13-140 Kudishev v. Holder BIA Page, IJ A078 521 004 

## UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

# SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF**  **APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL**  **APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the 27 th**  3 **day of February, two thousand fourteen.** 4 5 **PRESENT:** 6 **AMALYA L. KEARSE,** 7 **RALPH K. WINTER,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10 11 12 **GENNADY KUDISHEV, AKA GENNADI** 13 **KUDISHEV, AKA GENNADY GAVRILETS,** 14 **AKA GENNADIY ANDREYEVICH** 15 **GAVRILETS,** 16 Petitioner**,** 17 18 **v. 13-140** 19 20 **ERIC H. HOLDER, JR., UNITED STATES** 21 **ATTORNEY GENERAL,** 22 Respondent **.** 23 24 25 **FOR PETITIONER: Alexander G. Rojas, Barst Mukamal** 26 **Kleiner, LLP, New York, N.Y.** 27 28 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 29 **General; Mary Jane Candaux, Assistant** 30**Branch Director; Matthew A. Connelly,** 1 **Trial Attorney, Office of Immigration** 2 **Litigation, United States Department of** 3 **Justice, Washington, D.C.** 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7 DISMISSED in part and DENIED in part. 8 Gennady Kudishev, a native of Uzbekistan and citizen of the 9 Russian Federation, seeks review of a December 20, 2012, decision 10 of the BIA, affirming the December 14, 2010, decision of 11 Immigration Judge (“IJ”) Alan Page denying his applications for a 12 waiver of inadmissibility under section 212(i) of the Immigration 13 and Nationality Act (“INA”), and for adjustment of status. In re 14 Gennady Kudishev, No. A078 521 004 (B.I.A. Dec. 20, 2012), aff’g 15 No. A078 521 004 (Immig. Ct. N.Y. City Dec. 14, 2010). We assume 16 the parties’ familiarity with the underlying facts and procedural 17 history in this case. 18 When the BIA’s decision affirms the IJ’s holding but 19 modifies or supplements it, we consider the decision of the IJ as 20 modified or supplemented by the BIA. See Xue Hong Yang v. U.S. 21 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 22 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 23 standards of review are well-established. See8 U.S.C. 24 § 1252(b)(4)(B); see also Yanqin Weng v. Holder , 562 F.3d 510, 25 513 (2d Cir. 2009). 26



### 2**I. Inadmissibility** 1 Kudishev first challenges the agency’s determination that he 2 is inadmissible based on its finding that he willfully concealed 3 a material fact when applying for lawful permanent resident 4 (“LPR”) status. Willful misrepresentation or concealment of a 5 material fact to procure an immigration benefit renders an alien 6 inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). A fact is material 7 if it “has a natural tendency to influence or was capable of 8 influencing[] the decision of the decisionmaking body to which it 9 was addressed.” Monter v. Gonzales , 430 F.3d 546, 553 (2d Cir. 10 2005) (internal quotation marks omitted). 11 Here, the IJ reasonably found that when Kudishev applied for 12 adjustment of status in 2000, he knew of and thus willfully 13 concealed the fact that he had been charged in 1998 with the 14 murder of his former business partner. Kudishev indicated in his 15 application that he had never been charged with or indicted for 16 violating a law. However, as the IJ reasonably found, Kudishev 17 had a number of opportunities prior to applying for adjustment to 18 discover that a warrant for his arrest had issued on November 11, 19 1998: when speaking about the murder with his ex-wife, who was 20 present when police searched his apartment and who testified at 21 the trial of his alleged co-conspirators, and speaking with his 22 business associates and adult children in Russia after his 23 arrival in the United States. Based on this circumstantial 24



