Alesia Kazakevich v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
AUG 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALESIA KAZAKEVICH, No. 11-71611
Petitioner,
Agency No. A097-354-917
v.
MEMORANDUM*
LORETTA E. LYNCH,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted July 8, 2016
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and CHEN, District Judge.**
Alesia Kazakevich, a native of the former USSR and a citizen of Belarus,
petitions for review of the decision of the Board of Immigration Appeals (“BIA”)
upholding the Immigration Judge’s (“IJ”) denial of her applications for asylum and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
withholding of removal1. We have jurisdiction under 8 U.S.C. § 1252 and deny the
petition.
1. The BIA properly upheld the Immigration Judge’s denial of
Kazakevich’s application for asylum. Kazakevich entered the United States on
May 31, 2001 and filed her asylum application in August 2003. The Immigration
and Nationality Act (“INA”) requires an asylum seeker to file her application
within one year of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). “The
1–year period shall be calculated from the date of the alien’s last arrival in the
United States or April 1, 1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii). As
Kazakevich filed her application more than two years after she entered the United
States in 2001, her application is untimely.
Kazakevich asserts she is entitled to an exception to the one-year deadline
due to the extraordinary circumstance of ineffective assistance of counsel. See 8
C.F.R. § 208.4(a)(5)(iii). The BIA rejected her ineffective assistance argument
because, even if Kazakevich had shown extraordinary circumstances, she had not
contested the IJ’s determination that she failed to establish that she filed her
application within a reasonable period after discovering the ineffective assistance.
1
Because Kazakevich has not raised on this appeal the IJ’s denial of
her additional claim for relief under the Convention Against Torture, that issue is
waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
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See 8 C.F.R. § 1208.4(a)(5) (extraordinary “circumstances may excuse the failure
to file within the 1–year period as long as the alien filed the [asylum] application
within a reasonable period given those circumstances”). She fails to raise such an
argument before this Court as well. Because Kazakevich failed to exhaust that
issue, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004). In any event, were we to address the merits, we could not
conclude that her 16-month delay is reasonable. Kazakevich neither explains why
she waited 16 months after learning of the ineffective assistance to file her
application nor argues that such a delay is otherwise reasonable. Thus,
extraordinary circumstances do not excuse Kazakevich’s untimely asylum
application.
2. The BIA properly upheld the IJ’s adverse credibility determination
and denial of withholding of removal. We review the BIA’s adverse credibility
determination for substantial evidence. Lianhua Jiang v. Holder, 754 F.3d 733,
738 (9th Cir. 2014).
Kazakevich claims the Belarusian government persecuted her on account of
her political beliefs. She claims she was interrogated by a prosecutor and
threatened with jail for speaking out against the government. The BIA’s
determination that Kazakevich’s claim was not credible is supported by substantial
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evidence. That determination was based primarily on an overseas investigation
report submitted by the Department of Homeland Security (“DHS”). This report
found, among other things, that a document Kazakevich submitted in support of
her claim – a prosecutor’s summons to which she claims she responded and which
led to her interrogation – was fraudulent. The summons lists the address of the
prosecutor’s office as 12 Moskowskaya Street. Yet, the investigation report states
that the prosecutor’s office was not and had never been located at that address.
The authenticity of the summons goes to the heart of Kazakevich’s claim.
Kazakevich argues that there is reason to question some of the report’s
contents and that she should have been afforded the right to cross-examine the
report’s author. However, the IJ gave her 90 days to respond to the report, and she
nevertheless failed to provide any rebuttal to the report’s findings. Cf. Bondarenko
v. Holder, 733 F.3d 899, 906 (9th Cir. 2013) (“We conclude the IJ violated due
process in not allowing Bondarenko a continuance to investigate the forensic
report.”); Cinapian v. Holder, 567 F.3d 1067, 1075 (9th Cir. 2009) (“[W]e hold
that the combination of the government’s failure to disclose the DHS forensic
reports in advance of the hearing or to make the reports’ author available for cross-
examination and the IJ’s subsequent consideration of the reports under these
circumstances denied Petitioners a fair hearing.”). Particularly significant is her
4 11-71611
failure to rebut the finding that the prosecutor’s office is not and has never been
located at the address listed on the summons. This was an objective fact that could
have been rebutted by evidence accessible, if it existed, to Kazakevich. We also
note that Kazakevich did not mention the alleged interrogation in her asylum
application.
Because the BIA’s adverse credibility determination was supported by
substantial evidence, the agency properly denied Kazakevich’s petition for
withholding of removal.
PETITION FOR REVIEW DENIED.
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