2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-22-2015

Alibii Dzhumanov v. Attorney General United

States

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"Alibii Dzhumanov v. Attorney General United States" (2015). 2015 Decisions. Paper 67.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-2896

_____________

ALIBII DZHUMANOV,

 Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

 Respondent 

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A-089-198-152)

Immigration Judge: Honorable. Mariam K. Mills

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 21, 2015

Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

(Filed: January 22, 2015)

_______________

OPINION

_______________

JORDAN, Circuit Judge.

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

Alibii Dzhumanov petitions for review of an order of the Board of Immigration 

Appeals (“BIA”) denying his request for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). We will deny the petition. 

I. Background

Dzhumanov, a native and citizen of Kyrgyzstan, was admitted to the United States 

on an F-I nonimmigrant student visa in 2006. When he overstayed his visa, the 

Department of Homeland Security charged him with removal. Through counsel, 

Dzhumanov conceded that he was subject to removal but requested asylum, withholding 

of removal, and CAT relief. In the alternative, he also requested voluntary departure. 

Dzhumanov alleged that he would be subject to persecution and torture based on his 

membership in a Kyrgyzstan political party known as Ata-Meken, and based on his 

affiliation with a particular social group, namely, family members of his cousin Ravshan 

Djeyenbekov, a prominent Ata-Meken party leader and member of parliament in 

Kyrgyzstan who has faced retaliation for his political positions. 

The Immigration Judge (“IJ”) granted Dzhumanov’s request for voluntary 

departure but otherwise denied relief. In doing so, the IJ determined that Dzhumanov’s 

subjective fear of persecution was credible but that there was no objective basis for it. 

Dzhumanov appealed to the BIA, which concluded that the IJ’s finding that Dzhumanov 

did not have a well-founded fear of future persecution should be sustained. The IJ’s 

ruling was based largely on three subsidiary findings: (1) Dzhumanov could safely 

relocate to his family’s hometown in Kyrgyzstan due to the prominence of his father, a 

respected businessman; (2) political changes in the country have reduced any threat to 
3

members of Ata-Meken; and (3) Dzhumanov’s relationship with his cousin did not pose a 

danger nor did he face the same type of threats as his cousin because he was not similarly 

situated. Having accepted those factual premises, the BIA concluded that Dzhumanov 

could not establish his eligibility for asylum, withholding of removal, or CAT relief, and 

it dismissed the appeal. Dzhumanov filed a timely petition for review. 

II. Discussion1

As a preliminary matter, the government asserts that we lack jurisdiction to review 

Dzhumanov’s challenge to the asylum and withholding of removal rulings. It argues that 

the IJ denied relief on two independent grounds: Dzhumanov did not establish an 

objectively reasonable fear of future persecution, and Dzhumanov could avoid 

persecution by relocating to another part of Kyrgyzstan. See 8 C.F.R. § 1208.13(b)(2)(ii) 

(“An applicant does not have a well-founded fear of persecution if the applicant could 

avoid persecution by relocating to another part of the applicant’s country of nationality 

... if under all the circumstances it would be reasonable to expect the applicant to do 

so.”); id. at § 1208.16(b)(2) (applying a similar test for withholding of removal). As the 

government sees it, because Dzhumanov did not challenge the IJ’s relocation finding

before the BIA, he failed to exhaust his administrative remedies and we lack jurisdiction 

 

1 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3); we have jurisdiction 

pursuant to 8 U.S.C. § 1252(a)(1). “We review the BIA’s legal determinations de novo, 

subject to the principles of deference articulated in Chevron v. Natural Resources 

Defense Council, 467 U.S. 837, 844, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).” Catwell 

v. Att’y Gen., 623 F.3d 199, 205 (3d Cir. 2010). We review factual findings under the 

substantial-evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). 

Under that standard, “the administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B).
4

to review the asylum and withholding of removal determinations. See Castro v. Att’y 

Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“The exhaustion requirement attaches to each 

particular issue raised by the petitioner. A petitioner’s failure to exhaust an issue by 

presenting it to the BIA deprives us of jurisdiction to consider that issue.” (citation 

omitted)). 

