         13-140
         Kudishev v. Holder
                                                                                      BIA
                                                                                   Page, IJ
                                                                              A078 521 004
                                   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 for
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 27th
 4       day of February, two thousand fourteen.
 5
 6       PRESENT:
 7                            AMALYA L. KEARSE,
 8                            RALPH K. WINTER,
 9                            CHRISTOPHER F. DRONEY,
10                                 Circuit Judges.
11
12
13       GENNADY KUDISHEV, AKA GENNADI
14       KUDISHEV, AKA GENNADY GAVRILETS,
15       AKA GENNADIY ANDREYEVICH
16       GAVRILETS,
17                  Petitioner,
18
19                            v.                           13-140
20
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL,
23                 Respondent.
24
25
26       FOR PETITIONER:                    Alexander G. Rojas, Barst Mukamal-
27                                          Kleiner, LLP, New York, N.Y.
28
29       FOR RESPONDENT:                    Stuart F. Delery, Assistant Attorney
30                                          General; Mary Jane Candaux, Assistant
 1                            Branch Director; Matthew A. Connelly,
 2                            Trial Attorney, Office of Immigration
 3                            Litigation, United States Department of
 4                            Justice, Washington, D.C.

 5        UPON DUE CONSIDERATION of this petition for review of a

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

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 8   DISMISSED in part and DENIED in part.

 9        Gennady Kudishev, a native of Uzbekistan and citizen of the

10   Russian Federation, seeks review of a December 20, 2012, decision

11   of the BIA, affirming the December 14, 2010, decision of

12   Immigration Judge (“IJ”) Alan Page denying his applications for a

13   waiver of inadmissibility under section 212(i) of the Immigration

14   and Nationality Act (“INA”), and for adjustment of status.       In re

15   Gennady Kudishev, No. A078 521 004 (B.I.A. Dec. 20, 2012), aff’g

16   No. A078 521 004 (Immig. Ct. N.Y. City Dec. 14, 2010).       We assume

17   the parties’ familiarity with the underlying facts and procedural

18   history in this case.

19        When the BIA’s decision affirms the IJ’s holding but

20   modifies or supplements it, we consider the decision of the IJ as

21   modified or supplemented by the BIA.    See Xue Hong Yang v. U.S.

22   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

23   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

24   standards of review are well-established.     See 8 U.S.C.

25   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

26   513 (2d Cir. 2009).

                                    2
 1   I.   Inadmissibility

 2        Kudishev first challenges the agency’s determination that he

 3   is inadmissible based on its finding that he willfully concealed

 4   a material fact when applying for lawful permanent resident

 5   (“LPR”) status.    Willful misrepresentation or concealment of a

 6   material fact to procure an immigration benefit renders an alien

 7   inadmissible.   8 U.S.C. § 1182(a)(6)(C)(i).   A fact is material

 8   if it “has a natural tendency to influence or was capable of

 9   influencing[] the decision of the decisionmaking body to which it

10   was addressed.”    Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.

11   2005) (internal quotation marks omitted).

12        Here, the IJ reasonably found that when Kudishev applied for

13   adjustment of status in 2000, he knew of and thus willfully

14   concealed the fact that he had been charged in 1998 with the

15   murder of his former business partner.   Kudishev indicated in his

16   application that he had never been charged with or indicted for

17   violating a law.   However, as the IJ reasonably found, Kudishev

18   had a number of opportunities prior to applying for adjustment to

19   discover that a warrant for his arrest had issued on November 11,

20   1998: when speaking about the murder with his ex-wife, who was

21   present when police searched his apartment and who testified at

22   the trial of his alleged co-conspirators, and speaking with his

23   business associates and adult children in Russia after his

24   arrival in the United States. Based on this circumstantial


                                      3
 1   evidence, the BIA reasonably found that Kudishev in fact knew

 2   about the charge and sought to evade capture given that he

 3   departed Russia shortly before the search and arrest warrants

 4   were issued, married a U.S. citizen and adopted her surname, and

 5   touted his innocence in a handwritten letter to a Russian court

 6   included with a 2003 petition filed by his purported attorney.

