     16-840
     Okunev v. Sessions
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A205 895 089


                               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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 1st day of May, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            DENNIS JACOBS,
 9            GERARD E. LYNCH
10                 Circuit Judges.
11   _____________________________________
12
13   ANDREY OKUNEV,
14            Petitioner,
15
16                        v.                                     16-840
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                        Rakhvir Dhanoa, New York, NY.
24
25   FOR RESPONDENT:                        Benjamin C. Mizer, Principal
26                                          Deputy Assistant Attorney
27                                          General; Nancy Friedman, Senior
28                                          Litigation Counsel; Sharon M.
29                                          Clay, Trial Attorney, Office of
30                                          Immigration Litigation, United
1                                States Department of Justice,
2                                Washington, DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Petitioner Andrey Okunev, a native of the former Soviet

9    Union and citizen of Russia, seeks review of a February 22,

10   2016, decision of the BIA affirming a July 28, 2015, decision

11   of an Immigration Judge (“IJ”) denying Okunev’s application

12   for asylum, withholding of removal, and relief under the

13   Convention Against Torture (“CAT”).     In re Andrey Okunev, No.

14   A205 895 089 (B.I.A. Feb. 22, 2016), aff’g No. A205 895 089

15   (Immig. Ct. N.Y. City July 28, 2015).    We assume the parties’

16   familiarity with the underlying facts and procedural history.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified by the BIA (i.e., excluding

19   the adverse credibility determination, which the BIA did

20   not reach).   See Xue Hong Yang v. U.S. Dep’t of Justice,

21   426 F.3d 520, 522 (2d Cir. 2005).     The applicable standards

22   of review are well established.     See 8 U.S.C.

23   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

24   (2d Cir. 2009).

25
                                   2
1        The agency did not err in denying relief based on

2    Okunev’s failure to submit reasonably available

3    corroborating evidence.   “No court shall reverse a

4    determination made by a trier of fact with respect to the

5    availability of corroborating evidence . . . unless . . . a

6    reasonable trier of fact is compelled to conclude that such

7    corroborating evidence is unavailable.”   8 U.S.C.

8    § 1252(b)(4).   Notwithstanding Okunev’s assertion to the

9    contrary, the agency reasonably determined that his

10   testimony alone was insufficient to demonstrate his

11   eligibly for relief:

12            The testimony of the applicant may be
13            sufficient to sustain the applicant’s
14            burden without corroboration, but only if
15            the applicant satisfies the trier of fact
16            that the applicant’s testimony is credible,
17            is persuasive, and refers to specific facts
18            sufficient    to   demonstrate   that   the
19            applicant is a refugee.      In determining
20            whether   the    applicant  has   met   the
21            applicant’s burden, the trier of fact may
22            weigh the credible testimony along with
23            other evidence of record. Where the trier
24            of fact determines that the applicant
25            should provide evidence that corroborates
26            otherwise credible testimony, such evidence
27            must be provided unless the applicant does
28            not have the evidence and cannot reasonably
29            obtain the evidence.

30   8 U.S.C. § 1158(b)(1)(B)(ii).

31       Although Okunev provided a detailed narrative, he

32   relied in part on hearsay and failed to describe injuries
                                   3
1    sustained as a result of multiple beatings.   He provided no

2    statement from the friend with whom he attended protests,

3    and acknowledged that he had no firsthand knowledge of what

4    happened to this friend at a 2007 protest.    He described

5    multiple serious beatings but produced no medical records

6    or any other evidence to corroborate his injuries and

7    failed to describe the extent of his injuries.    He did not

8    corroborate his United Civil Front membership or activism,

9    even though he testified that he had joined the

10   organization through its website.   And he produced no

11   statements from family or friends in Russia, despite

12   testifying that his family told him over the phone that

13   they had been visited by people searching for him since he

14   arrived in the United States, and that his friend Dmitri

15   had called him in the United States to warn him that he was

16   in danger.   Given this dearth of evidence, the agency did

17   not err in finding that Okunev failed to meet his burden of

18   proof.   See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1252(b)(4).

19       The agency did not err in rejecting Okunev’s

20   explanation for the absence of a statement from the friend

21   with whom Okunev was detained and beaten after the 2012

22   protest, and who was also beaten after the 2007 protest.

23   See 8 U.S.C. § 1252(b)(4) (“No court shall reverse a

                                   4
1    determination made by a trier of fact with respect to the

2    availability of corroborating evidence . . . unless . . . a

3    reasonable trier of fact is compelled to conclude that such

4    corroborating evidence is unavailable.”).     Okunev explained

5    that a statement from this friend was in a bag that was

6    stolen in New York City, that he reported the theft to the

7    police, but that he did not file a report because his visa

8    had expired and he did not want to present his passport

9    when asked for identification.      The IJ rejected this

10   explanation, noting that New York City has adopted policies

11   that allow crime victims to access city services without

12   fear of immigration consequences.     A reasonable adjudicator

13   would not be compelled to accept the explanation,

14   particularly given Okunev’s initial willingness to go to

15   the police and report the theft.     Okunev does not challenge

16   the IJ’s rejection of his various explanations for the

17   absence of the other evidence and has therefore waived

18   review of the agency’s determination that the evidence was

19   reasonably available.     See Norton v. Sam’s Club, 145 F.3d

20   114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in

21   the briefs are considered waived and normally will not be

22   addressed on appeal.”).

23

                                     5
1        While Okunev argues that his case should be remanded

2    because the Government did not provide evidence to

3    establish the conditions in Russia, it was Okunev’s burden

4    to prove his claim; “[t]he burden of proof is on the

5    applicant to establish that the applicant is a

6    refugee   . . . .”   8 U.S.C. § 1158(b)(1)(B)(i).   “[T]he

7    alien bears the ultimate burden of introducing

8    [corroborating] evidence without prompting from the IJ.”

9    Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009).     The

10   statute “clearly states that corroborative evidence may be

11   required, placing immigrants on notice of the consequences

12   for failing to provide corroborative evidence.”     Rapheal v.

13   Mukasey, 533 F.3d 521, 530 (7th Cir. 2008).   Moreover, “the

14   instructions for the Application for Asylum and Withholding

15   of Removal (Form I-589) provide . . . notice to an

16   applicant that he ‘must submit reasonably available

17   corroborative evidence’ relating to both general country

18   conditions and the specific facts upon which the claim is

19   based.” Matter of L-A-C-, 26 I. & N. Dec. 516, 520 (B.I.A.

20   2015) (emphasis added).    Okunev also failed to exhaust this

21   argument before the BIA.    See Lin Zhong v. U.S. Dep’t of

22   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that

23   judicially imposed issue exhaustion is mandatory).

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

2   DENIED.

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




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