         09-2666-ag
         Melnikov v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A088 427 021
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United            States Court of Appeals
 2       for the Second Circuit, held at the            Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl            Street, in the City of
 4       New York, on the 31 st day of August,           two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JON O. NEWMAN,
10                JOSÉ A. CABRANES,
11                     Circuit Judges.
12       _______________________________________
13
14       ALEXANDER ALEXEYEVICH MELNIKOV,
15                Petitioner,
16
17                            v.                                09-2666-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                Alexander J. Segal, New York, New
25                                      York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General, Civil Division; Jennifer
29                                      Paisner Williams, Senior Litigation
30                                      Counsel; Lindsay E. Williams,
31                                      Attorney, Office of Immigration
32                                      Litigation, United States Department
33                                      of Justice, Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5         Alexander Alexeyevich Melnikov, a native of the former

6    U.S.S.R. and a citizen of Uzbekistan, seeks review of a June

7    3, 2009, order of the BIA, affirming the February 3, 2009,

8    decision of Immigration Judge (“IJ”) Alan A. Vomacka, which

9    denied his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).          In

11   re Alexander Alexeyevich Melnikov, No. A088 427 021 (B.I.A.

12   June 3, 2009), aff’g No. A088 427 021 (Immig. Ct. N.Y. City

13   Feb. 3, 2009).    We assume the parties’ familiarity with the

14   underlying facts and procedural history.

15        In the circumstances of this case, we review both the

16   BIA’s and the IJ’s decisions.       See Chen v. Gonzales, 417

17   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

18   review are well-established.    See 8 U.S.C.

19   § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

20   95 (2d Cir. 2008).

21   I.       Due Process Claim

22        Melnikov asserts that his due process rights were

23   violated because the IJ was biased and failed to conduct a

24   proper hearing.    However, the record is without support for

                                     2
1    his contention.    Contrary to Melnikov’s arguments, the IJ

2    gave him an opportunity to litigate the timeliness of his

3    application, and did not erroneously deny Melnikov’s

4    application on his failure to submit biometrics in a timely

5    manner.   The IJ properly referenced regulations that require

6    the completion of biometric identification prior to any

7    grant of relief, see 8 C.F.R. § 1003.47(c), and went on to

8    consider Melnikov’s application and deny it on the merits.

9    Melnikov also contends that the IJ improperly considered his

10   mother’s asylum application and relied upon her actions in

11   the courtroom in denying his claim for relief.     However, it

12   was Melnikov who put his mother’s asylum application into

13   contention; and insofar as his mother’s actions in the

14   courtroom had bearing on Melnikov’s demeanor, the IJ could

15   properly consider them in making the credibility

16   determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii) (demeanor

17   is a relevant consideration in a credibility determination).

18   Finally, to the extent Melnikov contends he was denied due

19   process by the IJ’s speculation about the government of

20   Uzbekistan, the IJ properly considered the evidence before

21   him and made reasonable implausibility findings supported by

22   the record.   See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.

23   2007).


                                    3
1          Accordingly, the IJ afforded Melnikov an opportunity to

2    be heard at a meaningful time and in a meaningful manner

3    and, thus, did not violate his due process rights.     Burger

4    v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).

5    II.   Adverse Credibility Determination

6          Substantial evidence supports the IJ’s adverse

7    credibility determination, see Corovic, 519 F.3d at 95,

8    including: (1) inconsistencies in Melnikov’s accounts of the

9    past harm he suffered at the hands of the police in

10   Uzbekistan; (2) the omission from his asylum application of

11   allegations that his father was interrogated and physically

12   harmed by the police and that Melnikov was injured after a

13   beating by the police; and (3) the implausibility of several

14   aspects of his claim, including the allegation that police

15   were continuing to look for him in Uzbekistan over eight

16   years after he left the country with the government’s

17   permission.   See 8 U.S.C. § 1158(b)(1)(B)(iii).   The IJ did

18   not err in declining to credit the explanations Melnikov

19   offered for these discrepancies.   Majidi v. Gonzales, 430

20   F.3d 77, 81 (2d Cir. 2005).   Having called his credibility

21   into question, the IJ reasonably considered the lack of

22   corroborating evidence available to rehabilitate Melnikov’s



                                   4
1    testimony.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

2    F.3d 315, 341 (2d Cir. 2006).

3        Because the only evidence of a threat to Melnikov’s

4    life or freedom depended on his credibility, the IJ’s

5    adverse credibility determination was fatal to his

6    application for both withholding of removal and CAT relief.

7    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).

8        For the foregoing reasons, the petition for review is

9    DENIED.   As we have completed our review, any stay of

10   removal that the Court previously granted in this petition

11   is VACATED, and any pending motion for a stay of removal in

12   this petition is DISMISSED as moot. Any pending request for

13   oral argument in this petition is DENIED in accordance with

14   Federal Rule of Appellate Procedure 34(a)(2), and Second

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
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