## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 10 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OLEG SVIRIDOV,

Petitioner,

v. No. 02-9574 JOHN ASHCROFT,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

(BIA No. A75 710 013)

Beverly W. Oserow, Denver, Colorado, for Petitioner

. Donald E. Keener, Deputy Director, Office of Immigr ation Litigation (Peter D. Keisler, Assistant Attorney General; Richard M. Evans, Assistant Director; and Susan K. Houser, Attorney, on the brief), Civil Div ision, United States Department of Justice, Washington, D.C., for Respon dent.

Before EBEL , ANDERSON , and HARTZ , Circuit Judges.

ANDERSON , Circuit Judge.1 The INS ceased to exist on March 1, 2003, and its f unctions were transferred to the U.S. Citizenship and ImmigrationServices (“USCIS”) within the newly formed Department of Homeland Security. -2- Petitioner Oleg Sviridov is a native and citizen of Russia. He seeks review of an order of the Board of Immigration Appeals (“B IA”) affirming the Immigration Judge’s (“IJ”) decision denying his app lication for asylum, withholding of removal, and relief under the Convention Against Torture. We affirm.

BACKGROUND Sviridov entered the United States on June 20, 19 97, on a visitor visa with authorization to stay until June 19, 1998. He succ essfully sought an extension of his departure date to December 19, 1998. Sviridov filed an application for asylum under the Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. § 1158, on June 29, 2000. He was placed into immigration proc eedings in August 2000 and charged with being subject to removal under INA § 2 37(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States beyond the date authorized without receiving permission from the Immigration and Naturalization Service (“INS”). 1 He renewed his application for asylum, and also s ought withholding of2 The United Nations Convention Against Torture and O ther Cruel, Inhuman

or Degrading Treatment or Punishment, Dec. 10, 1984 , 1465 U.N.T.S. 85, was implemented in the United States by the Foreign Aff airs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2 242, 112 Stat. 2681, 2681- 821 (1998). See 8 C.F.R. § 208.16(c)(1), .17. It permits withhold ing of removal for an alien who establishes that “it is more likel y than not that he or she would be tortured if removed to the proposed country of r emoval.” Id. § 208.16(c)(2). -3- removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3 ), and relief under the Convention Against Torture. 2 After conducting a hearing, the IJ denied Sviridov’ s application for asylum because it was untimely. See 8 U.S.C. § 1158(a)(2)(B), (D) (requiring an asylum petitioner to file within one year of arrival in th e United States, absent a showing of changed circumstances “which materially affect t he applicant’s eligibility for asylum” or extraordinary circumstances excusing the delay). The IJ denied his application for withholding of removal under § 1231 (b)(3) because Sviridov had failed to show that “there is a clear probability o f persecution due to his race, religion, nationality, membership in a particular s ocial group, or political opinion.” Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234 (10th Cir. 2003) (citing INS v. Stevic , 467 U.S. 407, 413, 430 (1984)). The IJ also deni ed relief under the Convention Against Torture because he found Svirido v failed to establish that “it is more likely than not that he . . . would be tort ured if removed to [Russia].” 8 C.F.R. § 208.16(c)(2). Sviridov appealed the IJ’s decision to the BIA, which issued a summary affirmance without an opinion, in accordance with 8 C.F.R.3 He stated in his affidavit that this questioning oc curred in October 1995.

He testified at his hearing before the IJ that the interrogation occurred in 1994. -4- § 3.1(e)(4) (now codified at 8 C.F.R. § 1003.1(e)(4 ) (2003)). Sviridov seeks review of that decision. Sviridov was born on October 24, 1958, and grew up in Poland and Russia. His father was Russian and his mother is ethnicallyJewish, although she is registered as Russian. Sviridov trained to become a marine navigator and worked as a captain’s assistant on a ship from 1979 until 1985. He alleges that the FSB (formerly the KGB) questioned him in 1985 about sai lors under his command who had jumped ship while his ship was in port in the U nited States and warned him not to allow such conduct again. He further avers that he also lost his job in 1985 when he refused to join the Communist Party. Sviri dov thereafter moved to Krasnodar, Russia, where he worked in construction for two years. He was able to obtain another seafaring job in 1987 , on a ship which conducted geological expeditions. He avers that in late 1995, he was again questioned by the FSB after several crew members ju mped ship and defected to the United States. 3 He asserts that the FSB knew about their prior co ntact with him in 1985, and they allegedly threatened him if h e allowed any crew members to jump ship again. Sviridov testified that, follo wing this questioning, he used his accumulated vacation days to take a long leave of a bsence in the city of-5-

