Mirpochoeva v. Garland ( 2022 )

19-2757
Mirpochoeva v. Garland
BIA
Lopez-Defillo, IJ
A205 899 163/164
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 13th day of July, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
RICHARD C. WESLEY,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
OLESIA MIRPOCHOEVA, ABDURAHIM
MIRPOCHOEV,
Petitioners,
v. 19-2757
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Thomas E. Moseley, Law Offices of
Thomas E. Moseley, Newark, NJ.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Bernard A.
Joseph, Senior Litigation Counsel;
Enitan O. Otunla, Trial Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Olesia Mirpochoeva, a native of the former
Soviet Union and citizen of Russia, and her husband Abdurahim
Mirpochoev, a native and citizen of Tajikistan, seek review
of an August 13, 2019, decision of the BIA affirming a
December 21, 2017, decision of an Immigration Judge (“IJ”),
denying Mirpochoeva’s application for asylum on which
Mirpochoev was a derivative beneficiary. 1 In re Olesia
Mirpochoeva, Abdurahim Mirpochoev, Nos. A 205 899 163/164
(B.I.A. Aug. 13, 2019), aff’g Nos. A 205 899 163/164 (Immig.
Ct. N.Y. City Dec. 21, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
Mirpochoeva applied for withholding of removal and relief
1
under the Convention Against Torture before the agency, but she
petitions for review only of the denial of the asylum claim on
which Mirpochoev is a derivative beneficiary.
2
of this petition.
We have reviewed the IJ’s decision as modified by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520,
522 (2d Cir. 2005). We review factual findings for
substantial evidence and questions of law and application of
law to fact de novo. See Paloka v. Holder, 762 F.3d 191, 195
(2d Cir. 2014). An asylum applicant has the burden to
demonstrate that she suffered past persecution, or has a well-
founded fear of future persecution, on account of race,
religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. § 1158(b); 8 C.F.R.
§ 1208.13(b).
Mirpochoeva argues that she established past persecution
on account of her political opinion, and that she has a well-
founded fear of future persecution on that basis. For the
reasons set forth below, we find no error in the agency’s
denial of relief.
I. Past Persecution
A valid past persecution claim may be based on harm other
than “threats to life or freedom,” including “non-life-
threatening violence and physical abuse.” Beskovic v.
Gonzales, 467 F.3d 223, 225 (2d Cir. 2006) (citation, internal
3
quotation marks, and alteration omitted). But “persecution
is an extreme concept that does not include every sort of
treatment our society regards as offensive.” Mei Fun Wong v.
Holder, 633 F.3d 64, 72 (2d Cir. 2011) (citation and internal
quotation marks omitted). The harm must therefore be
sufficiently severe, rising above “mere harassment.”
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006).
Mirpochoeva contends that the BIA erred as a matter of
law in finding that her detention did not constitute
persecution under Beskovic. But in Beskovic, we noted that
“the difference between harassment and persecution is
necessarily one of degree,” and we did not hold that all
physical harm while detained on account of a protected ground
is per se persecution. Beskovic, 467 F.3d at 226 (citation
and internal quotation marks omitted); see id. (“[A] minor
beating . . . may rise to the level of persecution if it
occurred in the context of an arrest or detention on the basis
of a protected ground.” (emphasis added) (quotation marks
omitted)). Indeed, “[w]e have never held that a beating that
occurs within the context of an arrest or detention
constitutes persecution per se.” Jian Qiu Liu v. Holder, 632
4
F.3d 820, 822 (2d Cir. 2011). “Rather, . . . a beating that
occurs in the context of an arrest or detention may constitute
persecution, and . . . the agency must be keenly sensitive to
context in evaluating whether the harm suffered rises to the
level of persecution.” Id. (citation and quotation marks
omitted).
Here, the agency reasonably determined that the degree
of harm Mirpochoeva suffered, albeit while detained on a
protected ground, did not amount to past persecution.
Mirpochoeva testified that she was arrested at a political
protest, detained overnight, and slapped twice in the face,
resulting in a red mark but no injury requiring medical
attention. On these facts, the agency did not err by
concluding that this harm was not sufficiently severe to
establish past persecution. Cf. Baba v. Holder, 569 F.3d 79,
81–82, 86 (2d Cir. 2009) (finding past persecution where the
petitioner was detained on account of his participation in
political demonstrations, held in a small room with more than
ten people, put on a near-starvation diet, provided no access
to a bathroom, beaten daily by police with wooden sticks, and
threatened with death).
