                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2009

Alan Bagaev v. n
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1718




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1718
                                      ___________

                                   ALAN BAGAEV,
                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A98-560-252)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 18, 2009

            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                            (Opinion filed: March 18, 2009)
                                    ___________

                                       OPINION
                                      ___________

PER CURIAM

      Alan Bagaev seeks review of a final order of the Board of Immigration Appeals

(“BIA”) affirming a decision of the Immigration Judge (“IJ”) denying his applications for

asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). For the following reasons, we will deny Bagaev’s petition for review.

                                             I.

       Bagaev is a Russian citizen of Ossetian ethnicity who lived in the Russian

Republic of North Ossetia-Alania. On December 31, 2004, Bagaev entered the United

States at Miami International Airport, where he was apprehended and questioned by

immigration authorities. He was placed in a detention center, and on January 12, 2005, an

asylum officer conducted a credible fear interview. A Russian-language interpreter was

present at the interview and an attorney represented Bagaev via telephone.

       According to the materials prepared by the asylum officer who conducted the

credible fear interview, Bagaev claimed that he was mistreated and threatened by

Chechen terrorists because he helped rescue hostages during the 2004 Beslan school

hostage tragedy.1 He alleged that, in October 2004, three masked individuals bearing

firearms and driving a black car blocked his automobile and shot at him as he drove away.

The interview report states that Bagaev feared that terrorists “targeted [him] for revenge”

and tried to kill him because he helped rescue hostages. The asylum officer determined

that Bagaev established a credible fear of persecution, and Bagaev was released from




       1
                On September 1, 2004, Chechen terrorists seized an elementary school in
Beslan, North Ossetia-Alania, and took hostage more than one-thousand people. Over the
next three days, the terrorists killed many of the hostages. On September 3rd, Russian
military and security forces raided the school. The government’s assault ended the
hostage situation but resulted in the deaths of hundreds of hostages and (apparently) all of
the terrorists except for one, who was subsequently tried and convicted.

                                             2
detention on parole.

       On October 28, 2005, Bagaev, represented by a new attorney, filed an application

for asylum, withholding of removal, and CAT relief that was supported by a signed

declaration. In his signed declaration and at his subsequent merits hearing, Bagaev

alleged persecution not by Chechen terrorists but by the Russian and North Ossetian

governments due to: (1) his Ossetian nationality; (2) his political activities against the

Russian government and the Russian-backed president of the Republic of North Ossetia-

Alania; (3) his attempt to resolve the Beslan school crisis through a mediator and to

prevent the Russian assault on the school by physically blocking a Russian tank; and (4)

his participation in protests and other activities criticizing the manner in which the

government handled the hostage crisis.

       In an October 26, 2006 written decision, the IJ found Bagaev to be not credible

and denied all requested relief. On January 31, 2008, the BIA affirmed the IJ’s decision

without opinion.

                                              II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA affirmed

the IJ’s decision without opinion, we review the IJ’s opinion and scrutinize its reasoning.

Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003). We review the IJ’s findings of fact

under the substantial evidence standard and will uphold the determinations “unless the

evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,



                                              3
333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). Because Bagaev filed his

application for asylum and related relief after May 11, 2005, the REAL ID Act applies to

this case. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, § 106.

       Bagaev first challenges the IJ’s adverse credibility determination. Comparing

Bagaev’s account from the credible fear interview with his subsequent claims of

persecution, the IJ concluded that Bagaev’s “fundamental story changed over time from

fear of [Chechen] terrorists to fear of the Russian government.” Bagaev argues that the IJ

inappropriately relied on inconsistencies between his credible fear interview, asylum

application, and testimony at the hearing. According to Bagaev, his credible fear

interview was as unreliable as a typical airport interview, which we have found is not a

valid ground upon which to base an adverse credibility determination. See In re

Balasubramanrim, 143 F.3d 157, 162-64 (3d Cir. 1998); cf. 8 U.S.C. § 1158(b)(1)(B)(iii).

