Sviridov v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 10 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

OLEG SVIRIDOV,

Petitioner,
v. No. 02-9574
JOHN ASHCROFT,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(BIA No. A75 710 013)

Beverly W. Oserow, Denver, Colorado, for Petitioner.

Donald E. Keener, Deputy Director, Office of Immigration Litigation (Peter D.
Keisler, Assistant Attorney General; Richard M. Evans, Assistant Director; and
Susan K. Houser, Attorney, on the brief), Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.

Before EBEL , ANDERSON , and HARTZ , Circuit Judges.

ANDERSON , Circuit Judge.
 Petitioner Oleg Sviridov is a native and citizen of Russia. He seeks review

of an order of the Board of Immigration Appeals (“BIA”) affirming the

Immigration Judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture. We

affirm.

BACKGROUND

Sviridov entered the United States on June 20, 1997, on a visitor visa with

authorization to stay until June 19, 1998. He successfully sought an extension of

his departure date to December 19, 1998. Sviridov filed an application for asylum

under the Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. § 1158, on

June 29, 2000. He was placed into immigration proceedings in August 2000 and

charged with being subject to removal under INA § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B), for remaining in the United States beyond the date authorized

without receiving permission from the Immigration and Naturalization Service

(“INS”). 1 He renewed his application for asylum, and also sought withholding of

1
The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.

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removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the

Convention Against Torture. 2

After conducting a hearing, the IJ denied Sviridov’s application for asylum

because it was untimely. See 8 U.S.C. § 1158(a)(2)(B), (D) (requiring an asylum

petitioner to file within one year of arrival in the United States, absent a showing

of changed circumstances “which materially affect the applicant’s eligibility for

asylum” or extraordinary circumstances excusing the delay). The IJ denied his

application for withholding of removal under § 1231(b)(3) because Sviridov had

failed to show that “there is a clear probability of persecution due to his race,

religion, nationality, membership in a particular social group, or political

opinion.” Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234 (10th Cir. 2003) (citing

INS v. Stevic , 467 U.S. 407, 413, 430 (1984)). The IJ also denied relief under the

Convention Against Torture because he found Sviridov failed to establish that “it

is more likely than not that he . . . would be tortured if removed to [Russia].” 8

C.F.R. § 208.16(c)(2). Sviridov appealed the IJ’s decision to the BIA, which

issued a summary affirmance without an opinion, in accordance with 8 C.F.R.

2
The United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, was
implemented in the United States by the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-
821 (1998). See 8 C.F.R. § 208.16(c)(1), .17. It permits withholding of removal
for an alien who establishes that “it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.” Id. § 208.16(c)(2).

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§ 3.1(e)(4) (now codified at 8 C.F.R. § 1003.1(e)(4) (2003)). Sviridov seeks

review of that decision.

Sviridov was born on October 24, 1958, and grew up in Poland and Russia.

His father was Russian and his mother is ethnically Jewish, although she is

registered as Russian. Sviridov trained to become a marine navigator and worked

as a captain’s assistant on a ship from 1979 until 1985. He alleges that the FSB

(formerly the KGB) questioned him in 1985 about sailors under his command who

had jumped ship while his ship was in port in the United States and warned him

not to allow such conduct again. He further avers that he also lost his job in 1985

when he refused to join the Communist Party. Sviridov thereafter moved to

Krasnodar, Russia, where he worked in construction for two years.

He was able to obtain another seafaring job in 1987, on a ship which

conducted geological expeditions. He avers that in late 1995, he was again

questioned by the FSB after several crew members jumped ship and defected to

the United States. 3
He asserts that the FSB knew about their prior contact with

him in 1985, and they allegedly threatened him if he allowed any crew members

to jump ship again. Sviridov testified that, following this questioning, he used his

accumulated vacation days to take a long leave of absence in the city of

He stated in his affidavit that this questioning occurred in October 1995.
3

He testified at his hearing before the IJ that the interrogation occurred in 1994.

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Novorosisk, not far from Krasnodar, and when he returned, he was told that he

would be fired unless he voluntarily quit his job. He avers that the company told

him he was being dismissed for his political beliefs.

