Plakushchav v. Lynch

U.S. Court of Appeals for the Second Circuit
Plakushchav v. Lynch, 647 F. App'x 35 (2d Cir. 2016)
Reenaraggi, Wesley, Livingston

Plakushchav v. Lynch

Opinion

SUMMARY ORDER

Petitioner Viachaslav Plakushchav, a native and citizen of Belarus, seeks review of a November 26, 2014 decision of the BIA affirming a July 1, 2014 decision of an Immigration Judge (“U”) denying Pla-kushchav’s application for relief under the Convention Against Torture (“CAT”). In re Viachaslav Plakushchav, No. A089 399 813 (B.I.A. Nov. 26, 2014), aff'g No. A089 399 813 (Immig. Ct. Napanoch July 1, 2014). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Given the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We lack jurisdiction to review a final order of removal against an alien, like Plakushchav, who is removable by reason of having committed an aggravated felony. 8 U.S.C. § 1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015). We retain jurisdiction to review, de novo, “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). When assessing jurisdiction, we must “study the arguments asserted” to “determine, regardless of the rhetoric employed in the petition, whether it merely quarrels over the correctness of the factual findings” or raises a true question of law. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

Plakushchav attacks the agency’s finding that he failed to demonstrate that he more *37 likely than not will be tortured if returned to Belarus. A determination of what will happen in the future is a finding of fact. Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012). Though Plakushchav frames his arguments as questions of law, each is a variation on a factual dispute: the agency should have given his evidence more weight. That is a question beyond our jurisdiction.

Plakushchav challenges the BIA’s statement that his expert’s testimony was “in the nature of informed speculation, and relied upon assumptions for which there was no hard evidence.” Plakushchav posits that an expert’s testimony is “objective evidence,” that Federal Rule of Evidence 702 permits an expert to testify in the form of an opinion, and that if the IJ doubted the foundation for the expert’s opinion, he should have excluded the testimony. In the same vein, he faults the agency for failing to recognize 'that the expert testified consistently with the Department of State’s country report on Belarus. These arguments are another way of saying that the IJ should have given more (indeed, dispositive) weight to the expert’s testimony. That is a factual dispute that we lack jurisdiction to decide. Cf. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (identifying error of law where “important” facts have been “totally overlooked and others have been seriously mischaracterized”).

Plakushchav contends that the BIA mis-characterized the expert’s testimony when it wrote that his opinion was predicated on “the twin assumptions” that Plakushchav would be unable to obtain a “propiska,” a government-issued identification card, and that Belarussian authorities would learn about his criminal history. But “the agency does not commit an ‘error of law’ every time an item of evidence ... is described with imperfect accuracy.” Id. The expert opined that factors beyond not having a propiska may lead to Plakushchav’s arrest and that, once arrested, factors beyond Plakushchav’s criminal history could lead authorities to torture him. But the thrust of his prediction was as the BIA described. There was no error of law.

Finally, Plakushchav contends that the agency ignored the testimony of his expert and his mother that he will be unable to obtain a propiska. See Xiao Ji Chen, 471 F.3d at 329 (postulating legal error “where the IJ states that his decision was based on petitioner’s failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact” (emphasis in original)). The expert explained that Pla-kushchav would be in catch-22: one needs property to get a propiska, but one needs a propiska to rent an apartment. His mother testified that Plakushchav owns no property in Belarus and would need a pro-piska before finding a place to live. Pla-kushchav echoed that he has no family there. But, as the BIA noted, this testimony did not obligate the IJ “to assume that the United States would repatriate Plakushchav without first obtaining valid, unexpired, Belarussian travel documents on his behalf.” And as the IJ noted, “the documentary record does not indicate that the application process” for a propiska or passport “will be problematic.” That is accurate: none of the country reports mentioned a propiska.

In sum, Plakushchav “merely quarrels over the correctness of the factual findings” that grounded the denial of relief. Xiao Ji Chen, 471 F.3d at 329, Consequently, we lack jurisdiction over this petition for review.

For the foregoing reasons, the petition for review, is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in *38 this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED 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 34.1(b).

Reference

Full Case Name
Viachaslav PLAKUSHCHAV, AKA Alexander Krasnikov, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
Status
Unpublished