NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0671n.06 Nos. 12-3021, 12-4057 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

EKA AK HVL EDI ANI , Petitioner, Z AKRO KB I L ASHVI L I , Petitioner,

v.

ERI C H. HOL DER, J R., United States Attorney Gene ral Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW OF AN ORDER OF THE B OARD OF I MMI GRATI ON APPEAL S

Be fore : SI L ER, CL AY, and G I BB ONS, Circuit J udg es. S I LER , Circuit J udg e. Eka Akhvlediani and Z akro Kbilashvili seek revie w o f an o rd er issued by an I mmigra tion J udg e (“I J ”), and aff irmed by the Boa

rd of I mmigra tion Appea ls (“B I A”) , deny ing the ir application for a sy lum and withholding of r emoval and the ir reque st for re lief under the Convention A g ainst Torture (“CAT” ). They also seek revie w of the BI A’s order deny ing their subsequent motion to reope n their applications. Be cause the BI A’ s d ec i sions are supported by substantial evidence and fa ll squarely within its broad discr etion, we deny the petitions for re view of both order s.Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder

I. F ACTUAL AND P ROCEDURAL BACK GR OUND Petitioners, husband and wife, are citizens of the country of Geor g ia. They curr ently reside in the United States and ha ve two children who remain in Geor g ia. Kbilashvili beg an working as

a policeman in 1993 in the Ministry of I nterna l A ffa irs. By 1995, he was promoted to inspector of the criminal depar

tment in Tbilisi, Geor g ia and later l earned of some internal corruption wher eby Ministry officia ls wer e collecting pay ments from local businessmen in exchang e for taking no action reg ardin g i l l ega l sales. I n 1998, he repe atedly called these businessmen and forba de them from g iving any money to the police. As a result, Ministry superiors shunned him and he beg an rec eiving anony mous threatening phone ca lls. Kbilashvili was e ventually asked to resig n by

his supervisor, but he re fused. Over the next sever al y ear s, Petitioners claim to have been hara ssed, threa tened, and attacke d

as a result of Kbilashvili’s open oppositi o n t o g overnme ntal corr uption. The tension perha ps climaxed when he was approa ched one day by a g unman, order ed out of his car , and shot in the hand. A few day s later, Akhvlediani rec eived an anony mous phone call war

ning her that “the second bullet w[ould] be the final for [Kbil ashvili] and he w[ould] be killed.” The shooting and rela ted phone call convince d Kbilashvili to resig n from his position, but he alleg es that the threa ts persisted despite his withdrawa l. Approxim ately six months afte r he resig ned, he acc epted a job as deputy direc tor of a

corr ectional fac ility in Rustavskay a. There , he battled narc otics smugg ling and his wife ag ain beg an

rec eiving threa tening phone ca lls. By 2000, Akhvl ediani was still rec eiving threa tening phone calls from anony mous people who claimed to know wher e Petitioners lived and wher e their children went to school. Akhvlediani - 2 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder claimed she was followed to and from school. Kbilashvili ag ain reque sted to transfe r jobs and was moved to a corr ectional fac ility in Tbilisi. He soon lear ned that criminals housed in the fac ility wer e pay ing manag ers to obtain contra band, specia l visitation rig hts, and drug s. He repor ted his finding and ag ain rec eived threa tening anony mous phone calls. After another short reloc ation to M ay akovsky in 2002, during which Petitioners suspected they wer e being followed and h ea rd g unshots near their new neig hborhood, they left their two children in Geor g ia and trave led to t he United States. Petitioners wer e admitted to the United States in 2002 as non-immigra nt tourist visitors with authorization to rema in for six m onths. Si nce the n, their two childre n have lived at all times with either the ir uncle or g randpa rent and have reloc ated f

reque ntly throug hout Georg ia. B y

late 2002, Petitioners decide d to rema in in the United States. At the advice of a friend, they trave led to Miami, Florida and met with an immigra tion consultant, Elmar Melikiga nov, who indicated that Kbilashvili

wa s el i gi b le for a work visa. Petitioners believed Melikiga nov to be an attorney and deposited a partial pay

ment in c ash for him to file the appropr iate application on Kbilashvili’s be half. Severa l months later, Melikiga

nov called reque sting additional pay ment but Kbilashvili ref

used beca use he had not rec eived any documents or other evidenc e of Melikiga nov’s p ro gress. Since then, Kbilashvili has been una

ble to contac t Melikiga

nov. I n Marc h 2003, an asy lum application in Akhvlediani’s name was filed with the I mmigra tion and Natura liz ation S er v i ce. Four months later, the Depa rtment of Homeland Security initiated

remova l proce eding s and serve d Petitioners with separ ate Notices to App ear (“N TAs”) , char g ing them with being remova

ble pursuant to Sections 237(a)(1 )( B) of t he I mmigra tion and Nationality - 3 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder Act, 8 U.S.C. § 1227(a) (1)( B)