Sviridov claims he then traveled to Moscow and filed a request for job

reinstatement with the Geological Ministry, the entity which oversaw Sviridov’s

former company. He alleges that nobody at the Ministry would listen to him. He

then returned home to Novorosisk, where he and other current and former

employees of the geological company formed a group to protest the company’s

dismissal of people based upon their political beliefs or ethnic background. He

avers the group was “an informal and unregistered group that did not have an

official name.” Sviridov Aff. at 2, Admin. R. at 189. He further avers the group

also opposed the candidacy of the company’s president, Mikhail Gromov, for a

seat in the Duma, the Russian parliament. Sviridov testified that the group

published flyers, spoke to people, and held meetings in the city of Gelendzhik,

some twenty miles from Novorosisk, to protest the administration in the

Krasnodar region, which the group claimed persecuted minorities.

Sviridov claims that in 1997, based upon his association with this group, he

was detained in the street and taken to a police station, where he was warned to

stop his protest activities and leave the city. He asserts that on May 1, 1997, he

and the group held a meeting in front of the geological company, during which

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Sviridov gave a speech accusing Gromov of being a Communist and being

corrupt. He admitted in his testimony before the IJ that the group was required to

obtain a permit before holding a demonstration, but that they had not obtained a

permit prior to the May 1 demonstration. He states that the police broke up the

meeting, arrested him and other group members, and detained him for twenty

days, during which time he asserts he was beaten on two or three occasions. 4
He

says the police interrogated him and told him he had been warned to leave the city

and that they knew of his dealings with the FSB. He avers he was placed in a cell

with others whom the police knew would beat him. He claims that, following his

release, he went to a hospital and received treatment for a concussion and other

injuries. He claims that he then returned home to Novorosisk.

Sviridov testified that, following his detention by the police, he and his

second wife decided to leave Russia and go to the United States. 5
He testified

that when he first came to the United States, he intended to seek asylum. Id. at

102. However, in his asylum application, he explained his failure to file his

application within one year of arrival by stating that he “did not plan to remain

USA.” Id. at 251. He claims he cannot return safely to Russia because Gromov

4
Sviridov testified at his hearing that he was beaten three times. Admin. R.
at 111. In his affidavit, he stated that he was beaten twice. Id. at 191.
5
Sviridov left Russia with his second wife, from whom he is now apparently
divorced.

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holds a position in the Duma, had held a position on the Geological Ministry

committee, and is a personal friend of Konstatin Kondratenko, the governor of the

Krasnodar region. He avers that “Gromov has power that extends throughout

Russia and Mr. Sviridov is afraid that Gromov could pursue and cause harm to

him no matter where he would move in Russia.” Pet’r’s Opening Br. at 16. He

further claims that he would be unable to register to live somewhere else in

Russia without first cancelling his current registration, which would necessitate

contacting the local authorities whom, he claims, would harm him. He believes

that he would be unable to obtain employment in his field because of Gromov’s

influence over the Geological Ministry committee and the industry in general.

Sviridov claims that after he left Russia, his first wife, who lives in

Krasnodar, began receiving phone calls from the police asking for Sviridov’s

whereabouts, and he avers that his brother sent to him several summons from the

police ordering him (Sviridov) to report to police headquarters. He further states

that his mother, who remains in Russia, has told him over the phone not to return

to Russia.

When asked why he filed his asylum application more than one year after

entering the United States, he testified that he was not initially aware of the one-

year deadline. Furthermore, he testified that when he began the process of

seeking asylum in November 1998, he gave someone $1000 to file his application,

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but that person never did so. He then contacted a woman in Los Angeles in

February 1999, who required $4000 to file his application. He avers it took him

some length of time to amass the $4000 fee. The woman finally filed his

application in June 2000.

Sviridov argues (1) the BIA improperly issued a decision without opinion

by a single Board member, in violation of 8 C.F.R. § 3.1(a)(7) and (e)(4); (2) the

BIA violated Sviridov’s due process rights by issuing a decision without opinion

which failed to explain its reasons for upholding the IJ’s decision; (3) the IJ made

clearly erroneous factual findings concerning Sviridov’s testimony; (4) the IJ

erred in finding Sviridov was not credible; (5) the IJ erred in finding Sviridov had

“shown no basis why he would be targeted for harm by the authorities”; and (6)

the IJ erred as a matter of fact and law in finding that Sviridov had failed to

establish eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3) and

relief under the Convention Against Torture, 8 C.F.R. § 208.16. Pet’r’s Opening

Br. at 40. At oral argument, Sviridov’s counsel argued for the first time that,

based upon her interpretation of a recent First Circuit decision, Haoud v.