II. Future Persecution
5
Where, as here, an applicant fails to demonstrate past
persecution, she bears the burden to establish a well-founded
fear of future persecution. See 8 C.F.R. § 1208.13(b)(1).
Mirpochoeva raises three arguments in support of that claim:
that the agency applied the wrong standard, that the agency
erred by declining to follow her expert witness’s conclusion,
and that the agency erred by determining that her marriage to
Mipochoev and her status as a Russian who has spent time in
the United States do not give rise to a well-founded fear of
future persecution. As set forth below, each argument fails.
To establish a well-founded fear of future persecution,
an applicant must “establish that h[er] fear is objectively
reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004). “Objective reasonableness entails a showing
that a reasonable person in the petitioner’s circumstances
would fear persecution if returned to h[er] native country.”
Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005).
“An alien’s fear may be well-founded even if there is only a
slight, though discernible, chance of persecution,” Diallo v.
INS, 232 F.3d 279, 284 (2d Cir. 2000), but a fear is not
objectively reasonable if it lacks “solid support” in the
record and is merely “speculative at best,” Jian Xing Huang,
6
421 F.3d at 129.
The record does not support Mirpochoeva’s argument that
the agency applied the wrong standard. The BIA cited Diallo
and acknowledged that a fear of future persecution “may be
well-founded even if there is only a slight, though
discernable, chance of persecution.” Addendum to Br. of
Petitioners at 23–24. It then concluded that Mirpochoeva
failed to establish an objectively reasonable fear based on
her political opinion. The record supports the conclusion
that Mirpochoeva’s fear of future harm on account of her
political opinion was speculative.
The IJ also did not err in rejecting the expert witness’s
conclusion that Mirpochoeva would experience persecution on
account of her political opinion. Neither the expert’s
testimony nor his written report included examples of
individuals similarly situated to Mirpochoeva being
persecuted by the Russian government. The expert referenced
individuals who were arrested for participating in anti-
government rallies and protests, as Mirpochoeva had been, but
he did not state that those individuals were subsequently
monitored, harassed, interrogated, or repeatedly arrested by
the Russian government after they were released. His examples
7
of the Russian government imprisoning or assassinating people
involved prominent scholars, journalists, human rights
activists, and political opponents. Accordingly, the IJ did
not err by concluding that the expert’s evidence did not
provide “solid support” for Mirpochoeva’s fear of future
persecution based on her past arrest for attending one
political protest, particularly given that she had not
otherwise engaged in any political activities. See Jian Xing
Huang, 421 F.3d at 129.
Finally, Mirpochoeva asserted before the agency that she
would suffer persecution on account of her marriage because
Mirpochoev was a non-Russian and a Muslim and because she had
spent a substantial amount of time in the United States. Her
argument concerning these claims is brief and unclear, but
she appears to contend that the BIA erred by finding both
that her fear on these grounds was not objectively reasonable
and that the feared harm would not amount to persecution.
There is no error in that determination because Mirpochoeva
had the burden to show that her fear was well-founded, i.e.,
that it was objectively reasonable, and that the feared harm
would rise to the level of persecution. See Ivanishvili, 433
F.3d at 341; Ramsameachire, 357 F.3d at 178. She does not
8
otherwise challenge the agency’s denial of these claims. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on
appeal.”).
Finally, we emphasize that in rendering this decision,
we are constrained to “decide the petition only on the
administrative record on which the order of removal is based.”
8 U.S.C. § 1252(b)(4)(A). We have not, therefore, taken into
account the sweeping changes that have occurred in Russia in
recent months, which the IJ and BIA were not able to consider.
We note, however, that “[a]n alien may file one motion to
reopen proceedings,” id. § 1229a(c)(7)(A), and that there is
no time limit on the filing of a motion to reopen
if the basis of the motion is to apply for relief
under sections 1158 or 1231(b)(3) of this title and
is based on changed country conditions arising in
the country of nationality or the country to which
removal has been ordered, if such evidence is
material and was not available and would not have
been discovered or presented at the previous
proceeding,
id. § 1229a(c)(7)(C)(ii).
9
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
10