Umarov v. Lynch

14-1114
Umarov v. Lynch
BIA
Poczter, IJ
A088 427 584
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
26th day of August, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
KHUSAN BALTABAEVICH UMAROV, AKA
KHASAN UMAROV,
Petitioner,
v. 14-1114
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Tatiana S. Aristova, Plainsboro,
New Jersey.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Julie M. Iversen,
Senior Litigation Counsel; Annette
M. Wietecha, Trial Attorney, Office
of Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Khusan Baltabaevich Umarov, a native and
citizen of Uzbekistan, seeks review of a March 18, 2014,
decision of the BIA affirming an April 18, 2012, decision of
an Immigration Judge (“IJ”), denying Umarov’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Khusan Baltabaevich Umarov,
No. A088 427 584 (B.I.A. Mar. 18, 2014), aff’g No. A088 427 584
(Immig. Ct. N.Y.C. Apr. 18, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the
decision of the IJ as modified and supplemented by the BIA. See
2
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
I. Withholding of Removal and CAT Relief
Substantial evidence supports the agency’s determination
that Umarov was not credible. The agency may, “[c]onsidering
the totality of the circumstances,” base a credibility finding
on inconsistencies in an asylum applicant’s statements and
other record evidence “without regard to whether” they go “to
the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
163-64 (2d Cir. 2008).
Here, the agency reasonably relied on the fact that Umarov
previously submitted an asylum application that he now admits
was false, and that was inconsistent with his present
application. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
2007) (holding that an asylum applicant’s presentation of “a
single false document or a single instance of false testimony
3
may (if attributable to the petitioner) infect the balance of
the alien’s uncorroborated or unauthenticated evidence . . .
[and] may also influence the IJ’s assessment of . . . the
credibility of the petitioner.”); see also Xiu Xia Lin, 534 F.3d
at 166-67.
In addition, Umarov does not challenge the IJ’s finding
that his testimony regarding his alleged arrests was
inconsistent with his second asylum application. That
finding, standing alone, would support the IJ’s adverse
credibility determination. See Shunfu Li v. Mukasey, 529 F.3d
141, 146-47 (2d Cir. 2008); see also Xiu Xia Lin, 534 F.3d at
166-67.
Having questioned Umarov’s credibility, the agency
reasonably relied further on his failure to provide evidence
corroborating his claims. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007). Given Umarov’s submission of a false
application, his inconsistent statements, and his failure to
corroborate, the agency’s adverse credibility determination is
supported by substantial evidence. See Xiu Xia Lin, 534 F.3d
at 165-66; Siewe, 480 F.3d at 170.
4
Umarov’s claims for withholding of removal and CAT relief
were both based on the set of facts that the IJ found not to
be credible. Accordingly, that determination is dispositive
of those claims. See 8 U.S.C. § 1231(b)(3)(C); Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).1
II. Motion for a Continuance
Umarov further argues that the IJ violated his due process
rights when she denied his request to continue proceedings to
permit his sister, whom he failed to list as a witness in advance
of the hearing, to testify.
An IJ’s denial of a request for a continuance does not
ordinarily implicate a constitutional claim, since “IJs are
accorded wide latitude in calendar management,” and such
decisions are reviewed “under a highly deferential standard of
abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551
(2d Cir. 2006). An IJ “may grant a motion for continuance for
good cause shown,” 8 C.F.R. § 1003.29, and abuses her
discretion in denying a continuance only if “(1) h[er] decision
1
Umarov does not challenge the agency’s denial of his application
for asylum, and accordingly, he has waived that issue. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
5
rests on an error of law (such as application of the wrong legal
principle) or a clearly erroneous factual finding or (2) h[er]
decision——though not necessarily the product of a legal error
or a clearly erroneous factual finding——cannot be located
within the range of permissible decisions,” Morgan, 445 F.3d
at 551-52 (internal quotation marks, brackets, and citation
omitted).
Moreover, “[t]o establish a violation of due process, an
alien must show that []he was denied a full and fair opportunity
to present h[is] claims or that [he was] otherwise deprived …
of fundamental fairness.” Burger v. Gonzales, 498 F.3d 131,
134 (2d Cir. 2007) (internal quotation marks and citations
omitted). “Parties claiming denial of due process in
immigration cases must, in order to prevail, allege some
cognizable prejudice fairly attributable to the challenged
process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d
Cir. 2008) (internal quotation marks and citations omitted).
The IJ provided Umarov a full and fair opportunity to
present his sister’s testimony. Umarov was in proceedings
before the immigration court for almost four years. At a June
6
2011 hearing, the IJ scheduled an individual hearing for March
1, 2012, and directed Umarov, who was present and represented
by counsel, to file a witness list by February 1, 2012. Umarov,
however, failed to submit a witness list in advance of that
deadline. Rather, he waited until the day of his hearing to
file a motion requesting additional time to prepare such a list.
By doing so, Umarov violated the Immigration Court Practice
Manual (“Manual”), which provides that “filings must be
submitted at least fifteen (15) days in advance of the hearing,”
Manual, § 3.1(b)(ii)(A), and warns that “[t]he untimely
submission of a filing may have serious consequences, . . .
[specifically,] if a witness list is untimely, the witnesses
on the list are barred from testifying,” id. § 3.1(d)(ii).
Under these circumstances, the IJ was not required to delay
proceedings to provide Umarov additional time to obtain and
present evidence that had been available for years (his sister
having resided in the United States since 2002). See Morgan,
445 F.3d at 553; cf. Chuilu Liu v. Holder, 575 F.3d 193, 198
(2d Cir. 2009) (providing that “the alien bears the ultimate
7
burden of introducing such evidence without prompting from the
IJ.”).
Umarov also failed to demonstrate that he was prejudiced
as a result of the IJ’s denial of his motion. As the BIA noted,
he has not indicated how his sister’s testimony would have
rehabilitated his credibility in light of his submission of a
false asylum application. See Garcia-Villeda, 531 F.3d at 149;
cf. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (“In order
for [petitioner] to show that his attorney’s failure to file
caused him actual prejudice, he must make a prima facie showing
that he would have been eligible for the relief and that he could
have made a strong showing in support of his application.”).
Accordingly, the IJ did not abuse her discretion or violate
Umarov’s due process rights in denying him a continuance. See
Morgan, 445 F.3d at 551-52; Burger, 498 F.3d at 134;
Garcia-Villeda, 531 F.3d at 149.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENI ED as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
8