Lavrenov v. Barr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 4, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
IGOR LAVRENOV, a/k/a Igor
Vladislavovich Lavrenov,
Petitioner,
v. No. 19-9535
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
Igor Lavrenov, a native and citizen of Russia, seeks review of a decision by
the Board of Immigration Appeals (BIA) that dismissed Lavrenov’s appeal from a
removal order entered by an Immigration Judge (IJ). Exercising jurisdiction under
8 U.S.C. § 1252, we deny review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Background
Lavrenov seeks asylum in the United States for the third time. United States
Citizenship and Immigration Services denied his first application in 2009 because it
deemed him not credible. Lavrenov applied again in 2017, but that application was
never adjudicated. Lavrenov filed the operative application defensively in 2018,
seeking asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (CAT).
In connection with his 2018 application, Lavrenov asserted that in 2015 men
dressed in black military-style uniforms broke into his apartment, attacked him and
his family, kidnapped him, further beat him at an unknown location, and deposited
him at the entrance to a hospital. He claimed the attack resulted from his work
investigating corruption as an unpaid assistant to a local elected official and that the
FSB, Russia’s federal security service, must have been behind the attack in part
because ordinary citizens in Russia cannot purchase the black military-style uniforms
worn by his attackers. He further speculated that despite reports the local official
died of a stroke, government operatives in Moscow directed the official’s
assassination.
The IJ observed strong similarities between this story and the one Lavrenov
told in his 2009 application, except that in his 2009 application Lavrenov claimed
that the Russian mafia sponsored the attack. And, as recounted by the BIA:
[T]he [IJ] noted the following material and significant inconsistencies:
1) [Lavrenov] testified that the Russian mafia took over his company,
although he recanted this assertion when confronted with his contrary
2
statement in his 2009 asylum application and claimed that he was able
to regain ownership; 2) he returned to Russia after visiting the United
States even though he claimed to have experienced a violent abduction
in 2009 in Russia and he testified that his reason for returning was to
reclaim his business, although he indicated in his 2017 application that
he returned because his father’s health was deteriorating; and 3) he
testified, and indicated in his 2018 application, that he met [the local
elected official] in 2006, although his 2017 application indicated that he
met him in 2012.
Furthermore, the [IJ] noted the following omissions: 1) he failed
to include the 2009 violent attack against him by the Russian mafia
(which he included in his 2009 asylum application) in both his 2017 and
2018 applications; and 2) he failed to include many of the details
contained in his 2017 application regarding numerous phone calls, a
police detention following a 2012 march against President Putin and
several beatings, in his 2018 application. In addition, she found him
nonresponsive and evasive when asked on cross-examination about why
he omitted these details from his 2018 application. Finally, the [IJ]
found his explanations implausible regarding: 1) why he attempted to
disavow the first page of his declaration in his 2017 application, even
though it contained many of the same details as [his] testimony, and
included his signature on the second page; 2) why he would be an
assistant to an elected official when that type of job more likely would
be held by an actual government employee; 3) why [the local elected
official] would be killed by Moscow, 4) why only SWAT team members
can obtain black military-style uniforms, and 5) why no investigation
was conducted into [the local elected official’s] alleged attempted
assassination.
Admin. R. Vol. 1 at 3–4 (citations omitted).
The IJ found Lavrenov not credible and denied his 2018 application. Lavrenov
appealed to the BIA. He claimed, among other things, that the IJ erred by proceeding
given that detention officials denied him access to a laptop containing unspecified
documents that would corroborate his claims 1 and that his detained status otherwise
1
According to Lavrenov, nobody else can access the laptop’s contents because
he secured it with facial-recognition technology.
3
prevented him from marshaling evidence. He also filed a motion to remand for the IJ
to re-consider her adverse credibility finding in light of new evidence he submitted
for the first time on appeal to the BIA. The BIA denied his motion to remand,
rejected his due process claims, and adopted the IJ’s adverse credibility finding.
II. Discussion
A. Motion to Remand
Lavrenov first argues that the BIA erred by failing to grant his motion to
remand so the IJ could consider new evidence he submitted on appeal and
unspecified documents from his laptop.
“A motion styled as a request for remand remains, in substance, a motion to
reopen.” Alzainati v. Holder, 568 F.3d 844, 847 n.2 (10th Cir. 2009). “A motion to
reopen proceedings shall not be granted unless it appears to the [BIA] that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1). The
BIA concluded that Lavrenov did “not establish[] that the proffered new evidence
could not have been obtained prior to his merits hearing or would change the result in
his case.” Admin. R. Vol. 1 at 6.
“We review the BIA’s decision on a motion to reopen only for an abuse of
discretion.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (alterations
and internal quotation marks omitted). “The BIA does not abuse its discretion when
its rationale is clear, there is no departure from established policies, and its
statements are a correct interpretation of the law, even when the BIA’s decision is
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succinct.” Id. (internal quotation marks omitted). “[M]otions to reopen immigration
cases are plainly disfavored,” and the moving party “bears a heavy burden to show
the BIA abused its discretion.” Id. (alterations and internal quotation marks omitted).
With respect to the prior availability of the new evidence Lavrenov submitted
for the first time on appeal to the BIA, he argued to the BIA only that it “was beyond
[his] capabilities to obtain while he was detained and unrepresented.” Admin. R.
