Uladzimir Sliusar v. Eric Holder, Jr. , 608 F. App'x 529 ( 2015 )

FILED
UNITED STATES COURT OF APPEALS JUL 23 2015
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
ULADZIMIR SLIUSAR and Nos. 10-71562
ALIAKSANDRA HRYHORYEVA, 11-73849
Petitioners, Agency Nos. A098-534-453
A098-534-454
v.
ORDER AMENDING
LORETTA E. LYNCH, Attorney General, MEMORANDUM
DISPOSITION and DENYING
Respondent. PETITION FOR REHEARING
and REHEARING EN BANC
Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY,* District
Judge.
The memorandum disposition filed on February 5, 2015, is amended to omit
reference to the BIA’s decision with respect to Petitioner Hryhoryeva’s filing of a
frivolous application. The petition for rehearing has alerted the panel to the fact
that the BIA vacated its finding of the filing of a frivolous application for asylum
as to Hryhoryeva only.
As so amended, the panel has voted to deny the petition for panel rehearing;
Judges Tallman and Rawlinson have voted to deny the petition for rehearing en
banc and Judge Murphy so recommends. The full court has been advised of the
*
The Honorable Stephen Joseph Murphy III, United States District
Court Judge for the Eastern District of Michigan, sitting by designation.
petition for rehearing en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are
DENIED. No further petitions for rehearing will be entertained.
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FILED
NOT FOR PUBLICATION JUL 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ULADZIMIR SLIUSAR and No. 10-71562
ALIAKSANDRA HRYHORYEVA,
Agency Nos. A098-534-453
Petitioners, A098-534-454
v.
AMENDED MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
ULADZIMIR SLIUSAR and No. 11-73849
ALIAKSANDRA HRYHORYEVA,
Agency Nos. A098-534-453
Petitioners, A098-534-454
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3. Loretta E. Lynch is substituted for Eric H.
Holder, Jr. as Attorney General. Fed. R. App. P. 43(c)(2).
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Submitted February 3, 2015**
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.***
Appellants Uladzimir Sliusar and derivatively Aliaksandra Hryhoryeva,
citizens of Belarus, petition for review of a Board of Immigration Appeals decision
affirming an Immigration Judge’s denial of their application for asylum,
withholding of removal, protection under the Convention Against Torture, and
determination that Sliusar filed a frivolous asylum application. Where, as here, the
BIA incorporates parts of the IJ’s decision while providing its own analysis, we
review those incorporated portions of the IJ’s decision but otherwise confine our
analysis to the BIA opinion. Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996).
Decisions of the agency are reviewed under the substantial evidence standard and
must be affirmed if they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Donchev v. Mukasey, 553 F.3d
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
2
1206, 1213 (9th Cir. 2009) (citing to INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)).
Petitioners were admitted to the United States on June 4, 2004, in Newark,
New Jersey. Sliusar applied for asylum on January 27, 2005. On June 27, 2006,
the IJ, after a hearing on the merits, found that Petitioners had filed a frivolous
asylum petition. The BIA reviewed this decision and denied Petitioners appeal on
all but one count. The BIA remanded the case to the IJ to reconsider whether
Sliusar filed a frivolous application in light of the recent BIA decision in the
Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007). The IJ again found that
Petitioners filed a frivolous application, even in light of the BIA’s opinion in the
Matter of Y-L-. Petitioners appealed again and the BIA affirmed. On March 11,
2011, Petitioners filed a motion to reopen, which was denied on November 16,
2011. This appeal followed.
The agency’s finding that Sliusar was not credible and his asylum
application frivolous are well supported by the record. The IJ examined Sliusar’s
statement in support of his application for asylum and found that large portions of
that statement were copied from “five different asylum declarations filed in five
different cases.” The plagiarism was so extensive that the IJ noted that many of the
five statements had “full paragraphs identical to those of the respondent.” During
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the IJ’s hearing, Sliusar was asked to explain these similarities. Rather than
explaining them, his testimony produced further inconsistencies with his prior
testimony to the court and the asylum officer. Given the obvious plagiarism in his
application, his inability to explain why his statement was so similar to others, and
the inconsistencies within his own sworn testimony, the IJ properly found Sliusar
not credible. Ahir v. Mukasey, 527 F.3d 912, 918-19 (9th Cir. 2008) (holding that
inconsistencies between an alien’s application and testimony and an inability to
explain those inconsistencies establishes frivolousness by a preponderance of the
evidence).1
The record also supports the IJ’s determination that Sliusar submitted a
frivolous asylum application. First, Sliusar was adequately advised that
frivolousness was a concern. Then, the IJ properly found that “a substantial
number of discrepancies, in fact, all of them, go to the heart of respondent’s claim,
and therefore are material elements of this claim.” Sliusar was given sufficient
opportunity to explain the discrepancies in his application and testimony and failed
to do so. Moreover, Petitioners were given a second opportunity to brief the
discrepancies when the BIA remanded their claim for consideration of the factors
1
Petitioner claims that the testimony of the asylum officer was incompetent.
We find this claim meritless. Moreover, there was ample documentary evidence in
the record to support the IJ’s adverse credibility finding against Sliusar.
4
in light of the Matter of Y-L-, 24 I. & N. Dec. 151. On the second evaluation of
Petitioners’ claim, the BIA held that “the Immigration Judge followed the
framework of Matter of Y-L-, supra, to determine that the respondents knowingly
made frivolous asylum applications.” We agree. The IJ was not required to hold
another hearing on remand, as the record was sufficiently developed to apply
Matter of Y-L- to the facts of the case.
The BIA did not abuse its discretion in denying either of Petitioners’
requests to reopen. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009).
Under an abuse of discretion standard, Petitioners failed to establish changed
country conditions warranting reopening. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (holding that to reopen a
case an alien must show that the new evidence would likely change the result)
(citing to Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)).
The petition for rehearing has alerted us to the fact that the BIA vacated its
finding of the filing of a frivolous application for asylum as to Hryhoryeva only.
We amend our previous disposition to reflect that fact.
PETITION DENIED.
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