NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VLADIMIR GRIGORYEVICH No. 09-73193
DMITRIENKO,
Agency No. A095-585-262
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2013**
San Francisco, California
Before: W. FLETCHER and NGUYEN, Circuit Judges, and DUFFY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Vladimir Grigoryevich Dmitrienko petitions for review of a decision of the
Board of Immigration Appeals (BIA) affirming an immigration judge’s denial of
his application for adjustment of status. We have jurisdiction under 8 U.S.C. §
1252, and we deny the petition.
1. Dmitrienko concedes that he willfully misrepresented facts in his asylum
application because he “was afraid that people would not believe . . . that [he] was
persecuted” if he told the truth. However, Dmitrienko argues that the
misrepresentations were not material. See 8 U.S.C. § 1182(a)(6)(C)(i) (providing
that an alien who has willfully misrepresented a material fact to procure a benefit
under the Immigration and Nationality Act is inadmissible).
Materiality is a legal question which we review de novo. See Junming Li v.
Holder, 656 F.3d 898, 901 (9th Cir. 2011); Forbes v. INS, 48 F.3d 439, 442 (9th
Cir. 1995). Dmitrienko’s misrepresentation that he was “beaten” by three men was
material to his asylum claim because it had “a natural tendency to influence” the
decisions of the Department of Homeland Security. Forbes, 48 F.3d at 442
(quoting Kungys v. United States, 485 U.S. 759, 772 (1988)). Disclosure in his
asylum application and asylum interview that he was merely grabbed, lifted off the
ground, and shaken—but not beaten—“would predictably have disclosed other
facts relevant to [his] qualifications.” Forbes, 48 F.3d at 443 (internal quotation
2
marks omitted). Further, evidence that he was merely shaken was “sufficient to
raise a fair inference” that he was not persecuted and thus ineligible for asylum.
Id.; see also Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009) (stating that
a finding of “persecution” requires “something considerably more than
discrimination or harassment”); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969)
(stating that “minor disadvantage or trivial inconvenience” does not rise to the
level of persecution).
2. Substantial evidence supports the BIA’s finding that Dmitrienko failed to
make a timely retraction of his misrepresentation. A voluntary and timely
retraction may excuse a misrepresentation. See Llanos-Senarillos v. United States,
177 F.2d 164, 165 (9th Cir. 1949). However, Dmitrienko waited for more than
four years after making the false statement before renouncing and withdrawing it
on February 2, 2007. Id. at 166 (“To recant a prior statement or previous assertion
is to renounce and withdraw it.”). He had numerous opportunities prior to that date
to tell the truth but failed to do so until after he was confronted several times with
evidence that he lied. See Valadez-Munoz v. Holder, 623 F.3d 1304, 1310 (9th Cir.
2010) (holding that where an applicant made the retraction only after being
confronted with evidence of his misrepresentation, the applicant cannot take
advantage of the timely recantation doctrine).
3
Because Dmitrienko willfully misrepresented material facts and failed to
timely retract his statement, the BIA did not err in finding Dmitrienko inadmissible
and thus statutorily ineligible for adjustment of status. See 8 U.S.C. §
1182(a)(6)(C)(i); 8 U.S.C. § 1255(a).
PETITION DENIED.
4