Novorosisk, not far from Krasnodar, and when he returned, he was told that he would be fired unless he voluntarily quit his job. He avers that the company told him he was being dismissed for his political belief s. Sviridov claims he then traveled to Moscow and file d a request for job reinstatement with the Geological Ministry, the ent ity which oversaw Sviridov’s former company. He alleges that nobody at the Mini stry would listen to him. He then returned home to Novorosisk, where he and othe r current and former employees of the geological company formed a group to protest the company’s dismissal of people based upon their political beli efs or ethnic background. He avers the group was “an informal and unregistered g roup that did not have an official name.” Sviridov Aff. at 2, Admin. R. at 1 89. He further avers the group also opposed the candidacy of the company’s preside nt, Mikhail Gromov, for a seat in the Duma, the Russian parliament. Sviridov testified that the group published flyers, spoke to people, and held meeting s in the city of Gelendzhik, some twenty miles from Novorosisk, to protest the a dministration in the Krasnodar region, which the group claimed persecute d minorities. Sviridov claims that in 1997, based upon his associ ation with this group, he was detained in the street and taken to a police st ation, where he was warned to stop his protest activities and leave the city. He asserts that on May 1, 1997, he and the group held a meeting in front of the geolog ical company, during which4 Sviridov testified at his hearing that he was beate n three times. Admin. R.

at 111. In his affidavit, he stated that he was be aten twice. Id. at 191.

5 Sviridov left Russia with his second wife, from who m he is now apparently divorced. -6- Sviridov gave a speech accusing Gromov of being a C ommunist and being corrupt. He admitted in his testimony before the I J that the group was required to obtain a permit before holding a demonstration, butthat they had not obtained a permit prior to the May 1 demonstration. He states that the police broke up the meeting, arrested him and other group members, and detained him for twenty days, during which time he asserts he was beaten on two or three occasions. 4 He says the police interrogated him and told him he ha d been warned to leave the city and that they knew of his dealings with the FSB. H e avers he was placed in a cell with others whom the police knew would beat him. H e claims that, following his release, he went to a hospital and received treatme nt for a concussion and other injuries. He claims that he then returned home to Novorosisk. Sviridov testified that, following his detention bythe police, he and his second wife decided to leave Russia and go to the United States. 5 He testified that when he first came to the United States, he intended to seek asylum. Id. at 102. However, in his asylum application, he explai ned his failure to file his application within one year of arrival by stating t hat he “did not plan to remain USA.” Id. at 251. He claims he cannot return safely to Russ ia because Gromov-7-

holds a position in the Duma, had held a position o n the Geological Ministry committee, and is a personal friend of Konstatin Ko ndratenko, the governor of the Krasnodar region. He avers that “Gromov has power that extends throughout Russia and Mr. Sviridov is afraid that Gromov couldpursue and cause harm to him no matter where he would move in Russia.” Pet’ r’s Opening Br. at 16. He further claims that he would be unable to register to live somewhere else in Russia without first cancelling his current registr ation, which would necessitate contacting the local authorities whom, he claims, w ould harm him. He believes that he would be unable to obtain employment in his field because of Gromov’s influence over the Geological Ministry committee an d the industry in general. Sviridov claims that after he left Russia, his firs t wife, who lives in Krasnodar, began receiving phone calls from the pol ice asking for Sviridov’s whereabouts, and he avers that his brother sent to him several summons from the police ordering him (Sviridov) to report to police headquarters. He further states that his mother, who remains in Russia, has told hi m over the phone not to return to Russia. When asked why he filed his asylum application more than one year after entering the United States, he testified that he wa s not initially aware of the oneyear deadline. Furthermore, he testified that when he began the process of seeking asylum in November 1998, he gave someone $1 000 to file his application,-8-