Ashcroft , 350 F.3d 201 (1st Cir. 2003), we should remand this case to the BIA for

clarification of the reasons why it affirmed the IJ’s decision. Sviridov has also

filed, subsequent to oral argument, a motion for a stay of voluntary departure

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pending disposition of this appeal. We deny his petition and affirm the BIA’s

decision. We also deny his motion for a stay of voluntary departure.

DISCUSSION

I. BIA Decision

Sviridov first argues the BIA failed to comply with its own regulations in

issuing the decision without an opinion by a single Board member. INS (now

USCIS) regulations provide that cases on appeal from IJ decisions are initially

screened under 8 C.F.R. § 3.1(e). Each case is assigned to a single member of the

BIA unless, pursuant to § 3.1(e)(6), the case meets the criteria for assignment to a

three-member panel of the BIA.

If assigned to a single Board member, that member affirms the IJ’s decision

without issuing an opinion “if the Board member determines that the result

reached in the decision under review was correct[,] that any errors in the decision

under review were harmless or nonmaterial,” and that either existing precedent

controls the decision, or the issues involved “are not so substantial that the case

warrants the issuance of a written opinion.” 8 C.F.R. § 3.1(e)(4)(i) (now codified

at 8 C.F.R. § 1003.1(e)(4)). The regulation further states that the IJ’s decision

becomes the “final agency determination,” 8 C.F.R. § 3.1(e)(4)(ii), and that the

Board member’s summary affirmance “shall not include further explanation or

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reasoning” and only “approves the result reached in the decision below.” Id. The

BIA in this case invoked this regulation in summarily affirming without an

opinion the IJ’s decision.

Sviridov argues the Board member erred in employing § 3.1(e)(4) because

“the result reached in the IJ’s decision was not correct, the errors in the decision

were not harmless and nonmaterial, and the factual and legal questions raised on

appeal are not so insubstantial that three-member review was not warranted.”

Pet’r’s Opening Br. at 21. 6
As explained more fully below in our review of the

IJ’s decision, we disagree with Sviridov’s argument, and hold that the Board

member properly affirmed the IJ’s decision under § 3.1(e)(4).

II. Due Process

Sviridov argues the use of § 3.1(e)(4) to affirm the IJ’s decision violates

his due process rights. We have recently rejected this challenge to the summary

affirmance procedure contained in § 3.1(a)(7), which is identical to § 3.1(e)(4).

See Yuk v. Ashcroft , No. 02-9546, 2004 WL 79095, at *9 (10th Cir. Jan. 20,

2004); see also Batalova v. Ashcroft , No. 02-9588, 2004 WL 103555, at *6 (10th

6
Sviridov argues that the BIA failed to comply with 8 C.F.R. § 3.1(a)(7),
which contains language identical to § 3.1(e)(4). It is clear from the BIA’s
decision in this case that the Board member invoked § 3.1(e)(4).

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Cir. Jan. 23, 2004) (rejecting a due process challenge to summary affirmance

under § 3.1(e)(5)). Sviridov’s due process argument therefore fails.

III. IJ’s Decision

By summarily affirming the IJ’s decision without an opinion, pursuant to 8

C.F.R. § 3.1(e)(4), the BIA made the IJ’s decision the final agency determination

for purposes of appellate review. Sviridov argues the IJ made various factual and

legal errors in denying his application.

“The [IJ’s] findings of fact are conclusive unless the record demonstrates

that any reasonable adjudicator would be compelled to conclude to the contrary.”

Yuk , 2004 WL 79095, at *10 (further quotation omitted); see 8 U.S.C.

§ 1252(b)(4)(B). Put another way, we review the IJ’s decision under the

substantial evidence standard. We therefore uphold it if “‘supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.’” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.

§ 1105a(a)(4)). We do not “weigh the evidence or . . . evaluate the witnesses’

credibility.” Woldemeskel v. INS , 257 F.3d 1185, 1189 (10th Cir. 2001) (further

quotation omitted). However, the credibility determinations must be

“substantially reasonable.” Id. at 1192. Because an alien’s testimony alone may

support an application for withholding of removal or asylum, 8 C.F.R.

