Rafiyev v. Mukasey, No. 07-1317.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtColloton
Citation536 F.3d 853
PartiesAnar RAFIYEV, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
Decision Date05 August 2008
Docket NumberNo. 07-2406.,No. 07-1317.
536 F.3d 853
Anar RAFIYEV, Petitioner,
v.
Michael B. MUKASEY, Attorney General of the United States, Respondent.
No. 07-1317.
No. 07-2406.
United States Court of Appeals, Eighth Circuit.
Submitted: March 13, 2008.
Filed: August 5, 2008.

[536 F.3d 855]

Elizabeth Holmes, Bloomington, MN, for petitioner.

Anthony P. Nicastro, USDOJ, OIL, Washington, DC, for respondent.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.


Anar Rafiyev petitions for review of two decisions of the Board of Immigration Appeals. The first decision denied Rafiyev's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), and determined that his application for asylum was frivolous. The second decision denied Rafiyev's motion to reopen based on alleged ineffective assistance of counsel. We deny the petition in No. 07-1317, but grant the petition in No. 07-2406 and remand that case for further consideration.

I.

In July 2003, Rafiyev traveled to the United States using a visa for a "nonimmigrant exchange visitor." In December 2003, his visa status was converted to "student," on the condition that he enroll at an educational institution. When Rafiyev never enrolled in school, the Department of Homeland Security (DHS) began proceedings to remove him to his native country of Azerbaijan. Rafiyev conceded that he was subject to removal for violating the conditions of his visa, but filed an application for asylum, withholding of removal, and protection under the CAT. Rafiyev claimed that he and his family had been subjected to persecution by the Azerbaijan government on account of their Armenian nationality and membership in a particular social group, and that he had a well founded fear that he would be persecuted if he returned to Azerbaijan.

An immigration judge (IJ) denied Rafiyev's applications for relief after finding that Rafiyev was "completely, utterly not credible." The IJ found that six documents submitted by Rafiyev were fraudulent. These documents were a birth certificate from the U.S.S.R., a birth certificate from Azerbaijan, a death certificate for Rafiyev's mother, a death certificate for Rafiyev's brother, a medical record, and a police report. Relying on In re O-D-, 21 I. & N. Dec. 1079 (BIA 1998), the IJ concluded that the counterfeit documents not only discredited Rafiyev's claims concerning identity and nationality, but also supported a finding that his overall claim was not credible. The IJ further found that the filing of six fraudulent documents in support of an application for asylum qualified as the filing of a frivolous application, and that Rafiyev therefore should be barred permanently from receiving any immigration benefit from the United States. See 8 U.S.C. § 1158(d)(6). In connection with

536 F.3d 856

her decision that Rafiyev did not qualify for asylum, the IJ also found that United States government officials complied with regulations addressing the confidentiality of asylum applications during their overseas investigation of Rafiyev's documents. See 8 C.F.R. § 208.6. As such, the IJ implicitly rejected any contention by Rafiyev that a violation of the confidentiality provisions provided a new and independent basis for asylum. See Averianova v. Mukasey, 509 F.3d 890, 899 (8th Cir.2007).

On administrative appeal, the Bureau of Immigration Appeals (BIA) concluded that even accepting Rafiyev's arguments regarding two of the six documents cited by the IJ (i.e., the medical record and the police report), he had not raised meritorious challenges regarding the remaining four documents found to be fraudulent. The BIA thus found no reason to disturb the IJ's adverse credibility finding or her finding that Rafiyev filed a frivolous application. The BIA also found no reason to set aside the IJ's conclusion that government officials did not breach the confidentiality regulations.

Rafiyev then filed a motion to reopen the proceedings, alleging that he received ineffective assistance of counsel during his appeal to the BIA. The BIA found that Rafiyev's specific allegations of ineffective assistance were not supported by the record, and therefore denied the motion to reopen.

II.
A.

In dismissing Rafiyev's administrative appeal on his asylum claim, the BIA did not expressly adopt the decision of the IJ, and declined to accept certain portions of it. The BIA did say, however, that Rafiyev had raised no meritorious challenge to the IJ's findings that four disputed documents were fraudulent, and that the Board found no reason to disturb the IJ's credibility findings. We read the BIA opinion, therefore, to adopt the IJ's reasoning in relevant part, and we thus consider both the BIA's opinion and the decision of the IJ in our review. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Administrative findings of fact, including findings on credibility, are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007). The BIA's discretionary decision to deny asylum is conclusive unless "manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D).

A claim for asylum may be rejected solely on the ground that the applicant's claim is not credible. Falaja v. Gonzales, 418 F.3d 889, 894-95, 897 & n. 4 (8th Cir.2005). The BIA or an IJ may reach an adverse credibility determination based on the applicant's submission of fraudulent documents, if the petitioner fails to offer a legitimate explanation for the suspected fraud. Onsongo v. Mukasey, 457 F.3d 849, 854 (8th Cir.2006). In reaching that credibility finding, the agency must "give reasons that are specific enough that a reviewing court can appreciate the reasoning behind the decision and cogent enough that a reasonable adjudicator would not be compelled to reach the contrary conclusion." Chen v. Mukasey, 510 F.3d 797, 802 (8th Cir.2007) (internal citation omitted).

