Lali Gabelaya v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LALI GABELAYA, No. 16-71816
16-74048
Petitioner,
Agency No. A088-097-118
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 10, 2020
Pasadena, California
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.
1. Lali Gabelaya petitions for review of the order of the Board of
Immigration Appeals (BIA) dismissing her appeal from an immigration judge’s
decision denying her application for asylum. She argues that the immigration
judge’s admission of three pieces of evidence rendered her removal proceedings
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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fundamentally unfair. We deny the petition.
Gabelaya first contends that the immigration judge should not have admitted
evidence of Gasim Manafov’s indictment because it lacked probative value as “a
series of unproven allegations.” But given that the government later supplemented
the indictment with evidence of Manafov’s conviction, we find no merit in
Gabelaya’s continued objection.
Gabelaya next contests the admission of Special Agent Van Wie’s letter on
the ground that she did not have an opportunity to cross-examine him. While
asylum applicants “must have a reasonable opportunity to cross-examine
witnesses,” they “may not assert a cross-examination right to prevent the
government from establishing uncontested facts.” Espinoza v. INS, 45 F.3d 308,
311 (9th Cir. 1995) (internal quotation marks omitted). Because Gabelaya never
contested the facts underlying Van Wie’s letter, or the information contained
within the letter’s accompanying report, the government was not required to
present Van Wie as a witness.
Gabelaya did, however, contest the reliability of Manafov’s affidavit. As a
result, the government was obligated to make “reasonable efforts” to present
Manafov at the removal proceedings and afford Gabelaya an opportunity to
cross-examine him. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681
(9th Cir. 2005). Even so, the immigration judge’s admission of the affidavit does
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not require us to grant Gabelaya’s petition. Setting the affidavit aside, Van Wie’s
report and Gabelaya’s own testimony provide substantial evidence to support the
immigration judge’s finding that Gabelaya filed a frivolous asylum application.
See id. at 679, 681. The BIA did not err in affirming that determination.
2. Gabelaya also petitions for review of the BIA’s order denying her motion
to reopen. She contends that the BIA applied the incorrect legal standard and
abused its discretion in determining that she had not met her burden of proof. We
deny the petition.
The BIA applied the proper legal standard to assess Gabelaya’s motion to
reopen based on new evidence. Contrary to Gabelaya’s assertion, the BIA did not
require her to make a conclusive showing of eligibility for relief. Instead, the BIA
correctly considered whether Gabelaya had demonstrated “a reasonable
possibility” of satisfying the statutory requirements for withholding of removal and
protection under the Convention Against Torture. See Ordonez v. INS, 345 F.3d
777, 785 (9th Cir. 2003) (citation omitted).
The BIA did not abuse its discretion in concluding that Gabelaya had not
demonstrated a reasonable possibility of future persecution or torture. As the BIA
explained in its opinion, Gabelaya’s evidence of conditions in Belarus was highly
generalized and did not relate to her “personal circumstances sufficiently to
satisfy” the requirement of materiality. Gabelaya contends that the BIA did not
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fully consider the evidence that she presented. But the BIA’s reference to
“political and social conditions, particularly for women in Belarus,” and to
Gabelaya’s “past political activities [and] gender,” indicates that it did consider
both the general and individualized evidence that she submitted. The BIA’s
assessment of that evidence was not “arbitrary, irrational, or contrary to law.”
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (internal quotation marks
omitted).
Nor did the BIA abuse its discretion in denying Gabelaya’s motion to reopen
based on her ineffective assistance of counsel claim. In light of Gabelaya’s
fraudulent asylum application, the materials she presented to the BIA in her
motion, and her apparent appreciation of the need to renew her fingerprints, the
BIA reasonably concluded that Gabelaya had not offered any evidence establishing
plausible grounds for relief. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th
Cir. 2003) (explaining that without a showing of plausible grounds for relief, a
petitioner cannot demonstrate prejudice from her lawyer’s alleged ineffective
assistance).
PETITIONS FOR REVIEW DENIED.