NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0200n.06 No. 12-3261 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SABI T PUL ATOV, P etitioner ,
v. ERI C H. HOL DER, J R., United States Attorney Gene ral, Respondent.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW OF A FI NAL ORDER OF THE B OARD OF I MMI GRATI ON APPEAL S

O P I N I O N

Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges. KA RE N NELSO N MOORE, Circuit Judge. Sabit Pulatov (“Pulatov”) , a native and citizen of Uzbekistan, appea ls the denial of his reque sts for asy lum and withholding of remova l by the Boa rd of I mmigra tion Appea ls (“B I A”)

. We DISMISS his asy lum appea l for lack of jurisdiction to hear his predominantly fac tual appea l. We further DENY revie w of the BI A’s decision reg arding withholding of r emoval as be ing not manif estly contra ry to law. I. BACKG ROUND AN D P ROCEDURE Whil e in Uzbekistan, Pulatov’s son di ed o f oral canc er, for which Pulatov blamed a leg al, smokeless-tobac co product known as “nasva y .” Administrative Record (“A .R.”) at 97 (I mmigra tion J udg e (“I J ”)’ s Ora l Dec ision (“O ral Dec .”) at 6). I n response , Pulatov org anized “The Fund in Honor of Rustam Pulatov,” throug h which he a dvocate d ag ainst the use of na svay ; at its larg est, the fundNo. 12-3261

Pulatov v. Holde r
consisted of 16 members. Id. Pulatov twice soug ht, but failed, to reg ister the fund with the Ministry 1 of J ustice. Id. at 97–98 (Ora l Dec

. at 6–7). Neve rtheless, the fund org anized meeting s and distributed le afle ts to raise awa rene ss a bout the dang ers of nasva y . Id . at 98 (Or al Dec . at 7). The fund also met with nasvay vendors, and appar ently convince d some to stop selling the product. Finally , the fund lobbied the Nati o n al An al y tical I nformation Center on Nar cotics and the local police to end the use and sale of nasva y . Id

. Pulatov beg an to rec eive threa tening phone calls reg arding his advoca cy . On October 1 1 , 2004, men dresse d in police uniforms g rabbe d Pulatov and beat him unconscious; he rema ined hospitaliz ed for eig ht day s. Id. at 99 (Ora l Dec

. at 8). After leaving the hospital, Pulatov hired two private detec tives. The detec tives discovere d two manufa cturing source s for nasvay , and discovere d that both the g overnor and first deputy of Tashkent (Pulatov’s home province ) wer e involved in its production. Id. at 100 (Or al Dec

. at 9). Pulatov planned to g ive this information to an opposition political party , but, befor e he could, he was sear ched by three police office rs, then taken to the Offic e of I nterna l Affa irs, beate n, fitted with a g as mask, and cut off from rec eiving ox y g en. Id. at 101 (Ora l Dec

. at 10). He was held for three day s, then hospitaliz ed for a concussion and dislocated arm. Id. at 102 (Ora l Dec

. at 11). On J une 1, 2005, Pulatov and his family tried to flee Uzbekistan; they

wer e stopped by police and beate n, and Pulatov later lear ned that his daug hter had been rape d. Id

. Pulatov and his family event u al l y escaped to Kazakhstan. After being g rante d a temporar y nonPulatov now claims that the fund c onsisted of 60 members a t its peak, and c laims that the 1 number 16 wa s incorre ctly transcr ibed by

the administrative re porter. Pet’ r B r. at 7 n.2. 2No. 12-3261

Pulatov v. Holde r immigra nt work visa, Pulatov returne d alone to Uzbekistan and flew to the United States, wher e he

was a dmitted on J uly

24, 2005. Id. at 103, 110 (Or al Dec . at 12, 19). Pulatov’s visa expired on October 30, 2005. Thirteen months later he filed an application seeking asy lum or alterna tively withholding of remova l under the I mmigra tion and Nationality Act (“I NA”) and the Convention Ag ainst Torture (“CAT” ). An I J first reje cted Pulatov’s asy lum reque st

as untimely

. Alt houg h noting that Pulatov offe red no corr oborating evidenc e to support his story —including documents provided by his private detec tives, or hospital rec ords that he claimed to possess while in the United States—the I J deter mined that Pulatov’s testimony was cre dible, and that Pulatov had been perse cuted while in Uzbekistan. A.R. at 115 (Ora l Dec

