Efimov v. Ashcroft
Case Information
*1 Before SEYMOUR , HENRY , and McCONNELL , Circuit Judges.
Petitioner Alexandre Efimov is a native and citizen of Russia. His petition seeks review of an order of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s decision denying his application for asylum, withholding of removal, and withholding of deportation under the Convention Against Torture. We deny the petition and affirm.
I. BACKGROUND
Mr. Efimov came to the United States from Russia in 1992. His non- immigrant visitor’s visa authorized him to remain in the United States until November 20, 1992. Mr. Efimov remained beyond that date. He filed an asylum application in January, 1994. Eventually, the application came before an Immigration Judge (IJ) in Denver, Colorado. On June 18, 2001, Mr. Efimov appeared before the IJ to offer testimony in support of his asylum application. Mr. Efimov testified to the following facts:
During the Soviet era, Mr. Efimov worked in Moscow as a manager of a high-end Turkmenian restaurant. In 1991, the restaurant was privatized, and Mr. Efimov and five other men became the sole owners of the restaurant. Mr. Efimov served as “commercial director” of the new enterprise. Soon after the privatization, a man claiming to be a KGB officer visited Mr. Efimov’s restaurant. The supposed KGB man asked about the relative success of the restaurant’s business and explained that his friends would soon be visiting the restaurant and that Mr. Efimov would be expected to comply with their requests. Later that month, a gang of Chechens came to the restaurant and ordered Mr. Efimov to sign over to them the ownership documents of the restaurant. Mr. Efimov refused. The gang threatened to inflict severe injuries on Mr. Efimov and on his wife and child if he persisted in his refusal, and then left.
The gang returned a week later. Mr. Efimov again refused to transfer the restaurant to them. The enraged Chechens pushed Mr. Efimov down a flight of stairs. Mr. Efimov suffered back and elbow injuries from the fall and spent ten days in the hospital. A police investigator visited Mr. Efimov at the hospital. Mr. Efimov did not cooperate with the police investigation because in his experience the police were highly ineffectual, and he feared the gang would make things even worse if the police became involved.
After Mr. Efimov returned from the hospital, he received several threatening phone calls from the Chechen criminals. The next time the gang showed up at the restaurant, they seized Mr. Efimov and forced him into a car. They took Mr. Efimov outside of Moscow and into the dingy basement of a remote house. In the basement, Mr. Efimov saw another victim of the gang’s brutality, bound hand and foot and covered with blood. The criminals showed Mr. Efimov how they planned to execute the man with electrical rods attached to his mouth and genitals. They explained that Mr. Efimov would face a similar end if he continued to refuse their demands to hand over the restaurant and pay a $25,000 “fine.” After beating Mr. Efimov with their rifle butts, gang members drove him to a remote area and left him there.
Mr. Efimov then decided that enough was enough, and he told his business partners that he was resigning as director. He also relinquished his ownership *4 stake in the restaurant. He and his family fled Moscow to live 200 miles away with his great-grandmother. Shortly afterward, Mr. Efimov came to the United States.
At the hearing before the IJ, the INS introduced documents showing that Mr. Efimov had twice been convicted in state court for shoplifting offenses. Mr. Efimov testified that he was actually innocent on both occasions. When asked why he had pled guilty, Mr. Efimov explained that on one occasion he pled guilty on the advice of counsel in order to avoid jail time and the other guilty plea was mistakenly entered by the court when Mr. Efimov nodded his head in response to a question he had not clearly understood.
The IJ ruled that Mr. Efimov had failed to establish eligibility for asylum, withholding of removal, or protection under the Convention Against Torture. The IJ determined that Mr. Efimov’s testimony about his criminal history in the United States was not credible, that Mr. Efimov appeared willing to misrepresent the facts to advance his own interests, and that his testimony could not be accepted completely at face value. The IJ therefore concluded that Mr. Efimov’s testimony was insufficient to meet his burden of proof. In the alternative, the judge also ruled that Mr. Efimov’s claims failed because the persecution inflicted on Mr. Efimov was not based on any protected ground but was simply a protection racket whose purpose was only to make money for the gang. Finally, *5 because Mr. Efimov had long since given up his interest in the restaurant, the IJ found that Mr. Efimov had not shown a sufficient likelihood of persecution or torture upon his return to Russia to warrant asylum or withholding of removal.
Mr. Efimov appealed to the BIA. The BIA summarily affirmed the IJ’s
decision, without opinion, under new “streamlining” regulations permitting
summary affirmances by a single member of the BIA.
