                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0833n.06

                                           No. 11-3595

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
FARHAT GAZIEV;                                                                    Aug 02, 2012
KRISTINA MACENAVICIUTE,
                                                                            LEONARD GREEN, Clerk
       Petitioners,
                                                      ON PETITION FOR REVIEW OF AN
v.                                                    OR D E R O F T H E B O ARD O F
                                                      IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General,

       Respondent.

                                              /



BEFORE:        GUY and CLAY, Circuit Judges; HOOD, District Judge.*

       CLAY, Circuit Judge. Petitioner Farhat Gaziev and his derivative beneficiary Kristina

Macenaviciute appeal an order of the Board of Immigration Appeals (BIA) affirming the decision

of an immigration judge (IJ) to deny Gaziev’s application for asylum and Macenaviciute’s request

for withholding of removal as a derivative beneficiary. Petitioners also appeal the BIA’s rejection

of their claim that the IJ violated their Fifth Amendment due process rights by excluding their

proposed expert testimony at the removal hearing. For the reasons that follow, we AFFIRM.




       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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                                            No. 11-3595
                                         BACKGROUND

       On October 29, 1999, Gaziev, a native and citizen of Kyrgyzstan, was admitted to the United

States on a B-1 visitor visa and was authorized to remain until January 28, 2000. Gaziev never

departed. In 2006, he married Macenaviciute, a native and citizen of Lithuania, who was admitted

to the United States on November 18, 2002 as a nonimmigrant visitor. Unknown to the agency at

the time of her entry, Macenaviciute fraudulently used a visa issued to her sister to obtain admission

to the United States. Macenaviciute also overstayed her visa.

       The government eventually initiated removal proceedings against Gaziev for overstaying his

visitor visa, making him removable under the Immigration and Nationality Act (INA) § 237(a)(1)(B),

8 U.S.C. § 1227(a)(1)(B), and against Macenaviciute for fraudulently obtaining admission to the

United States, making her removable under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

Petitioners appeared before the IJ and conceded removability, but expressed their desire to file

applications for asylum and withholding of removal. Gaziev filed a Form I-589 application for

asylum and withholding of removal on the basis that he was persecuted and will continue to be

persecuted in his native Kyrgyzstan because of his ethnicity, religion, and political beliefs.

Macenaviciute sought asylum and withholding of removal only as a derivative beneficiary of Gaziev.

Petitioners requested that their hearing be continued in order to locate an expert who would testify

as to worsened country conditions in Kyrgyzstan. The IJ ordered that Petitioners present their

expert’s curriculum vitae (CV) prior to the next hearing. Petitioners secured their expert but failed

to comply with the IJ’s order, so the IJ refused to permit the expert’s testimony.




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       The following evidence was presented at the removal hearing: Petitioners live in Tennessee

with their two-year-old, United States citizen son. Gaziev’s ethnicity is Uzbek, and his religion is

Islam, placing him in a minority of 10–15% of the population in Kyrgyzstan. Uzbeks in Kyrgyzstan

have been discriminated against, harassed and threatened, robbed, and even killed. Uzbek

businessmen are particularly targeted because the Kyrgyzs (the majority ethnicity) retaliate against

successful minorities. Gaziev was a businessman, first owning a restaurant and later a sewing

company. Gaziev testified that in 1998 and 1999, Kyrgyz officers essentially stole his businesses

by forcing him to “sell” those businesses to high-ranking officials at an unfair price. Gaziev initially

pushed back, but the officers physically assaulted him four times, and he was hospitalized twice.

He was falsely charged with crimes in 1998 and 1999, but was released each time for lack of

evidence. He filed a complaint against the Kyrgyz government, but it too was dismissed for lack of

evidence.

       Gaziev also alleged that in 2004 he became a supporter of a political party called the Ar-

Namys Opposition Party, which is purportedly more sympathetic to Uzbeks. Gaziev has attended

several of the party’s conferences in the United States, has financially supported the party, and has

written online articles in support of the party, albeit signing only his initials or first name. Gaziev

admitted, however, that he has never formally joined the party.

       Petitioners also presented evidence of the recent conditions in Kyrgyzstan. In 2004,

Kurmanbek Bakiyev emerged as the country’s de facto dictator.1 Under Bakiyev, government

hostility to Uzbeks escalated. In 2005, there was a massacre in Andijan, Uzbekistan, which forced


       1
           The government changed hands in December 2011.

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                                           No. 11-3595
Uzbekistan citizens to flee into neighboring Kyrgyzstan. The Kyrgyz authorities prevented the entry

of most refugees. In 2007, many Uzbekistan refugees that had been able to cross the border were

returned to Uzbekistan by the Kyrgyz government in violation of a United Nations agreement.

