Yergashev v. Holder , 395 F. App'x 404 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
BAKHROM YERGASHEV and ALIMAA No. 07-72126
SANDAGSUREN,
Agency Nos. A097-886-029
Petitioners, A097-886-031
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Aruged and Submitted August 9, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Baµhrom Yergashev ('Yergashev') and Alimaa Sandagsuren (collectively,
'Petitioners') petition for review of the Board of Immigration Appeals' ('BIA')
decisions denying their applications for asylum, withholding of removal, and relief
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the United Nations Convention Against Torture ('CAT'). We have
jurisdiction pursuant to 8 U.S.C. y 1252, and we deny the petition for review.1
We review for substantial evidence the BIA's (1) determination that
Petitioners' asylum application was not filed within a reasonable period after their
change in circumstances and (2) denial of withholding and CAT relief. See
Muradin v. Gonzales, 494 F.3d 1208, 1210-11 (9th Cir. 2007); Taslimi v. Holder,
590 F.3d 981, 988 (9th Cir. 2010). Since the BIA adopted the immigration judge's
('IJ') decision citing In re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994) and
added its own findings, we review both decisions. Abebe v. Gonzales, 432 F.3d
1037, 1040 (9th Cir. 2005) (en banc); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.
2004).
An alien who does not apply for asylum within a year after entering the
United States may apply for asylum following changed circumstances that
materially affect his eligibility, including his activities outside the country of
feared persecution that place him at risµ. 8 U.S.C. y 1158(a)(2)(B), (D); 8 C.F.R. y
1208.4(a)(4)(i). He must apply within a reasonable period given the changed
circumstances. 8 C.F.R. y 1208.4(a)(4)(ii).
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
-2-
Substantial evidence supports the IJ's determination that Petitioners' ten-
month delay in filing for asylum following their interfaith marriage was not
reasonable, because Petitioners proffered no circumstances to excuse their late
filing. Given Petitioners' failure to explain their delay, there is no need for a
remand. See Matter of T-M-H-, 25 I. & N. Dec. 193, 195-96 (BIA 2010).
Finally, if the BIA's reference to the Supplementary Information issued by the
Attorney General in implementing the Illegal Immigration Reform and Immigrant
Responsibility Act's provisions was in error, it was harmless because the BIA did
not treat the commentary as binding and the agency's other grounds for denying
Petitioners' asylum application were sufficient. See 65 Fed. Reg. 76,121, 76,124
(Dec. 6, 2000).
Yergashev, the lead applicant, did not allege past persecution and has not
made a compelling showing of future persecution in Uzbeµistan based on a
statutorily protected ground. 8 U.S.C. y 1231(b)(3); Al-Harbi v. INS, 242 F.3d
882, 888 (9th Cir. 2001). Yergashev does not fear persecution from the Uzbeµ
government or police, and significant record evidence contradicts his assertion that
Sharia law is enforced in Uzbeµistan. Moreover, no record evidence establishes
that Islamic radical groups persecute interfaith Muslim-Buddhist couples.
Although the record may support an inference that Uzbeµ society discriminates
-3-
against interfaith couples, this does not amount to persecution. See Fisher v. INS,
79 F.3d 955, 962 (9th Cir. 1996) (en banc).
Yergashev has not shown his eligibility for CAT withholding of removal by
demonstrating that he is more liµely than not to suffer intentionally inflicted cruel
and inhumane treatment. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005).
The record only indicates that the government allegedly tortures some suspected
Islamic extremists, and Yergashev does not claim association with an Islamic
extremist group.
Accordingly, the petition for review is DENIED.
-4-
FILED
Yergashev v. Holder, No. 07-72126 SEP 09 2010
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, concurring in part and dissenting in part: U.S . CO UR T OF AP PE A LS
I concur in the disposition's treatment of Petitioners' claims for withholding
of removal and CAT relief. But I respectfully dissent from denial of the asylum
claim on the ground of untimeliness. The majority incorrectly excuses as harmless
the BIA's application of the wrong legal standard in determining that Petitioners'
asylum petitions were untimely filed.
The BIA held that waiting more than six months to apply for asylum after a
change in circumstances þwould not be considered reasonable.þ In so holding, the
BIA relied expressly on commentary to a regulation that, itself, does not create any
presumption of unreasonableness after six months. See Waµµary v. Holder, 558
F.3d 1049, 1057-58 (9th Cir. 2009) (þ[T]he regulations maµe clear that the
reasonableness determination must be made 'under the circumstances,' on a
case-by-case basis.þ (quoting 8 C.F.R. y 208.4(a)(5))). The majority holds that the
BIA's error was harmless. But when reviewing an agency's decision, as distinct
from a ruling of the district court, we are not allowed to decide that an agency was
right for the wrong reason. See Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir.
2000) (þ[T]his court cannot affirm the BIA on a ground upon which it did not
rely.þ); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)
(þ[W]here the BIA applies the wrong legal standard to an applicantùs claim, the
appropriate relief from this court is remand for reconsideration under the correct
standard . . . .þ).
For those reasons, I would grant and remand with respect to the asylum
claim.
2