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§ 208.13(a), the IJ must give “specific, cogent reasons” for disbelieving it. See

Secaida-Rosales v. INS , 331 F.3d 297, 307 (2d Cir. 2003) (further quotation

omitted).

A. Testimony and documents

Sviridov argues the IJ made various clearly erroneous factual

determinations concerning Sviridov’s testimony and the documents he submitted

in support of his application. In support of his claim that he was severely beaten

by the police when he was detained for twenty days in May 1997, Sviridov

submitted a medical certificate which stated that Sviridov had been diagnosed

with a “brain concussion of the II degree, numerous injuries, bleeding.” Admin.

R. at 264. He also presented copies of the two summonses he claims he

eventually received, which directed him to appear before the “militsia

department.” Id. at 233-35. The IJ found as follows concerning those documents:

[T]he medical certificate and the summonses . . . seem unreliable to
this Court. Those documents were not authenticated as permitted
under 8 C.F.R. § 287.6. The Court has no way of knowing whether
these documents are authentic. There are no recognizable indicia of
authenticity on those documents, which the Court can point to.
The respondent indicated that the medical certificate had been
issued in order to cover all three incidences in which he had been
arrested, this seems very unlikely. The summonses were addressed to
the respondent’s ex-wife. The respondent was divorced in 1983 and
the summonses were issued more than 15 years after that date. It
seems extremely unlikely that they would have been issued and

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 addressed to the respondent at an address which apparently he had
not lived at for 15 years.
The respondent claims that his “propiska” still shows him
residing at the same address with his ex-wife. However, I would
note that the respondent was involved in a maritime business. He
received authorization and passports from the government relating to
his status as a seaman. It would seem that his identity and
whereabouts could be easily discerned by any interested authorities.
The fact that the authorities would not make a reasonable
effort to find out his actual whereabouts, points out the lack of
interest which the authorities would have in the actual locating of the
respondent. The Court finds that the documents not only are
unreliable, but in and of themselves, they don’t support the grant of
relief which the respondent requests.

Oral Decision of the IJ at 11-12, Admin. R. at 52-53.

Given our deferential standard of review, we conclude that the IJ’s

determination that the records in question were not reliable and did not support

Sviridov’s claims is supported by substantial evidence and is substantially

reasonable. 7

Sviridov also argues the IJ mischaracterized his testimony concerning the

group to which he belonged. The IJ stated he “is concerned that the respondent

indicated that this organization has no name and when questioned about its

7
Aside from lacking clear indicia of authentication, one copy of the medical
certificate translation contained in the administrative record contains the date
“October 20, 1997,” some five months after the alleged beatings took place. The
month “October” is crossed out and “May” is handwritten over it, with the
additional handwritten note, “translator error.” Admin. R. at 264. Another copy
of the certificate at another place in the administrative record contains the date
“October 20, 1997” without any additional notation. Id. at 228.

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political theories, the respondent gave only a general description of its goals and

its philosophies.” Id. at 51. The IJ accurately described Sviridov’s testimony on

this point. Sviridov testified that the purpose of the group was to “speak against

[Gromov],” and against “Governor Konstantin [Kondratenko] which was against

our beliefs.” Id. at 123. When asked what his beliefs were, Sviridov responded

that he was simply against the “actions of” Kondratenko and Gromov, because

Gromov “constantly lied” and “cheated,” because he “promised the employees of

the company to pay their salaries at times and promised to give everybody

employment,” and because “many people, minorities, such as Armenians and Jews

who worked for the company, were fired.” Id. at 123-24. The IJ’s factual

findings have substantial support in the record.

B. Credibility determinations

The IJ found Sviridov’s testimony not credible on various points. We will

not disturb those factual findings provided they are substantially reasonable and

supported by specific, cogent reasons. The IJ found Sviridov’s claim that he was

completely unaware of the existence of labor unions, and that there were no such

unions in Russia, “incredible” in view of information in the State Department

Country Report for Russia indicating the existence of labor unions. The IJ drew

the inference from Sviridov’s unawareness that he “has not made even a minimal

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effort to research the available resources for opposing the alleged oppression of

his company.” Oral Decision at 10, Admin. R. at 51. Thus, the IJ reasonably

concluded that Sviridov’s claim that he organized and directed a worker’s protest

group which voiced concerns about his former company’s general personnel

policies, as opposed to simply complaints about having been fired, was not

credible.