. Petitioners claim they did not rec eive the NTAs and there fore failed to appea r, re sulting in their both being order ed re moved in absentia

. I n 2008, DHS office rs detained Kbilashvili and he then lear ned that an I -589 application had been filed on his behalf

. Throug h counsel, Petitioners moved to reope n their remova l pr ocee dings and resc ind their in absentia remova l order s as they claimed the I -589 application was a product of fra ud. The I J g rante d the motions and Petiti oners subseque ntly admitted the factual alleg ations in the NTAs, conce ded their remova bility , formally withdrew the Marc h 2003 asy lum application, and indicated that they eac h intended to apply for asy lum, withholding of remova l, and protec tion under the CAT. I n 2009, they submitt ed these applications and reque st for relief

. Although Pe t itioners

eac h submitt ed separ ate applications, their claims for relief wer e essentially the same and wer e based

on past threa ts a

nd phy sical harm they fac ed in G eorg ia betwee n 1997 and 2002, as well as threa ts to their family members since Petitioners arr ived in the United States. They specific ally claim that their son, Emzar Kbilashvili, has been phy sically attacke d on more than one occa sion as reve ng e for h i s fa t h er’s activities. During one such attack in 2009, Emzar was beate n by sever al people an d stabbed with a knife. He was attacke d ag ain later that y ear and was trea ted for multipl e injuries to his face and body

. After multipl e merits hear ings, the I J found P etitioners i nelig ible for asy lum beca use t heir application was untimely and conclude d they had not met their burdens of pro v ing elig ibilit y for withholding of remova l or CAT protec tion beca use th ey failed to sufficie ntly corr oborate their claims. The BI A aff

irmed the I J ’s decision. Petitioners then filed a motion to reope n and submitt ed additional evidenc e of Emzar’s 2009 attacks and evidenc e of a rec ent 2011 attack on their daug hter, - 4 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder Nino Kbilashvili. The BI A denied the motion afte r concluding that the 2009 evidenc e was not new

or previously undiscovera ble and that the evidenc e of Nino’s attack failed to establi s h a re q u isite nexus between the ha

rm suffe red a

nd a prote cted g round for relief

. II. DISCUSS ION The BI A’s d e c is ion will be upheld if it is “supported by rea sonable, substantial, and probative evidenc e on the rec ord considere d as a whole.” INS v. E l i a s -Z a carias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a )(4) ). Under this standard, we may reve rse if a petitioner’s evidenc e “not only supports a contrary conclusion, but indeed compels it.” Klawi tter v. INS , 97 0 F. 2 d 1 49, 152 (6th C i r. 1 9 92). To rea ch this conclusion, we ask whether evidenc e “wa s such that a rea sonable fac tfinder would have to conclude that the requ is it e f e a r of perse cution exis ted.” Elias-Zacarias , 502 U.S. at 481. Where, as here , the BI A issues its own decision in which it aff irms portions of the I J ’s decision, “we revie w the BI A’s decision as the fi n al age n cy deter mination,” and revie w the I J ’s decision “[t] o the extent the BI A adopted the [I J ’s] rea soning.” Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) (c itations omi tted). A. Asylum . An alien must file an application for asy lum within one y ear of arr iving in the United States in order to be elig ible for relief

. 8 U.S.C. § 1158(a) (2)( B)

. We lack jurisdiction to revie w a denial of asy lum for untimeliness unless a pe titioner seeks re view of “ constitutional claims or matters of statutory construction,” rathe r than mere discretionar y or fac tual finding s. Almuhtaseb v. Gonzales , 453 F.3d 743, 748 ( 6th Cir. 2006).

- 5 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder Petitioners contend that they meet the jurisdic t i o n al exception and arg ue that the BI A’s decision is in c o n s is tent with “re g ulations and law.” They asser t that their asy lum applications should be deeme d filed the date that their motion to reope n was filed and that “[t] he date used as the starting point [of the window to file for asy lum] should be the date [Kbil ashvili] was detained as this is the first time he knew what was happening in his c ase.” Be cause Kbilashvili “exerc ised due diligenc e up until that point and did not rea liz e what [Meliki g anov] had done,” he arg ues that the filing period should have be en tolled. Petitioners c ite to no case law nor offe r any leg al ar g ument in support of their position. We enter tained a simil ar arg

ument by the petitioners in Khozha y n o v a v . H

older , 641 F.3d 187 (6th Cir. 2 0 1 1 ), wh o challeng ed the BI A’s fac tual finding s as to whether they filed their asy lum applications within a rea sonable period g iven their circ umstances. 641 F.3d at 191-92. Petitioners here at t ack the BI A’s fac tual deter mination that Kbilashvili failed to exercise due diligenc e in dealing s with Melikiga

