration status.
B.
Prior to the expiration of his visa, Mr. Darinchuluun ap-
plied for asylum. His application was denied, and he was
served with a notice to appear. Before an IJ, he admitted re-
movability and renewed his request for asylum. 6
The IJ conducted a merits hearing and later denied
Mr. Darinchuluun relief. In her written order, the IJ set forth
the facts as recounted by Mr. Darinchuluun and noted that
an applicant’s testimony, standing alone, may be sufficient
to satisfy his burden “if the Court determines that the testi-
mony is credible, persuasive, and refers to specific facts suf-
ficient to demonstrate that the applicant is a refugee.” 7 The IJ
then considered whether Mr. Darinchuluun’s testimony met
this standard:
In the instant case, the Court’s main
credibility concern is the respondent’s failure
to seek asylum or other forms of protection
prior to arriving in the United States. He lived
5 Id. at 240.
6Mr. Darinchuluun also applied for withholding of removal and relief
under the Convention Against Torture (“CAT”).
7 A. at 128 (citing 8 U.S.C. § 208(b)(1)(B)(ii)).
No. 14-2212 7
in Switzerland for some nine months and Rus-
sia for two years, but ultimately did not seek
protection in either country. The respondent
offered explanations for why he did not do so,
and the Court acknowledges that in some cas-
es, a failure to seek relief in intermediate coun-
tries is not always inconsistent with a fear of
persecution. Nonetheless, it is a relevant factor
that the court may consider in evaluating the
applicant’s credibility.
Along the same lines, the respondent
did not alert U.S. embassy officials to the se-
vere mistreatment he allegedly suffered when
he sought to apply for the visa he used to enter
the country. Instead, he acknowledged that he
lied about his intentions, telling them he
wished to attend to business. Again, his mis-
representations in seeking a nonimmigrant vi-
sa may be a reason to question the respond-
ent’s credibility.
These issues, in light of the respondent’s
otherwise largely consistent testimony, are not
enough for the Court to find the respondent
incredible. Yet the Court likewise cannot find
that his testimony was alone sufficiently per-
suasive to meet his burden of proof. Pursuant
to the REAL ID Act, the respondent must
8 No. 14-2212
therefore produce corroborating evidence to
substantiate his claim.[ 8]
The IJ noted that Mr. Darinchuluun had submitted some
documentation, but that “no reliable evidence in this record
sufficiently corroborates the central aspects of his claim,
namely that he reported corrupt and illegal practices and
that he and others close to him were harmed in relation to
these actions.” 9 The IJ observed that Mr. Darinchuluun had
kept in contact with at least one of his siblings,
yet neither this sibling nor anyone else in his
family has provided any sort of statement to
support his application. The respondent was
also allegedly able to send this sibling to obtain
medical documentation for at least one inci-
dent, yet he has offered no documentation for
the other treatment he sought. Moreover, he
has not produced the newspaper article for
which he claims to have been interviewed pri-
or to his flight to Switzerland. He has not pro-
vided any reason why such documentation
would be unavailable or unreasonable to ob-
tain.[ 10]
The IJ therefore concluded that Mr. Darinchuluun had not
met his burden to establish eligibility for relief.
On appeal, the BIA affirmed. It stated that,
8 Id. (citation omitted).
9 Id. at 129.
10 Id. at 130.
No. 14-2212 9
[a]fter consideration of the respondent’s asser-
tions on appeal, we cannot conclude that the
Immigration Judge clearly erred in finding that
the persuasiveness of the respondent’s claimed
fear of returning to Mongolia is undermined
by his failure to seek asylum in Switzerland,
where he lived for 9 months, and in Russia,
where he lived for 2 years, with no reported
harm; and that the respondent’s admitted mis-
representations to United States officials raised
questions regarding his truthfulness. While the
Immigration Judge did not make a direct nega-
tive credibility finding, she properly found that
the respondent’s testimony was not sufficiently
persuasive to satisfy his burden of proving his
eligibility for relief from removal without cor-
roboration.[ 11]