Vol. 1 at 20. On appeal to this court he adds generalized remarks about the
challenges of marshaling evidence from a detention center. 2 But other than his
argument with respect to the documents allegedly trapped inside his laptop, Lavrenov
does not state with any specificity why any piece of evidence could not be obtained
prior to the evidentiary hearing. 3
With respect to the documents on his laptop, his argument fails because he did
not tell the BIA and does not tell us with any specificity what information those
documents contain or how that information relates to his case. He therefore did not
2
To the extent Lavrenov’s argument relies on evidence that he did not submit
to the IJ or the BIA, we do not consider that evidence. We must decide his petition
“only on the administrative record on which the order of removal is based.”
8 U.S.C. § 1252(b)(4)(A).
3
He does observe that an expert report was unavailable at the time of the
hearing because he delayed in hiring the expert until after the hearing. See Aplt.
Reply Br. at 6–7. But this self-imposed delay says nothing about whether he could
have engaged the expert sooner and thereby obtained the report prior to the hearing.
Cf. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted
unless . . . that evidence sought to be offered . . . could not have been discovered or
presented at the former hearing.”).
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show that the documents “would likely change the result in the case.” Matter of
Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992). The BIA did not abuse its discretion
in denying the motion to remand. 4
B. Adverse Credibility Finding
Lavrenov also challenges the BIA’s adverse credibility finding. We review the
BIA’s findings of fact under the substantial evidence standard. Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004). 5 Under that standard, “our duty is to
guarantee that factual determinations are supported by reasonable, substantial and
probative evidence considering the record as a whole.” Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006) (alterations and internal quotation marks
omitted). The agency’s findings of fact “are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to the
4
To the extent Lavrenov’s argument can be construed as challenging the
agency’s actions related to the laptop’s contents on due process grounds, we reject it
for a similar reason. To prevail on a due process claim, Lavrenov would need to
establish “both that he was deprived of due process and that that deprivation
prejudiced him.” Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017). The
BIA concluded that since Lavrenov never “indicated the specific evidence he wished
to submit,” he did “not establish[] that the manner in which the [IJ] conducted the
proceeding demonstrates prejudice against him.” Admin R. Vol. 1 at 6. Because
Lavrenov continues to elide the laptop’s contents and does not otherwise tell us how
their omission from the proceedings prejudiced him, we agree with the BIA.
5
This appeal involves a single BIA member’s brief order under
8 C.F.R. § 1003.1(e)(5). We review that order as the final agency determination,
limiting our review to the issues specifically addressed therein. Diallo v. Gonzales,
447 F.3d 1274, 1278–79 (10th Cir. 2006). We may, however, consult the IJ’s
decision “to give substance to the BIA’s reasoning.” Razkane v. Holder, 562 F.3d
1283, 1287 (10th Cir. 2009).
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contrary.” Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (internal
quotation marks omitted); see also Sidabutar v. Gonzales, 503 F.3d 1116, 1125
(10th Cir. 2007) (explaining that “[i]t is not our prerogative to reweigh the evidence,
but only to decide if substantial evidence supports the agency’s decision” (alterations
and internal quotation marks omitted)). Our review is limited to the agency record
that formed the basis for the IJ’s order of removal. 8 U.S.C. § 1252(b)(4)(A).
Lavrenov does not challenge any of the support for the IJ’s adverse credibility
finding that the BIA recited. He instead focuses only on additional observations
made by the IJ that Lavrenov’s unsubstantiated assumptions about who attacked him
were less plausible than other possible theories relating to the identity of the alleged
attackers. 6 But he does not confront the fact that the IJ made these observations only
after finding Lavrenov’s testimony regarding the predicate facts from which they
stem to be untruthful. And he does not explain why questioning this isolated aspect
of the IJ’s adverse credibility finding undermines that finding given the numerous
and specific other reasons provided by the IJ to support the notion that Lavrenov is
not credible. Cf. Htun v. Lynch, 818 F.3d 1111, 1120 (10th Cir. 2016) (“With three
separate areas where the evidence supports a finding of inconsistency and
6
Lavrenov’s opening brief vaguely references other aspects of his story the IJ
found implausible but does not cite any other portions of the IJ’s decision or the
record and does not otherwise provide enough argument or detail for us to review
these aspects of the IJ’s findings. See Kelley v. City of Albuquerque, 542 F.3d 802,
819 (10th Cir. 2008) (“[P]erfunctory” allegations of error that “fail[] to frame and
develop an issue” are insufficient “to invoke appellate review.” (internal quotation
marks omitted)).
7
nondisclosure, a reasonable adjudicator would not be compelled to find [the
petitioner] credible.”); Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“[W]e
must uphold the IJ’s adverse credibility determination so long as even one basis is
supported by substantial evidence.”). The IJ’s adverse credibility determination finds
substantial support in the record and we will not question it.
C. Convention Against Torture
Lavrenov posits that the BIA erred by rejecting his CAT claim based on its
adverse credibility finding. But we have affirmed the BIA’s rejection of CAT claims
in other cases on this basis and believe it is appropriate to do so here. See, e.g.,
Ismaiel v. Mukasey, 516 F.3d 1198, 1206 (10th Cir. 2008) (“[T]he IJ and BIA could
reasonably refuse to believe [the petitioner’s] claims of past torture and, reviewing
all the evidence, remain unpersuaded that [he] had satisfied his burden of proving
that he would probably be tortured if returned to [his country of origin].”); Niang v.
Gonzales, 422 F.3d 1187, 1202 (10th Cir. 2005) (“Here, our review of [the
petitioner’s] CAT claim is controlled by the permissible finding that she is
untruthful.”).
III. Conclusion
The petition for review is denied.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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