Kolov v. Garland

78 F.4th 911

Nikolay M. KOLOV, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-3760

United States Court of Appeals, Sixth Circuit

Decided and Filed: August 18, 2023

On Petition for Review from the Board of Immigration Appeals. No. A XXX XX3 118.

ON BRIEF: Michael E. Piston, PISTON AND CARPENTER P.C., Troy, Michigan, for Petitioner. Jeffery R. Leist, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GIBBONS, LARSEN, and MURPHY, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which LARSEN and MURPHY, JJ., joined. MURPHY, J. (pp. 15-25), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Nikolay Kolov, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's ("IJ") denial of withholding of removal and protection under the Convention Against Torture ("CAT"). The BIA upheld the IJ's determination that Kolov did not present a credible claim because parts of his testimony before the IJ were not disclosed in his reasonable fear interview, written application, or supporting declaration. Because the BIA's decision contains no legal error, we deny the petition for review.

I.

Nikolay Kolov first sought admission to the United States in 1999. He was placed in removal proceedings but sought asylum and related protections. After he failed to credibly demonstrate eligibility for protection, Kolov was ordered removed. The BIA denied Kolov's appeal, and we denied his petition for review. Kolov was removed to Bulgaria in February 2012.

In November 2014, Kolov reentered the United States and was apprehended by DHS. Kolov's prior removal order was reinstated, but he expressed fear about returning to Bulgaria. Consequently, he was interviewed in January 2015 to determine whether he reasonably feared persecution in Bulgaria. In this interview, Kolov indicated that he was a member of the "Roma" ethnic group. CA6 R. 7-2, Reasonable Fear Questions & Answers, Admin R. 578, 581. Based on his ethnicity, Kolov reported that he had been subjected to harassment, abuse, and physical violence in Bulgaria.

To illustrate his claim, Kolov recounted several incidents of such treatment. He recalled that government officials made derogatory comments about his ethnicity at the airport when he returned to Bulgaria in 2012. Kolov also reported that in September 2014, two men recognized him as Roma and attacked him while he waited in line to pay for breakfast. The assailants hit Kolov, causing him to fall to the ground, and the men then repeatedly kicked him. Kolov noted that police officers were standing nearby when the attack happened and did not intervene or render aid, so he did not report the incident because he believed that the police were not interested in protecting the Roma.

Kolov also described two incidents from June 2014. In the first, he was waiting at the bus station with other Roma, and a group of Bulgarians came over and said that "Roma's [sic] didn't deserve to be living." Id. at 580. Kolov ran, but one of the other Roma individuals was kicked. Kolov reported the incident to the authorities, but no police action followed. In the second incident, Kolov attempted to call a taxi while out shopping, but people at the taxi stand called him an ethnic slur and said that he had no right to shop at the store. Id. at 580. Kolov jumped into a taxi to escape. Kolov submitted a written police report about the interaction, indicating that he had been verbally harassed based on his race and believed that he would have been physically attacked if he had stayed at the scene. According to Kolov, the officer threw his written report into the garbage, saying that it was not enough to file a complaint.

At the end of the interview, the interviewer asked Kolov whether "there [is] any other information regarding your request for withholding of removal that we did not discuss?" Id. at 584. Kolov responded, "No." Id. Then, the asylum officer summarized the incidents that Kolov had described and asked Kolov whether the summary was correct. Kolov responded, "Yes." Id. at 585. Based on the information that Kolov provided, the asylum officer determined that he presented a reasonable fear of persecution or torture and referred his case to an immigration judge for withholding-only proceedings.

In the lead-up to his hearing, Kolov submitted a Form I-589, an application for withholding of removal, prepared with the help of counsel in May 2015.¹ Kolov's application claimed that he experienced "discrimination and mistreatment" in Bulgaria based on his "Roma ethnicity." CA6 7-2, Application for Asylum and for Withholding of Removal, Admin. R. 518. Kolov listed the same incidents that he described in his interview—mistreatment by Bulgarian immigration officials at the airport, harassment and threats at a bus stop, verbal abuse and threatening behavior while out shopping, and an assault while waiting to pay for breakfast. Kolov noted that the police did not respond to his complaints. He indicated that he feared continued mistreatment based on his Roma ethnicity if he returned to Bulgaria.