While it is true that Dzhumanov did not mention the specific relocation finding in 

his notice of appeal or brief before the BIA, he properly exhausted his administrative 

remedies by asserting to the BIA that the IJ’s decision was not supported by sufficient

evidence. See Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (concluding that 

a notice of appeal to the BIA that asserts generally that the IJ’s decision was “not 

supported by substantial evidence within the record” was sufficient to exhaust the 

remedies for a specific factual challenge advanced before the court of appeals). We thus 

have jurisdiction to consider his petition for review.

Regardless of any flaws there may be in the IJ’s finding with respect to 

Dzhumanov’s option of relocating, the remaining conclusions of fact are supported by 

substantial evidence, and they sufficiently establish that Dzhumanov is not eligible for 

asylum or withholding of removal. A significant portion of the evidence in the 

administrative record describes events prior to Kyrgyzstan’s most recent revolution in 

2010. Dzhumanov argues that security forces in the country are tied to the previous 

regime and will continue a pattern of persecuting those, like Ata-Meken members, who 

opposed the regime. But in contrast to the string of reports of threatening, harassing, and 

imprisoning opposition party members and leaders before the 2010 revolution, the 
5

administrative record is sparse on specific examples of post-revolution persecution of 

political opponents. Compare A.R. at 323 (news report from 2011 indicating that a 

member of parliament from another opposition party asked the legislative assembly to 

supply security guards for herself and her family because she feared retaliation for her 

position on ethnic violence against Uzbeks in southern Kyrgyzstan), and id. at 398-99 

(arbitrary charges brought against several former government officials in late 2010), with, 

e.g., id. at 536 (false charges filed against Ata-Meken party chairman in 2009), id. at 591 

(another opposition party leader killed in prison in 2009), id. at 601, 603 (threats to AtaMeken members in 2008 and 2009), id. at 610 (son and prominent brother of opposition 

leader arrested in 2009), id. at 631 (leader of political dissident group arrested and 

convicted in 2008), id. at 624, 722 (Dzhumanov’s uncle, who published a prominent 

newspaper advocating Ata-Meken’s views, arrested on libel charges in 2008), and id. at 

557 (false charges thrice filed against Dzhumanov’s cousin, the Ata-Meken party vice 

chairman, in 2007 and 2008).

The bulk of the evidence addressing post-revolution events focuses on violence 

against ethnic Uzbeks. Dzhumanov argues that, because Ata-Meken is viewed as 

sympathetic to the Uzbek cause, the threat of persecution against members of his political 

party persists after the revolution. But, to the extent his cause-and-effect assertion is

correct, the party’s difficulties on account of that unpopular view appear to be political, 

with Ata-Meken performing poorly in the polls and being shut out of governing 

coalitions. The administrative record contains no examples of persecution of Ata-Meken 

members or leaders on the basis of party support of Uzbeks. We cannot say on this 
6

record that “any reasonable adjudicator would be compelled to conclude,” 8 U.S.C. 

§ 1252(b)(4)(B), that Dzhumanov had “a well-founded fear of future persecution,” 8 

C.F.R. § 1208.13(b), let alone that it was “more likely than not” that he would be 

persecuted, id. § 1208.16(b)(2). Therefore, Dzhumanov’s request for asylum and 

withholding of removal was properly denied.2

Dzhumanov also challenges the denial of his claim for CAT relief. While the 

administrative record contains reports of the continued use of torture against prisoners

after the 2010 revolution, Dzhumanov has failed to establish, for the reasons stated 

above, that he would likely be imprisoned if he returned to Kyrgyzstan. Thus, he has

failed to establish that it is “more likely than not” that he would be tortured upon 

removal. Id. at § 1208.16(c)(2).3

III. Conclusion

For the foregoing reasons, we will deny the petition for review.

 

2 Dzhumanov argues that the BIA failed to grasp the essence of his argument: that 

he faced a greater risk of persecution because he was associated with a prominent party 

figure but not prominent enough himself to receive bodyguards. But the BIA rejected the 

premise of Dzhumanov’s argument, concluding that the current situation in Kyrgyzstan 

did not present a sufficient risk of persecution based on political opinion. 

3 We do not address Dzhumanov’s one-sentence argument that the BIA should 

have remanded his case to the IJ. See Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 

812, 821 n.10 (3d Cir. 2006) (“[P]assing and conclusory statements do not preserve an 

issue for appeal.”).