Lukarov v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 16, 2005
FOR THE TENTH CIRCUIT
Clerk of Court

OLEG LUKAROV,

Petitioner,

v. No. 04-9609
(No. A79-168-060)
ALBERTO R. GONZALES, * (Petition for Review)

Respondent.

ORDER AND JUDGMENT **

Before KELLY, McKAY, and McCONNELL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Petitioner, Oleg Lukarov, is a native and citizen of Bulgaria. He petitions

for review of an order of the Board of Immigration Appeals (BIA) affirming the

Immigration Judge’s (IJ) decision denying his application for restriction on

removal and relief under the Convention Against Torture (CAT). We have

jurisdiction to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and we

deny the petition for review.

The Immigration and Naturalization Service (INS) 1 charged petitioner in its

notice to appear (NTA) as removable under 8 U.S.C. §§ 1227(a)(1)(B) and (C)(i)

for remaining in the country longer than authorized. Petitioner conceded

removability as charged in the NTA, both in his change-of-venue petition and at

the hearing before the IJ. Admin. R. at 206, 120-21. In his application for

asylum and testimony before the IJ, petitioner stated that he actually entered the

country without inspection, which are grounds for removal under § 1227(a)(1)(B)

and 8 U.S.C. § 1182(a)(6)(A)(i).

Petitioner sought restriction on removal under 8 U.S.C. § 1231(b)(3), and

relief under the CAT pursuant to 8 C.F.R. §§ 208.16(c), 208.17. He asserted that

he was a member of the Roma minority ethnic group in Bulgaria and he testified

that he had been mistreated by Bulgarian police because of his ethnicity on many

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

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occasions. He testified that in May 1998, police beat and arrested him because of

his ethnicity, and at the police station beat him more and shot him in the leg. He

left Bulgaria two months later.

In his decision, the IJ noted that petitioner had actually entered without

inspection, rather than overstaying his visa, but found that petitioner had

conceded removability, and was removable under § 1227(a)(1)(B), for violation of

law. The IJ noted that petitioner was not eligible for asylum because his

application was untimely. The IJ denied his application for restriction on

removal, ruling that he had not shown a clear probability of persecution. See

Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005) (holding that, to obtain

restriction on removal, petitioner must establish a clear probability of persecution

if returned to his country, a more demanding standard of proof than necessary for

an asylum claim); 8 U.S.C. § 1231(b)(3)(A). Petitioner appealed the IJ’s decision

to the BIA, which affirmed.

The BIA issued a reasoned determination; therefore, our review is limited

to the BIA’s decision, not that of the immigration judge. See Rivera-Jimenez v.

INS, 214 F.3d 1213, 1216 (10th Cir. 2000). We review the BIA’s factual findings

for substantial evidence in the record. Id. The BIA’s findings of fact are

conclusive unless the record demonstrates that “any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Our role is

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not to re-weigh the evidence or to evaluate witness credibility. Woldemeskel v.

INS, 257 F.3d 1185, 1189 (10th Cir. 2001).

Removability Claims. Petitioner contends the IJ and BIA did not find

removability as charged in the NTA, and therefore (1) the IJ and BIA failed to

render constitutionally and statutorily sufficient decisions because these decisions

fail clearly to identify the grounds for removability; (2) the IJ lacked jurisdiction

over him; and (3) he was prejudiced because the record does not establish the date

of his entry. These arguments are without merit. When petitioner expressly

conceded his removablity as charged in the NTA, and further admitted in his

testimony that he had entered without inspection, he waived any objection to the

IJ’s finding of removability. See Karim v. Gonzales, 424 F.3d 109, 112 (1st Cir.

2005) (holding that a concession of removability, like a guilty plea, waives

objections to antecedent events). A concession of removability relieves the

government’s burden of proof and withdraws the issue from controversy, even

where petitioner does not admit any facts that would establish removability.

