Opinion
15-73726
11-17-2022
ILYA YURYEVICH NAGAEV, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 15, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A206-521-251
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Ilya Yuryevich Nagaev, a native and citizen of Russia, petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from an order of an Immigration Judge ("IJ") denying asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").
We have jurisdiction under 8 U.S.C. § 1252(a). We review "the BIA's construction and application of the law de novo." Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013) (cleaned up). We review "findings of fact for substantial evidence." Id. "When the BIA conducts its own review of the evidence and law rather than adopting the IJ's decision," we review only the BIA's decision "except to the extent that the IJ's opinion is expressly adopted." Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (cleaned up). We deny the petition.
1. Nagaev is ineligible for asylum because he did not apply for it within one year of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Although a late application "may be considered" if an applicant demonstrates "changed circumstances which materially affect [his] eligibility for asylum," 8 U.S.C. § 1158(a)(2)(D), "[n]ew evidence confirming what [Nagaev] already knew . . . does not constitute changed circumstances," Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016). Nagaev claimed to have been attacked in the past by private individuals and police because he is gay. Substantial evidence therefore supports the BIA's conclusion that recent Russian legislation did not constitute "changed circumstances." See Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013).
2. "The record does not compel the conclusion that the adverse credibility determination was erroneous." Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021). Nagaev testified inconsistently about alleged beatings. Documentary evidence also conflicted with his testimony, and he lied about his address to obtain a driver's license in a state in which he did not reside.
3. "Substantial evidence supports the IJ's and the BIA's denial of relief under withholding of removal because [Nagaev] cannot overcome the adverse credibility determination." Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). Neither Nagaev's testimony about possible mistreatment if drafted into the military nor evidence of new Russian laws compels the conclusion that he faces a "clear probability" of future persecution. See Sharma v. Garland, 9 F.4th 1052, 1065-66 (9th Cir. 2021).
4. Given the adverse credibility determination, Nagaev did not establish past torture. Nor does the country conditions evidence compel the conclusion that Nagaev would more likely than not be tortured if removed. The country conditions report describes "dramatically heightened societal stigma and discrimination" against gay men and some violent acts against them by private individuals. It does not, however, compel the conclusion Nagaev faces a "particularized risk of torture if [he] were removed," Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021), nor the conclusion that the torture would be "at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity," 8 C.F.R. § 208.18(a)(1); see B.R. v. Garland, 26 F.4th 827, 844-45 (9th Cir. 2022).
PETITION DENIED.
The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation.