Khozhaynova v. Holder
2011 U.S. App. LEXIS 8188
| 6th Cir. | 2011Background
- Khozhaynova and Alexander are Russian nationals seeking asylum, withholding of removal, and CAT protection in the U.S. after overstaying visas; removal proceedings began in 2004 with asylum/withholding/CAT applications filed in 2006.
- Khozhaynova alleges persecution in Russia tied to imputed political opinion as a market-era business owner who refused mafia protection payments; she suffered threats, robberies, an attack/rape, a store fire, and other violence between 1994–1998.
- Alexander was seriously ill; Khozhaynova traveled to the U.S. in 1999 for medical care, later returned to Russia, and re-entered as a visitor in 2002; both overstayed their visas.
- The immigration judge held Khozhaynova’s asylum claim untimely and found her credibility lacking; the Board affirmed the untimeliness ruling and denied withholding and CAT on credibility and statutory grounds.
- The Sixth Circuit dismissed the asylum timeliness petition for lack of jurisdiction under the REAL ID Act and affirmed the Board on withholding and CAT, based on substantial evidence supporting the adverse credibility finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum application under REAL ID Act | Khozhaynova argued extraordinary circumstances due to Alexander’s medical needs. | Timeliness review is limited; extraordinary circumstances are factual and not reviewable here. | Petition dismissed for lack of jurisdiction over untimeliness. |
| Credibility governing withholding and CAT claims | Credibility issues undermine denial of past persecution and future fear. | Adverse credibility supported by inconsistencies and lack of corroboration. | Substantial evidence supports adverse credibility and denial of relief. |
| Ability to establish past persecution or fear under INA grounds | Persecution based on imputed political opinion as a business owner opposing extortion. | Attacks tied to criminal extortion, not to a statutorily protected ground. | Denied; not shown persecution on protected grounds. |
| Protection under CAT | Fear of torture based on same grounds as withholding claim. | Credibility defects preclude CAT relief. | Denied; CAT denied consistent with withholding ruling. |
Key Cases Cited
- Khalili v. Holder, 557 F.3d 429 (6th Cir.2009) (review of Board/ IJ findings; standard of review for Board determinations)
- Zhao v. Holder, 569 F.3d 238 (6th Cir.2009) (substantial evidence standard; credibility review)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir.2006) ( Amend. 106 scope — purely legal questions; untimeliness largely factual)
- Chen v. U.S. Dep't of Justice, 471 F.3d 315 (2d Cir.2006) (mixed questions of law/fact jurisdiction under Amendment 106)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (mixed questions of fact and law on jurisdictional mootness (cited for approach))