Selimi v. INS, 312 F.3d 854, 860 (7th Cir. 2002) (“Having formally conceded that

he was [removable, petitioner] may not now contend that the INS’s proof of

[removablity] was insufficient.”). Thus, we find no merit to petitioner’s assertion

that the IJ and BIA erred in finding him removable, lacked jurisdiction to find

him removable, or somehow sua sponte amended the notice to appear.

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 We further find the IJ and BIA decisions to be constitutionally and legally

sufficient, as we have no difficulty following their reasoning and we are able to

provide meaningful appellate review. See Yuk v. Ashcroft, 355 F.3d 1222, 1231

(10th Cir. 2004) (“‘[a]ll that is required for our meaningful review is that the

agency - as represented by an opinion of the BIA or IJ - put forth a sufficiently

reasoned opinion.’” quoting Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003)).

Moreover, neither the IJ nor the BIA entered a summary decision, as petitioner

contends, and 8 C.F.R. § 1240(b) has no applicability to this case. Finally,

because it is undisputed that petitioner is removable, we find no error in the

BIA’s finding that he failed to demonstrate any prejudice because of the claimed

deficiency in the NTA. See Berrum-Garcia v. Comfort, 390 F.3d 1158, 1165

(10th Cir. 2004) (holding petitioner must show prejudice to prevail on his

constitutional challenge); Latu v. Ashcroft, 375 F.3d 1012, 1019-20 (10th Cir.

2004) (finding no prejudice in defective NTA, and no due process violation,

where the defects were corrected and petitioner had full opportunity to meet the

charges therein).

Due Process Claims. Next, petitioner contends he was denied his

constitutional right to a full and fair removal hearing. Petitioners in removal

hearings are entitled to a “full and fair hearing that comports with due process.”

Kapcia v. INS, 944 F.2d 702, 705 (10th Cir. 1991) (quotation omitted). To

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establish a due process violation, an alien must show that an error resulted in

prejudice “implicat[ing] the fundamental fairness of the proceeding.” Michelson

v. INS, 897 F.2d 465, 468 (10th Cir. 1990). We have already rejected petitioner’s

first due process argument, that he was denied a fair hearing because the IJ sua

sponte amended his NTA. As noted, petitioner did not demonstrate any prejudice

with respect to any defects in the NTA or the IJ’s finding of removabilty. See

Latu, 375 F.3d at 1019-20.

Petitioner’s second due process claim is that the IJ’s denial of his motion

for a continuance rendered his removal hearing fundamentally unfair. The IJ

noted that petitioner failed to provide any evidence of his claimed Roma ethnicity,

by means of a birth certificate, identification card, or a passport. Petitioner

sought a continuance in order to obtain an internal Bulgarian passport, but the IJ

denied the motion, ruling that petitioner had eight or nine months prior to the

hearing in which to have obtained the necessary documentation.

We have held that we lack jurisdiction to review an IJ’s denial of a motion

for continuance because that is a form of discretionary relief for which judicial

review is precluded under 8 U.S.C. § 1252(a)(2)(B)(ii). Yerkovich v. Ashcroft,

381 F.3d 990, 994-95 (10th Cir. 2004). In the recently enacted REAL ID Act of

2005, applicable to this petition for review, Congress amended § 1252(a)(2) to

permit judicial review of constitutional claims and questions. 8 U.S.C.

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§ 1252(a)(2)(D). Perales-Cumpean v. Gonzales, __ F.3d __, 2005 WL 3150160,

at *3, n.4 (10th Cir. Nov. 25, 2005). Although we do have jurisdiction to review

petitioner’s constitutional claim that the denial of his continuance motion violated

due process, the REAL ID Act does not give us jurisdiction to review the IJ’s

discretionary decision to deny the continuance motion. See Perales-Cumpean,

2005 WL 3150160, at *3, n.4; see also Grass v. Gonzales, 418 F.3d 876, 879

(8th Cir. 2005) (holding that REAL ID Act does not grant jurisdiction “to review

an IJ’s purely discretionary decision to deny a continuance of a removal hearing,

unless that ruling resulted in such procedural unfairness as to implicate due

process”).

