Farhat Gaziev v. Eric Holder, Jr. , 490 F. App'x 761 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0833n.06
No. 11-3595
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
FARHAT GAZIEV; Aug 02, 2012
KRISTINA MACENAVICIUTE,
LEONARD GREEN, Clerk
Petitioners,
ON PETITION FOR REVIEW OF AN
v. OR D E R O F T H E B O ARD O F
IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General,
Respondent.
/
BEFORE: GUY and CLAY, Circuit Judges; HOOD, District Judge.*
CLAY, Circuit Judge. Petitioner Farhat Gaziev and his derivative beneficiary Kristina
Macenaviciute appeal an order of the Board of Immigration Appeals (BIA) affirming the decision
of an immigration judge (IJ) to deny Gaziev’s application for asylum and Macenaviciute’s request
for withholding of removal as a derivative beneficiary. Petitioners also appeal the BIA’s rejection
of their claim that the IJ violated their Fifth Amendment due process rights by excluding their
proposed expert testimony at the removal hearing. For the reasons that follow, we AFFIRM.
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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No. 11-3595
BACKGROUND
On October 29, 1999, Gaziev, a native and citizen of Kyrgyzstan, was admitted to the United
States on a B-1 visitor visa and was authorized to remain until January 28, 2000. Gaziev never
departed. In 2006, he married Macenaviciute, a native and citizen of Lithuania, who was admitted
to the United States on November 18, 2002 as a nonimmigrant visitor. Unknown to the agency at
the time of her entry, Macenaviciute fraudulently used a visa issued to her sister to obtain admission
to the United States. Macenaviciute also overstayed her visa.
The government eventually initiated removal proceedings against Gaziev for overstaying his
visitor visa, making him removable under the Immigration and Nationality Act (INA) § 237(a)(1)(B),
8 U.S.C. § 1227(a)(1)(B), and against Macenaviciute for fraudulently obtaining admission to the
United States, making her removable under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).
Petitioners appeared before the IJ and conceded removability, but expressed their desire to file
applications for asylum and withholding of removal. Gaziev filed a Form I-589 application for
asylum and withholding of removal on the basis that he was persecuted and will continue to be
persecuted in his native Kyrgyzstan because of his ethnicity, religion, and political beliefs.
Macenaviciute sought asylum and withholding of removal only as a derivative beneficiary of Gaziev.
Petitioners requested that their hearing be continued in order to locate an expert who would testify
as to worsened country conditions in Kyrgyzstan. The IJ ordered that Petitioners present their
expert’s curriculum vitae (CV) prior to the next hearing. Petitioners secured their expert but failed
to comply with the IJ’s order, so the IJ refused to permit the expert’s testimony.
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The following evidence was presented at the removal hearing: Petitioners live in Tennessee
with their two-year-old, United States citizen son. Gaziev’s ethnicity is Uzbek, and his religion is
Islam, placing him in a minority of 10–15% of the population in Kyrgyzstan. Uzbeks in Kyrgyzstan
have been discriminated against, harassed and threatened, robbed, and even killed. Uzbek
businessmen are particularly targeted because the Kyrgyzs (the majority ethnicity) retaliate against
successful minorities. Gaziev was a businessman, first owning a restaurant and later a sewing
company. Gaziev testified that in 1998 and 1999, Kyrgyz officers essentially stole his businesses
by forcing him to “sell” those businesses to high-ranking officials at an unfair price. Gaziev initially
pushed back, but the officers physically assaulted him four times, and he was hospitalized twice.
He was falsely charged with crimes in 1998 and 1999, but was released each time for lack of
evidence. He filed a complaint against the Kyrgyz government, but it too was dismissed for lack of
evidence.
Gaziev also alleged that in 2004 he became a supporter of a political party called the Ar-
Namys Opposition Party, which is purportedly more sympathetic to Uzbeks. Gaziev has attended
several of the party’s conferences in the United States, has financially supported the party, and has
written online articles in support of the party, albeit signing only his initials or first name. Gaziev
admitted, however, that he has never formally joined the party.
Petitioners also presented evidence of the recent conditions in Kyrgyzstan. In 2004,
Kurmanbek Bakiyev emerged as the country’s de facto dictator.1 Under Bakiyev, government
hostility to Uzbeks escalated. In 2005, there was a massacre in Andijan, Uzbekistan, which forced
1
The government changed hands in December 2011.
