2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-23-2012

Djamkhur Vahidov v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4165

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4165

___________

DJAMKHUR T. VAHIDOV,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A089-082-819)

Immigration Judge: Honorable Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 21, 2012

Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

(Opinion filed May 23, 2012)

___________

OPINION

___________

PER CURIAM

Djamkhur Vahidov, proceeding pro se, petitions for review of the Board of 

Immigration Appeals‟s (“BIA”) October 19, 2011 order denying his motion to remand. 
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For the reasons that follow, we will deny the petition for review.

In 2008, Vahidov appeared in removal proceedings before the Immigration Judge 

(“IJ”), who ordered Vahidov removed to his native Uzbekistan and denied his 

applications for asylum, withholding of removal, and protection under the Convention 

Against Torture. The BIA denied Vahidov‟s subsequent appeal. Vahidov filed a petition 

for review; we denied the petition to the extent that Vahidov challenged the agency‟s 

resolution of his requests for asylum and related relief, but we granted the petition in part 

because the BIA failed to adjudicate Vahidov‟s motion to remand, which was 

incorporated into his brief before the BIA. See Vahidov v. Att‟y Gen., 413 F. App‟x 462, 

465-66 (3d Cir. 2011). The motion to remand, which comprised a single paragraph in his 

brief, contended that the case should be remanded to the IJ to consider whether Vahidov 

has a well-founded fear of persecution based on his status as an asylum applicant in the 

United States. Notably, Vahidov did not raise that claim before the IJ, and his motion 

relied only on the 2007 State Department Country Report on Uzbekistan, which indicates 

that the Uzbekistani government pressured certain other countries to return individuals 

who had sought asylum, and Lin v. United States Dep‟t of Justice, 459 F.3d 255 (2d Cir. 

2006), both of which were available during the proceedings before the IJ.

On remand, the BIA held that Vahidov‟s claim for asylum based on his status as 

an asylum applicant was waived and, in the alternative, that he had failed to meet his 

burden of demonstrating that a remand was warranted. Accordingly, the BIA denied the 
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motion to remand. Vahidov then filed a petition for review.

II

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA‟s denial 

of a motion to remand or to reopen for abuse of discretion, see Huang v. Att‟y Gen., 620 

F.3d 372, 390 (3d Cir. 2010), and will not disturb that decision unless it is “arbitrary, 

irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) 

(internal citation omitted). “The BIA treats a motion to remand for the purpose of 

submitting additional evidence in the same manner as motions to reopen the record.” 

Huang, 620 F.3d at 389. Accordingly, the BIA may deny the motion if: “(1) the alien as 

not established a prima facie case for the relief sought; (2) the alien „has not introduced 

previously unavailable, material evidence‟; or (3) in the case of discretionary relief (such 

as asylum), the alien would not be entitled to relief even if the motion was granted.” 

Caushi v. Att‟y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (quoting INS v. Abudu, 485 U.S. 

94, 104 (1988)). 

In denying Vahidov‟s motion to remand, the BIA reasoned that Vahidov‟s new 

asylum claim was waived and, in the alternative, that even if the new claim was not 

waived, he would not be entitled to relief if the matter were remanded to the IJ. We need 

not address the BIA‟s waiver analysis because we agree with the alternative holding that 

Vahidov‟s motion lacked merit. 

To demonstrate eligibility for asylum based on a fear of future persecution, an 
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applicant must demonstrate that he “has a genuine fear, and that a reasonable person in 

[his] circumstances would fear persecution if returned to [his] native country.” 

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). To satisfy the objective 

prong, a petitioner must show that he would be individually singled out for persecution or 

demonstrate a pattern or practice of persecution of similarly situated individuals. See Lie 

v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Here, the BIA first concluded that the 

Country Report Vahidov relied on did not demonstrate that Uzbekistan persecutes 

individuals who seek asylum in the United States. We agree. As the BIA noted, 

although the Country Report indicates that Uzbekistan aggressively sought the return of 

certain Uzbekistani refugees living in Russia, these refugees were, for the most part, 

believed to have been involved in terrorist or anti-government activities, i.e., the 2005 

events in Andijon, see AR 116-17, and there is no evidence in the Country Report that 

asylum seekers are persecuted upon returning to Uzbekistan on the basis of having sought 

asylum.

Likewise, we agree with the BIA that Vahidov‟s reliance on Lin v. United States 

Dep‟t of Justice is inapposite. In Lin, the Second Circuit Court of Appeals reasoned that

the petitioner may have faced a new risk of persecution when the United States 

government inadvertently notified Chinese authorities of the petitioner‟s asylum 

application; accordingly, a remand was warranted for the agency to consider that claim. 

See 495 F.3d at 267-68. As the BIA reasoned, Vahidov failed to demonstrate that any 
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such circumstances exist in his case, as there is no evidence in the record that officials in 

the United States have alerted the Uzbekistani government to his asylum application.

Accordingly, we will deny the petition for review.