According to Petitioners, these events made the situation of Uzbeks in Kyrgyzstan even worse.

       Following the presentation of this evidence, the IJ found Gaziev to be credible and

sympathized with him as “a very sincere person” who was persecuted “because of his ethnicity.”

Nonetheless, the IJ found that Gaziev’s asylum application was untimely and that he had waited an

unreasonable length of time to file the application following the events that caused the changed

country conditions. The IJ denied Gaziev asylum and, consequently, denied Macenaviciute’s request

for asylum as a derivative beneficiary. However, the IJ granted Gaziev’s application for withholding

of removal, determining that Gaziev could not be removed to Kyrgyzstan on the basis of the

persecution that he would suffer there as an ethnic Uzbek. The IJ denied Macenaviciute withholding

of removal because she had not filed her own I-589 application and because the immigration

regulations do not permit derivative beneficiary status for withholding of removal. Ultimately, the

IJ ordered Gaziev removed to any country other than Kyrgyzstan and ordered Macenaviciute

removed to Lithuania. Petitioners appealed the IJ’s decision, and the BIA affirmed.

                                          DISCUSSION

       As an initial matter, we note that it is unclear whether Petitioners request our review of the

IJ’s and BIA’s decision to deny Gaziev’s asylum application as untimely. To the extent that

Petitioners do so, our jurisdiction is explicitly precluded by Congress. 8 U.S.C. § 1158(a)(3). Under

§ 1158(a), we may not review any determination that an asylum application is untimely or that the


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applicant has failed to prove changed country conditions which would excuse an untimely

application. See Jungic v. Holder, No. 10-3056, 2012 U.S. App. LEXIS 615, at *9–10 (6th Cir. Jan.

10, 2012); Vincent v. Holder, 632 F.3d 351, 353 (6th Cir. 2011); Almuhtaseb v. Gonzales, 453 F.3d

743, 748 (6th Cir. 2006). Of course, the limitation on our jurisdiction does not extend to

constitutional challenges or matters of statutory construction, Vincent, 632 F.3d at 353, so we may

consider Petitioners’ remaining claims.

       A.      Macenaviciute’s Derivative Application for Withholding of Removal

       Petitioners first argue that the BIA erred in denying Macenaviciute derivative beneficiary

status to Gaziev’s application for withholding of removal, because the BIA wrongly interpreted 8

C.F.R. § 1208.16(e) as providing no basis for withholding of removal to derivative beneficiaries.

This Court “grant[s] substantial deference to the BIA’s interpretation of the INA and accompanying

regulations.” Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007) (citing Sad v. INS, 246 F.3d

811, 814 (6th Cir. 2001)). “The BIA’s interpretation of the statute and regulations will be upheld

unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Morgan,

507 F.3d at 1057 (citation omitted).

       The pertinent regulation provides:

       Reconsideration of discretionary denial of asylum. In the event that an applicant is
       denied asylum solely in the exercise of discretion, and the applicant is subsequently
       granted withholding of deportation or removal under this section, thereby effectively
       precluding admission of the applicant’s spouse or minor children following to join
       him or her, the denial of asylum shall be reconsidered. Factors to be considered will
       include the reasons for the denial and reasonable alternatives available to the
       applicant such as reunification with his or her spouse or minor children in a third
       country.



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8 C.F.R. § 1208.16(e). Both the IJ and the BIA reasonably interpreted § 1208.16(e) to apply only

to the reconsideration of an asylum application with derivative beneficiaries. Because Petitioners

do not seek reconsideration of Gaziev’s asylum application, but rather permission for Macenaviciute

to obtain derivative beneficiary status to Gaziev’s application for withholding of removal, the

regulation does not apply. Of course, the plain language of § 1208.16(e) does not create a derivative

beneficiary status to applications for withholding of removal, so the regulation also does not provide

the mechanism for relief that Petitioners seek. See Castellano-Chacon v. INS, 341 F.3d 533, 545

(6th Cir. 2003); Arif v. Mukasey, 509 F.3d 677, 682 (5th Cir. 2007); Matter of A–K–, 24 I. & N. Dec.

