Takhmina Akramova v. Loretta E. Lynch , 644 F. App'x 713 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAKHMINA BURHONOVNA No. 12-73972
AKRAMOVA,
Agency No. A088-565-663
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
TAKHMINA BURHONOVNA No. 13-70748
AKRAMOVA,
Agency No. A088-565-663
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2016
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: HAWKINS, W. FLETCHER, and MURGUIA, Circuit Judges.
Takhmina Akramova, a native and citizen of Tajikistan, petitions for review
of the Board of Immigration Appeals’ (“BIA”) decision denying her application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). She also petitions for review of the BIA’s order denying her motion to
reopen her removal proceedings. Akramova claims persecution on account of her
interest in Christianity. We deny the petitions.
Although the Immigration Judge may have rendered an adverse credibility
finding, the BIA did not adopt the credibility determination. Rather, the BIA
concluded that Akramova had not met her burden “[e]ven assuming” that she
presented a credible claim for relief. Consequently, we assume Akramova testified
credibly. Hu v. Holder, 652 F.3d 1011, 1016 (9th Cir. 2011).
Even accepting Akramova’s testimony as true, she has not carried her
burden of establishing eligibility for relief. The two incidents about which
Akramova testified — being hit in the head with a rock by her classmate and the
police officer abusing her when she attempted to report that incident — are not so
severe as to rise to the level of persecution, even when considered in conjunction
with the threats her mother received and the impact on Akramova’s mental health.
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Cf. Bondarenko v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013); Li v. Holder, 559
F.3d 1096, 1107–08 (9th Cir. 2009).
Akramova failed to establish an objectively reasonable well-founded fear of
future persecution. As the BIA found, Akramova’s evidence on conditions in
Tajikistan shows that the government restricts Islamic extremism, not the practice
of Christianity. Akramova’s claim is also undermined by the fact that she
continued to live in Tajikistan for nearly a year without facing any further negative
incidents. See Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir. 1991).
Because Akramova failed to demonstrate eligibility for asylum, her
withholding claim necessarily fails. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003).
Akramova likewise failed to establish eligibility for relief under the CAT.
The two incidents about which Akramova testified were not so severe as to
constitute torture. Cf. Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013)
(concluding that it was “not clear” that the five beatings the petitioner received
(two of which the Court described as “severe”) rose to the level of torture).
Akramova failed to present any evidence indicating she will be tortured if removed
to Tajikistan.
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Finally, the BIA did not abuse its discretion in denying Akramova’s motion
to reopen. “A motion to reopen proceedings 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.” Goel v.
Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (quoting 8 C.F.R. § 1003.2(c)(1)).
Most of the evidence Akramova attached to her motion to reopen was available
before Akramova’s 2011 hearing. The evidence that was available only after her
hearing — two articles about the murder of a man dressed as Santa Claus — did
not show government involvement in the persecution or torture of Christians.
Castro-Martinez v. Holder, 674 F.3d 1073, 1080 (9th Cir. 2011) (“To qualify as
persecution for the purpose of asylum, an act must be inflicted either by the
government or by individuals or groups the government is unable or unwilling to
control.” (citation omitted)); Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.
2003) (noting that to qualify for CAT relief, a petitioner must show torture
“inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity”) (quoting 8 C.F.R.
§ 208.18(a)(1)). To the contrary, these articles indicate that the Tajikistan
government treated the killing, which was committed by private parties, as a
murder and eventually arrested the parties responsible.
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Petitions for review DENIED.
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