Botir Rakhmatillaev v. Eric H. Holder, Jr. , 351 F. App'x 25 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0709n.06
No. 08-3847
FILED
Nov 02, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
BOTIR RAKHMATILLAEV, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM THE
v. ) BOARD OF IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney )
General, ) OPINION
)
Respondent. )
_____________________________________)
Before: GILMAN and GRIFFIN, Circuit Judges; and STEEH, District Judge.*
RONALD LEE GILMAN, Circuit Judge. Botir Rakhmatillaev, a native and citizen of
Uzbekistan, entered the United States in June 2004 on a student visa. He filed an application nine
months later for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT), claiming political and religious persecution in Uzbekistan based on his being a
Muslim and a critic of the government. An Immigration Judge (IJ) conducted a hearing on the case
and denied Rakhmatillaev’s application, finding that Rakhmatillaev was not credible. The Board
of Immigration Appeals (BIA) affirmed the IJ’s decision, and Rakhmatillaev has appealed. For the
reasons set forth below, we DENY Rakhmatillaev’s petition for review.
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.
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I. BACKGROUND
Rakhmatillaev, who was born and raised in Uzbekistan, worked for an insurance company
there. He also worked part-time at a marketplace. Rakhmatillaev’s wife works at a government
child-care facility that his youngest child attends, and his oldest child is in public school.
According to Rakhmatillaev, he was making a speech to a group of people in May 2003 at
his marketplace. As part of this speech, Rakhmatillaev allegedly criticized the Uzbek government
and the police. He claims that the police overheard his speech, arrested him, and jailed him for three
days. During these three days, Rakhmatillaev was allegedly beaten, harassed, and warned not to
behave in such ways in the future. Six months later, Rakhmatillaev sought and obtained an exit visa
from the government and then, in June 2004, acquired a student visa to come to the United States.
He left Uzbekistan that same month.
At some point after leaving Uzbekistan, Rakhmatillaev’s wife informed him that police
officers had come by their home and inquired about his whereabouts. This caused Rakhmatillaev
to believe that he would endanger himself and his family if he returned to Uzbekistan.
Rakhmatillaev applied for asylum on March 25, 2005. His application did not mention that
he had allegedly been jailed for three days and beaten after criticizing the Uzbek government. After
submitting his application, Rakhmatillaev had an interview with an asylum officer, where the two
closely reviewed Rakhmatillaev’s application and Rakhmatillaev had the opportunity to make
changes to it. No changes were made to the application at that time.
In December 2005, Rakhmatillaev received a Notice to Appear from the Immigration and
Naturalization Service, seeking to remove him from the United States for failing to comply with the
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conditions of his student visa. Rakhmatillaev appeared before the IJ and conceded removability.
A final hearing on Rakhmatillaev’s asylum application was held in January 2007, with
Rakhmatillaev and his attorney appearing before the IJ via video conferencing.
On the day of Rakhmatillaev’s final hearing, he and his attorney advised the IJ that
Rakhmatillaev’s asylum application form should be amended to reflect his alleged arrest, detention,
and beating by the police in May 2003. Rakhmatillaev testified that he had told the asylum officer
who interviewed him in 2005 about the incident, but that he had experienced language difficulties
with the translator assisting the officer. In addition, Rakhmatillaev submitted a letter from his wife
corroborating his claim that the police had inquired about his whereabouts. The letter, however, did
not mention the alleged arrest, detention, and beating in 2003. Rakhmatillaev explained to the IJ that
his wife was afraid to write about the incident.
At the end of the hearing, the IJ delivered an oral opinion in which he found Rakhmatillaev
not credible. This caused the IJ to deny Rakhmatillaev’s application for asylum, withholding of
removal, and protection under the CAT. The IJ’s adverse credibility determination was based
primarily on the discrepancy between Rakhmatillaev’s testimony and his initial asylum application,
as well as his wife’s failure to mention Rakhmatillaev’s alleged detention in her letter. Noting that
Rakhmatillaev could point to no other adverse events, that his family has suffered no retaliation from
the Uzbek government, and that he had lived in Uzbekistan without incident for over a year after his
alleged detention, the IJ also concluded that even if Rakhmatillaev had been deemed credible, he had
failed to show that he was persecuted by the authorities in Uzbekistan, that he had a “well-founded
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fear of persecution” if he were returned to Uzbekistan, or that he would likely be tortured upon his
return.