       Bagaev relies on Fiadjoe v. Attorney General, 411 F.3d 135 (3d Cir. 2005), to

support his contention that his interview statements should not be used to support an

adverse credibility finding. We determined that the particular circumstances in Fiadjoe

made irrelevant possible inconsistencies between the petitioner’s asylum interview and

her subsequent testimony. 411 F.3d at 158-60. Although Bagaev emphasizes that, at the

time of his asylum interview, he was in detention and had not previously consulted with

his attorney, the circumstances here do not warrant a finding similar to that made in




                                             4
Fiadjoe.2 As the IJ recognized, Bagaev’s credible fear interview was conducted under

oath by a trained asylum officer more than a week after Bagaev’s arrival in the United

States. The interview itself was rather extensive, a Russian-language interpreter was

used, and Bagaev had the benefit of legal representation. While Bagaev was

understandably nervous, the interview documentation indicates that the asylum officer

expressly informed Bagaev that he was going to ask him questions about “why [he]

fear[ed] returning to [his] country,” and that his answers would not be disclosed to the

Russian government barring exceptional circumstances. The documentation further

stated that the asylum officer read a summary of the terrorist-based claim back to Bagaev,

who confirmed its accuracy.

       Bagaev nonetheless argues that his interview statements regarding the terrorist-

based claim of persecution were mistranslated. His asylum declaration stated that “some

of my statements were not properly translated with respect to alleged statements of mine

that I believed they were terrorists who took revenge against me for helping women and

children in Beslan,” and that he actually told the asylum officer that he “had no idea

whether they were terrorists or Russian soldiers.” The IJ properly rejected Bagaev’s




       2
              The result in Fiadjoe was not so much a commentary on the reliability of
asylum interviews as it was a recognition that the petitioner’s condition and her particular
asylum claim made her interview unreliable. The petitioner in Fiadjoe was diagnosed
with severe post traumatic stress disorder, was still in a “state of shock” at her asylum
interview, and was faced with revealing the “shameful and taboo incidents of incestuous
rape” to a male asylum officer. 411 F.3d at 157-161.

                                             5
assertion of an “interpreter problem” as “not reasonable.” Bagaev testified that he did not

request an Ossetian interpreter at the credible fear interview because he understood

Russian. Furthermore, the interview documentation states that the “interpreter and

applicant confirmed that they understood each other.” For these reasons, the IJ properly

relied on inconsistencies between Bagaev’s asylum interview, application, and testimony

to make an adverse credibility finding.3 See Dia, 353 F.3d at 249 (stating that

inconsistent statements may support an adverse credibility finding).

       Bagaev also asserts that the IJ erred by concluding that the conditions in Russia

and Ossetia were inconsistent with his claim that the Russian government targeted him,

and will persecute him if he returns to North Ossetia-Alania, for witnessing and

criticizing its management of the Beslan hostage crisis. The record does not compel a

conclusion contrary to the IJ’s decision on this point. The IJ cited to documents in the

record that stated that individuals and organizations have condemned the government’s

handling of the crisis and that the government has publicly admitted to making mistakes.

Bagaev, on the other hand, points to other documents, including a 2004 U.S. State

Department report, indicating that journalists have been murdered for criticizing

government policies, and that the Russian government controlled the press coverage of



       3
               To the extent that Bagaev argues that the IJ’s reliance on purportedly
“minor inconsistencies” was improper, we note that, under the REAL ID Act, an adverse
credibility determination may be based on inconsistencies and other factors without
regard to whether they go to the heart of the applicant’s case . See 8 U.S.C. §
1158(b)(1)(B)(iii).

                                             6
the tragedy and detained a number of journalists. Although parts of the record support

Bagaev’s claim, the IJ’s decision regarding country conditions in Russia and North

Ossetia-Alania is supported by substantial evidence. See Zubeda, 333 F.3d at 471.

      For the foregoing reasons, we will deny Bagaev’s petition for review.




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