Muminov v. Garland

1

Sanjar Muminov, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent.

No. 20-60527

United States Court of Appeals, Fifth Circuit

April 1, 2022

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 665 663

Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit Judges.

PER CURIAM. ^[*]

Sanjar Muminov, a native and citizen of Uzbekistan, challenges an order by the Board of Immigration Appeals (BIA) rejecting his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We DENY the petition for review.

I

Muminov entered the United States without authorization in 2019. The Department of Homeland Security (DHS) issued Muminov a Notice to Appear charging that he was subject to removal. Muminov expressed concerns about removal and was referred to an immigration officer for a credible-fear interview. Muminov then appeared before an immigration judge (IJ) for a hearing. He conceded his removability and applied for asylum withholding of removal, and CAT relief.

During the hearing, Muminov testified about a series of attacks and harassment that he allegedly endured. While living in Uzbekistan, in 2008, Muminov said that he was assaulted by his wife's ex-husband, Sanjar Norimkulov, and two of Norimkulov's friends. Muminov claimed that Norimkulov is a prosecutor and that his two friends also worked in law enforcement. The attackers allegedly told Muminov that he should not have married his wife. Muminov said that they beat him and stabbed him in the back with a broken bottle. A bystander called the police, who allegedly released the attackers but imprisoned Muminov for three days.

After the attack, Muminov testified, he fled to Moscow with his wife and lived there for eight years. During that time, the couple had two children. Muminov allegedly paid for a work permit and started a delivery business with his wife. Muminov said that it was difficult to live in Russia as an Asian man. He claimed that he could not operate his business in his own name but rather relied on two Russian business partners, who allegedly stole profits from the business, beat him up twice and told him to leave Moscow. He said that he was required to pay a recurring fee to the police to live in Moscow.

Muminov also testified that he had been a victim of crime in Russia. He claimed that he had two cars stolen while he was in Moscow. When he complained about the theft, the police allegedly investigated him. He reported that Russian nationalists attacked him in the subway on two occasions. Muminov claimed that police witnessed one of the attacks and ignored it. According to Muminov, these responses were characteristic of police discrimination against Asian people.

In 2016, Muminov testified, he and his family returned to Uzbekistan because of their difficulties in Russia and because his mother was ill. Soon thereafter, Muminov was summoned to a police station, where an inspector allegedly confiscated his passport and said he would need to pay to get it back. Muminov testified that he and four friends protested the government's unlawful confiscation of passports outside a ministry office. After learning that Muminov was under investigation, police allegedly beat him and imprisoned him overnight. Muminov said that the police released him with a warning that he would regret any future protests. Muminov did not describe this protest or the beating in his credible-fear interview.

Muminov testified that Norimkulov continued to threaten him. In 2017 Muminov said, he tried to file a complaint with the police against Norimkulov and Norimkulov's uncle, a government official who Muminov believed to be protecting Norimkulov and promoting corruption. The police allegedly laughed at Muminov, forced him to take off his clothes, put a bag over his head so he could not breathe, and beat his arms and legs with batons. Muminov testified that he was imprisoned for three days. During his credible-fear interview, Muminov had not clearly indicated that his complaint pertained to government corruption. He had said his complaint "was about the ex-husband not leaving me alone and that the police would always take his side and not mine."

After this incident, Muminov testified, he was again called to a police station. The officers allegedly told him that he would be summoned in the future and needed to remain in the city. As Muminov left the station, he said, he was confronted by Norimkulov and his friends, who beat him up again. The attackers allegedly told Muminov that they knew he had tried to report Norimkulov's uncle and that Muminov was a traitor who had no right to live in Uzbekistan. Upon seeing his injuries, Muminov's family called an ambulance. The hospital determined that Muminov had a concussion and facial, eye, and ear wounds. Medical records show that Muminov also had depression and had attempted suicide.

Muminov testified that his car was subsequently vandalized. He claimed that the perpetrators left a sign on the car that said, "That's how we'll break you." Following the vandalism, in February 2018, Muminov allegedly went to the police, who interrogated him. Muminov testified that an officer put a gun to his head and told him to leave Uzbekistan. Muminov had not described the vandalism or the subsequent encounter with police in his credible-fear interview.

In March 2018, Muminov said, he fled to Moscow, where he lived for ten months. While in Moscow, he allegedly attempted to restart his business but left for the United States after his former business partners discovered that he had returned to Russia. Muminov testified that he could not obtain Russian citizenship and feared living in Russia.

The IJ considered Muminov's testimony at the hearing partially credible, given his truthful demeanor and the general consistency between his statements and documentary evidence. But she rejected his testimony about harm he had suffered on political grounds. The IJ deemed this testimony inconsistent with Muminov's statements in his credible-fear interview. Nor did she find any other evidence to corroborate Muminov's testimony that he was attacked for protesting government corruption.

The IJ denied all of Muminov's claims for relief. She held that Muminov was ineligible for asylum because he had firmly resettled in Russia.

She also rejected Muminov's claim for withholding of removal based on political opinion. Having discredited Muminov's testimony that he was attacked for protesting government corruption, the IJ found no evidence that Muminov had been persecuted on political grounds. She concluded that Muminov suffered harm because of his personal dispute with Norimkulov over Muminov's wife. The IJ denied the CAT claim because the attacks by the government, even if they all had occurred, were not severe enough to constitute torture and because the attacks by Norimkulov were not done under official sanction.

Muminov appealed to the BIA, which adopted the IJ's decision and supplemented its reasoning. The BIA agreed that Muminov's testimony about the harm he suffered on political grounds was not credible because it was inconsistent with his statements in his credible-fear interview. During the interview, the BIA noted, Muminov had not described any harm unconnected to Norimkulov, with whom his conflict was merely personal.

The BIA affirmed the denial of each claim for relief. On the asylum claim, the BIA held that Muminov had firmly resettled in Russia. On the claim for withholding of removal, the BIA agreed that Muminov had not credibly established that he was attacked on political grounds. On the CAT claim, the BIA determined that Muminov had waived his application because he had not meaningfully challenged the IJ's denial of CAT relief.

Muminov filed a timely petition for review by this court. His appeal raises two issues. First, Muminov argues that the IJ and BIA erred in discrediting his testimony that he was attacked for protesting corruption. Second, Muminov argues that the IJ and BIA erred in determining that Muminov had firmly resettled in Russia.

II

"We review the BIA's decision, and we review the IJ's decision only to the extent it influenced the BIA."^[1] "However, this court may review the IJ's findings and conclusions if the BIA adopts them."^[2] Because the BIA adopted the IJ's decision, we have authority to review it too.^[3]

We review an immigration court's factual findings for substantial evidence.^[4] "On substantial-evidence review factual findings are not reversed unless the petitioner demonstrates 'that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.'"^[5]

A

We first consider the adverse credibility determination rejecting Muminov's testimony that he was attacked on political grounds. "Credibility determinations are factual findings that are reviewed for substantial evidence."^[6] To meet that standard, credibility determinations "must be supported by specific and cogent reasons derived from the record."^[7] However "the reasons provided need not 'go[] to the heart of the applicant's claim.'"^[8] Rather, "an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the 'totality of the circumstances' establishes that an asylum applicant is not credible."^[9] "This includes inconsistencies and omissions that arise when comparing an applicant's statements in a credible-fear interview to his testimony at an immigration hearing."^[10]

Such inconsistencies and omissions regarding Muminov's political activities support the adverse credibility determination here. In his credible-fear interview, Muminov did not describe his alleged 2016 protest of the confiscation...