Following Rakhmatillaev’s appeal, the BIA affirmed the IJ’s decision. It concluded that the
IJ’s assessment of Rakhmatillaev’s credibility was not clearly erroneous given Rakhmatillaev’s
“failure to include the 2003 arrest and detention in his application, and the fact that the incident was
not mentioned in the letter by [his] wife,” and it rejected Rakhmatillaev’s suggestion that “translation
problems” caused the alleged oversight. The BIA also concluded that Rakhmatillaev had not
demonstrated a well-founded fear that he “would be persecuted or that it is more likely than not that
he would be tortured upon his return.” This timely appeal followed.
II. ANALYSIS
A. Standard of review
“Because the BIA adopted the IJ’s decision with additional commentary, we review the
decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey,
511 F.3d 583, 588 (6th Cir. 2007). Questions of law involving immigration proceedings are
reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004). The IJ’s factual findings, on
the other hand, including a determination that the petitioner failed to establish eligibility for asylum
or withholding of removal, will not be disturbed if substantial evidence supports such findings. INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (holding that the factfinder’s rulings will be upheld if
“supported by reasonable, substantial, and probative evidence on the record considered as a whole”
(citation omitted)).
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Under this standard, we will not reverse a factual determination of the IJ unless we find “that
the evidence not only supports a contrary conclusion, but compels it.” Marku v. Ashcroft, 380 F.3d
982, 986 (6th Cir. 2004) (emphasis in original). The relevant portions of the REAL ID Act of 2005,
Pub. L. 109-13, 119 Stat. 231, do not apply to this case because Rakhmatillaev filed his application
for asylum, withholding of removal, and other relief before the May 11, 2005 effective date of the
Act. See Yang Lin v. Holder, 320 F. App’x 428, 432 n.3 (6th Cir. 2009) (noting that the REAL ID
Act expands the subjects that an IJ can consider when making a credibility determination).
B. The statutory framework
Under Section 1158 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158(b), the
U.S. Attorney General has discretion to grant asylum to a refugee. The disposition of an application
for asylum involves a two-step inquiry: (1) whether the applicant qualifies as a “refugee” as defined
in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the applicant “merits a favorable exercise of discretion
by the Attorney General.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-
Fonseca, 480 U.S. 421, 428 n.5 (1987)).
Section 1101(a)(42)(A) of the INA defines a “refugee” as an alien who is unable or unwilling
to return to his home country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political opinion.”
An applicant may therefore establish eligibility for asylum by showing that he or she (1) has suffered
past persecution, or (2) has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). The
burden is on the applicant to establish that he or she qualifies as a refugee. 8 C.F.R. § 1208.13(a).
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If credible, the applicant’s testimony “may be sufficient to sustain the burden of proof without
corroboration.” 8 C.F.R. § 1208.13(a).
Once the applicant shows that he or she has suffered past persecution, the applicant is
presumed to have a well-founded fear of future persecution. Mikhailevitch v. INS, 146 F.3d 384, 389
(6th Cir. 1998). This presumption can be rebutted by the government “only through establishing by
a preponderance of the evidence that since the persecution occurred, conditions in the applicant’s
country have changed to such an extent that the applicant no longer has a well-founded fear of being
persecuted if he were to return.” Id. (citation and internal quotation marks omitted).
C. The IJ’s credibility finding
The IJ’s oral opinion contains a thorough analysis of Rakhmatillaev’s application, but
primarily focuses on Rakhmatillaev’s credibility. Most importantly, the IJ stressed that he did not
believe the allegations about Rakhmatillaev’s 2003 arrest, detention, and beating—the core of
Rakhmatillaev’s asylum claim.
The IJ based this determination on several factors. First, the IJ noted that Rakhmatillaev’s
description of the alleged event was sparsely detailed and therefore vague. Second, he stressed the
last-minute nature of Rakhmatillaev’s allegation. Rakhmatillaev had not mentioned his alleged
arrest, detention, and beating on his asylum application, or when he reviewed the application with
a translator present during his asylum interview. The IJ found that Rakhmatillaev gave “no
convincing explanation” for failing to mention the 2003 incident until the day of the hearing in 2007.
Third, the affidavit provided by Rakhmatillaev’s wife in support of his application also failed
to mention his alleged arrest, detention, and beating. Rakhmatillaev claimed that his wife was afraid
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to bring up the incident, but the IJ rejected this explanation after noting that her letter described the
police coming by their home to look for Rakhmatillaev, and reasoning that if she was not afraid to
write of the police’s visit, then she would not have been fearful of mentioning the incident. After
discrediting Rakhmatillaev’s account, the IJ determined that because Rakhmatillaev had identified
no other events that would support his asylum claim, he had “clearly and without a doubt” not
established past persecution.