See 8 C.F.R. §1003.1(a)(7)
& (e); Yuk v. Ashcroft ,
II. DISCUSSION
A. Standard of Review
“Where . . . the BIA summarily affirms or adopts an immigration judge’s
decision, this court reviews the judge’s analysis as if it were the BIA’s . ” Tsevegmid v. Ashcroft ,
B. Applicable Standards
The Immigration and Nationality Act provides two possible modes of relief
to an alien who fears persecution if he is returned to his country: asylum and
withholding of removal. Tsevegmid ,
1. Asylum
To be eligible for a discretionary grant of asylum, an alien must first
establish status as a refugee. See 8 U.S.C. § 1158(b)(1); Krastev ,
An alien can obtain refugee status by showing he either (1) “has a well-
founded fear of future persecution,” Krastev ,
2. Withholding of Removal
A successful application for withholding of removal requires an alien to
prove that his “life or freedom would be threatened in [his home] country because
of [his] race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). The Attorney General may not
remove an alien if the alien establishes that he faces “a clear probability of
persecution” in the country to which he would be returned. Tsevegmid , 336 F.3d
at 1234. The standard of proof for withholding of removal is “more demanding
than the well-founded fear standard applicable to an asylum claim . ” Id. (internal
*8
quotation marks omitted). Thus, when an applicant fails to establish the objective
component of a well-founded fear of persecution, he necessarily fails to establish
entitlement to withholding of removal. See Batalova v. Ashcroft,
3. Convention Against Torture
The Convention Against Torture was implemented in the United States by
the Foreign Affairs Reform and Restructuring Act of 1998. See Sviridov v.
Ashcroft ,
C. Petitioner’s Challenges
1. Lack of Explicit Credibility Finding
Mr. Efimov concedes that the IJ found certain aspects of his testimony to be incredible, and he does not challenge those findings on appeal. However, he argues that the adverse credibility finding was directed only to Mr. Efimov’s testimony regarding his criminal history and not to the merits of his application for relief. Because the IJ relied on the lack of credible testimony as one of his grounds for denying asylum and withholding of removal, and, arguably, as the only ground for denying withholding under the Convention Against Torture, Mr. Efimov contends that the lack of a specific credibility finding related to the merits of his testimony requires reversal. [1]
Despite Mr. Efimov’s contention, the IJ’s credibility findings were not limited to his testimony about his shoplifting convictions. The IJ made it clear that he did not believe Mr. Efimov’s story about the shoplifting convictions, but he also explained that Mr. Efimov’s lack of candor regarding his criminal history affected the believability of the rest of his testimony:
*10 The respondent’s credibility of course is very important in assessing his asylum claim . . . . With respect to the respondent’s claim to having suffered at the hands of criminal groups in Russia, this Court believes that the failure to testify credibly about criminal activity in the United States is an important negative factor with respect to credibility regarding the asylum claim.
A.R. 23-24. The IJ then cited other instances of Mr. Efimov’s dishonesty, including contracting a “fake marriage” in Russia and failing to disclose criminal history on his asylum application. A.R. 24. The IJ concluded that Mr. Efimov seemed “willing to either embellish the true facts or actually engage in outright misrepresentations in order to advance his own interests.” Id .
The IJ’s opinion made it sufficiently clear that he not only thought that Mr.
Efimov misrepresented his prior criminal history but that, based on that
misrepresentation and on other instances of Mr. Efimov’s past deceptive behavior,
he chose not to give full credit to Mr. Efimov’s account of persecution by the
Chechen criminals. Mr. Efimov’s testimony was by far the most important
evidence offered in support of his claims for asylum and withholding of removal.
While an alien’s own testimony alone may be sufficient to establish a claim for
asylum or withholding of removal, the IJ may deny the claim if he finds that the
testimony is not credible and provides “specific, cogent reasons” for that finding.
Sviridov ,
2. Failure to Provide Notice of Briefing Schedule Mr. Efimov argues that the BIA failed to provide notice to his counsel of its revised briefing schedule and that this failure constituted a violation of his due process rights. Mr. Efimov’s counsel did receive notice of the initial briefing schedule, which required filing a brief by February 14, 2002. A.R. 6, 8. On February 13, the day before the deadline, counsel filed a motion for extension of that deadline. A.R. 6. That motion was granted on February 19. A.R. 4. The Administrative Record contains a Notice indicating that the extension was granted and extending the deadline by 21 days. Id . Although the Notice contains, at the top, the addresses of counsel for both sides, Mr. Efimov’s counsel claims he never received the document.
