NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0156n.06
No. 09-3337 FILED
Mar 17, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
VASSILI MKHAYLOVICH GRICHAEV, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD OF
ERIC HOLDER, JR., Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
)
)
Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Vassili Grichaev petitions for review of an order of the Board
of Immigration Appeals denying his application for asylum and withholding of removal. (Although
he presented a claim under the Convention Against Torture before the Immigration Judge, he does
not contest the denial of that claim here.) We dismiss the petition in part for lack of jurisdiction and
deny the remainder.
I.
Grichaev, a native and citizen of Russia, entered the United States on a six-month tourist visa
in March 1998. He was arrested and detained by Minnesota police in November 1999, but did not
apply for asylum or withholding of removal until May 2002.
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Grichaev v. Holder
According to Grichaev’s testimony before the Immigration Judge, he was harassed or
assaulted on three occasions in Russia because of his Baptist faith. First, he was beaten unconscious
by members of a national youth group. When police found him, they took him to a drunk-tank
facility, but he was released the same day. Second, he received racist literature, distributed by a local
fascist organization, containing a list of members of his church. Third, he was beaten with a rubber
night-stick by two men who derided his religion. That attack left him with serious injuries requiring
a month of hospitalization. Although Grichaev reported each incident to the police or local
government, his complaints were largely ignored.
The Immigration Judge (“IJ”) found Grichaev “generally credible,” but expressed concern
that Grichaev’s testimony “appeared memorized . . . to simply and exactly track” his written
statement. He denied Grichaev’s asylum application as untimely, because it was filed more than one
year after Grichaev entered the United States and extraordinary circumstances did not excuse the
delay. See 8 U.S.C. § 1158(a)(2)(B), (a)(2)(D). As to withholding, the IJ concluded that Grichaev
did not prove past persecution because he failed to present—or adequately explain why he did not
present—reasonably available documents corroborating his church membership and his complaints
to Russian officials. The IJ also found that Grichaev did not demonstrate an objective fear of future
persecution, because his alleged past harm was caused by fringe groups rather than the Russian
government. The IJ also found that Grichaev could avoid future harm by relocating within Russia.
The IJ therefore denied the application for withholding.
On appeal, the Board of Immigration Appeals (“BIA” or “Board”) affirmed the IJ’s
untimeliness determination. The Board also affirmed the IJ’s conclusion that Grichaev failed to meet
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Grichaev v. Holder
his burden of proof for withholding because he did not present reasonably available corroborating
evidence. Grichaev then petitioned this court for review.
II.
Grichaev argues that the IJ erred in denying his applications for asylum and withholding of
removal. When the Board “adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion,
as supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th
Cir. 2009). We review questions of law de novo and factual findings for substantial evidence.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Under the substantial evidence standard, we
uphold factual findings unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006).
Grichaev first claims that extraordinary circumstances should excuse his delay in applying
for asylum. But we lack jurisdiction to review asylum applications denied for untimeliness when
the petitioner “seeks review of discretionary or factual questions.” Almuhtaseb v. Gonzales, 453 F.3d
743, 748 (6th Cir. 2006); see also 8 U.S.C. §§ 1158(a)(2)(B), (a)(3), 1252(a)(2)(D). Factual
questions are what Grichaev presents here, so we lack jurisdiction to review the dismissal of his
asylum application. See Shkulaku-Purballori v. Mukasey, 514 F.3d 499, 502 (6th Cir. 2007).
To prevail on his withholding of removal claim, Grichaev must demonstrate a “clear
probability” that he would be persecuted in Russia on the basis of his religion. See 8 U.S.C.
§ 1231(b)(3); Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir. 2005). He can meet this burden either
of two ways: by proving “that it is more likely than not” that he will be persecuted upon return to
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Grichaev v. Holder
Russia, or by proving past persecution, which creates a rebuttable presumption of future persecution.
8 C.F.R. § 1208.16(b).
Grichaev claims that his testimony established past persecution and triggered the rebuttable
presumption, notwithstanding the lack of corroborating evidence in the record. Although in some
circumstances credible testimony can satisfy the burden of proof for withholding, see 8 C.F.R. §
1208.16(b), this circuit has adopted the Board’s “corroboration rule.” See Dorosh v. Ashcroft, 398
F.3d 379, 382 (6th Cir. 2004). Pursuant to that rule, an applicant’s failure to provide reasonably
available corroborating evidence relating to the specifics of his claim “can lead to a finding that the
applicant has not met his burden of proof.” Id. (quoting In re S-M-J-, 1997 WL 80984, 21 I. & N.
Dec. 722, 724-26 (BIA 1997)).
Here, Grichaev failed to provide corroborating evidence that should have been easily
available to him. For example, he failed to provide evidence that he ever attended a Baptist church,
either in Russia or the United States; and he could not even name or describe the location of the
churches he says he attended. He also failed to provide evidence of past harm, such as the letters of
complaint that he allegedly wrote to local officials. Although Grichaev admitted that it would have
been easy to obtain this evidence, he says he did not know the information was required. He was
represented by counsel throughout his asylum proceedings, however, and was told during a 2002
calendar hearing that he could use corroborating evidence to support his claim. So we agree with
the Board that Grichaev’s explanation for failing to provide available evidence was inadequate,
especially given the importance of church membership to his claims. See Jacobs v. Holder, 337 F.
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App’x 458, 463-64 (6th Cir. 2009). The record does not compel the conclusion that Grichaev has
proven past persecution.
Finally, Grichaev argues that he has shown a clear probability of future persecution based on
the past harm he suffered and the group persecution allegedly faced by all Russian Baptists. He
relies on a Ninth Circuit case holding that members of disfavored minority groups—that is, groups
subjected to extensive persecution in a given locale—can establish a well-founded fear of future
persecution by proving that they have suffered past harm. See Hoxha v. Ashcroft, 319 F.3d 1179 (9th
Cir. 2003). Our court has not addressed whether to adopt this rule. We need not do so here,
however, because Grichaev has not shown that Baptists in Russia face widespread group persecution.
In fact, Grichaev submitted State Department reports concluding that the Russian Constitution
provides for freedom of religion and the government generally respects that right. Although the
reports state that local officials occasionally detain members of minority religions, such incidents
are “isolated” and “quickly resolved.” This is different from the “state-sponsored violence” and
human-rights violations found to lower the petitioner’s individual burden in Hoxha. See id. at 1183.
Grichaev’s claim is therefore without merit.
We dismiss the petition as to the untimely asylum application, and deny the petition as to the
withholding claim.
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