but that person never did so. He then contacted a woman in Los Angeles in February 1999, who required $4000 to file his appli cation. He avers it took him some length of time to amass the $4000 fee. The wo man finally filed his application in June 2000. Sviridov argues (1) the BIA improperly issued a dec ision without opinion by a single Board member, in violation of 8 C.F.R. § 3.1(a)(7) and (e)(4); (2) the BIA violated Sviridov’s due process rights by issui ng a decision without opinion which failed to explain its reasons for upholding the IJ’s decision; (3) the IJ made clearly erroneous factual findings concerning Sviri dov’s testimony; (4) the IJ erred in finding Sviridov was not credible; (5) the IJ erred in finding Sviridov had “shown no basis why he would be targeted for harm b y the authorities”; and (6) the IJ erred as a matter of fact and law in finding that Sviridov had failed to establish eligibility for withholding of removal un der 8 U.S.C. § 1231(b)(3) and relief under the Convention Against Torture, 8 C.F. R. § 208.16. Pet’r’s Opening Br. at 40. At oral argument, Sviridov’s counsel ar gued for the first time that, based upon her interpretation of a recent First Circuit decision, Haoud v. Ashcroft , 350 F.3d 201 (1st Cir. 2003), we should remand th is case to the BIA for clarification of the reasons why it affirmed the IJ ’s decision. Sviridov has also filed, subsequent to oral argument, a motion for a stay of voluntary departure-9-

pending disposition of this appeal. We deny his pe tition and affirm the BIA’s decision. We also deny his motion for a stay of vo luntary departure.

DISCUSSION
I. BIA Decision Sviridov first argues the BIA failed to comply withits own regulations in issuing the decision without an opinion by a single Board member. INS (now USCIS) regulations provide that cases on appeal fro m IJ decisions are initially screened under 8 C.F.R. § 3.1(e). Each case is ass igned to a single member of the BIA unless, pursuant to § 3.1(e)(6), the case meets the criteria for assignment to a three-member panel of the BIA. If assigned to a single Board member, that member a ffirms the IJ’s decision without issuing an opinion “if the Board member det ermines that the result reached in the decision under review was correct[,] that any errors in the decision under review were harmless or nonmaterial,” and that either existing precedent controls the decision, or the issues involved “are not so substantial that the case warrants the issuance of a written opinion.” 8 C.F .R. § 3.1(e)(4)(i) (now codified at 8 C.F.R. § 1003.1(e)(4)). The regulation furthe r states that the IJ’s decision becomes the “final agency determination,” 8 C.F.R. § 3.1(e)(4)(ii), and that the Board member’s summary affirmance “shall not includ e further explanation or6 Sviridov argues that the BIA failed to comply with 8 C.F.R. § 3.1(a)(7),

which contains language identical to § 3.1(e)(4). It is clear from the BIA’s decision in this case that the Board member invoked § 3.1(e)(4). -10- reasoning” and only “approves the result reached in the decision below.” Id. The BIA in this case invoked this regulation in summari ly affirming without an opinion the IJ’s decision. Sviridov argues the Board member erred in employing § 3.1(e)(4) because “the result reached in the IJ’s decision was not co rrect, the errors in the decision were not harmless and nonmaterial, and the factual and legal questions raised on appeal are not so insubstantial that three-member review was not warranted.” Pet’r’s Opening Br. at 21. 6 As explained more fully below in our review of th e IJ’s decision, we disagree with Sviridov’s argument , and hold that the Board member properly affirmed the IJ’s decision under § 3.1(e)(4).

II. Due Process Sviridov argues the use of § 3.1(e)(4) to affirm th e IJ’s decision violates his due process rights. We have recently rejected this challenge to the summary affirmance procedure contained in § 3.1(a)(7), whic h is identical to § 3.1(e)(4).
See Yuk v. Ashcroft , No. 02-9546, 2004 WL 79095, at *9 (10th Cir. Jan. 20, 2004); see also Batalova v. Ashcroft , No. 02-9588, 2004 WL 103555, at *6 (10th-11-

Cir. Jan. 23, 2004) (rejecting a due process challe nge to summary affirmance under § 3.1(e)(5)). Sviridov’s due process argument therefore fails.

III. IJ’s Decision By summarily affirming the IJ’s decision without anopinion, pursuant to 8 C.F.R. § 3.1(e)(4), the BIA made the IJ’s decision the final agency determination for purposes of appellate review. Sviridov argues the IJ made various factual and legal errors in denying his application. “The [IJ’s] findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Yuk , 2004 WL 79095, at *10 (further quotation omitted); see 8 U.S.C. § 1252(b)(4)(B). Put another way, we review the IJ ’s decision under the substantial evidence standard. We therefore upholdit if “‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We do not “weigh the evidence or . . . evaluate the witnesses’ credibility.” Woldemeskel v. INS , 257 F.3d 1185, 1189 (10th Cir. 2001) (further quotation omitted). However, the credibility deter minations must be “substantially reasonable.” Id. at 1192. Because an alien’s testimony alone may support an application for withholding of removal o r asylum, 8 C.F.R.-12-

§ 208.13(a), the IJ must give “specific, cogent reasons” for disbelieving it. See Secaida-Rosales v. INS , 331 F.3d 297, 307 (2d Cir. 2003) (further quotati on omitted).

