Dyuessemaliyev v. Holder ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             FEB 22 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS
    FOR THE NINTH CIRCUIT
    RUSLAN DYUESSEMALIYEV and                        No. 06-72782
    OLGA POTEKHINA,
    Agency Nos. A072-684-365;
    Petitioner,                        A072-525-521
    v.
    MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted November 2, 2010
    Pasadena, California
    Before: WALLACE and GRABER, Circuit Judges, and MILLS, Senior District
    Judge.**
    Ruslan Dyuessemaliyev, a native and citizen of Kazaµhstan, and his wife
    Olga Poteµhina, a native and citizen of Russia, petition for review of the Board of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Richard Mills, Senior United States District Judge for
    the Central District of Illinois, sitting by designation.
    Immigration Appeals' decision dismissing their appeal from an immigration
    judge's (IJ) decision denying their applications for asylum, withholding of
    removal, and Convention Against Torture (CAT) relief. We have jurisdiction
    under 8 U.S.C. y 1252. We review for substantial evidence, Rivera v. Muµasey,
    
    508 F.3d 1271
    , 1273 (9th Cir. 2007), and we deny the petition for review.
    I
    Regarding Dyuessemaliyev's claims of persecution in Kazaµhstan, the
    record evidence would not compel a reasonable finder of fact to overturn the
    adverse credibility finding. Dyuessemaliyev's testimony was vague and internally
    inconsistent, especially regarding the dates when the alleged abuses occurred.
    These inconsistencies are material and go to the heart of the claim. See Don v.
    Gonzales, 
    476 F.3d 738
    , 741 (9th Cir. 2007).
    Dyuessemaliyev's corroboratory evidence was minimal, consisting of only
    two medical documents related to treatment for injuries allegedly suffered at the
    hands of the Kazaµh secret police (KNB). The IJ found that one of these
    documents was not credible, because it was handwritten on a plain piece of paper
    and bore an illegible stamp.
    Dyuessemaliyev failed to corroborate his membership in the Republican
    Popular Party of Kazaµhstan (RPPK). We acµnowledge that it would have been
    2
    difficult for Dyuessemaliyev to provide some of the documents that the IJ noted
    were not in evidence, such as the posters and fliers that were allegedly confiscated
    by the police. See Guo v. Ashcroft, 
    361 F.3d 1194
    , 1201 (9th Cir. 2004).
    However, Dyuessemaliyev should have been able to produce some µind of
    corroboration of party membership. Dyuessemaliyev's failure to produce any
    evidence of party membership undermines his claim, because the IJ already had
    reason to question his credibility. See Sidhu v. INS, 
    220 F.3d 1085
    , 1091-92 (9th
    Cir. 2000).
    Finally, substantial evidence supports the adverse credibility determination
    because the IJ found that Dyuessemaliyev could only give a vague description of
    the RPPK, and he was only able to describe the party's goals in very general terms.
    See Singh v. Ashcroft, 
    367 F.3d 1139
    , 1143 (9th Cir. 2004) (approving an adverse
    credibility finding based in part on an expectation that a person who claims active
    participation in a group has a deeper understanding of that group's beliefs).
    II
    Substantial evidence supports the IJ's adverse credibility determination
    regarding Dyuessemaliyev's claim of persecution in Russia, because he could not
    provide specific dates for, or details of, his travel between Russia and Kazaµhstan.
    Moreover, Dyuessemaliyev could not corroborate his alleged deportation from
    3
    Russia, his status as a university student in St. Petersburg, or that he had been
    contacted by the Russian Federal Security Service (FSB). Persons who are
    'deemed unbelievable as to one material fact may be disbelieved in all other
    respects.' Lopez-Umanzor v. Gonzales, 
    405 F.3d 1049
    , 1059 (9th Cir. 2005).
    III
    Absent credible testimony, the Petitioners' asylum, withholding of removal,
    and CAT claims fail. See Farah v. Ashcroft, 
    348 F.3d 1153
    , 1156 (9th Cir. 2003).
    PETITION FOR REVIEW DENIED.
    4
    FILED
    Dyuessemaliyev v. Holder, No. 06-72782                                      FEB 22 2011
    MOLLY C. DWYER, CLERK
    GRABER, Circuit Judge, dissenting:                                      U.S . CO U RT OF AP PE A LS
    I respectfully dissent.
    Minor discrepancies in dates--the main reason for the BIA's adverse
    credibility finding--are not an adequate reason to disbelieve a petitioner. Wang v.
    Ashcroft, 
    341 F.3d 1015
    , 1021-22 (9th Cir. 2003). If Petitioner left Russia even a
    day or two before the month of May began, rather than on May 1, then the dates to
    which he testified fit together.
    In addition, in my view it would be unreasonable to expect Petitioner to
    obtain corroboration of his political activities and membership in the RPPK.
    Indeed, the majority fails to suggest what µind of documentation would be
    reasonably available to him.
    When those factors are removed from the equation, the adverse credibility
    finding is not supported by substantial evidence.