. at 24). Howeve r, the I J found that Pulatov’s perse cution did not occur on acc ount of his claimed “member ship in a ‘social org anization advoca

ting the elimination of nasvay .’” Id. at 117 (Ora l Dec

. at 26) (quoting Pulatov’s counsel). Acc ording ly , in addition to reje cti n g h i s petition as untimely , the I J reje cted Pulatov’s asy lum reque st on the merits; on the same basis, the I J denied Pulatov’s reque st to withhold remova l. Id. at 124 (Ora l D ec. at 33). The I J then held that Pulatov wa s not e ntitled to relief pursuant to the CAT, finding that the fund, which provided “the impetu s b e h ind the alleg ed actions ag ainst” Pulatov,

no longe r exis ts, and thus it is not more likely than not that Pulatov would be tortured upon his return to Uzbekistan. Id. at 125 (Or al Dec . at 34). On appea l to the BI A, Pulatov abandone d his claim that he was a member of a social g roup. I nstead, he arg ued for the first time that his perse cution was on the basis of imputed political opinion. The BI A reje cted this new arg ument on the merits. A.R. at 4 (B I A Op. at 2). I t also aff irmed the I J ’s

3No. 12-3261

Pulatov v. Holde r finding that Pulatov’s asy lum petition was untimely , and that it was not more likel y t h an n o t t h at P u latov would be tortured in the future. Id. at 3–4 (B I A Op. at 1–2). Pulatov filed a p et i t i o n fo r revie w in this court. II. ST ANDAR D OF REVIEW The BI A aff

irmed the I J ’s decision, and took up direc tly Pulatov’s imputed- political-opinion claim. Acc ording ly , we r eview both the I J ’s and the B I A’s opinions. Gilaj v. Gonzales , 408 F.3d 275, 283 (6th Cir. 2005). We re v i ew l egal deter minations de novo, and fac tual finding s under a “substantial evidenc e” standard, wher eby re v er s al is appropr iate “only if the evidenc e compels a differ ent result.” Zoarab v. Mu ka s ey , 524 F.3d 777, 780 (6th Cir. 2008). Be cause the I J found Pulatov to be credible, “we must acc ept t he represe ntations [he] made in the application and [ his] testimony as true.” Gilaj , 408 F.3d a t 285–86. III. ASYLUM CLAIM A petition for asy lum must be filed within one y ear of an alien’s arr ival in the United States. 8 U.S.C. § 1158(a) (2)( B)

. Pulatov conce des that he missed the filing deadline. Pet’r Br

. at 15. “We 2

are barr ed from ‘re v i ew [ i n g][ ] asy lum applications denied for untimeliness only when the appea l seeks review of discretionar y or fac tual questions, but not when the appea l seeks revie w of constitutional claims or m atters of s t at u t ory construction.’” Amir v. Gonzales , 467 F.3d 921, 924

Pulatov arg ues that he filed his petition on October 25, 2006—five day s befor e the one-y ear 2 anniver sary of the expiration of his four- month work visa—but that a lag in t h e docketing of his application ca u s ed i t to be stamped as rec eived on November 15, 2006. Reg ardle ss, the asy lum deadline is calc ulated from the date of arr ival, and not from the date of the expiration of leg al status. 4No. 12-3261

Pulatov v. Holde r (6th Cir. 2006) (quoting Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (6th Cir. 2006)). Pulatov claims t h at the BI A made two materia l mistakes of fac t in reje cting his timeliness arg ument. He al s o 3 appar ently sug g ests that “extraordinary circ umstances” excused his delay , notwithstanding a deter mination by the I J to the contra ry . See § 1158(a) (2 )( D). Both arg uments involve “a predominantly fac tual deter mination.” Almuhtaseb , 453 F.3d at 748 (citation omitted); acc o rd Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011). Acc ording ly , we lack j u ri s d i ct ion to consider Pulatov’s c laim for asy lum. IV. WITHHO LDING- OF -REMOVAL CLAIM Pulatov arg ues that he was perse cuted on the basis of his imputed political opinion. An alien seeking the withholding of remova l bear s the burden of proof of demonstrat i n g t h at h is “life or fre edom would be threa tened in that country beca use of the alien’s

. . . political opinion.” 8 U.S.C. § 1231(b)( 3)(A) –(C) (incor porating by ref

ere nce § 1158(b)( 1)(B )). We have rec og nized that perse cution on the basis of an imputed political opinion is g rounds fo r wi t hholding of remova l. Haider v. H

older , 595 F.3d 276, 284 ( 6th Cir. 2010).

