Vakhabov v. Garland ( 2023 )

20-1950
Vakhabov v. Garland
BIA
Christensen, IJ
A208 018 033
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
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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 27th day of April, two thousand twenty-
three.
PRESENT:
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
SHERZOD VAKHABOV,
Petitioner,
v. 20-1950
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Berdymurat Berdyev, Esq.,
Berdyev Law, P.C., Woodbridge,
NJ.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Matthew B.
George, Senior Litigation Counsel;
Timothy Bo Stanton, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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.
Petitioner Sherzod Vakhabov, a native of the former
Soviet Union and citizen of Uzbekistan, seeks review of a May
27, 2020 order of the BIA, affirming a July 26, 2018 decision
of an Immigration Judge (“IJ”), which denied asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Sherzod Vakhabov, No. A208
018 033 (B.I.A. May 27, 2020), aff’g No. A208 018 033 (Immig.
Ct. N.Y. City July 26, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as the final agency
determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
(2d Cir. 2008). The applicable standards of review are well
established. “[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
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§ 1252(b)(4)(B). “Accordingly, we review the agency’s
decision for substantial evidence and must defer to the
factfinder’s findings based on such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. . . . By contrast, we review legal conclusions de
novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)
(internal quotation marks omitted); see also Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
An applicant for asylum and withholding of removal “must
establish that race, religion, nationality, membership in a
particular social group, or political opinion was or will be
at least one central reason for persecuting the applicant.”
8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);
Quituizaca v. Garland, 52 F.4th 103, 105–06, 114 (2d Cir.
2022). “In order to establish persecution on account of
political opinion . . . , an asylum applicant must show
. . . , through direct or circumstantial evidence, that the
persecutor’s motive to persecute arises from the applicant’s
political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540,
545 (2d Cir. 2005) (internal quotation marks and citation
omitted). “[O]pposition to endemic corruption or extortion
. . . [or] opposition to other government practices or
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policies[] may have a political dimension when it transcends
mere self-protection and represents a challenge to the
legitimacy or authority of the ruling regime.” Id. at 547–
48.
The IJ did not err in concluding that Vakhabov failed to
establish that a shop owner in Uzbekistan harmed him on
account of his anti-corruption political opinion. Vakhabov
testified that he had confiscated the shop owner’s
merchandise as part of an official investigation for the
Ministry of Economics and that the shop owner threatened and
harmed him in an effort to have the merchandise returned and
as revenge for business losses. Vakhabov did not testify
that he had expressed an anti-corruption belief or reported
endemic corruption, or that the shop owner targeted him for
such beliefs or actions. See id. at 547–48 (“[An] important
question[] for determining the nature of the applicant’s
opposition [is] . . . whether the persecutor was attempting
to suppress a challenge to the governing institution, as
opposed to a challenge to isolated aberrational acts of greed
or malfeasance.”). Further, Vakhabov admitted that he had
no evidence that the shop owner’s uncle, a government
official, was involved in targeting Vakhabov. And the IJ did
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not clearly err in concluding that Vakhabov did not suffer
adverse consequences in his government job for resisting his
supervisor’s instruction to give the shopkeeper preferential
treatment. Because Vakhabov did not provide evidence from
which to infer that the shop owner or a government official
considered him to have opposed endemic corruption or
government practices and targeted him on that account, the IJ
did not err in finding that he failed to establish that he
was or will be targeted on account of a political opinion and
thus did not err in denying asylum and withholding of removal
for failure to show a nexus to a protected ground. See
8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Yueqing Zhang,
426 F.3d at 545, 547–48.
The agency also did not err in denying CAT relief.
Unlike asylum and withholding, CAT relief does not require a
nexus to a protected ground. See 8 C.F.R. §§ 1208.16(c),
1208.17. To obtain CAT relief, an applicant must show that
it is “more likely than not” that he will be tortured.
8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). To show that torture
is “more likely than not,” an applicant “must establish that
there is greater than a fifty percent chance . . . that he
will be tortured upon return to his . . . country of origin.”
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Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir.
2003).
In finding that Vakhabov had not established a likelihood
of torture, the IJ reasonably noted that Vakhabov had not
worked as an investigator since 2012, and the merchandise he
confiscated in that position had since been returned to the
shop owner. Although the shop owner had informed Vakhabov,
who had moved to Russia in the interim, that he was watching
him and would seek revenge (a threat Vakhabov’s expert
believes might be carried out), Vakhabov remained unharmed in
Russia for two years and returned without incident to
Uzbekistan three times for a total of more than two months.
Cf. Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
(finding a fear of future harm weakened when similarly
situated family members remain unharmed in petitioner’s
native country). Based on this evidence, the IJ was not
compelled to conclude that it was more likely than not that
Vakhabov would be tortured in Uzbekistan. See 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1); see Mu-Xing Wang, 320 F.3d
at 144.
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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
7