275, 279 (BIA 2007) (noting that the INA “does not permit derivative withholding of removal under

any circumstances”). More importantly, the IJ’s reconsideration of an asylum application is

permitted only where that application was denied “solely” in the IJ’s “exercise of discretion.” 8

C.F.R. § 1208.16(e). In this case, however, the IJ repeatedly and explicitly emphasized that Gaziev’s

asylum application “is not being denied in the exercise of discretion” but “for a legal reason.”

Petitioners have failed to establish that the agency’s interpretation of the regulation was arbitrary,

capricious, or manifestly contrary to its plain language. Accordingly, we find no error with the

BIA’s decision.

        B.      Petitioners’ Due Process Claim

        We review de novo “an alleged due-process violation based upon the manner in which an IJ

conducts a deportation hearing.” Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998); Vasha v.

Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). The Due Process Clause of the Fifth Amendment

provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of


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                                             No. 11-3595
law.” U.S. Const. amend. V. This Court has held that due process entitles an alien to a full and fair

removal proceeding. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). “[R]eviewing

an alleged due process violation is a two-step inquiry: first, whether there was a defect in the removal

proceeding; and second, whether the alien was prejudiced because of it.” Vasha, 410 F.3d at 872.

We find that Petitioners have failed to meet their burden under either inquiry.

        Petitioners argue that the IJ’s refusal to permit their expert testimony constituted a defect in

their removal proceedings. “In immigration proceedings, an applicant is ‘entitled to a reasonable

opportunity to examine the evidence against him, to present evidence on his own behalf, and to

cross-examine witnesses presented by the Government.’” Singh v. Ashcroft, 398 F.3d 396, 406 (6th

Cir. 2005) (citing Mikhailevitch, 146 F.3d at 391) (internal quotation marks omitted). However, the

Federal Rules of Evidence do not apply to immigration proceedings, and the IJ has “broad

discretion” in conducting its hearings. Singh, 398 F.3d at 406; Ahmed v. Gonzales, 398 F.3d 722,

725 (6th Cir. 2005). Although Petitioners admit that they violated the IJ’s order directing them to

provide the court and the government with their expert’s CV prior to the hearing, they argue that the

IJ abused its discretion by finding that the government would be unable to conduct effective cross-

examination without reviewing the CV prior to the hearing. We disagree. This Court has previously

upheld an IJ’s decision to exclude evidence where the petitioners did not comply with filing

deadlines and did not show good cause for their mistake. See Hassan v. Gonzales, 403 F.3d 429,

436 (6th Cir. 2005); see also Singh, 398 F.3d at 406–407 (finding no due process violation where

the IJ excluded expert witness testimony because the petitioner did not provide appropriate

documentation in support of the expert in advance of the removal hearing). Petitioners here failed


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                                             No. 11-3595
to comply with the IJ’s order and have not provided any excuse for their failure to do so. The IJ did

not abuse its broad discretion in conducting its removal proceedings when it set a reasonable

deadline for submitting evidence and enforced that deadline. Id.

        Moreover, even if the IJ’s decision was in error, Petitioners were not prejudiced by that

decision. Al-Ghorbani v. Holder, 585 F.3d 980, 992–93 (6th Cir. 2009) (“[A]n alien must

demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially affected

the outcome of the alien’s case.”); Huicochea-Gomez, 237 F.3d at 699 (“To constitute fundamental

unfairness . . . a defect in the removal proceedings must have been such as might have led to a denial

of justice.” (internal quotation marks omitted)). Gaziev’s asylum application was denied because

it was untimely. He argues that his expert would have shown changed country conditions necessary

to excuse the late filing. However, despite the IJ’s refusal to permit the expert’s testimony, the IJ

acknowledged the new circumstances presented by Petitioners: the Kyrgyz government coup in 2004,

Gaziev’s minor support of the Ar-Namys party, the publication of Gaziev’s articles in 2004 and

2005, the 2005 Andijan Massacre, and the Uzbekistan refugee incident in 2007. The IJ nonetheless

decided that most of these circumstances were not directly applicable to Petitioners’ need for asylum,

and “[i]n any event, those events that [Gaziev] has described still took place more than a reasonable

time prior to his filing for asylum.” We thus find it clear that the IJ denied the asylum application

“as a matter of law, due to the lateness of [Gaziev’s] application,” even accepting Petitioners’

changed circumstances argument. The proposed expert would not have altered this determination.

Without a defect or resulting prejudice, Petitioners’ due process claim fails.




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                                No. 11-3595
                              CONCLUSION

For the reasons discussed above, we AFFIRM the BIA’s order.




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