The BIA concluded that it was not unreasonable for the IJ to
require that Mr. Darinchuluun corroborate “the central as-
pects of his claim of persecution,” and it rejected his argu-
ment that the IJ was required to provide him with notice of
the need for corroboration. 12
The BIA also noted that Mr. Darinchuluun had submitted
additional documents and affidavits and had requested that
his case be remanded for further consideration in light of
this additional evidence. The BIA determined, however, that
Mr. Darinchuluun had not met his burden of establishing
11 Id. at 3–4 (citations omitted).
12 Id. at 4.
10 No. 14-2212
that the evidence, which included additional medical rec-
ords and his newspaper interview, “was not available and
could not have been discovered or presented at the former
hearing.” 13 It therefore denied Mr. Darinchuluun’s request
to remand.
Mr. Darinchuluun timely petitioned for review.
II
DISCUSSION
A.
Where, as here, the BIA affirms the IJ’s decision and also
provides its own analysis, we review both the IJ’s decision
and the additional reasoning supplied by the BIA. See Bath-
ula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013), cert. denied, 134
S. Ct. 919 (2014); Familia Rosario v. Holder, 655 F.3d 739, 743
(7th Cir. 2011). We review the agency’s factual determina-
tions under “the deferential substantial evidence standard,”
Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014), and will re-
verse the agency’s findings only if, viewing the record as a
whole, a reasonable factfinder would be compelled to reach
a contrary conclusion, 8 U.S.C. § 1252(b)(4)(B).
Under the REAL ID Act, once an IJ “determines that the
applicant should provide evidence that corroborates other-
wise credible testimony, such evidence must be provided un-
less the applicant does not have the evidence and cannot
reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii)
13 Id. at 5 (quoting 8 C.F.R. § 1003.2(c)(1)).
No. 14-2212 11
(emphasis added); see also Liu v. Holder, 692 F.3d 848, 854 (7th
Cir. 2012). We also review deferentially an IJ’s conclusion
that corroboration is necessary; a court cannot “reverse a de-
termination made by a trier of fact with respect to the avail-
ability of corroborating evidence…unless the court finds…
that a reasonable trier of fact is compelled to conclude that
such corroborating evidence is unavailable.” 8 U.S.C.
§ 1252(b)(4).
Mr. Darinchuluun first submits that the deficiencies iden-
tified by the IJ—his failure to apply for asylum in Switzer-
land and Russia and his misrepresentation on his U.S. visa
application—did not warrant an adverse credibility deter-
mination. As a preliminary matter, Mr. Darinchuluun reads
the IJ’s decision incorrectly. The IJ did not make an adverse
credibility finding; to the contrary, she concluded that, “in
light of the respondent’s otherwise largely consistent testi-
mony,” the shortcomings in his testimony were “not enough
for the Court to find the respondent incredible.” 14
The IJ did conclude, however, that Mr. Darinchuluun’s
uncorroborated testimony was not “sufficiently persuasive
to meet his burden of proof.”15 As we have noted, “an immi-
gration judge now enjoys substantial leeway to demand cor-
roboration of an asylum applicant’s allegations whether or
not the judge finds the applicant credible.” Krishnapillai v.
Holder, 563 F.3d 606, 618 (7th Cir. 2009). Here, the IJ pointed
to rational reasons why Mr. Darinchuluun’s claims of perse-
cution needed additional support: he did not apply for asy-
14 Id. at 128.
15 Id.
12 No. 14-2212
lum in two other countries, although he had the opportunity
to do so, and he was not forthcoming with immigration au-
thorities concerning the reason he wanted to obtain travel
documents to the United States.
In determining that there was a need for further corrobo-
ration, the IJ certainly acted reasonably in focusing on
Mr. Darinchuluun’s failure to apply for asylum in Switzer-
land and Russia. In Hassan v. Holder, 571 F.3d 631 (7th Cir.
2009), we stated:
We also credit the agency’s reliance on
Hassan’s travel through several countries prior
to arriving in the United States. In two of these
countries, Yemen and Italy, Hassan remained
for at least two months without seeking asy-
lum. As stated by the IJ, after living in Djibouti
for eighteen years without harm from the Ethi-
opian government, Hassan’s departure and
passage through several countries was more
consistent with a desire to settle in the United
States than a fear for his life. Although we do
not say that failure to seek asylum in interme-
diate countries is always inconsistent with a
fear of persecution, in this case, it was one of
several “relevant factors” that the agency could
consider in finding Hassan’s testimony incred-
ible. See 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Tarraf[ v.