We find no constitutional violation. Petitioner had ample time to obtain

and present any evidence of his identity, and he did not establish good cause for a

continuance. He has not shown that the IJ’s decision was procedurally unfair or

so arbitrary as to violate due process. See Grass, 418 F.3d at 879.

Burden of Proof. In denying petitioner’s application for restriction on

removal, the BIA noted there was only one claimed incident of ethnic harassment,

in which petitioner alleged he had been beaten, arrested, and shot at a police

station, but that petitioner had not produced documentation or medical records to

corroborate his claims, nor had he demonstrated that it was impractical to provide

such documentation. The BIA further found that petitioner had not met his

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evidentiary burden of providing some evidence of his claimed ethnic Roma

identity. The BIA noted the IJ’s statement that petitioner appeared to be a

credible witness, but concluded this was not a finding that the IJ accepted the full

truth of petitioner’s testimony, just a statement that there was no basis to

affirmatively find that petitioner was lying. The BIA found, as had the IJ, that

petitioner had not met his burden of establishing a clear probability of

persecution, necessary to obtain a restriction on removal. See Chaib, 397 F.3d at

1277.

Petitioner contends the BIA erroneously found that he failed to meet his

burden of proof. He argues the BIA was obligated to deem his testimony as true,

because of the IJ’s favorable credibility determination, and that the BIA erred in

requiring corroborating evidence of his identity and his medical treatment for the

police beating and gunshot wound.

Although “[t]he testimony of [an] applicant [for restriction on removal], if

credible, may be sufficient to satisfy the burden of proof without corroboration,”

8 C.F.R. § 208.16(b) (emphasis added), such a finding is not mandatory, see id.

Even when an applicant is found to be credible, the BIA may require applicants to

supply corroborating evidence in order to meet their burden of proof. Kayembe v.

Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). “‘[W]here it is reasonable to expect

corroborating evidence for certain alleged facts pertaining to the specifics of an

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applicant’s claim, such evidence should be provided.” El-Sheikh v. Ashcroft,

388 F.3d 643, 646 (8th Cir. 2004) (quoting In re S-M-J, 21 I. & N. Dec. 722, 724,

(BIA 1997) (en banc)).

“That is, an asylum applicant should provide documentary support
for material facts which are central to his or her claim and easily
subject to verification, such as evidence of his or her place of
birth,. . . or documentation of medical treatment. . . . The absence of
such corroborating evidence can lead to a finding that an applicant
has failed to meet [his] burden of proof.”

Id. (quoting In re S-M-J); see also Dorosh v. Ashcroft, 398 F.3d 379, 382

(6th Cir. 2004) (same); Guan Shan Liao v. U.S. Dept. of Justice, 293 F.3d 61, 71

(2d Cir. 2002) (same); but see Ladha v. INS, 215 F.3d 889, 899 (9th Cir. 2000)

(holding that corroborative evidence not required of credible applicants).

We conclude that it was reasonable for the BIA to expect petitioner to

provide some sort of corroborating evidence for his claim that he was a member

of the Roma ethnic minority. As the BIA explained, in addition to his inability to

produce any identification, petitioner was also unable to speak the Roma language

and did not have a Roma surname. Further, he was unable to provide any

corroborating evidence for his claim that he received medical treatment for a

gunshot wound following a police arrest, such as a police, hospital or medical

report, or even an affidavit from a family member, even though petitioner did not

leave Bulgaria for several months after this incident.

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 There is substantial evidence supporting the BIA’s conclusion that

petitioner failed to establish a clear probability of persecution in Bulgaria on the

basis of race. Further, petitioner has not demonstrated a likelihood that he would

be tortured if removed to Bulgaria, which must be shown to establish entitlement

to protection under the CAT. See 8 C.F.R. § 208.16(c)(2).

The petition for review is DENIED.

Entered for the Court

Michael W. McConnell
Circuit Judge

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