The IJ also found that Sviridov:

apparently had no political activity prior to the age of 38 years old.
Although it is possible for him to generate political opinions at that
age, it does seem unlikely that they would spring full blown the way
the respondent claimed they have, and it also seems very unlikely
that the respondent would have had the ability to generate the
attendance that he claims at a demonstration, which he claims was
based on political ideas.

Id. at 51-52. That is an adequate explanation of why the IJ doubted Sviridov’s

claim that his creation and participation in the group was motivated by political

beliefs rather than a simple labor dispute with his former company.

C. Adequacy of Sviridov’s showing of future harm

Sviridov argues the IJ erred in finding that he had shown no basis why he

would be targeted for harm. Sviridov repeats here his claim that he had

adequately demonstrated that he held “political opinions” which put him at odds

with Gromov, who would persecute him should he return to Russia. As explained

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above, when asked about his political views and those of the group to which he

belonged, Sviridov could only respond in vague generalities, which were equally

indicative of mere disgruntlement with having been fired from his job. We cannot

say that the IJ’s conclusion that Sviridov failed to show that he was in danger

because of his political views is “contrary to what a reasonable factfinder would

have been compelled to conclude.” Vatulev v. Ashcroft , No. 02-9573, 2003 WL

23098615, at *3 (10th Cir. Dec. 31, 2003).

D. Eligibility for withholding of removal and
relief under the Convention Against Torture

An applicant seeking withholding of removal bears the burden of showing

“a clear probability of persecution attributable to race, religion, nationality,

membership in a particular social group, or political opinion.” Tsevegmid , 336

F.3d at 1235 (further quotation omitted). Relief under the Convention Against

Torture requires a showing that it is more likely than not that Sviridov would be

tortured if returned to Russia. Having reviewed the entire record, we conclude

that substantial evidence supports the IJ’s determination that Sviridov failed to

show a clear probability of persecution based upon his political views and

activities. Substantial evidence also supports the IJ’s decision denying Sviridov

relief under the Convention Against Torture.

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 IV. Haoud Decision

Sviridov has belatedly raised an argument concerning his asylum claim

based upon the recent First Circuit decision in Haoud . Sviridov’s application for

asylum was untimely. The IJ rejected his claim for asylum because of that

untimeliness and because Sviridov failed to show “extraordinary circumstances”

excusing the untimely application, pursuant to 8 U.S.C. § 1158(a)(2)(D). We and

numerous other circuits have held that, although we generally have jurisdiction to

review the denial of an asylum request, we lack jurisdiction to review a

determination on the timeliness of an asylum application:

Section 1158(a)(3) expressly provides that the courts do not have
“jurisdiction to review any determination” on whether the alien filed
his application within a year of entry or whether “changed
circumstances” exist “which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the
delay in filing an application.”

Tsevegmid , 336 F.3d at 1235 (quoting 8 U.S.C. § 1158(a)(3)).

Sivirdov argues, citing Haoud , that because the BIA member summarily

affirmed the IJ’s decision without an opinion or explanation of its reasons, we

cannot tell whether the BIA affirmed on an unreviewable basis (untimeliness) or

on a reviewable basis (the merits of his asylum application). If in fact the BIA

affirmed on a reviewable basis, Sviridov would be deprived of that review if we

conclude that the existence of an additional, unreviewable basis deprives us of

jurisdiction.

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 In Haoud , the applicant filed an untimely petition for asylum. The IJ

denied his application, finding that the applicant “failed to establish changed

circumstances to excuse that untimeliness.” Haoud , 350 F.3d at 203. The IJ also,

however, held in the alternative that “Haoud’s application failed to demonstrate

either past persecution or a well-founded fear of future persecution based on a

reasonable possibility that he would suffer harm in Algeria.” Id. Shortly after the

IJ rendered his decision denying Haoud’s asylum application, the BIA decided

another case, In re Amine Touarsi , A78-161-736 (BIA Dec. 28, 2000), involving a

man in essentially the identical situation as Haoud. “Although the IJ denied

Touarsi’s asylum application, the Board on appeal reversed upon concluding that

Touarsi had ‘a well-founded fear of persecution in Algeria based on imputed

political opinion.’” Haoud , 350 F.3d at 204.