Gonzalez], 495 F.3d [525, 534 (7th Cir. 2007),]
(recognizing that return travel to the country of
persecution may be a factor weighing against
an applicant’s credible fear of persecution); Ba-
logun v. Ashcroft, 374 F.3d 492, 500–01 (7th Cir.
No. 14-2212 13
2004) (upholding an adverse credibility deter-
mination based in part on the applicant’s mul-
tiple prior trips to the United States and the
United Kingdom without seeking asylum).
Id. at 639. 16
The same holds true for the IJ’s concern about
Mr. Darinchuluun’s misrepresentation to U.S. consular au-
thorities. Mr. Darinchuluun relies upon Rodriguez Galicia v.
Gonzales, 422 F.3d 529 (7th Cir. 2005), for the proposition that
“[f]alse statements alone are not determinative of credibility,
and they must be reviewed specifically under the particular
circumstances.” 17 As we already have explained, however,
the IJ did not use the false statement as the basis for an ad-
verse credibility finding. She did not even use this reason as
the sole basis for concluding that Mr. Darinchuluun’s testi-
mony was not sufficiently persuasive to meet his burden.
16 Mr. Darinchuluun relies on a pre-REAL ID Act case from the Ninth
Circuit, Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986), for the
proposition that a petitioner’s “failure to apply for asylum in any of the
countries through which he passed or in which he worked prior to his
arrival in the United States does not provide a valid basis for questioning
the credibility of his persecution claims.” To the extent Damaize-Job states
a proposition of law—that an IJ may not consider an applicant’s failure
to seek asylum in another country in assessing credibility—it has been
superseded by the REAL ID Act, which allows a trier of fact to consider
“all relevant factors” in determining the credibility of an applicant for
relief. 8 U.S.C. § 1158(b)(1)(B)(iii). To the extent that Damaize-Job states a
factual conclusion based on the quality of the applicant’s explanation, it
simply does not apply here, where the IJ was not persuaded by
Mr. Darinchuluun’s testimony.
17 Pet’r’s Br. 19.
14 No. 14-2212
Rather, she considered his misrepresentation among other
relevant factors in reaching her conclusion that there was a
need for further corroboration. The IJ’s decision, therefore,
does not run afoul of Rodriguez Galicia’s admonition.
At his merits hearing, Mr. Darinchuluun did provide
some corroborating evidence. As noted by the BIA, however,
this evidence “did not corroborate the material aspects of the
respondent’s claim of persecution.” 18 The police report relat-
ed to the April 10 stabbing incident in Illinois undermined
his assertion that his whistleblowing in Mongolia was the
basis for the altercation. Additionally, the hospital record
related to the attack he sustained in August 2006 was “unin-
telligible[,] and the dates provided were inconsistent with
the respondent’s claim that he was hospitalized for a month
on or about August 2006.” 19 Finally, the newspaper article
reporting on Magdei’s death stated that there was no foul
play suspected. None of these factual points go to the heart
of Mr. Darinchuluun’s claims. We agree, therefore, with the
IJ and the BIA that Mr. Darinchuluun did not produce evi-
dence that corroborated key elements of his claim.
