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Alimbaev v. Attorney General of United States of America

United States Court of Appeals, Third Circuit

September 25, 2017


          Argued: June 12, 2017

         On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A079-729-904) Immigration Judge: Honorable Charles M. Honeyman

          Lawrence H. Rudnick (Argued) Rudnick Immigration Group Counsel for Petitioner

          Chad A. Readler, Acting Assistant Attorney General Civil Division Ethan B. Kanter, Deputy Chief, National Security Unit Melissa K. Lott Jefferson B. Sessions, III. Daniel I. Smulow (Argued) United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Ryan Houldin Council on American-Islamic Relations Counsel for Amicus Petitioner

          Before: JORDAN and KRAUSE, Circuit Judges, and STEARNS, District Judge.[*]


          KRAUSE, Circuit Judge.

         This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ's factfinding in this case-an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ's finding that Petitioner's testimony was credible, we will grant the petition for review of the BIA's removal order, vacate the denial of Petitioner's applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.

         I. Factual and Procedural Background

         Petitioner Abduvakhob A. Alimbaev is a native and citizen of Uzbekistan. According to his testimony before the IJ, [1] when he was a young teenager in the early-to-mid 1990's, Alimbaev attended a handful of services led by Obidkhon Qori Nazarov, an imam who was accused by the Uzbek government-reputed for religious intolerance-of preaching violence and plotting a government takeover. During that time period, Uzbek authorities rescinded Nazarov's license to lead religious services, making it illegal for citizens to attend religious gatherings he hosted. According to Alimbaev, on a day Uzbek authorities came to Nazarov's apartment, Alimbaev was among a crowd of two- to three-hundred followers and reporters, all gathered to seek religious guidance and to prevent the government from surreptitiously arresting Nazarov. Alimbaev believes that when he was standing in the midst of the crowd, he was caught on video taken by authorities. It is because of his connections to Nazarov in Uzbekistan in the 1990's and to others who were followers of Nazarov in the United States after he came to this country in 2001, as described below, that Alimbaev claims to fear persecution and torture if he is removed to Uzbekistan.

         Alimbaev testified that in February 2001, when he was nineteen, he traveled to the United States as a nonimmigrant visitor, planning to perform with an Uzbek band at a music festival in Los Angeles. Although Alimbaev was with some of his fellow band members in the Tashkent airport, he did not see them on his flight to New York City or upon arriving at the airport. Instead, according to Alimbaev, a girl from another Uzbek band informed him that his band members would not arrive until the following week. Afraid he would not have enough money to survive on his own for that week, Alimbaev decided to travel to Orlando, Florida to visit a friend from Uzbekistan whose name and phone number his father had given him to use in case of emergency, rather than continuing as planned to Los Angeles.

         After a few months in Orlando and a brief stay in Dayton, Ohio, Alimbaev settled in Philadelphia, Pennsylvania. There, Alimbaev testified, he shared an apartment with six or seven Uzbek Muslim men, all of whom were supporters and former students of Nazarov. He also testified that not long after he moved into the apartment, Uzbek authorities came to Alimbaev's parents' house in Uzbekistan to inquire after Alimbaev's whereabouts and to pressure his parents to facilitate his return, displaying pictures of him with his new roommates in Philadelphia and accusing him of being "involved with these bad guys." AR 1297.

         During this time, according to Alimbaev, he heeded warnings from his parents to stay in the United States by submitting applications to the then-called Immigration and Naturalization Service (INS)[2] to extend and change the status of his visa-applications that, it turned out, contained numerous misrepresentations. Initially, with the help of a friend, Alimbaev filed for and received an extension on his tourist visa through January 2002. That application falsely represented that Alimbaev was a computer scientist, that he had been invited to the United States by other computer scientists, and that his parents were wealthy and could support him for the duration of his stay. Alimbaev testified that he was unaware of the false statements in the application when it was submitted, though he acknowledged that it did contain his signature.

         Later, when his visa was soon to expire in December 2001, Alimbaev applied to have his nonimmigrant status changed from tourist to student, representing in that application that he had been admitted to the Concord English Language Center in California and attaching a false tuition invoice as proof. Alimbaev testified that he was, once again, assisted by a friend in assembling this second application, but that he had no recollection of its contents or of actually submitting it to the INS. Although the application was denied as untimely, he remained in the country without authorization, continuing to live in the same apartment in Philadelphia.

         In this communal residence, Alimbaev and his roommates occupied close quarters and shared just one computer, which, according to Alimbaev, he used only occasionally, typically to read international news. In June 2002, federal immigration agents executed a warrant at Alimbaev's apartment, arresting, detaining, and placing into immigration proceedings Alimbaev and five of his roommates, four of whom were the subject of extradition requests and Interpol warrants issued based on outstanding charges of religious extremism in Uzbekistan.[3] The agents searched the roommates' shared computer and discovered terroristic videos displaying Al Jazeera broadcasts-one of Osama bin Laden and one of Afghan fighters-images of Chechen rebel fighters, and scenes of destruction caused by explosives. The computer also contained a map of Pennsylvania State Police barracks and an email to one of Alimbaev's roommates praising an Islamic terrorist organization. After two months, Alimbaev was released from detainment, and charged with removability, which he conceded. Although removable, he soon became eligible to apply for adjustment of status based on two successive marital relationships.