In a declaration attached to his application, Kolov provided additional details about the incidents of mistreatment identified in his interview and Form I-589. For the first time, however, Kolov also described an incident from November 2013. He explained that he and friends had left a restaurant when four Bulgarian men began harassing them for being Roma. One of the men spit on Kolov and tried to punch him, causing Kolov to trip and fall to the ground as he attempted to avoid being hit. While he was on the ground, the four men repeatedly kicked Kolov, causing Kolov's nose and lip to bleed. Kolov went to the emergency room but was told that his injuries did not require treatment. Despite Kolov's initial intent to do so, his friends convinced him not to report the incident to the police because they believed that the report would be ignored.

At his May 2019 hearing before the IJ, Kolov was represented by counsel and testified in English.² At the outset of his testimony, Kolov stated that he is Roma and suffered harm in Bulgaria due to his ethnicity. When probed about specific incidents of harm, Kolov described his interaction with immigration officials at the airport in 2012, the incident at the bus station in June 2014, and the attack in the breakfast line in September 2014.

Kolov also spoke about the November 2013 altercation—the one mentioned for the first time in his declaration—that began as he and friends were leaving a restaurant. His account matched his declaration; one of the assailants spit on him and tried to punch him, Kolov fell while trying to avoid getting hit, and the attackers repeatedly kicked him while he was on the ground. He went to the emergency room to seek care but was told that he did not have injuries serious enough to require treatment.

Additionally, Kolov recounted an incident from May 2012, claiming that he and his cousin were called derogatory names, pushed to the ground, and kicked. Kolov's nose began bleeding from the attack, so he went into a coffee shop to clean his face before returning home. The hearing was the first time that Kolov disclosed this incident; he had not mentioned it in his interview, Form I-589, or declaration.³

In its questioning of Kolov, the government asked why he did not mention the November 2013 attack in his interview or the May 2012 attack in his interview, application, or declaration. Kolov responded that he was nervous and under stress during his interview and that the progression of the conversation prevented him from fully disclosing every incident of persecution. As for his application and declaration, Kolov claimed that he could not include everything in his written materials. When pressed, he admitted that he did not know why he failed to mention these incidents.

In June 2019, the IJ denied Kolov's application for withholding of removal and CAT protection. The IJ found that Kolov credibly established his Roma ethnicity but was not credible regarding the alleged incidents of persecution. Specifically, the IJ found that "material information concerning [his] claim was missing from the reasonable fear interview, his statement, and the 589 that related to the May of 2012 incident and then the severity of the November 2013 incident was not discussed and explicated." CA6 R. 7-2, Decision of IJ, Admin. R. 40. Further, the IJ dismissed Kolov's explanation for the omissions, that he was nervous and under stress, as "not credible." Id. For his CAT claim, the IJ concluded that Kolov failed to show government acquiescence to torture.

Kolov appealed to the BIA, contesting the IJ's credibility finding. He argued that he testified consistently about the May 2012 and November 2013 incidents and that he had submitted corroborating evidence to support his testimony. He also noted that he prepared his declaration in English without assistance.

The BIA dismissed the appeal, finding no clear error in the IJ's adverse credibility determination. In sum, the BIA found that Kolov's omissions were substantially related to his claim and rendered him not credible. Like the IJ, the BIA believed that Kolov's omission of the May 2012 attack in his interview, Form I-589, and declaration in addition to the omission of the November 2013 attack in his interview undermined his credibility. The BIA also agreed with the IJ that Kolov's explanation for the omissions was not persuasive. Accordingly, the BIA upheld the IJ's denial of Kolov's claims based on his failure to present a credible claim for relief.

Kolov now petitions for review of the BIA's decision. Kolov argues that the IJ and BIA erred as a matter of law in their adverse credibility finding because his omissions did not directly contradict his later testimony.

II.

We first address our jurisdiction, and...