Hulse v. Holder

11-3019-ag
Hulse v. Holder
BIA
Nelson, IJ
A096 774 672
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 OLGA HULSE, AKA OLGA KUKUEVA,
14 AKA OLGA ANTON,
15 Petitioner,
16
17 v. 11-3019-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Natalia Skvortsova, Brooklyn, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 David V. Bernal, Assistant Director;
28 Colette J. Winston, Attorney, Office of
29 Immigration Litigation, United States
30 Department of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Olga Hulse, a native of the Republic of
6 Kalmykia and a citizen of Russia, seeks review of a June 30,
7 2011, decision of the BIA denying her motion to reopen and
8 affirming the March 3, 2009, decision of Immigration Judge
9 (“IJ”) Barbara A. Nelson denying her application for
10 withholding of removal and relief under the Convention Against
11 Torture (“CAT”). In re Olga Hulse, No. A096 774 672 (B.I.A.
12 June 30, 2011), aff’g No. A096 774 672 (Immig. Ct. N.Y. City
13 March 3, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we review the IJ’s
16 decision as supplemented and modified by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575
20 F.3d 193, 196 (2d Cir. 2009).
21
22
2
1 I. Withholding of Removal and CAT Relief
2 Under the REAL ID Act of 2005, if the IJ is not satisfied
3 that the applicant's testimony is credible, she may require
4 the applicant to provide corroborating evidence. See 8 U.S.C.
5 § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d at 197-98 &
6 n.5 ("a failure to corroborate can suffice, without more, to
7 support a finding that an alien has not met his burden of
8 proof"). We will not disturb such a determination unless "a
9 reasonable trier of fact [would be] compelled to conclude that
10 such corroborating evidence is unavailable." 8 U.S.C. §
11 1252(b)(4).
12 In this case, the agency was not unreasonable in
13 requiring corroborating evidence regarding Hulse’s claim of
14 past persecution, as she provided no evidence other than her
15 own testimony regarding her political activities, detention,
16 and beatings by the Elista police in Kalmykia. Further, the
17 agency identified the pieces of corroborating evidence that
18 Hulse should have presented to corroborate her claim,
19 specifically, affidavits from her family, friends and
20 colleagues. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.
21 2000). Although Hulse now argues that the affidavits were not
22 reasonably available to her, she testified that her family or
3
1 friends "probably" would have provided such affidavits had she
2 asked them to. (ROA 382).
3 The agency correctly noted that the only corroborating
4 evidence Hulse did provide – the medical records from the two
5 hospitalizations she claimed were the result of altercations
6 with the Elista police – did not support her claim that she
7 was injured on account of her political activities, as her
8 medical records reflected that she had been injured in
9 “domestic trauma.”1 Consequently, substantial evidence
10 supports the agency’s determination that Hulse could
11 reasonably have provided corroborating evidence and that her
12 testimony alone could not establish past persecution on
13 account of her political activities. See 8 U.S.C.
14 § 1252(b)(4); Chuilu Liu, 575 F.3d at 196-99; Diallo, 232 F.3d
15 at 290.
16 If an applicant fails to show past persecution, removal
17 may still be withheld if the applicant can show that she has
18 "a well-founded fear of future persecution" on account of
19 race, religion, nationality, or membership in a particular
1
Hulse testified that she told the hospital
personnel that she had been "beaten up in the police
precinct," but the hospital personnel told her she had "to
say something different" or she would not be admitted. (ROA
379-80). The record, however, contains no evidence
corroborating this account.
4
1 group. See Shi Jie Ge v. Holder, 588 F.3d 90, 96 (2d Cir.
2 2009); 8 C.F.R. § 1208.16(b)(2). An applicant may establish
3 well-founded fear of future persecution by “prov[ing] the
4 existence of ‘a pattern or practice in his or her country of
5 nationality . . . of persecution of a group of persons
6 similarly situated to the applicant’ . . . and . . .
7 establish[ing] ‘his or her own inclusion in, and
8 identification with, such [a] group.’” Kyaw Zwar Tun v. INS,
9 445 F.3d 554, 564 (2d Cir. 2006) (quoting 8 C.F.R.
10 § 208.13(b)(2)(iii)).