         In 2003, Alimbaev married Shaketa Chapman, a United States citizen whom he divorced in 2005. That December, he married his current wife, Kia Crawford, also a United States citizen, with whom, by the time of the hearing, he had had two children. Alimbaev supports his family financially through the construction business he owns and operates, and Crawford takes care of their children full time. Alimbaev also owns a house, and provides financial support to his mother-in-law.

         In 2008, based on his marriage to Crawford, Alimbaev applied to adjust his status to lawful permanent resident, a request the Attorney General may grant or deny in his or her discretion by balancing the positive and negative factors relevant to a petitioner's application. 8 U.S.C. § 1255(a); Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990); see Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005). At the subsequent hearing on Alimbaev's application, held before an IJ in 2010, Alimbaev testified that he did not watch violent terroristic videos on his former roommates' shared computer, although he did view broadcasts downloaded from Al Jazeera, NBC News, and a Russian news channel that included coverage of Saddam Hussein and Osama bin Laden. Additionally, a government agent testified that none of the terroristic materials found on that computer were directly linked to Alimbaev's email account or tied in any traceable way to his usage of the computer. However, Alimbaev's ex-wife-who had by then changed her name to Shaketa Gonzalez-was called to testify as a rebuttal witness following Alimbaev's testimony, and she asserted that during their marriage, while they lived together in an apartment with no roommates, she witnessed Alimbaev view and express enthusiasm for violent videos depicting terrorist acts on multiple occasions.

         Following the hearing, the IJ granted Alimbaev's application to adjust status. The Department of Homeland Security (DHS) appealed to the BIA, which vacated the IJ's decision, concluding the adverse factors present in Alimbaev's case outweighed the favorable equities. The BIA remanded, however, to afford Alimbaev the opportunity to apply for asylum-a form of discretionary relief, see Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004)-and withholding of removal and CAT protection-both of which are mandatory if eligibility is established, see Kaita v. Att'y Gen., 522 F.3d 288, 296, 300-01 (3d Cir. 2008).

         On remand, in addition to seeking these forms of relief, Alimbaev submitted a new application for adjustment of status. The IJ held a second hearing in 2014, at which Alimbaev repudiated Gonzalez's earlier testimony that he had watched violent videos of terrorist activity while they were married, testifying that her statements were untrue and speculating that she was motivated by jealousy over his second marriage. After the hearing, the IJ granted Alimbaev's second application for adjustment of status, and, in the alternative, granted each additional form of relief he sought. The IJ credited Alimbaev's testimony both generally and specifically as to the violent videos, and found that in balancing the equities to adjudicate adjustment of status, Alimbaev, as well as his wife, children and mother-in-law (each of whom would remain in the United States), [4] would face hardship if he were deported.

         At the outset of his second opinion, the IJ recounted in great detail Alimbaev's testimony at the second hearing, which he found credible overall "based on the totality of the circumstances, " determining it to be "internally consistent, generally believable, and sufficiently detailed." AR 232. Specifically, the IJ highlighted as "candid" Alimbaev's "testimony that Shakeyta Gonzalez said things about him that were not true" and his testimony that "he never watched Al Qaeda videos or videos advocating violence against the United States." AR 229. On that basis, the IJ concluded that Gonzalez was "bias[ed], " that her testimony deserved little weight because it was uncorroborated by the DHS, [5] and that overall, "the veracity and reliability of her testimony remain[ed] subject to doubt." AR 229. The DHS appealed again, and the BIA, reviewing the IJ's second decision, vacated that decision in its entirety, ordering Alimbaev's removal from the United States to Uzbekistan.

         After Alimbaev petitioned our Court for review of that BIA decision and removal order, the Government promptly filed an unopposed motion to remand, seeking to allow the BIA to reconsider its decision in multiple respects, including the effect of the IJ's credibility findings on Alimbaev's applications for relief. We granted the motion, returning Alimbaev's case to the BIA for the third time.

         In 2016, the BIA vacated its prior decision and re-adjudicated Alimbaev's claims. First, it reversed the IJ's positive credibility determination regarding Alimbaev's testimony as clearly erroneous and credited Gonzalez's testimony regarding the violent videos. In addition, the BIA held that Alimbaev's application for asylum was time-barred, [6]and his applications for withholding of removal and CAT protection were meritless in light of Alimbaev's incredible testimony. The BIA also held that the IJ lacked jurisdiction to review Alimbaev's second application for adjustment of status. In the alternative, it addressed the application's merits, reversing the IJ's finding that Alimbaev himself would suffer hardship upon being removed to Uzbekistan and declining, in its discretion, to adjust Alimbaev's status to legal permanent resident. Having denied all of Alimbaev's claims, the BIA once again ordered his removal.

         Alimbaev now petitions this Court for review of the November 18, 2016 removal order of the BIA, asserting that the BIA erred in rejecting the IJ's credibility determination. For the reasons that follow, we conclude the BIA failed to properly apply the clear error standard of review when it overruled the IJ's credibility finding, necessitating yet another remand for ...

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