Mikhail Bulatov v. Atty Gen USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 11-3048 and 11-4357
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MIKHAIL BULATOV,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY US DEPARTMENT OF HOMELAND SECURITY;
JOHN MORTON, as Assistant Secretary for Immigration
and Customs Enforcement;
GARY MEAD, as Executive Associate Director,
Enforcement and Removal Operations;
JOHN TSOUKARIS, as Acting Director, Enforcement and Removal
Operations, Newark, New Jersey Field Office,
Respondents
_______________
On Petition for Review from Orders of the
Board of Immigration Appeals
(BIA-1: A098-167-763)
Immigration Judge: Hon. Mirlande Tadal
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Argued April 18, 2013
BEFORE: AMBRO, HARDIMAN and COWEN, Circuit Judges
(Filed: May 1, 2013)
Lawrence G. Spivak, Esq. (Argued)
1st Floor
87-40 165th Street
Jamaica, NY 11432
Counsel for Petitioner
Shelley Goad, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Andrew J. Oliveira, Esq.
Julia J. Tyler, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents
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OPINION
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COWEN, Circuit Judge.
Mikhail Bulatov petitions for review of a decision of the Board of Immigration
Appeals (“BIA”), which, in turn, dismissed his appeal from the decision of the
Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). He also petitions for review of the
BIA‟s decision denying his subsequent motion to reopen. We will deny both petitions.
I.
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Born in the then-Soviet Republic of Kazakhstan, Bulatov is a citizen of both
Kazakhstan and Russia. It appears that he was arrested in Kazakhstan in November 1998
and then detained until April 1999. On May 19, 2003, Bulatov entered the United States.
Nine months later, his wife, Nadezhda Bulatova, submitted an I-485 application for
adjustment of status to that of an alien lawfully admitted for permanent residence under 8
U.S.C. § 1255. Bulatov simultaneously filed for adjustment of status as her spouse, and
he was interviewed about his application on March 20, 2009.
Bulatov then agreed to plead guilty to “a one count information, which charges
him with making materially false, fictitious and fraudulent statements and representations,
in violation of 18 U.S.C. § 1001.” (AR1602.) The information specifically alleged that,
on or about March 20, 2009, Bulatov,
in a matter within the jurisdiction of the executive branch of the government
of the United States, namely, the U.S. Department of Homeland Security,
U.S. Citizenship and Immigration Services, did knowingly and willfully
make a materially false, fictitious, and fraudulent statement and
representation by misrepresenting, in connection with a Form I-485
(Adjustment of Status Application which he had submitted in support of
changing his immigration status), that he had never been arrested, cited,
charged, indicted, fined, or imprisoned in Kazakhstan for breaking or
violating any law or ordinance.
(AR1595.) The United States District Court for the District of New Jersey accepted his
guilty plea, and Bulatov was sentenced to serve five months‟ imprisonment and a three-
year term of supervised release.
Charged as removable, Bulatov filed an application for asylum, withholding of
removal, and CAT protection on July 15, 2010. Specifically, he alleged past persecution
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as well as a well-founded fear of future persecution on account of his Jewish ethnicity or
nationality (in both Kazakhstan and Russia) and his political opinion (in Kazakhstan).
The IJ denied his claims for relief in a thirty-four page written decision, and the BIA
dismissed his appeal. Bulatov filed a motion to reopen, but this motion was denied by the
BIA.
II.
Initially, Bulatov challenges, largely on due process grounds, the admission of
certain documentation regarding Kazakhstan‟s attempt to extradite him on purported
murder charges.1 In addition to a so-called “Extradition Notice & Verdict” (which was
accorded limited weight by the IJ) and the “Request from Republic of Kazakhstan,” the
government presented an INTERPOL “Red Notice” published on June 17, 2004, which,
inter alia, identified Bulatov as a possibly dangerous fugitive wanted for prosecution by
Kazakhstan. It also stated that he was charged with multiple murders and that an arrest
warrant was issued on March 24, 2004. We agree with the government that, at the very
least, the admission of these documents did not prejudice Bulatov. Cf., e.g., Wilson v.
1
This Court generally has subject matter jurisdiction pursuant to 8 U.S.C. § 1252. In
turn, we review the decision of the BIA as well as the IJ‟s underlying decision to the
extent that it is adopted by the BIA. The agency‟s factual determinations are reviewed
under the deferential “substantial evidence” standard. See, e.g., Yuan v. Attorney
General, 642 F.3d 420, 425 (3d Cir. 2011). “The administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). The BIA‟s denial of a motion to reopen is reviewed
for an abuse of discretion, Zheng v. Attorney General, 549 F.3d 260, 264-65 (3d Cir.
