Gulnara Gafurova v. Jefferson B. Sessions, III
712 F. App'x 540
| 6th Cir. | 2017Background
- Gafurova, an Uzbek citizen, entered the U.S. in 2003, overstayed her visa, and filed an asylum application in 2004; removal proceedings followed and her first asylum claim was denied.
- Over multiple proceedings (IJ and BIA), Gafurova’s prior credibility was questioned because she admitted fabricating parts of her initial asylum application and submitting fraudulent documents.
- She sought adjustment of status based on an I-130; that petition was revoked and adjustment was denied as a result of prior findings and statutory bars.
- In January 2016 Gafurova moved to change venue to New York so she could file a second asylum application, asserting changed circumstances: conversion to Christianity (2011) and risk as a former asylum applicant exposed online.
- The IJ denied the venue motion, found she was statutorily barred from filing a second asylum application because she failed to show changed circumstances materially affecting eligibility, and ordered removal; the BIA affirmed.
Issues
| Issue | Gafurova's Argument | Government's Argument | Held |
|---|---|---|---|
| Did IJ/BIA violate due process by failing to state burden of proof for showing changed circumstances? | IJ/BIA should have specified the standard (clear & convincing, preponderance, etc.) and failure requires remand. | No such issue was preserved; IJ/BIA did identify statutory burden (must demonstrate changed circumstances materially affecting eligibility). | Not preserved; alternately rejected—IJ/BIA adequately identified petitioner’s statutory burden. |
| Was IJ biased / did IJ prejudge credibility requiring a new IJ? | IJ’s adverse credibility findings and language showed bias; need remand to new judge. | Prior adverse credibility findings were permissible to consider; remarks did not show abandonment of neutrality. | No due-process violation; prior credibility findings could be considered and no evidence the IJ abandoned neutrality. |
| Did petitioner demonstrate changed country circumstances that would permit a second asylum application? | Evidence (conversion, reports on Uzbekistan abuses, risk of arrest for asylum-seekers) showed material change. | Evidence did not show petitioner’s conversion, nor that former asylum applicants like her are commonly targeted; petitioner failed to meet burden. | Substantial-evidence review: BIA/IJ’s factual finding affirmed—no abuse of discretion. |
| Was denial of motion to change venue an abuse of discretion? | Venue change warranted for convenience, witness location (NY), and to allow filing second asylum application. | No good cause: petitioner barred from filing second asylum application, case had long history and no unresolved issues; venue change unnecessary. | No abuse of discretion—denial affirmed because petitioner failed to show good cause and proceedings were not furthered by transfer. |
Key Cases Cited
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (treating BIA decisions as final agency determination when it issues a separate opinion)
- Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004) (issues not presented to the BIA are not preserved for judicial review)
- Hassan v. Gonzales, 403 F.3d 429 (6th Cir. 2005) (expressions by IJ that are brusque or skeptical do not alone establish bias if the alien had a fair hearing)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (jurisdictional bar to review of denials of subsequent/untimely asylum applications except for constitutional or statutory questions)
- Dugboe v. Holder, 644 F.3d 462 (6th Cir. 2011) (denial of motion to change venue reviewed for abuse of discretion)
- Pablo-Sanchez v. Holder, 600 F.3d 592 (6th Cir. 2010) (factual findings by IJ/BIA reviewed under the substantial-evidence standard)