Neither of the fa ctual mistakes is materia l. First, the BI A s tated that Pulatov “did not file 3 his asy lum application within a rea sonable time afte r the expiration of his immigration status.” A.R. at 3 (B I A Op. at 1) (e mphasis added)

. The BI A s hould have refe rre d to the ex piration of hi s non immigra tion status. Second, the BI A s tated that Pulatov “did not prese nt any evidenc e to support his implicit claim that he h ad a m en tal or phy sical disability that under the totality of the circ umstances ex cuses the delay in filing his asy lum application.” Id

. (empha sis added)

. Pulatov arg ues that his testimony is itself evidenc e of these disabiliti es. Howeve r, the BI A was clea rly echoing the I J ’s finding that Pulatov did not of fer evidenc e to suppor

t assertions in his testimony

. See A.R. at 112 (Or al Dec . at 21). 5No. 12-3261

Pulatov v. Holde r
Pulatov first prese nted his imputed-political-opinion theor y to the BI A. I n doing so, he framed his appea l as follows: “Mr. Pulatov clea rly holds a political opinion within the meaning of the rele vant statutes— that he is opposed to the corrupt total i t a r i a n g o vernm ent
. And, the g overnme nt pe rsec uted him not beca use he is for

reg ulation of nasvay , but be cause they impute to him an anti-g overnme nt political opinion.” A.R. at 12 (Resp’t Br

. in Supp. of Appea l at 5) (empha sis added)

. Pulatov now claims befor e this court, in contra diction to his brief to the BI A, that he was perse cuted because of h i s p ro-reg ulation activism. Pet’r Br. at 26 (“Pulatov’s persec ution

was based on Pulatov’s anti-nasva y activism—namely , petitioning various branc hes of the g overnme nt to make nasvay use illega l, and g iving talks and distributing pamphlets on the neg ative eff ects of na svay

use.”) (interna l citations omit ted). 4 We may “re view a final order of remova l only if

. . . the alien has exhausted all administrative

reme dies ava ilable.” 8 U.S.C. § 1252(d)( 1). Unde r § 1252(d) (1)’ s exhaustion requirement, “only claims proper ly

prese nted to the BI A and conside red on the ir merits ca n be re viewed.” Ramani v. Ashcroft , 378 F.3d 554, 558–60 (6th Cir. 2004). Pulatov failed to exhaust his new imputed-politicalopinion claim; the basis for his instant appea l is one that he flatly disavowed befor e the BI A in favor of an alterna te basis for political perse cution, which he now denies. Be cause Pulatov preve nted the BI A from addre ssing the foundation of his instant appe al , we may not enter tain his new theory as to why remova l should be withheld.

At oral arg ument, Pulatov claimed never to have arg ued that the Tashkent g overnme nt was 4 corr upt, or that his anti-cor

ruption stance formed the basis of his imputed political opinion. These statements contra dict his earlier brief to the B I A.

6No. 12-3261

Pulatov v. Holde r
Pulatov arg ues in his reply brief that the BI A usurped the I J ’s fac tfinding authority by finding that he offe red no evidenc e t o co rr o b o rate his theory of political corr uption in Tashkent. See 8 5 C.F.R. § 1003

. 1 (d )( 3)(iv) (“[T]he Boa rd will not eng ag e in fac tfinding in the course of deciding appea ls.”). I n discussing the I J ’s finding that Pulatov suffe red retribution purely beca use of persona l matters, the BI A noted that Pulatov “fa iled to prese nt any persua sive corr oboration to show that the g overnme nt of T as h k en t is involved in the sale of this leg al product (na[sv]ay ) in any corr upt fashion,” and further stated that Pulatov “did not prese nt persua sive testimony or other evidenc e to establish that his life and fre edom was threa tened

. . . on acc ount of an imputed political opinion.” A.R. at 4 (B I A Op. at 2)

. The BI A did not eng ag e in independe nt fac tfinding. The I J held that, at best, Pulatov suffe red retribution over a persona l matter betwee n him and Tashkent officia ls; from this the BI A conclude d,

