09-2666-ag
Melnikov v. Holder
BIA
Vomacka, IJ
A088 427 021
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
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 31 st day of August, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 JOSÉ A. CABRANES,
11 Circuit Judges.
12 _______________________________________
13
14 ALEXANDER ALEXEYEVICH MELNIKOV,
15 Petitioner,
16
17 v. 09-2666-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Alexander J. Segal, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Civil Division; Jennifer
29 Paisner Williams, Senior Litigation
30 Counsel; Lindsay E. Williams,
31 Attorney, Office of Immigration
32 Litigation, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Alexander Alexeyevich Melnikov, a native of the former
6 U.S.S.R. and a citizen of Uzbekistan, seeks review of a June
7 3, 2009, order of the BIA, affirming the February 3, 2009,
8 decision of Immigration Judge (“IJ”) Alan A. Vomacka, which
9 denied his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Alexander Alexeyevich Melnikov, No. A088 427 021 (B.I.A.
12 June 3, 2009), aff’g No. A088 427 021 (Immig. Ct. N.Y. City
13 Feb. 3, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history.
15 In the circumstances of this case, we review both the
16 BIA’s and the IJ’s decisions. See Chen v. Gonzales, 417
17 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
18 review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
20 95 (2d Cir. 2008).
21 I. Due Process Claim
22 Melnikov asserts that his due process rights were
23 violated because the IJ was biased and failed to conduct a
24 proper hearing. However, the record is without support for
2
1 his contention. Contrary to Melnikov’s arguments, the IJ
2 gave him an opportunity to litigate the timeliness of his
3 application, and did not erroneously deny Melnikov’s
4 application on his failure to submit biometrics in a timely
5 manner. The IJ properly referenced regulations that require
6 the completion of biometric identification prior to any
7 grant of relief, see 8 C.F.R. § 1003.47(c), and went on to
8 consider Melnikov’s application and deny it on the merits.
9 Melnikov also contends that the IJ improperly considered his
10 mother’s asylum application and relied upon her actions in
11 the courtroom in denying his claim for relief. However, it
12 was Melnikov who put his mother’s asylum application into
13 contention; and insofar as his mother’s actions in the
14 courtroom had bearing on Melnikov’s demeanor, the IJ could
15 properly consider them in making the credibility
16 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii) (demeanor
17 is a relevant consideration in a credibility determination).
18 Finally, to the extent Melnikov contends he was denied due
19 process by the IJ’s speculation about the government of
20 Uzbekistan, the IJ properly considered the evidence before
21 him and made reasonable implausibility findings supported by
22 the record. See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.
23 2007).
3
1 Accordingly, the IJ afforded Melnikov an opportunity to
2 be heard at a meaningful time and in a meaningful manner
3 and, thus, did not violate his due process rights. Burger
4 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).
5 II. Adverse Credibility Determination
6 Substantial evidence supports the IJ’s adverse
7 credibility determination, see Corovic, 519 F.3d at 95,
8 including: (1) inconsistencies in Melnikov’s accounts of the
9 past harm he suffered at the hands of the police in
10 Uzbekistan; (2) the omission from his asylum application of
11 allegations that his father was interrogated and physically
12 harmed by the police and that Melnikov was injured after a
13 beating by the police; and (3) the implausibility of several
14 aspects of his claim, including the allegation that police
15 were continuing to look for him in Uzbekistan over eight
16 years after he left the country with the government’s
17 permission. See 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ did
18 not err in declining to credit the explanations Melnikov
19 offered for these discrepancies. Majidi v. Gonzales, 430
20 F.3d 77, 81 (2d Cir. 2005). Having called his credibility
21 into question, the IJ reasonably considered the lack of
22 corroborating evidence available to rehabilitate Melnikov’s
4
1 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
2 F.3d 315, 341 (2d Cir. 2006).
3 Because the only evidence of a threat to Melnikov’s
4 life or freedom depended on his credibility, the IJ’s
5 adverse credibility determination was fatal to his
6 application for both withholding of removal and CAT relief.
7 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
5