nov which could cre ate extraordinary circ u ms ta n c e s sufficie nt to justify delay in his application. For this rea son, Petitioners’ arg ument is “exactly the ty pe of fac tual, discretionar

y deter mination that [courts] are jur i s d ictionally barr ed from revie wing .” Y ong Lai Lian v. Holder , 414 F. App’x 790, 794 (6th Cir. 2011). There fore , we lack jurisdiction to consider the BI A’s ruling of Petitioners’ applications as untimely and dismiss the petition as it perta ins to their asy lum claims. B. Withh oldin g of Rem oval and CAT P rote ction. Petit i o n er s n ex t challeng e whether we should reve rse the I J ’s adver se cre dibilit y finding ag ainst them reg arding their applications for withholding of remova l and CAT protec tion. I n order

to qualify for withholding of remova l, Petitioners must show that there is a clea r probability that they - 6 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder would be subject to perse cution on the basis of t h ei r “ra ce, relig ion, nationality , membership in a particula r social g roup, or political opinion” if they returne d to Geor g ia. Khozhaynova , 641 F.3d at 192-93 (citing 8 U.S.C. § 1231(b)( 3)(A) ; Vincent v. Holder , 632 F.3d 351, 354 (6th Cir. 2011)). I f Petitioners can establish past perse cution, they are “entitled a rebuttable presumption that [t heir] li[ ves] or fre edom would be threa tened if [t hey ] return[].” Khozhaynova , 641 F.3d at 193. I f their fea r is unrela ted to past perse cution, then they “bea r[] the burde n of demonstrating that it is ‘more likely than not’ that [t hey ] will be perse cuted o n t h e b as i s of one of the five protec ted g rounds if [t hey ] re turn.” Id

. at 193. To be elig ible for protec tion unde r the CAT, a petitioner must e stablish that he or she would be s u b j ec t t o t o rture by or at the instigation of or with the acquie scenc e of a public officia l or person a cting in an offic ial capa city

. See 8.C.F.R. § 1208.18(a) (1). Credibility deter

minations are revie wed under the substantial evidenc e standard. Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012). Credibility determ i n at i o ns conce rning applications for withholding of remova l and CAT protec tion filed on or afte r May 11, 2005 are g overne d by the REAL I D Act, 8 U.S.C. § 1158(b)( 1)(B )(iii). Under the Act, a trier of fac t must make a cre dibilit y finding based upon the totality of the circ umstances and all rele vant fac tors. El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009). “The testimony of t he applicant, if cre dible, may be sufficient

to sustain the burden of proof without corr oboration.” 8 C.F.R. § 1208.13(a)

. Howeve r, “a failure

to provide corr oborating evidenc e when it is rea sonably available may suppo rt an I J ’s adver se

cre dibilit y finding .” Matias-Pablo v. Holder , No. 12-3819, 2013 WL 1235654, at *8 (6th Cir. Mar. 28, 2013).

- 7 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder Petitioners ar gu e that they suffe red from past perse cution in Geor g ia due to Kbilashvili’s political opposition to corr uption and that they more likely than not will be perse cuted if they return. After revie wing Petitioner’s testimony and submitt ed evide n ce, the I J questioned Petitioners’

cre dibilit y , concluding that while Kbilashvili’s testimony was “g ener ally consistent,” there wer e “a fe w d i s cr epancies and/or inconsistencies that [were] worthy of mention.” First of these was Kbilashvili’s acc ount of being attacke d in his vehicle, which he indicated during cl o s in g r e ma rks was

a conseque nce of his opposition to g overnme nt corr uptio n . Ho we v er, he failed to provide

corr oboration of th i s ex planation, and it contra dicted a statement submitt ed by his neig hbor who

rec alled that when she asked Kbilashvili what had transpire d, he indicated to her that he was the victim of an attempted automobile theft. Second, the I J found that Petitioners failed to corr oborate their t estimony reg arding the attack on Emzar in Fe bruar y . Kbilashvili testified t hat Em zar could

not e x plain what had happene d and could not pr ovide any other details of the a ttack. On the other hand, Akhvledia

ni testified that one of the attacke rs stated to Emzar that the a ttack wa s motivated by their inability to harm Kbilashvili himself. Third, the I J , in revie wing all of the evidenc e befor e it, found that Petitioners failed to corr oborate their testimony reg arding additional attacks on Emzar and threa ts made to their brother with any rea sonably available evidenc e and had failed to establish the unavailability of such evidenc e. No statement or letter was offe red by Petitioners’ son or brother