2008), and it should be upheld if “„supported by reasonable, substantial, and probative
evidence on the record considered as a whole,‟” id. at 266 (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
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Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003) (stating that “there would be no due process
violation in the absence of prejudice”). While he has attacked the veracity of the murder
allegations against him, it appears that he has never really contested that the Kazakh
government seeks his extradition. On the contrary, he has relied on this supposedly
inadmissible documentation as support for a number of his own contentions, such as his
assertion that the one-year time bar for asylum applications should not apply because “the
false charges transmitted by the Kazakhstan government to the U.S. government
constitute a changed circumstance.” (Petitioner‟s Brief at 19.) The IJ likewise did not
rely on these documents as support for her critical adverse credibility determination. We
further note that the government provided to the IJ a detailed description of how these
documents were obtained (e.g., the Department of Homeland Security obtained the Red
Notice from the United States Attorney‟s office, which had obtained the document from
INTERPOL itself and retained the original copy). See, e.g., Liu v. Ashcroft, 372 F.3d
529, 533 (3d Cir. 2004) (“We conclude that 8 C.F.R. § 287.6 is not an absolute rule of
exclusion, and is not the exclusive means of authenticating records before an immigration
judge.”). Thus, we reject Bulatov‟s argument that the IJ‟s admission of this
documentation was improper based on a lack of authenticity.
With respect to his otherwise untimely asylum application, the BIA specifically
concluded that “only the applications for withholding of removal and CAT protection
remain at issue” because, inter alia, Bulatov “has not shown the existence of changed
circumstances in Kazakhstan materially affecting his eligibility for asylum since he
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arrived in the United States.” (JA6 (citation omitted).) It is undisputed that, under our
existing precedent, we lack the jurisdiction “to review a decision regarding whether an
alien established changed or extraordinary circumstances that would excuse his untimely
filing [for asylum].” Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006)
(citations omitted). We reject Bulatov‟s request that we revisit this precedent and will
therefore not consider his untimely application for asylum.
The IJ, after conducting an extensive analysis, determined that Bulatov “is not a
credible witness.” (JA32.) As the BIA observed, the IJ “concluded that the respondent‟s
provision of false information to procure an immigration benefit impugns his credibility
in this proceeding.” (JA6 (citations omitted).) The IJ appropriately considered Bulatov‟s
guilty plea and conviction for making a materially false, fictitious, and fraudulent
statement and representation in violation of § 1001, together with his proffered
explanation for why he did not disclose his prior arrest and why he pled guilty. We also
observe that a guilty plea and conviction for a crime involving dishonesty—especially
when committed in connection with an earlier attempt to obtain an immigration benefit—
arguably may be relevant to the threshold inquiry of whether or not the individual is
credible in his or her subsequent effort to obtain other kinds of immigration relief. The
BIA also noted that the IJ “further identified several discrepancies and omissions in the
respondent‟s oral and written submissions.” (JA7 (citation omitted).) For example, she
identified a discrepancy regarding when Bulatov first met Saleh (where Bulatov‟s own
problems purportedly intensified after he leased a warehouse to Saleh and where, in any
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case, the administrative trier of fact may make a credibility determination “without regard
to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant‟s
claim,” 8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ also listed the number of times that he
entered United States and then returned to either Kazakhstan or Russia on his own
volition (i.e., thirteen times between December 1995 and December 2002). A reasonable
finder of fact could conclude that this extensive history of leaving—and then returning
to—Kazakhstan and Russia cast severe doubts on the veracity of his account of serious
mistreatment dating back to the early 1990s. We also note that at least one of these trips
occurred after Bulatov‟s detention in Kazakhstan, notwithstanding the brutal conditions
and torture he claimed he suffered while incarcerated. In the end, the adverse credibility
determination made against Bulatov was supported by specific and cogent reasoning as
well as substantial evidence in the record. See, e.g., Abdulrahman v. Ashcroft, 330 F.3d
587, 597 (3d Cir. 2003). We thus cannot conclude that “the record evidence would
„compel‟ (emphasis in original) a reasonable factfinder to make a contrary
determination.” Id. (quoting Elias-Zacarias, 502 U.S. at 481 n.1).
Given this credibility determination, the Court need not—and does not—consider
either the alternative corroboration ruling or the IJ‟s alternate burden of proof
determination that Bulatov failed to satisfy the “„on account of‟ a protected ground”
requirement for withholding of removal (JA36 (citations omitted)). See, e.g., Toure v.
