FILED
NOT FOR PUBLICATION APR 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DZMITRY SERGEYEVICH DAUKSH, No. 12-70726
Petitioner, Agency No. A089-684-239
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 10, 2015**
Seattle Washington
Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.
Petitioner Dzmitry Sergeyevich Dauksh (“Dauksh”), a citizen of Belarus,
petitions for review of the Board of Immigration of Appeals’ (“BIA”) denial of his
applications for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). He also petitions for review of the BIA’s
denial of his motion remand to the Immigration Judge (“IJ”). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
1. The IJ and BIA’s adverse credibility findings are supported by
substantial evidence. See 8 U.S.C. § 1158(b)(1)(B). Dauksh admitted that his
application for asylum omitted the “most important reasons” for his purported
persecution, including his allegation that his apartment had been confiscated. He
further admitted that the address listed on a government report did not match the
address listed on his asylum application; and that there were discrepancies between
his sworn statements describing events after his concert on May 25, 2008. The
BIA was not compelled to credit his unsubstantiated explanations for these
discrepancies. Furthermore, the BIA did not err in considering the implausibility
of Dauksh’s inability to depart Belarus and his failure to seek asylum previously,
given the ease and frequency of his travel between Belarus and other countries,
including the United States. Thus, the BIA reasonably found that Dauksh failed to
establish grounds for asylum and withholding of removal.
2. The IJ and BIA did not err in denying Dauksh’s claim under the CAT.
“An adverse credibility determination is not necessarily a death knell to CAT
protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). But Dauksh
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does not argue any additional grounds to support his request for protection under
CAT. Moreover, Dauksh admitted that he was never subjected to physical harm in
Belarus, and his background materials concerning Belarus do not compel the
conclusion that he is more likely than not to be tortured if removed. See 8 C.F.R. §
1208.16(c)(2); Shrestha, 590 F.3d at 1048. Thus, the BIA’s conclusion that the IJ
properly denied his request for protection under CAT is supported by substantial
evidence.
3. The BIA did not err in denying Dauksh’s motion to remand on the
grounds that his counsel had been ineffective. See Cano-Merida v. I.N.S., 311 F.3d
960, 964 (9th Cir. 2002). Dauksh did not comply with the threshold procedural
requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454
(BIA 1988). Dauksh has not shown that he notified his attorney of the substance
of his ineffective assistance of counsel allegations or that his attorney was provided
an adequate opportunity to respond. Reyes v. Ashcroft, 358 F.3d 592, 599 (9th Cir.
2004). Dauksh did not lodge a complaint with the state bar, and the BIA was not
compelled to accept Dauksh’s explanations as to why he failed to do so.
Additionally, the performance by Dauksh’s counsel did not render his
proceeding “fundamentally unfair” or prevent him “from reasonably presenting
[his] case.” Id. at 596. Indeed, Dauksh, through counsel, submitted an extensive
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pre-hearing brief and voluminous records, including declarations from other
individuals and background materials about Belarus.
4. Nor did the BIA abuse its discretion in denying Dauksh’s request to
remand to the IJ. Movsisian v. Ashcroft, 395 F.3d 1095, 1098–99 (9th Cir. 2005).
Dauksh proffered to the BIA additional declarations in support of his application,
but did not articulate why this evidence was unavailable earlier or could not have
been discovered earlier. See 8 C.F.R. § 1003.2(c)(1). Dauksh has not shown that
the new evidence is “material,” or that when considered together with the evidence
presented at the original hearing, it would establish prima facie eligibility for the
relief he sought. See id.; Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005);
Mendez–Gutierrez v. Gonzales, 444 F.3d 1168, 1171–72 (9th Cir. 2006). Even
accepting the new declarations, they are cumulative of the evidence Dauksh
presented at the hearing. Thus, the BIA did not abuse its discretion in denying the
motion to reopen proceedings.
5. Finally, Dauksh has not shown that he was denied due process as a
result of any purported translation errors. Dauksh has not proffered any evidence
of any incorrectly translated words, unresponsive answers, or difficulty
understanding what was being said to him during his proceedings. See
Perez-Lastor v. I.N.S., 208 F.3d 773, 777–78 (9th Cir. 2000). Nor did Dauksh
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complain about any misstatements in his declarations until after the IJ denied him
relief. To the contrary, Dauksh testified that his declarations were accurate.
Even assuming there were errors in the translation of Dauksh’s declaration,
he has not shown prejudice. See id. at 780. The IJ and BIA’s adverse credibility
decisions relied on numerous grounds, not just the inconsistency with respect to the
events described in his declaration after the May 25, 2008, concert. Dauksh does
not allege that any translation error obscured any of the other grounds on which the
IJ and BIA relied, such as the important omissions in his asylum application about
persecution, the different address listed on a government report from his asylum
application, the implausibility of his inability to depart Belarus, and his failure to
seek asylum despite frequent visits to the United States. Thus, Dauksh has not
shown that any translation error influenced the outcome of proceedings. See id.
PETITION FOR REVIEW DENIED.
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