to bolster these fa ct u al al l eg ations. Four th, the I J observe d that despite Petitioners’ multipl e

acc ounts of attacks and resulting hosp i talizations of their son, no hospital rec ords of such events

wer e produc ed. F ifth, the I J noted that althoug h Petitioners testified t hat t heir c hildren, who we re living with their g randpa

rent, wer e constantly forc ed to reloc ate during the last sever al y ear s for fea r - 8 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder of attacks, no letter or aff

idavit to this eff

ect was submitt ed. Finally , the I J observe d that Kbilashvili prese nted no corr oboratio n o f h i s story from one of his former colleag ues, the head of the prison sy stem, who pledg ed his support to Kbilashvili and had alleg edly helped him throug hout many of the alleg ed eve n t s . The I J conclude d not only that Petitioners lacke d cre dibilit y due to the inconsistencies presented and absenc e of corr oboration, but also that they fa i l ed t o a establish the requisite nexus betwee n the alleg ed eve nts and a prote cted g round wa rra nting r elief. Petitioners i n s i s t t h at their failure to provide corr oborating evidenc e should not bar their claim beca

use the I J failed to reque st specific corr oboration for the events in question. They contend that it was unrea sonable for the I J to expect further corr oboration “in light of the failure of the Court to ask about the statements.” Although Petitioners find support for their position in prec edent from the Second and Third Circuits, which require I J s to inquire as to whether corr oborating evidenc e has been provided, see Fisenko v. Holder , 336 F. App’x 504, 511 (6th Cir. 2009), we have not endorse d this view. There fore , it was rea sonable for the I J to expect Petitioners to produce corr oborating evidenc e wher e the rec ord prese nted inconsistencies. See id. Considering the rec ord as a whole, the inconsistencies de scribed by the I J support an adverse cre dibilit y deter mination about Petitioners’ past perse cution beca

use they reve al the ab s en ce o f a nexus betwee n the alleg ed events and Kbilashvili’s political stance and, moreove r, the uncer tainty of whether these events occur red at all. C. Motion to Re open. We revie w a denial of a motion to reope n a remova l order for abuse of discretion. Denk o v. INS , 351 F.3d 717, 723 (6th Cir. 2003). Abuse of discretion is shown wher e an I J or the BI A offe rs

no “ra t i o n al explanation, inexpl icably depar t[ s] from established policies, or rest[s] on an - 9 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder impermissible basis such as invidious discrimination a g ainst a particula r rac e or g roup.” Balani v. INS , 669 F.2d 1157 (6th Cir. 1982). I n their motion to reope n, Petitioners submitt ed statements from their children explaining the motivations behind attacks in 2009 and 2011, and medical rec ords from Emzar’s trea tment following his 2009 attack. The BI A held that the submissi ons did not sufficie ntly demonstrate chang ed circ umstances materia lly aff ecting Petitioners’ elig ibilit y for asy lum and that, reg arding Petitioners’ applications for withholding of remova l, the submissi ons did not establish the requisite nexus betwee n the harm fea re d b y P et itioners and a valid g round for protec tion. Reg arding Petitioners’ application for CAT protec tion, the BI A held that Petitioners failed to make a prima f acie showing that it would be more likely than not that they

would be torture d upon their return to Ge org ia. “Evidenc e can support a motion to reope n proce eding s only if it was ‘not available and would

not have been discovere d or prese nted at the previous proce eding .’” Bushati v. Holder , 458 F. App’x 457, 459 (6th Cir. 2012) (quoting 8 U.S.C. § 1229a(c )(7) (C)(ii)). Most of t he evidence presente d by Petitioners, including Emzar’s medical rec ords and acc ounts of attacks in 2009, was available in 2009 and should have been prese nted then. As for Petitioners’ rema ining evidenc e of Nino’s attack in 2011, they are unable to show that the BI A abused its discretion in holding that t h e ev i dence lacke d the re quisite nex us betwee n the attac k and either a well-founded fear of persecution on the basis of a protec ted ground or a li kelihood of t orture. T h e BI A ex plained it s decision, which was in compliance with established policies, and Petitioners hav e n o t alleg ed that the BI A’s decision rested on an impermissible basis. The BI A found that Petitioners’ motion to reope n failed to establish a prima facie case for their reque sted underly ing relief beca

use the evidenc e submitt ed did - 10 -Nos. 12-3021, 12-4057

Akhv lediani, et al. v. Holder not suf ficiently demonstrate a nexus betwe en the harm asser ted and a protec ted g round for relief

. There fore , the BI A did not abuse its discretion to reje ct the newly submitt ed evidenc e as g rounds for reope ning Petitioners’ applications. THE PETITIO NS F OR REVIEW ARE DENIED.

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