Mr. Darinchuluun maintains that, before the IJ or the BIA
may rest a denial of relief on an applicant’s failure to pro-
vide corroborating evidence, they are required to give notice
of any inconsistency or shortcoming in the applicant’s testi-
mony and provide the applicant with an opportunity to ex-
plain the inconsistency or supplement the record. According
to Mr. Darinchuluun, “[t]he failure to provide such an op-
18 A. at 4.
19 Id.
No. 14-2212 15
portunity is a violation of Petitioner’s legitimate rights and
shall not be used against Petitioner.” 20
Mr. Darinchuluun’s argument is foreclosed by our deci-
sion in Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008). In
Rapheal, the BIA had affirmed the IJ’s denial of relief because
“the IJ properly found that Rapheal failed to meet her bur-
den of proof…because ‘she did not provide corroborative
evidence and could have done so.’” 533 F.3d at 525. On ap-
peal, Rapheal asserted, among other grounds for relief, that
“it was unreasonable for the Board to expect her to present
corroborative evidence.” Id. at 529. Specifically, she claimed
that “before ruling against her for failing to produce corrob-
orative evidence, the IJ needed to warn her of the need for
such evidence and that the IJ’s failure to do so violated her
due process rights.” Id. at 530. We rejected this argument on
several bases. We noted initially that Rapheal consistently
had asserted that procuring corroborative evidence was im-
possible. Consequently, “the IJ’s failure to warn her could
not prejudice her.” Id. Additionally, Rapheal had failed to
raise her corroboration argument before the BIA. Finally we
observed that
the REAL ID Act clearly states that corroborative
evidence may be required, placing immigrants on
notice of the consequences for failing to provide cor-
roborative evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“Where the trier of fact de-
termines that the applicant should provide ev-
idence that corroborates otherwise credible tes-
20 Pet’r’s Br. 21.
16 No. 14-2212
timony, such evidence must be provided un-
less the applicant does not have the evidence
and cannot reasonably obtain the evidence.”).
To hold that a petitioner must receive additional no-
tice from the IJ and then an additional opportunity
to provide corroborative evidence before an adverse
ruling, would necessitate two hearings—the first to
decide whether such corroborating evidence is re-
quired and then another hearing after a recess to al-
low the alien more time to collect such evidence.
This would add to the already overburdened re-
sources of the DHS, and such an approach would
seem imprudent where the law clearly notifies aliens
of the importance of corroborative evidence.
Id. (emphasis added); see also Abraham v. Holder, 647 F.3d 626,
633 (7th Cir. 2011) (relying on Rapheal to conclude that
“[t]here is…no need for additional notice” before an IJ re-
quires corroboration). 21 Under this court’s case law, 22 there-
21 Accord Ruptash v. Holder, 525 Fed. App’x 491, 495 (7th Cir. 2013)
(“Moreover, the REAL ID Act informs applicants that an IJ may require
corroboration even if they testify credibly. See 8 U.S.C. § 1158(b)(1)(B)(ii).
Because the REAL ID ACT itself put Ruptash on notice that she should
provide all the corroborating evidence available, the IJ was not required
to independently ask her for her husband’s affidavit, or give her a sec-
ond chance to supply that evidence before ruling against her.”).
22 The courts of appeals are not consistent in their approach to a notice
requirement. The Second Circuit, like this court, has held that “the alien
bears the ultimate burden of introducing [corroborating] evidence with-
out prompting from the IJ.” Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009).
The Sixth Circuit has adopted this approach as well. See Gaye v. Lynch,
No. 14-3652, 2015 WL 3555937, at *7 (6th Cir. June 9, 2015). The Ninth
Circuit, however, has held that the IJ must provide a credible applicant
(Continued...)
No. 14-2212 17
fore, the IJ did not err in failing to give Mr. Darinchuluun
prior notice of the need for corroboration.
C.
While his appeal was pending before the BIA,
Mr. Darinchuluun filed a motion to remand to allow the IJ
“to consider…newly obtained evidence.” 23 These documents
included additional medical records, his father’s death certif-
icate, statements from his mother and sister, his newspaper
interview, and media coverage of railway operations. Ac-
cording to Mr. Darinchuluun, his relatives in Mongolia
could not procure the documents at an earlier date because
of governmental restrictions, which were relaxed around
June 2012.
“[W]here a motion to remand is really in the nature of a
motion to reopen or a motion to reconsider, it must comply
(...Continued)
“with notice and an opportunity to either produce the evidence or ex-
plain why it is unavailable.” Ren v. Holder, 648 F.3d 1079, 1090 (9th Cir.
2011). The Third Circuit also has determined that an IJ must inform the
applicant for relief of the need for corroboration prior to an adverse rul-
ing. See Chukwu v. Att’y Gen. of the United States, 484 F.3d 185, 192 (3d Cir.
2007). Mr. Darinchuluun does not argue that we should revisit our rule
in light of more recent Ninth Circuit precedent.
