549 F. App'x 421
6th Cir.2013Background
- Lyudmyla Irhibayeva (and derivative spouse Valeriy) are Ukrainian nationals who overstayed B-1 visas and filed asylum in 2003, after arriving in 2000.
- IJ found both removable based on admissions in the Notice to Appear; only Lyudmyla sought asylum, withholding, and CAT relief (Valeriy derivative of her asylum claim).
- Lyudmyla alleged multiple incidents of anti-Greek-Catholic persecution in Ukraine (job loss, street assaults, church arson, police beatings/detention, daughter injured), supported mainly by her testimony and disputed/uncorroborated documents.
- She filed asylum after the one-year statutory deadline and attributed delay to a fraudulent preparer and other personal difficulties; the IJ found her evidence insufficient to establish an exception or reasonable filing delay.
- IJ and BIA found petitioners not credible, highlighted inconsistent testimony and invalidated medical/church records; BIA affirmed denial of asylum and withholding and deemed the CAT claim waived for lack of meaningful briefing.
- Petition for review challenged BIA’s rulings; the Sixth Circuit affirmed: asylum timeliness decision unreviewable, withholding denial supported by substantial evidence, CAT claim unexhausted.
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Removability | Not disputed; challenges tied to relief | Removability established by admission to NTA | Removability upheld (admissions constitute clear and convincing evidence) |
| Asylum timeliness (1‑year rule / exceptions) | Delay excused by preparer fraud and personal circumstances; raises translation/credibility due process issues | No valid extraordinary/changed circumstances shown; filing not within reasonable time | Denial of asylum unreviewable by court because issue is factual/discretionary, not a constitutional/statutory question |
| Withholding of removal (clear probability standard) | Proffered testimony and documents show likelihood of persecution on account of religion | Evidence is incredible, inconsistent, and uncorroborated; burden not met | Denial affirmed—substantial evidence supports IJ/BIA credibility findings and rejection of documents |
| CAT protection (exhaustion) | Merely mentioned CAT relief in BIA brief; contends underlying facts support CAT | Claim was not meaningfully presented or argued to BIA; thus unexhausted | CAT claim waived for failure to meaningfully brief before BIA; court lacks jurisdiction to review |
Key Cases Cited
- Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005) (review the IJ decision together with BIA commentary when BIA adds its own analysis)
- Yu v. Ashcroft, 364 F.3d 700 (6th Cir. 2004) (IJ factual findings and credibility reviewed under substantial-evidence standard)
- Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998) (reversal only if record compels contrary conclusion)
- Patel v. Gonzales, 432 F.3d 685 (6th Cir. 2005) (defer to BIA’s reasonable interpretations of the INA on legal issues)
- Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) (withholding requires clear probability of persecution)
- Shkulaku-Purballori v. Mukasey, 514 F.3d 499 (6th Cir. 2007) (asylum untimeliness reviewed only for constitutional/statutory questions)
- Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004) (court may not review issues not properly presented and decided by the BIA)