 7   Substantial evidence therefore supports the IJ’s knowledge and

 8   willfulness findings.   See 8 U.S.C. § 1252(b)(4)(B)

 9   (“administrative findings of fact are conclusive unless any

10   reasonable adjudicator would be compelled to conclude to the

11   contrary”); see also Yanqin Weng, 562 F.3d at 513 (providing that

12   factual findings must be supported by substantial evidence).

13        As to materiality, the IJ did not err in finding that

14   Kudishev’s murder charge would have a “natural tendency” to

15   influence the adjudication of his adjustment application.

16   Adjustment of status is ultimately a discretionary form of

17   relief.   See 8 U.S.C. § 1255(a).   In deciding how to exercise

18   discretion, the agency may weigh adverse factors, including an

19   applicant’s conduct that may or may not have led to a conviction.

20   See Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010).

21   Accordingly, Kudishev’s murder charge was capable of influencing

22   the agency’s discretionary determination and was, thus, material.

23   See Monter, 430 F.3d at 558.

24        Once the Government has established a willful concealment of

25   material fact, it is presumed that the benefit sought would not
                                     4
 1   have been granted but for the concealment.    See id.    The burden

 2   then shifts to the applicant to demonstrate otherwise.      See id.

 3   Here, because Kudishev did not proffer any evidence challenging

 4   the proof of his indictment or evidence that he would, despite

 5   the charge, be granted a favorable exercise of discretion, he did

 6   not rebut the presumption that he would not have procured LPR

 7   status but for concealing the charge.   The IJ therefore did not

 8   err in finding Kudishev inadmissible and ineligible for

 9   adjustment of status.   See id.; 8 U.S.C. §§ 1182(a)(6)(C)(i),

10   1255(a).

11   II.   Waiver of Inadmissibility

12         Although we lack jurisdiction to review the IJ’s

13   discretionary denial of Kudishev’s waiver application, we may

14   review constitutional claims and questions of law.      See 8 U.S.C.

15   §§ 1182(i)(2), 1252(a)(2)(B), (D).    Kudishev raises

16   constitutional claims by arguing that the IJ denied him due

17   process, but his arguments are frivolous and thus insufficient to

18   invoke our jurisdiction.   See Barco-Sandoval v. Gonzales, 516

19   F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction to review any

20   legal argument that is so insubstantial and frivolous as to be

21   inadequate to invoke federal-question jurisdiction.”).

22         Contrary to Kudishev’s argument, the IJ was not required to

23   reject the Government’s unauthenticated evidentiary submissions

24   simply because they were photographic copies.   Because the


                                       5
 1   Federal Rules of Evidence do not apply in immigration

 2   proceedings, the admission of evidence need only satisfy due

 3   process of law.     See Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir.

 4   2008).    Due process requires that evidence be probative and its

 5   use fundamentally fair.     See id.   The Government submitted the

 6   search and arrest warrants and sentencing report from the Russian

 7   prosecutor’s office and INTERPOL with translations and the

 8   mailings’ respective cover letters, thereby establishing a chain

 9   of custody and reliability.     Accordingly, for the limited purpose

10   of establishing that Kudishev had been charged with murder and

11   knew of the charge, the IJ reasonably found the Government’s

12   documents probative and did not violate due process by admitting

13   them.     See id.

14           Kudishev’s assertion that the IJ was biased because he

15   considered his murder charge serious is also frivolous as

16   consideration of such adverse factors is necessary in determining

17   how to exercise discretion.     See Argueta, 617 F.3d at 113; see

18   also Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (requiring

19   remand on a showing that apparent bias precluded meaningful

20   review).    Kudishev therefore fails to raise a colorable

21   constitutional claim or question of law regarding the denial of

22   his waiver application.     See 8 U.S.C. §§ 1182(i)(2),

23   1252(a)(2)(B), (D).

24

25
                                       6
1        For the foregoing reasons, the petition for review is

2   DISMISSED in part and DENIED in part.

3
4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7
8




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