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Chakhov v. Lynch

United States Court of Appeals, Eighth Circuit

September 14, 2016

Gerakl Pavlovich Chakhov Petitioner
Loretta E. Lynch, Attorney General of the United States Respondent

          Submitted: May 16, 2016

         Petition for Review of an Order of the Board of Immigration Appeals

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          RILEY, Chief Judge.

         Gerakl Pavlovich Chakhov petitions for review of an order of the Board of Immigration Appeals (Board or BIA) affirming an immigration judge's (IJ) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition for review.

         I. BACKGROUND

         Russian national Chakhov entered the United States in September 2007 as a nonimmigrant visitor with authorization to remain in the United States until March 2008. Approximately one month after entering the United States, Chakhov applied for asylum, withholding of removal, and CAT protection by submitting a Form I-589 to the United States Department of Homeland Security (DHS). See 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.16(c). Chakhov, who was born in Georgia in 1964 and is of Greek and Russian descent, asserted he was afraid to return to Russia because he feared he would be subject to persecution by "skinhead-fascists" based on his non-Russian appearance.

         On June 23, 2008, an asylum officer found Chakhov ineligible for asylum, determining the inconsistencies between Chakhov's interview with the officer and his application for asylum undermined his credibility in material respects. DHS initiated removal proceedings against Chakhov in July 2008, ordering Chakhov to appear in immigration court. At the initial hearing before an IJ on February 12, 2009, Chakhov admitted to the DHS's factual allegations, conceded removability, and indicated he would pursue his applications for asylum, withholding of removal, and CAT relief.

         When Chakhov appeared before the IJ at another preliminary hearing in April 2010, he made 22 corrections to his Form I-589 and informed the IJ he wished to provide additional examples of mistreatment he suffered. The IJ told Chakhov he should submit documents proving his ethnicity and medical records, and Chakhov, through a Russian-language interpreter, told the IJ the medical records "exist somewhere but nobody is going to give then [sic] to me." Chakhov later submitted a supplemental affidavit dated June 16, 2010, that provided additional incidents of discrimination and abuse.

         The hearing was continued until January 4, 2011. Chakhov, again testifying by way of interpreter, described the discrimination he and his Russian-speaking family experienced while growing up in the nation of Georgia in the 1970s. Chakhov said that in seventh grade he got into a fight with a classmate who had called Chakhov, "Russian bigot, " and the classmate broke Chakhov's nose. In 1979, Chakhov moved to St. Petersburg and attended a medical technical college. After graduation, Chakhov was drafted into the Soviet Union Army, where he served from 1982 to 1984. Chakhov testified that in 1982, another soldier "lured [him] into a closed room" to "put [him] on [his] knees, " but when Chakhov refused, the soldier started throwing logs from a furnace woodpile at Chakhov.

         After finishing his military service, Chakhov eventually began working for the St. Petersburg police department, continuing for twelve and a half years. Chakhov claimed that while living in St. Petersburg, he was harmed and targeted because of his ethnicity. According to Chakhov, people were able to tell he was from Georgia due to his dark hair, crooked nose, and facial features that are supposedly distinctive to people from Georgia or the "southern Republics." For instance, Chakhov reported two men in 1988[1] "took [him] for somebody from Caucasus" and told him, "hey you, a black guy" and started beating him. Chakhov said in June 1990, he was approached on his way to work when someone yelled "hey you the black guy" and attacked and beat him, resulting in a concussion and kidney injury requiring Chakhov to spend one month in the hospital recovering from his injuries. Chakhov also described that in November of 1998 he was attacked by four people with leather jackets, boots, and shaved heads-one carried a baseball bat. Chakhov claimed he spent another month in the hospital recovering from that attack, which further injured his right kidney.

         Chakhov also testified about a visit to Georgia in 2000. He stated that while he was there, his bag was stolen and he was accused of being a Russian spy. Chakhov reported that he was detained, interrogated, and hit in the chest and in the face by Georgian police. When he returned to Russia, the police "threaten[ed] [him] with a machine gun" at the border and "extorted money" from Chakhov in exchange for permitting him to return home. Chakhov testified he was "very afraid" to return to Russia because of "skinheads, " "fascists, " and, "not to such [a] degree as the Nazis[, ] . . . police."

         On May 1, 2013, the IJ issued an order denying Chakhov's applications and ordering his removal. Taking into account "the rationality, internal consistency, and inherent persuasiveness" of Chakhov's claim, the IJ found Chakhov was "not credible based on inconsistencies and lack of corroborating evidence to support his claims of persecution in Russia." Chakhov appealed the decision to the Board, and the Board dismissed his appeal. Chakhov submitted a petition for review. On March 3, 2014, the government moved to remand the case "to clarify . . . to what extent an [IJ] may incorporate or weigh an asylum officer's adverse credibility determination when the application is renewed in removal proceedings." We granted the unopposed motion and remanded the order.

         On March 4, 2015, the Board issued its decision again dismissing Chakhov's petition. The Board determined the IJ had not deferred to the asylum officer's credibility determination and concluded the IJ had "independently considered the totality of the evidence to conclude that the respondent was not a credible witness." Chakhov timely petitioned for review. See 8 U.S.C. § 1252 (jurisdiction).

         II.DISCUS ...

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