     14-4705
     Plakushchav v. Lynch
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A089-399-813

                            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 TO 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
 4   26th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            RICHARD C. WESLEY,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   VIACHASLAV PLAKUSHCHAV, AKA
14   ALEXANDER KRASNIKOV,
15            Petitioner,
16
17                     v.                                            14-4705
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Thomas M. Griffin, Philadelphia,
25                                       PA.
26
27   FOR RESPONDENT:                     Benjamin Mizer, Principal Deputy
28                                       Assistant Attorney General, Dawn S.
1                               Conrad, Senior Litigation Counsel,
2                               Matthew A. Connelly, Trial Attorney,
3                               Office of Immigration Litigation,
4                               United States Department of Justice,
5                               Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   DISMISSED for lack of jurisdiction.

11       Petitioner Viachaslav Plakushchav, a native and citizen of

12   Belarus, seeks review of a November 26, 2014 decision of the

13   BIA affirming a July 1, 2014 decision of an Immigration Judge

14   (“IJ”) denying Plakushchav’s application for relief under the

15   Convention   Against   Torture   (“CAT”).   In     re   Viachaslav

16   Plakushchav, No. A089 399 813 (B.I.A. Nov. 26, 2014), aff’g No.

17   A089 399 813 (Immig. Ct. Napanoch July 1, 2014).    We assume the

18   parties’ familiarity with the underlying facts and procedural

19   history in this case.

20       Given the circumstances of this case, we have reviewed both

21   the IJ’s and the BIA’s opinions “for the sake of completeness.”

22   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

23   2006).   We lack jurisdiction to review a final order of removal

24   against an alien, like Plakushchav, who is removable by reason
                                      2
1    of   having    committed    an   aggravated   felony.     8    U.S.C.   §

2    1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir.

3    2015).        We   retain   jurisdiction      to   review,     de   novo,

4    “constitutional claims or questions of law.”                 8 U.S.C. §

5    1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir.

6    2009).    When assessing jurisdiction, we must “study the

7    arguments asserted” to “determine, regardless of the rhetoric

8    employed in the petition, whether it merely quarrels over the

9    correctness of the factual findings” or raises a true question

10   of law.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

11   329 (2d Cir. 2006).

12        Plakushchav attacks the agency’s finding that he failed to

13   demonstrate that he more likely than not will be tortured if

14   returned to Belarus.        A determination of what will happen in

15   the future is a finding of fact.         Hui Lin Huang v. Holder, 677

16   F.3d 130, 134 (2d Cir. 2012).           Though Plakushchav frames his

17   arguments as questions of law, each is a variation on a factual

18   dispute: the agency should have given his evidence more weight.

19   That is a question beyond our jurisdiction.

20        Plakushchav     challenges    the    BIA’s    statement   that   his

21   expert’s testimony was “in the nature of informed speculation,
                                         3
1    and relied upon assumptions for which there was no hard

2    evidence.”    Plakushchav posits that an expert’s testimony is

3    “objective evidence,” that Federal Rule of Evidence 702 permits

4    an expert to testify in the form of an opinion, and that if the

5    IJ doubted the foundation for the expert’s opinion, he should

6    have excluded the testimony.    In the same vein, he faults the

7    agency for failing to recognize that the expert testified

8    consistently with the Department of State’s country report on

9    Belarus.   These arguments are another way of saying that the

10   IJ should have given more (indeed, dispositive) weight to the

11   expert’s testimony.    That is a factual dispute that we lack

12   jurisdiction to decide.    Cf. Mendez v. Holder, 566 F.3d 316,

13   323 (2d Cir. 2009) (identifying error of law where “important”

14   facts have been “totally overlooked and others have been

15   seriously mischaracterized”).

16       Plakushchav contends that the BIA mischaracterized the

17   expert’s testimony when it wrote that his opinion was predicated

18   on “the twin assumptions” that Plakushchav would be unable to

19   obtain a “propiska,” a government-issued identification card,

20   and that Belarusian authorities would learn about his criminal

21   history.     But “the agency does not commit an ‘error of law’
                                     4
1    every time an item of evidence . . . is described with imperfect

2    accuracy.”    Id.    The expert opined that factors beyond not

3    having a propiska may lead to Plakushchav’s arrest and that,

4    once arrested, factors beyond Plakushchav’s criminal history

5    could lead authorities to torture him.              But the thrust of his

6    prediction was as the BIA described.          There was no error of law.

7          Finally, Plakushchav contends that the agency ignored the

8    testimony of his expert and his mother that he will be unable

9    to obtain a propiska.        See Xiao Ji Chen, 471 F.3d at 329

10   (postulating legal error “where the IJ states that his decision

11   was based on petitioner’s failure to testify to some pertinent

12   fact when the record of the hearing reveals unambiguously that

13   the   petitioner    did   testify       to   that   fact”   (emphasis   in

14   original)).   The expert explained that Plakushchav would be in

15   catch-22: one needs property to get a propiska, but one needs

16   a propiska to rent an apartment.             His mother testified that

17   Plakushchav owns no property in Belarus and would need a

18   propiska before finding a place to live.              Plakushchav echoed

19   that he has no family there.             But, as the BIA noted, this

20   testimony did not obligate the IJ “to assume that the United

21   States would repatriate Plakushchav without first obtaining
                                         5
1    valid, unexpired, Belarussian travel documents on his behalf.”

2    And as the IJ noted, “the documentary record does not indicate

3    that the application process” for a propiska or passport “will

4    be problematic.”      That is accurate: none of the country reports

5    mentioned a propiska.

6           In sum, Plakushchav “merely quarrels over the correctness

7    of the factual findings” that grounded the denial of relief.

8    Xiao    Ji   Chen,   471   F.3d   at   329.   Consequently,   we   lack

9    jurisdiction over this petition for review.

10          For the foregoing reasons, the petition for review is

11   DISMISSED.     As we have completed our review, any stay of removal

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.        Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                      FOR THE COURT:
19                                      Catherine O=Hagan Wolfe, Clerk




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