Assuming arguendo that responsibility for this mix-up lies with the BIA rather than with counsel, we think the Board has nevertheless complied with due process requirements. The initial Notice, which Petitioner’s counsel received, states: “The Board does not grant extensions for more than 21 days. If your request is granted, the brief will generally be due 21 days from the date the initial briefing schedule expires . . .” A.R. 9. Thus, Petitioner’s counsel was on notice, even without receiving the revised briefing schedule, that the due date would *12 probably be extended by exactly 21 days (which it was) and would certainly not be extended beyond that. In addition, the Notice refers to the BIA’s Practice Manual, which explicitly allows a party to file a late brief along with a motion for consideration of the late brief explaining the circumstances that prevented filing of a timely brief. A.R. 4-5, 8; Board of Immigration Appeals, Practice Manual 29, available at <http://www.usdoj.gov/eoir/bia/qapracmanual/apptmtn4.htm>. Petitioner’s counsel apparently never gave the BIA an opportunity to correct its oversight (if any) by filing such a motion. In this context, it makes no sense to allow a petitioner who fails to take advantage of the available procedures before the agency to turn around and claim on appeal that the agency has denied his due process rights.
3. Failure to Recognize “Entrepreneurs” as a Particular Social Group Mr. Efimov’s asylum claim required him to show that he suffered persecution on account of a protected ground, which includes membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Mr. Efimov’s theory is that the criminal gang persecuted him because he was an entrepreneur, which, in the context of newly post-Communist Russia, constituted a particular social group that was subjected to persecution. In his brief, Mr. Efimov characterizes the IJ’s opinion as holding that “entrepreneurs” did not constitute a particular social group and that aliens could not claim asylum based on persecution for *13 membership in that group. He then argues at considerable length for the proposition that an asylum claim can be sustained based on persecution on the basis of one’s status as an entrepreneur. Again, however, Petitioner misunderstands the IJ’s opinion. The IJ did not conclude that “entrepreneurs” were not a “particular social group.” Rather, the IJ’s judgment was that Mr. Efimov was not persecuted because he was an entrepreneur or member of any group but simply because the gang wanted his property:
[Mr. Efimov] urges the Court to find that [he] does belong to a group called “entrepreneurs” who are targeted for persecution by a group which the government is unwilling or unable to control. However, it does seem to me the respondent has been targeted, if at all, simply to obtain his money.
A.R. 25. The IJ is unquestionably correct that, if Mr. Efimov was the target of an
ordinary criminal protection racket whose aim is simply to generate cash, then he
has not established persecution based on a protected ground. See Bradvica v. INS ,
4. Failure to Comply with Streamlining Regulations Mr. Efimov contends that the BIA failed to comply with its streamlining regulations, which permit summary affirmance by a single member of the BIA under certain circumstances. [2] More specifically, the regulations permit summary affirmance by a single board member if the member determines that:
the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that
(A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or
(B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.
8 C.F.R. 1003.1(a)(7). Put simply, the BIA should not summarily affirm if the IJ’s opinion materially erred or if the appeal presents novel or substantial issues. Mr. Efimov does not argue that his appeal raises novel or substantial issues. Instead, Petitioner relies on his claim that the IJ did not reach the right result and that the errors in his opinion were not harmless or nonmaterial. The alleged errors that Petitioner cites are the same errors discussed in subparts 2 and 3 above, namely, the lack of a specific credibility finding and the conclusion that entrepreneurs were not a particular social group. As stated above, we conclude *15 that the IJ’s decision on these two points was not erroneous and that therefore the IJ’s decision reached the right result. It follows that the BIA’s decision to summarily affirm did not violate the regulation.
Mr. Efimov also complains that the BIA “has failed miserably” because its
summary affirmance “provide[s] absolutely no indication that a Board member
actually reviewed the case.” Petitioner’s Br. 33. However, the regulations do not
require the BIA to state that it has reviewed the record, and, absent any evidence
to the contrary, we will presume that the BIA has properly done its job. Batalova ,
III. Conclusion
We AFFIRM the decision of the BIA.
ENTERED FOR THE COURT Michael W. McConnell Circuit Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
[1] The government contends that we lack jurisdiction to consider the denial of Petitioner’s claim under the Convention Against Torture on the ground that Petitioner failed to raise the issue in his appeal to the BIA. However, Petitioner’s filing with the BIA squarely challenged the IJ’s conclusion that Petitioner’s testimony was insufficient to meet his burden of proof. A.R. 13. The IJ concluded that Petitioner’s testimony was insufficient to meet the burden of proof on all his claims, including his claim under the Convention Against Torture. A.R. 24, 26. Petitioner’s challenge to that conclusion was therefore sufficient to preserve his claim under the Convention Against Torture.
[2] The government contends that the decision whether to streamline a case is
committed to the absolute discretion of the BIA and therefore this Court lacks
jurisdiction to review it. Our recent decision in Batalova forecloses this
argument. Batalova ,