### 3evidence, the BIA reasonably found that Kudishev in fact knew 1 about the charge and sought to evade capture given that he 2 departed Russia shortly before the search and arrest warrants 3 were issued, married a U.S. citizen and adopted her surname, and 4 touted his innocence in a handwritten letter to a Russian court 5 included with a 2003 petition filed by his purported attorney. 6 Substantial evidence therefore supports the IJ’s knowledge and 7 willfulness findings. See 8 U.S.C. § 1252(b)(4)(B) 8 (“administrative findings of fact are conclusive unless any 9 reasonable adjudicator would be compelled to conclude to the 10 contrary”); see also Yanqin Weng,562 F.3d at 513 (providing that 11 factual findings must be supported by substantial evidence). 12 As to materiality, the IJ did not err in finding that 13 Kudishev’s murder charge would have a “natural tendency” to 14 influence the adjudication of his adjustment application. 15 Adjustment of status is ultimately a discretionary form of 16 relief. See8 U.S.C. § 1255(a). In deciding how to exercise 17 discretion, the agency may weigh adverse factors, including an 18 applicant’s conduct that may or may not have led to a conviction. 19 See Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010)

. 20 Accordingly, Kudishev’s murder charge was capable of influencing 21 the agency’s discretionary determination and was, thus, material. 22
See Monter, 430 F.3d at 558. 23 Once the Government has established a willful concealment of 24 material fact, it is presumed that the benefit sought would not 25 

### 4have been granted but for the concealment. See id. The burden 1 then shifts to the applicant to demonstrate otherwise. See id. 2 Here, because Kudishev did not proffer any evidence challenging 3 the proof of his indictment or evidence that he would, despite 4 the charge, be granted a favorable exercise of discretion, he did 5 not rebut the presumption that he would not have procured LPR 6 status but for concealing the charge. The IJ therefore did not 7 err in finding Kudishev inadmissible and ineligible for 8 adjustment of status. See id. ; 8 U.S.C. §§ 1182(a)(6)(C)(i), 9 1255(a). 10 **II. Waiver of Inadmissibility** 11 Although we lack jurisdiction to review the IJ’s 12 discretionary denial of Kudishev’s waiver application, we may 13 review constitutional claims and questions of law. See 8 U.S.C. 14 §§ 1182(i)(2), 1252(a)(2)(B), (D). Kudishev raises 15 constitutional claims by arguing that the IJ denied him due 16 process, but his arguments are frivolous and thus insufficient to 17 invoke our jurisdiction . See Barco-Sandoval v. Gonzales , 516 18 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction to review any 19 legal argument that is so insubstantial and frivolous as to be 20 inadequate to invoke federal-question jurisdiction.”). 21 Contrary to Kudishev’s argument, the IJ was not required to 22 reject the Government’s unauthenticated evidentiary submissions 23 simply because they were photographic copies. Because the 24



### 5Federal Rules of Evidence do not apply in immigration 1 proceedings, the admission of evidence need only satisfy due 2 process of law. See Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 3 2008). Due process requires that evidence be probative and its 4 use fundamentally fair. See id. The Government submitted the 5 search and arrest warrants and sentencing report from the Russian 6 prosecutor’s office and INTERPOL with translations and the 7 mailings’ respective cover letters, thereby establishing a chain 8 of custody and reliability. Accordingly, for the limited purpose 9 of establishing that Kudishev had been charged with murder and 10 knew of the charge, the IJ reasonably found the Government’s 11 documents probative and did not violate due process by admitting 12 them. See id. 13 Kudishev’s assertion that the IJ was biased because he 14 considered his murder charge serious is also frivolous as 15 consideration of such adverse factors is necessary in determining 16 how to exercise discretion. See Argueta , 617 F.3d at 113; see 17 also Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (requiring 18 remand on a showing that apparent bias precluded meaningful 19 review). Kudishev therefore fails to raise a colorable 20 constitutional claim or question of law regarding the denial of 21 his waiver application. See 8 U.S.C. §§ 1182(i)(2), 22 1252(a)(2)(B), (D). 23
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### 6For the foregoing reasons, the petition for review is 1 DISMISSED in part and DENIED in part. 2 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7 8



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