The IJ further noted that, without the alleged 2003 arrest, detention, and beating to rely on,
Rakhmatillaev had no facts to demonstrate that he had a well-founded fear of future persecution in
Uzbekistan. Indeed, the IJ determined that Rakhmatillaev’s own behavior demonstrated that he had
no fear of persecution, pointing out that Rakhmatillaev waited for over a year after his alleged arrest
to request a visa to come to the United States. The IJ reasoned that if Rakhmatillaev had truly been
detained and beaten and was afraid of additional persecution, he would have sought a visa much
sooner. Similarly, the IJ determined that “[i]t is not at all likely that the Government of Uzbekistan
would have given him an exit visa six months after he was detained if they had any reason to be
concerned about him or to be focused on him.” The IJ also noted that Rakhmatillaev was not
involved in politics in Uzbekistan or the United States, that his wife worked at a government-owned
child-care center, and that his children were being publicly educated. Yet none of Rakhmatillaev’s
family members have suffered any repercussions because of his alleged behavior. Finally, the IJ
stressed that Rakhmatillaev had not been sure whether he was even going to apply for asylum when
he arrived in the United States on his student visa.
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The IJ’s factual findings are supported by substantial evidence. Rakhmatillaev presented just
one alleged instance of persecution and brought it up, for the first time, on the day of his final
hearing. Although Rakhmatillaev argues that he did not understand the asylum application, and that
translator difficulties during his interview prevented him from correcting his application at an earlier
date, this court has previously held that an IJ is “not compelled to accept [the applicant’s]
explanation of translator error.” Penyaz v. Filip, 308 F. App’x 985, 988 (6th Cir. 2009). An
applicant must present “more than a plausible explanation to overcome an adverse credibility
determination. If the IJ’s contrary interpretation is not unreasonable, it supports an adverse
credibility finding.” Id. (quoting Shkabari v. Gonzales, 427 F.3d 324, 330 (6th Cir. 2005) (internal
alteration omitted)). Furthermore, Rakhmatillaev had retained counsel by May 23, 2006, and the
final hearing on his asylum application was not until January 12, 2007. He and his counsel thus had
more than six months during which they could have corrected his application, which makes the delay
in doing so even more suspicious and his explanation for the delay less plausible.
Additional facts in the record support the IJ’s credibility finding. As the IJ noted,
Rakhmatillaev’s description of his alleged persecution is not detailed; he states only that he “was
expressing opinion about persecution and about authorities and what they are doing, and they took
me” and, “after beating and harassing and intimidating for three days, they told me [] don’t continue
doing such things and they released me.” An asylum applicant’s failure to provide a “believable,
consistent, and sufficiently detailed” account of persecution or any corroborating evidence of
persecution, “where it is reasonable to expect [such] evidence,” undermines an asylum application.
See Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (internal quotation marks omitted).
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Finally, Rakhmatillaev testified that his motivation for coming to the United States was “to
learn the English language for [] my business.” But later in his testimony, Rakhmatillaev
contradicted himself by saying that he had intended to apply for asylum when he left Uzbekistan.
This discrepancy further supports the IJ’s credibility determination. See Guisse v. INS, 107 F. App’x
564, 566 (6th Cir. 2004) (noting that contradictory testimony provides “another basis for an adverse
credibility finding”).
An IJ’s credibility finding is a factual determination that should not be reversed unless the
evidence compels a contrary conclusion. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). In
the present case, given the inconsistencies in Rakhmatillaev’s testimony and behavior, the evidence
does not “compel” a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhao v. Holder, 569 F.3d
238, 247 (6th Cir. 2009) (“[T]he BIA’s determination should be upheld unless evidence not only
supports a contrary conclusion, but indeed compels it.” (internal quotation marks omitted) (emphasis
in original)).
Because the IJ’s adverse-credibility determination is supported by substantial evidence, we
need not reach the issue of whether the IJ properly denied Rakhmatillaev’s asylum application on
the alternative grounds that even if Rakhmatillaev was credible, he had no reasonable basis to fear
future persecution in Uzbekistan. Rakhmatillaev’s other claims—for withholding of removal and
protection under the CAT—are similarly without merit because they each require an applicant to
meet an even higher burden of proof than is needed to establish an asylum claim. See Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009) (withholding of removal); Ali v. Reno, 237 F.3d 591, 597
(6th Cir. 2001) (protection under the CAT).
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VI. CONCLUSION
For all of the reasons set forth above, we DENY Rakhmatillaev’s petition for review.
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