Yalymov v. Gonzales
Yalymov v. Gonzales
Opinion of the Court
SUMMARY ORDER
Vasily Yalymov, through counsel, petitions for review of the BIA’s decision affirming Immigration Judge (“U”) Gabriel Videla’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). He also petitions for review of the BIA’s denial of his motion to reopen. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004).
We will consider Yalymov’s challenge to the credibility determination, even though he did not mention it in his brief to the BIA, because the BIA addressed the credibility finding. See Xian Tuan Ye v. DHS, 446 F.3d 289, 293 (2d Cir. 2006). Although we do not find that all of the IJ’s adverse credibility factors are supported by substantial evidence, we need not remand the case because we can confidently predict that the IJ would reach the same conclusion absent the error-infected grounds. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161 (2d Cir. 2006). Since Yalymov and the individual who helped him prepare the application signed
We also find that the BIA did not abuse its discretion in denying Yalymov’s motion to reopen. Although Yalymov did not have many of the newly submitted documents in his possession at the time of his hearing, the regulations state that the documents must not have been discoverable at the time of the hearing in order to warrant reopening. 8 C.F.R. § 1003.2(c)(1). Here, Yalymov has failed to demonstrate that the documents could not have been previously obtained, and the BIA correctly noted that the documents are not material to Yalymov’s claims. Finally, since Yalymov fails to assert any arguments in his brief regarding his potential ineffective assistance of counsel claim, that claim is deemed waived. See Jian Wen Wang v. BCIS, 437 F.3d 276, 278 (2d Cir. 2006).
Accordingly, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.