Substantial evidence on the record as a whole supports the BIA's conclusion that at least four documents submitted by Rafiyev were fraudulent. The DHS presented testimony from a forensics document examiner that the U.S.S.R. birth certificate submitted by Rafiyev was counterfeit, because it did not include a watermark

536 F.3d 857

that would appear on a genuine U.S.S.R. birth certificate, and because it was printed using a color inkjet printer rather than "a continuous line offset type printing" used on the genuine articles. The DHS also presented results of an investigation by the United States Embassy in Azerbaijan showing that Rafiyev's Azerbaijan birth certificate and the two Azerbaijan death certificates were fraudulent. This evidence included a finding that the language used in the certificates was not the official language, and that the seals applied to the certificates did not match official seals. The embassy also reported that the signature on the birth certificate did not match an exemplar from the person who would have signed such a document in 1984, and that the woman who purportedly signed the death certificates said the signatures appearing on those documents were not hers. The investigation further revealed that there were "no recorded incidents in the office's registration books that match those described on the death certificates."

Rafiyev testified in response that he relied on his father to provide documents in support of his claim, and that he had no knowledge about any fabrication. He also suggested that the Ministry of Internal Affairs in Azerbaijan, which produces documents of these nature, probably gave him counterfeit records, because the ministry was hostile to persons of Armenian descent, and sought to cause trouble for him if he emigrated. Rafiyev alleged that the ministry had persecuted him and his family, and he portrayed the alleged provision of flawed documents as a continuation of this mistreatment. Even assuming nefarious activity by the Azerbaijan government is a plausible explanation for the three fraudulent Azerbaijan documents cited by the BIA, however, Rafiyev's theory does not compel the conclusion that the IJ and the BIA erred by declining to accept it, because the alternative conclusion was also reasonable. Nor does Rafiyev's suspicion about the actions of the Azerbaijan government provide any explanation for the U.S.S.R. birth certificate that the IJ and the BIA also found to be counterfeit. Accordingly, we conclude that the BIA's credibility finding was supported by substantial evidence.

Rafiyev also argues that the BIA erroneously concluded that the government complied with the federal regulation concerning confidentiality when processing his asylum application. The regulation provides that "[i]nformation contained in or pertaining to any asylum application . . . shall not be disclosed without the written consent of the...

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32 practice notes
  • Angov v. Holder, No. 07–74963.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 4, 2013
    ...Ribas v. Mukasey, 545 F.3d 922, 925–26 (10th Cir.2008); Siddique v. Mukasey, 547 F.3d 814, 815–16 (7th Cir.2008); Rafiyev v. Mukasey, 536 F.3d 853, 855–57 (8th Cir.2008); Dhital v. Mukasey, 532 F.3d 1044, 1047–48 (9th Cir.2008) (per curiam); Chen v. Mukasey, 527 F.3d 935, 938–39 (9th Cir.20......
  • Angov v. Lynch, No. 07–74963.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 4, 2013
    ...; Ribas v. Mukasey, 545 F.3d 922, 925–26 (10th Cir.2008) ; Siddique v. Mukasey, 547 F.3d 814, 815–16 (7th Cir.2008) ; Rafiyev v. Mukasey, 536 F.3d 853, 855–57 (8th Cir.2008) ; Dhital v. Mukasey, 532 F.3d 1044, 1047–48 (9th Cir.2008) (per curiam); Chen v. Mukasey, 527 F.3d 935, 938–39 (9th C......
  • Matter of Compean, Interim Decision No. 3632.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • January 7, 2009
    ...that there is a constitutional right to the effective assistance of counsel in removal proceedings. See, e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); see also Mai ......
  • Jezierski v. Mukasey, No. 07-3569.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 10, 2008
    ...her) removal proceeding to reopen the proceeding on the basis of that denial. Stroe v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir.2008). Nevertheless, if the Board of Immigration Appeals adopted a rule entitling such an alien to reopen, its failure to follow......
  • Request a trial to view additional results
32 cases
  • Angov v. Holder, No. 07–74963.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 4, 2013
    ...Ribas v. Mukasey, 545 F.3d 922, 925–26 (10th Cir.2008); Siddique v. Mukasey, 547 F.3d 814, 815–16 (7th Cir.2008); Rafiyev v. Mukasey, 536 F.3d 853, 855–57 (8th Cir.2008); Dhital v. Mukasey, 532 F.3d 1044, 1047–48 (9th Cir.2008) (per curiam); Chen v. Mukasey, 527 F.3d 935, 938–39 (9th Cir.20......
  • Angov v. Lynch, No. 07–74963.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 4, 2013
    ...; Ribas v. Mukasey, 545 F.3d 922, 925–26 (10th Cir.2008) ; Siddique v. Mukasey, 547 F.3d 814, 815–16 (7th Cir.2008) ; Rafiyev v. Mukasey, 536 F.3d 853, 855–57 (8th Cir.2008) ; Dhital v. Mukasey, 532 F.3d 1044, 1047–48 (9th Cir.2008) (per curiam); Chen v. Mukasey, 527 F.3d 935, 938–39 (9th C......
  • Matter of Compean, Interim Decision No. 3632.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • January 7, 2009
    ...that there is a constitutional right to the effective assistance of counsel in removal proceedings. See, e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); see also Mai ......
  • Jezierski v. Mukasey, No. 07-3569.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 10, 2008
    ...her) removal proceeding to reopen the proceeding on the basis of that denial. Stroe v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir.2008). Nevertheless, if the Board of Immigration Appeals adopted a rule entitling such an alien to reopen, its failure to follow......
  • Request a trial to view additional results

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