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No. 11-3595
Uzbekistan citizens to flee into neighboring Kyrgyzstan. The Kyrgyz authorities prevented the entry
of most refugees. In 2007, many Uzbekistan refugees that had been able to cross the border were
returned to Uzbekistan by the Kyrgyz government in violation of a United Nations agreement.
According to Petitioners, these events made the situation of Uzbeks in Kyrgyzstan even worse.
Following the presentation of this evidence, the IJ found Gaziev to be credible and
sympathized with him as “a very sincere person” who was persecuted “because of his ethnicity.”
Nonetheless, the IJ found that Gaziev’s asylum application was untimely and that he had waited an
unreasonable length of time to file the application following the events that caused the changed
country conditions. The IJ denied Gaziev asylum and, consequently, denied Macenaviciute’s request
for asylum as a derivative beneficiary. However, the IJ granted Gaziev’s application for withholding
of removal, determining that Gaziev could not be removed to Kyrgyzstan on the basis of the
persecution that he would suffer there as an ethnic Uzbek. The IJ denied Macenaviciute withholding
of removal because she had not filed her own I-589 application and because the immigration
regulations do not permit derivative beneficiary status for withholding of removal. Ultimately, the
IJ ordered Gaziev removed to any country other than Kyrgyzstan and ordered Macenaviciute
removed to Lithuania. Petitioners appealed the IJ’s decision, and the BIA affirmed.
DISCUSSION
As an initial matter, we note that it is unclear whether Petitioners request our review of the
IJ’s and BIA’s decision to deny Gaziev’s asylum application as untimely. To the extent that
Petitioners do so, our jurisdiction is explicitly precluded by Congress. 8 U.S.C. § 1158(a)(3). Under
§ 1158(a), we may not review any determination that an asylum application is untimely or that the
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applicant has failed to prove changed country conditions which would excuse an untimely
application. See Jungic v. Holder, No. 10-3056, 2012 U.S. App. LEXIS 615, at *9–10 (6th Cir. Jan.
10, 2012); Vincent v. Holder, 632 F.3d 351, 353 (6th Cir. 2011); Almuhtaseb v. Gonzales, 453 F.3d
743, 748 (6th Cir. 2006). Of course, the limitation on our jurisdiction does not extend to
constitutional challenges or matters of statutory construction, Vincent, 632 F.3d at 353, so we may
consider Petitioners’ remaining claims.
A. Macenaviciute’s Derivative Application for Withholding of Removal
Petitioners first argue that the BIA erred in denying Macenaviciute derivative beneficiary
status to Gaziev’s application for withholding of removal, because the BIA wrongly interpreted 8
C.F.R. § 1208.16(e) as providing no basis for withholding of removal to derivative beneficiaries.
This Court “grant[s] substantial deference to the BIA’s interpretation of the INA and accompanying
regulations.” Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007) (citing Sad v. INS, 246 F.3d
811, 814 (6th Cir. 2001)). “The BIA’s interpretation of the statute and regulations will be upheld
unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Morgan,
507 F.3d at 1057 (citation omitted).
The pertinent regulation provides:
Reconsideration of discretionary denial of asylum. In the event that an applicant is
denied asylum solely in the exercise of discretion, and the applicant is subsequently
granted withholding of deportation or removal under this section, thereby effectively
precluding admission of the applicant’s spouse or minor children following to join
him or her, the denial of asylum shall be reconsidered. Factors to be considered will
include the reasons for the denial and reasonable alternatives available to the
applicant such as reunification with his or her spouse or minor children in a third
country.
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8 C.F.R. § 1208.16(e). Both the IJ and the BIA reasonably interpreted § 1208.16(e) to apply only
to the reconsideration of an asylum application with derivative beneficiaries. Because Petitioners
do not seek reconsideration of Gaziev’s asylum application, but rather permission for Macenaviciute
to obtain derivative beneficiary status to Gaziev’s application for withholding of removal, the
regulation does not apply. Of course, the plain language of § 1208.16(e) does not create a derivative
beneficiary status to applications for withholding of removal, so the regulation also does not provide
the mechanism for relief that Petitioners seek. See Castellano-Chacon v. INS, 341 F.3d 533, 545
(6th Cir. 2003); Arif v. Mukasey, 509 F.3d 677, 682 (5th Cir. 2007); Matter of A–K–, 24 I. & N. Dec.
275, 279 (BIA 2007) (noting that the INA “does not permit derivative withholding of removal under
any circumstances”). More importantly, the IJ’s reconsideration of an asylum application is
permitted only where that application was denied “solely” in the IJ’s “exercise of discretion.” 8
C.F.R. § 1208.16(e). In this case, however, the IJ repeatedly and explicitly emphasized that Gaziev’s
asylum application “is not being denied in the exercise of discretion” but “for a legal reason.”
Petitioners have failed to establish that the agency’s interpretation of the regulation was arbitrary,
capricious, or manifestly contrary to its plain language. Accordingly, we find no error with the
BIA’s decision.
B. Petitioners’ Due Process Claim
We review de novo “an alleged due-process violation based upon the manner in which an IJ
conducts a deportation hearing.” Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998); Vasha v.
Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). The Due Process Clause of the Fifth Amendment
provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of
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No. 11-3595
law.” U.S. Const. amend. V. This Court has held that due process entitles an alien to a full and fair
removal proceeding. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). “[R]eviewing
an alleged due process violation is a two-step inquiry: first, whether there was a defect in the removal
proceeding; and second, whether the alien was prejudiced because of it.” Vasha, 410 F.3d at 872.
We find that Petitioners have failed to meet their burden under either inquiry.
Petitioners argue that the IJ’s refusal to permit their expert testimony constituted a defect in
their removal proceedings. “In immigration proceedings, an applicant is ‘entitled to a reasonable
opportunity to examine the evidence against him, to present evidence on his own behalf, and to
cross-examine witnesses presented by the Government.’” Singh v. Ashcroft, 398 F.3d 396, 406 (6th
Cir. 2005) (citing Mikhailevitch, 146 F.3d at 391) (internal quotation marks omitted). However, the
Federal Rules of Evidence do not apply to immigration proceedings, and the IJ has “broad
discretion” in conducting its hearings. Singh, 398 F.3d at 406; Ahmed v. Gonzales, 398 F.3d 722,
725 (6th Cir. 2005). Although Petitioners admit that they violated the IJ’s order directing them to
provide the court and the government with their expert’s CV prior to the hearing, they argue that the
IJ abused its discretion by finding that the government would be unable to conduct effective cross-
examination without reviewing the CV prior to the hearing. We disagree. This Court has previously
upheld an IJ’s decision to exclude evidence where the petitioners did not comply with filing
deadlines and did not show good cause for their mistake. See Hassan v. Gonzales, 403 F.3d 429,
436 (6th Cir. 2005); see also Singh, 398 F.3d at 406–407 (finding no due process violation where
the IJ excluded expert witness testimony because the petitioner did not provide appropriate
documentation in support of the expert in advance of the removal hearing). Petitioners here failed
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to comply with the IJ’s order and have not provided any excuse for their failure to do so. The IJ did
not abuse its broad discretion in conducting its removal proceedings when it set a reasonable
deadline for submitting evidence and enforced that deadline. Id.Moreover, even if the IJ’s decision was in error, Petitioners were not prejudiced by that
decision. Al-Ghorbani v. Holder, 585 F.3d 980, 992–93 (6th Cir. 2009) (“[A]n alien must
demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially affected
the outcome of the alien’s case.”); Huicochea-Gomez, 237 F.3d at 699 (“To constitute fundamental
unfairness . . . a defect in the removal proceedings must have been such as might have led to a denial
of justice.” (internal quotation marks omitted)). Gaziev’s asylum application was denied because
it was untimely. He argues that his expert would have shown changed country conditions necessary
to excuse the late filing. However, despite the IJ’s refusal to permit the expert’s testimony, the IJ
acknowledged the new circumstances presented by Petitioners: the Kyrgyz government coup in 2004,
Gaziev’s minor support of the Ar-Namys party, the publication of Gaziev’s articles in 2004 and
2005, the 2005 Andijan Massacre, and the Uzbekistan refugee incident in 2007. The IJ nonetheless
decided that most of these circumstances were not directly applicable to Petitioners’ need for asylum,
and “[i]n any event, those events that [Gaziev] has described still took place more than a reasonable
time prior to his filing for asylum.” We thus find it clear that the IJ denied the asylum application
“as a matter of law, due to the lateness of [Gaziev’s] application,” even accepting Petitioners’
changed circumstances argument. The proposed expert would not have altered this determination.
Without a defect or resulting prejudice, Petitioners’ due process claim fails.
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CONCLUSION
For the reasons discussed above, we AFFIRM the BIA’s order.
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