The First Circuit first observed that the affirmance without opinion of the

IJ decision in that situation “gives us no guidance as to whether the Board

affirmed the IJ’s decision on a non-reviewable basis, i.e. untimeliness, or a

reviewable basis, i.e. the merits of Haoud’s asylum claim.” Id. at 206. After

noting that when the BIA affirms without opinion or explanation, “‘a Court of

Appeals must then review the decision of the IJ,’” id. at 207 (quoting Albathani v.

INS , 318 F.3d 365, 373 (1st Cir. 2003)), the court went on to state that that

“approach is inapposite here because the IJ never had the opportunity to consider

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Touarsi , which was rendered following the IJ’s decision.” Id. Thus, the court

concluded that “[a]s Touarsi bears strongly on Haoud’s asylum application, an

AWO affirming an IJ’s decision that never considered Touarsi fails to meet th[e]

mandate [that the Board give a reasoned administrative decision].” Id. at 208.

Our case is distinguishable from Haoud . First, the IJ in this case did not

rule in the alternative on the merits of Sviridov’s asylum claim. Rather, the IJ

clearly denied the asylum application because it was untimely and Sviridov failed

to show extraordinary circumstances excusing that untimeliness. The IJ plainly

did not reach the merits of the asylum application. Second, as the First Circuit

acknowledged, when the Board affirms without an opinion pursuant to 8 C.F.R.

§ 3.1(e)(4), as it did here, the IJ’s decision becomes the final agency decision and

that is what we review. See Yuk , 2004 WL 79095, at **7-8. There is no reason

in this case, as there may have been in Haoud , that such review is “inapposite.”

Accordingly, looking directly at the IJ’s decision, the IJ clearly denied

Sviridov’s asylum application on the exclusive ground of untimeliness. We have

no jurisdiction to review that decision. We do not hold that there could never be

a situation where a summary affirmance might leave us in doubt as to whether the

agency’s decision was on a reviewable or an unreviewable basis. That is not the

situation, however, on the particular facts of this case.

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 V. Stay of Voluntary Departure

Finally, Sviridov has moved for a stay of voluntary departure. When the

BIA, on October 17, 2002, affirmed the IJ’s decision denying Sviridov’s

application for asylum, withholding of removal and relief under the Convention

Against Torture, the Board granted Sviridov permission to voluntarily depart the

United States “within 30 days from the date of this order or any extension beyond

that time as may be granted by the district director [of the INS].” Order, Admin.

R. at 2. No extension was granted. The period of time for Sviridov to voluntarily

depart has, therefore, long ago expired.

Sviridov moves for “a stay of voluntary departure nunc pro tunc to the date

of this motion, which stay shall not expire until the issuance of the final mandate

in this petition for review.” Pet’r’s Mot. for Nunc Pro Tunc Stay of Voluntary

Departure at 1. We decline to do so. He gives no explanation for failing to file

his motion earlier, and cites no binding authority permitting a nunc pro tunc order

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in these circumstances. 8
We are not aware of any such authority. As we have

stated:

The Latin phrase [ nunc pro tunc ] is merely descriptive of the
inherent power of the court to make its records speak the truth—to
record that which was actually done, but omitted to be recorded. It is
no warrant for the entry of an order to record that which was omitted
to be done. There was no authority for a nunc pro tunc order to show
the timely filing of a claim which was not in fact timely.

W.F. Sebel Co. v. Hessee (In re Fractman) , 214 F.2d 459, 462 (10th Cir. 1954)

(citation omitted).

CONCLUSION

For the foregoing reasons, we deny the petition for review and affirm the

BIA and IJ’s decision denying Sviridov withholding of removal and relief under

the Convention Against Torture. We deny his motion for a stay of voluntary

removal.

8
He relies on two recent cases from other circuits, El Himri v. Ashcroft,
344 F.3d 1261 (9th Cir. 2003), and Nwakanma v. Ashcroft, 352 F.3d 325 (6th Cir.
2003) to argue we have the equitable power to grant such a stay. In both those
cases, the applicant filed a motion for a stay of voluntary departure before the
period for voluntary departure had expired. See El Himri, 344 F.3d at 1263 n.2;
Nwakanma, 352 F.3d at 327. Indeed, the Ninth Circuit expressly stated it did
“not decide the issue of whether this court may stay the voluntary departure time
period if the motion for stay of voluntary departure is filed after expiration of the
voluntary departure time period.” El Himri, 344 F.3d at 1263 n.2.

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