Pulatov arg

ues in the alterna tive that, if such fac tfinding is permissible, then the BI A did it 5 without providing him notice and opportunity to provide corr oboration. For support he points to § 1158(b)( 1)(B )(ii), which states as follows: “Where the trier of fac t deter mines that the applicant should provide evidenc e that corr oborate s otherwise cre dible testimony , such evidenc e must be provided unless the applicant does not have th e e v id e n c e and cannot rea sonably obtain the evidenc e.” I t is an open question whether the quoted text from § 1158, first introduced in the REAL I D Act, require s that a fac tfind e r p r o v id e o th e r w is e c redible applicants notice and opportunity to provide corr oborative evidenc e befor e its absenc e be held ag ainst them. See Ren v. Holder , 648 F.3d 1079, 1091–92 (9th Cir. 2011) (“[A cre dible] applicant must be g iven notice of the corr oboration require d, and an opportunity to either provide that corr oboration or explain why he cannot do so.”); Chukwu v. Attorney Gen. of the U.S. , 484 F.3d 185, 192 (3d Cir. 2007). But see Abraham v. Holder , 647 F.3d 626, 633 (7th Cir. 2011) (holding that § 1158(b)( 1)(B )(ii) does not cre ate an additional notice-andopportunity require ment). Howeve r, as d i s cu s s ed i n this section, the BI A did not act as a fac tfinder—it relied on finding s made by the I J —and held that Pulatov pr esente d no evidenc e of a political motive. Thus, this issue of statutory construction is not befor e us. To t h e ex tent that Pulatov’s arg ument conce rns a lack of notice and opportunity provided to him b y t h e I J , that arg ument was not pre sented to the B I A, and so ha s not been prope rly exhausted. 7No. 12-3261

Pulatov v. Holde r relying on f

indings of f

act alre ady

made by the I J , that Pulatov could not have suff ere d retribution

on acc ount of an imputed pol itical opinion. Specifica lly , the I J found that Pulatov’s key evidenc e of a motive fo r re t ri b u t ion was a repor t, cre ated for him by private detec tives, that linked two Tashkent officia ls to the manufa cture of nasvay . Cf. Marku v. Ashcroft , 380 F.3d 982, 987 (6th Cir. 2004) (stating , in the asy lum context, that a petitioner “is not expected to provide direc t proof of

. . . motive, but must show ‘ some evidenc e of it, di re ct o r ci rcumstantial’” (quoting INS v. EliasZacarias , 502 U.S. 478, 483 (1992)) (empha sis in orig inal)). Pulatov c ould not pr ovide the repor t to corr oborate his testimony

. A.R. at 264–65 (Tr. at 132–33). Neve rtheless, the I J found that even

acc epting his testimony reg arding the detec tives’ repor t, Pulatov did not establish that the repor t would even have place d Tashkent officia ls “in a neg ative light in the public.” A.R. at 123 (Ora l Dec

. at 32). L ikewise, the I J found t hat P ulatov submitt ed separate repor ts conce rning Uzbekistan, but that none established that nasvay was illega l. Id . at 123–24 (Ora l D ec. at 32–33). Pulatov of fer ed

no further testimony or evidenc e of the Tashkent g overnme nt’s conduct that could be construed to establish a motive for perse cuting him on the basis of an imputed political opinion. See id

. at 122–24 (Ora l Dec. at 31–33). Acc ording ly , the BI A di d not act impermissi bly in ref ere ncing the findi ng s of the I J and in rely

ing on those finding s to conclude that Pulatov has not established that he suffe red reta liation “on acc ount of an imputed political opinion.” A.R. at 4 (B I A Op. at 2). Substan t i al evidenc e does not c ompel us to conclude othe rwise.

8No. 12-3261

Pulatov v. Holde r
V. CONVENTION-AG AINST-TORTURE CLAIM Pulatov states that, contra ry to the finding s of both the I J and the BI A, it is more likely than

n o t t h at h e will be tortured if forc ed to return to Uzbekistan. I n support of this position, Pulato v

rea sserts the evidenc e he offe red to both the I J and the BI A. Pet’r Br

. at 37. “We revie w the BI A’s decision on a reque st for withholding of remova l under the same standard reg ardle ss of whether the reque st was made pursuant to the I NA or the CAT.” Almuhtaseb , 453 F.3d at 749. Acc ording ly , the BI A’s deter

mination will be reve rsed only if “the evidenc e ‘not only supports a contra ry conclusion, but indeed compe ls it.’” Id. at 749 (quoting Y u v. Ashcroft , 364 F.3d 700, 702–03 ( 6th Cir. 2004) (empha sis in orig inal)). Pulatov does not respond to the asser tion, pr offe red by both the I J and the BI A, t hat because the fund no longe r ex ists, he is unlikely to be tortured in the future. A contrary conclusion is not compelled by the evidenc e. VI. CONCLUSION For the reasons provided ab o v e, we DISMISS Pulatov’s appea l of hi s asy lum petition for lack of jurisdiction and DENY revie w re g arding the re mainder of

the B I A’s dec ision.

9