Attorney General, 443 F.3d 310, 323 (3d Cir. 2008) (“As we recently made clear in Chen
v. Gonzales, corroboration and credibility, although intuitively related, are distinct
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concepts that should be analyzed independently. 434 F.3d 212, 221 (3d Cir. 2005).”); Dia
v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc) (“An alien‟s credibility, by itself,
may satisfy his burden or doom his claim.” (citing Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002))). The agency‟s determination that Bulatov failed to establish a “pattern or
practice” of anti-Semitic persecution in Russia or Kazakhstan also was supported by
substantial evidence in the record. For instance, the IJ properly turned to the State
Department‟s own reports (which stated, inter alia, that the number of anti-Semitic attacks
in Russia had decreased and indicated that Kazakhstan is a multiethnic society with a long
tradition of tolerance and secularism). See, e.g., Ambartsoumian v. Ashcroft, 388 F.3d
85, 89 (3d Cir. 2004) (recognizing our precedent that “State department reports may
constitute „substantial evidence‟ for the purposes of reviewing immigration decisions”
(citations omitted)). The IJ also appropriately considered—and then gave little weight
to—Dr. Brian Williams‟s proffered account of pervasive anti-Semitism in Kazakhstan as
anecdotal and unsupported by documentation.
Furthermore, the agency appropriately disposed of Bulatov‟s claim for CAT relief.
The BIA and the IJ properly focused on Kazakhstan because Bulatov evidently would be
extradited from Russia to Kazakhstan pursuant to the outstanding INTERPOL warrant
(e.g., “100 percent automatic” according to Dr. Williams (AR502)). Bulatov contends
that he “seeks CAT relief because he had proof that the Kazakh and Russian authorities
will threaten to or actually inflict severe physical and mental suffering upon him for
refusing to turn over his businesses and for failing to disclose the location of the
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treasure.” (Petitioner‟s Brief at 51.) However, his theory of lost Tsarist treasures
ultimately was based on the same factual account that the IJ rejected on credibility
grounds. The agency also took into consideration the other evidence in the record,
including evidence of the frankly deplorable prison conditions in Kazakhstan. Pursuant
to our deferential standard of review, the agency appropriately determined that Bulatov
failed to establish that “the government maintains these conditions with the specific intent
of torturing inmates” or that “he would be singled out for torture in the future” (JA8
(citations omitted)). See, e.g., Pierre v. Attorney General, 528 F.3d 180, 190 (3d Cir.
2008) (en banc) (“In our view, a petitioner cannot obtain relief under the CAT unless he
can show that his prospective torturer will have the goal or purpose of inflicting severe
pain or suffering.” (footnote omitted)).
Finally, we must address the BIA‟s denial of the motion to reopen. This motion
was based on two basic grounds: (1) additional evidence in support of his claims for
relief, especially a declaration and attached documentation ostensibly from Dr. Aliyev (a
former high-ranking Kazakh official and son-in-law of Kazakh President Nazarbayev);
and (2) a claim that his prior counsel provided ineffective assistance with respect to the
issue of corroboration. We conclude that the BIA did not abuse its discretion by denying
Bulatov‟s motion. Among other things, Dr. Aliyev acknowledged that “I do not know
Mr. Bulatov personally” (AR66), stated that he thereby “reviewed [Bulatov‟s] written
statement in support of his application and the documents about him transmitted by the
Kazakh secret service to INTERPOL” (AR72), and discussed Bulatov‟s own version of
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events based on his understanding of how the Kazakh regime works. As the government
points out, Dr. Aliyev‟s declaration was “based on the author‟s uncritical review of the
same narrative that the agency found not credible.” (Respondent‟s Brief at 56 (citation
omitted).) We also agree with the government that Dr. Aliyev—a former high-ranking
official who opposed official corruption and Kazakhstan‟s President (his own former
father-in-law)—was not similarly situated to Bulatov. Likewise, the BIA properly
rejected the ineffectiveness claim because “the [IJ] found the respondent was not credible
based on inconsistencies in the respondent‟s own testimony and a false statement made in
his application for adjustment of status.” (JA49 (citation omitted).) Under the
circumstances, Bulatov‟s “failure to meet his burden of proof with sufficient
corroborative evidence constituted a separate, additional reason for denial under the
REAL ID Act.” (Id. (citations omitted).)
III.
For the foregoing reasons, we will deny Bulatov‟s petitions for review.
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