11 Hulse argues that she has a well-founded fear of future
12 persecution in Russia because, as a Kalmyk, she is a non-
13 Slavic minority. Hulse argues that the testimony of her
14 expert witness, Igor Kotler, demonstrates that non-Slavic
15 minorities are subject to persecution in Russia. Although
16 Kotler described the harassment and mistreatment of non-Slavic
17 minorities in Russia and testified that Kalmyks may "face
18 racism," he did not testify that Kalmyks are singled out for
19 persecution. (ROA 331-33). Indeed, nothing in his testimony
20 compels the conclusion that adverse treatment of Kalmyks was
21 sufficiently “systemic or pervasive” to establish a pattern or
22 practice of persecution. See In re A-M-, 23 I. & N. Dec. 737,
5
1 741 (BIA 2005); Jian Hui Shao v. Mukasey, 546 F.3d 138, 154,
2 163-66 (2d Cir. 2008). Accordingly, absent “solid support”
3 in the record that her fear is objectively reasonable, Hulse’s
4 claim that she fears future persecution is “speculative at
5 best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
6 Cir. 2005).
7 While Hulse argues that she will be tortured if she
8 returns to Russia, because her claim for CAT relief rests on
9 the same factual predicate as her withholding claim, and the
10 agency reasonably denied her application for withholding of
11 removal, her CAT claim necessarily fails. See Paul v.
12 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
13 II. Attorney’s Admission
14 Hulse argues that the BIA abused its discretion in
15 denying her motion to reopen and binding her to her attorney’s
16 admission that she had procured or sought to procure a visa or
17 other benefit by fraud or by wilfully misrepresenting a
18 material fact, specifically that she had entered into a
19 fraudulent marriage in order to obtain adjustment of status.
20 The BIA, however, did not abuse its discretion in denying her
21 motion to reopen, as Hulse failed to demonstrate that she
22 should not be bound by her counsel’s admissions. Generally,
6
1 an alien in removal proceedings is bound by the admissions of
2 his or her freely-retained counsel. See, e.g., Ali v. Reno,
3 22 F.3d 442, 446 (2d Cir. 1994). In Matter of Velasquez, 19
4 I. & N. Dec. 377, 382 (BIA 1986), the BIA held that, “[a]bsent
5 egregious circumstances, a distinct and formal admission made
6 before, during, or even after a proceeding by an attorney
7 acting in his professional capacity binds his client as a
8 judicial admission. Thus, when an admission is made as a
9 tactical decision by an attorney in a deportation proceeding,
10 the admission is binding on his alien client and may be relied
11 upon as evidence of deportability.” This Court has observed
12 that, “[w]here . . . an IJ accepts a concession of
13 removability from retained counsel and that concession is not
14 contradicted by the record evidence, the circumstances are not
15 ‘egregious’ in any respect. To the contrary, the acceptance
16 by an IJ of a plausible concession of removability is an
17 unremarkable feature of removal proceedings.” Hoodho v.
18 Holder, 558 F.3d 184, 192 (2d Cir. 2009).
19 Here, the concession made by Hulse’s counsel that she had
20 procured or sought to procure a benefit by entering into a
21 fraudulent marriage is not contradicted by the record
22 evidence. See id. Although Hulse argues that she submitted
7
1 documents proving that she and her former husband, a United
2 States citizen, entered into a genuine marriage, none of those
3 documents overcome the statement from Hulse’s former husband
4 that the marriage was not genuine, that he had entered into it
5 “for the money,” and that it was never consummated.
6 Accordingly, nothing in the record compels the conclusion that
7 the IJ’s acceptance of counsel’s admission of the fraud
8 allegation constituted “egregious circumstances” such that
9 Hulse should not be bound by the admission. See Matter of
10 Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986).
11 Hulse additionally argues that the BIA erred in binding
12 her to counsel’s admission because the admission constituted
13 unreasonable professional judgment by her counsel, and
14 produced an unjust result. Absent further evidence – such as
15 an affidavit from her former counsel regarding the admission –
16 nothing in the record demonstrates that her counsel’s
17 admission was the result of the unreasonable exercise of
18 professional judgment, rather than a tactical decision, or
19 that the admission produced an unjust result. See id.20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
23 and any pending motion for a stay of removal in this petition
8
1 is DENIED as moot. Any pending request for oral argument in
2 this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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