We note that in Matter of L-A-C, 26 I. & N. Dec. 516 (BIA 2015), the
Board has expressed agreement with our decision in Rapheal v. Mukasey,
533 F.3d 521 (7th Cir. 2008), and has discussed thoroughly the obliga-
tions of the immigration judge and the applicant with respect to corrobo-
rative evidence. Matter of L-A-C, 26 I. & N. Dec. at 518–24.
23 A. at 12.
18 No. 14-2212
with the substantive requirements for such motions.” Matter
of Coelho, 20 I & N Dec. 464, 471 (BIA 1992); cf. Morgan v.
Holder, 634 F.3d 53, 60 (1st Cir. 2011) (treating a motion to
remand as a motion to reopen). Under 8 C.F.R. § 1003.2(c)(1),
a motion to reopen “shall not be granted unless it appears to
the Board that evidence sought to be offered is material and
was not available and could not have been discovered or
presented at the former hearing.” We will uphold the BIA’s
denial of a motion to reopen “unless it was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidi-
ous discrimination against a particular race or group.” Awad
v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003) (internal quota-
tion marks omitted).
Here, the BIA denied Mr. Darinchuluun’s motion be-
cause he had not met his burden of establishing that his
supplemental materials “could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). It
stated:
While the respondent belatedly asserts in his
motion that his sister in Mongolia was unable
to obtain “verification or inquiry” documents
by “the date of the initial immigration court
session” due to government bureaucratic re-
strictions (Respondent’s Letter (Jan. 29, 2013)),
we are unpersuaded the respondent could not
have presented these additional documents—
which include[] medical records from August
to September 2006 that diagnosed him with
“circulatory anastomosis,” and a page of his
newspaper interview—in time for his merits
No. 14-2212 19
hearing in September 2011. This is particularly
so when there is no indication in the record
that the respondent apprised the Immigration
Court of any alleged delays or difficulties in
procuring documents, nor did he request a
continuance to await the receipt of additional
documents from Mongolia (see, e.g., Tr. 57–64).
The respondent, likewise, had previously pre-
sented what was purported to be a medical
document regarding his August 2006 hospital-
ization at his prior hearing, thus demonstrating
his apparent ability to procure medical docu-
mentation at that time. Finally, the respondent
in his letter himself admitted that his sister did
not begin collecting documents on his behalf
until May 2012, after a removal order was en-
tered against him (Respondent’s Letter (Jan. 29,
2013)).[ 24]
The BIA’s explanation is reasonable. Mr. Darinchuluun
submitted documentation for one hospitalization at the mer-
its hearing; there does not seem to be any reason, therefore,
that he could not have obtained other substantiating medical
documents earlier in the administrative process. The remain-
ing materials consisted largely of affidavits from family
members and media coverage, which would not have been
affected by restrictions on the issuance of government doc-
24 A. at 5–6 (footnotes omitted). The BIA also noted that there were
inconsistences in some of the supplemental materials provided by
Mr. Darinchuluun. See id. at 5 nn.2–3.
20 No. 14-2212
uments. 25 Given that Mr. Darinchuluun did not lose contact
with family members following his departure from Mongo-
lia, he should have been able to procure these materials and
present them at the merits hearing. We therefore affirm the
BIA’s denial of Mr. Darinchuluun’s motion to remand. 26
Conclusion
For the reasons set forth in this opinion, the petition for
review is denied.
PETITION DENIED
25 His supplemental submission contained one other official record, his
father’s death certificate. That record, however, substantiated only the
fact of his father’s death, not the cause or the circumstances surrounding
it. See A.R. at 37. Consequently, it did little (if anything) to corroborate
Mr. Darinchuluun’s claims of persecution.
26 Because Mr. Darinchuluun has not established his eligibility for asy-
lum, he necessarily has not met the higher standard for withholding of
removal. See, e.g., Vahora v. Holder, 707 F.3d 904, 910–11 (7th Cir. 2013).
Additionally, he has not made any specific argument related to his CAT
claim. He therefore has waived that claim. See Wedderburn v. INS, 215
F.3d 795, 799 (7th Cir. 2000).