A. Testimony and documents Sviridov argues the IJ made various clearly erroneo us factual determinations concerning Sviridov’s testimony and the documents he submitted in support of his application. In support of his c laim that he was severely beaten by the police when he was detained for twenty days in May 1997, Sviridov submitted a medical certificate which stated that S viridov had been diagnosed with a “brain concussion of the II degree, numerous injuries, bleeding.” Admin. R. at 264. He also presented copies of the two sum monses he claims he eventually received, which directed him to appear b efore the “militsia department.” Id. at 233-35. The IJ found as follows concerning tho se documents: [T]he medical certificate and the summonses . . . s eem unreliable to this Court. Those documents were not authenticatedas permitted under 8 C.F.R. § 287.6. The Court has no way of kn owing whether these documents are authentic. There are no recogn izable indicia of authenticity on those documents, which the Court ca n point to. The respondent indicated that the medical certificate had been issued in order to cover all three incidences in wh ich he had been arrested, this seems very unlikely. The summonses were addressed to the respondent’s ex-wife. The respondent was divor ced in 1983 and the summonses were issued more than 15 years after that date. It seems extremely unlikely that they would have been issued and7Aside from lacking clear indicia of authentication, one copy of the medical

certificate translation contained in the administrative record contains the date “October 20, 1997,” some five months after the alle ged beatings took place. The month “October” is crossed out and “May” is handwri tten over it, with the additional handwritten note, “translator error.” A dmin. R. at 264. Another copy of the certificate at another place in the administ rative record contains the date “October 20, 1997” without any additional notation. Id. at 228. -13- addressed to the respondent at an address which app arently he had not lived at for 15 years. The respondent claims that his “propiska” still sho ws him residing at the same address with his ex-wife. How ever, I would note that the respondent was involved in a maritime business. He received authorization and passports from the government relating to his status as a seaman. It would seem that his ide ntity and whereabouts could be easily discerned by any intere sted authorities. The fact that the authorities would not make a reas onable effort to find out his actual whereabouts, points o ut the lack of interest which the authorities would have in the ac tual locating of the respondent. The Court finds that the documents notonly are unreliable, but in and of themselves, they don’t support the grant of relief which the respondent requests. Oral Decision of the IJ at 11-12, Admin. R. at 52-5 3. Given our deferential standard of review, we conclu de that the IJ’s determination that the records in question were notreliable and did not support Sviridov’s claims is supported by substantial evide nce and is substantially reasonable. 7 Sviridov also argues the IJ mischaracterized his te stimony concerning the group to which he belonged. The IJ stated he “is c oncerned that the respondent indicated that this organization has no name and wh en questioned about its-14-

political theories, the respondent gave only a gene ral description of its goals and its philosophies.” Id. at 51. The IJ accurately described Sviridov’s tes timony on this point. Sviridov testified that the purpose of the group was to “speak against [Gromov],” and against “Governor Konstantin [Kondratenko] which was against our beliefs.” Id. at 123. When asked what his beliefs were, Svirido v responded that he was simply against the “actions of” Kondrat enko and Gromov, because Gromov “constantly lied” and “cheated,” because he “promised the employees of the company to pay their salaries at times and prom ised to give everybody employment,” and because “many people, minorities, such as Armenians and Jews who worked for the company, were fired.” Id. at 123-24. The IJ’s factual findings have substantial support in the record.

B. Credibility determinations The IJ found Sviridov’s testimony not credible on v arious points. We will not disturb those factual findings provided they ar e substantially reasonable and supported by specific, cogent reasons. The IJ foun d Sviridov’s claim that he was completely unaware of the existence of labor unions , and that there were no such unions in Russia, “incredible” in view of informati on in the State Department Country Report for Russia indicating the existence of labor unions. The IJ drew the inference from Sviridov’s unawareness that he “ has not made even a minimal-15-

effort to research the available resources for oppo sing the alleged oppression of his company.” Oral Decision at 10, Admin. R. at 51 . Thus, the IJ reasonably concluded that Sviridov’s claim that he organized a nd directed a worker’s protest group which voiced concerns about his former company’s general personnel policies, as opposed to simply complaints about hav ing been fired, was not credible. The IJ also found that Sviridov: apparently had no political activity prior to the a ge of 38 years old. Although it is possible for him to generate politic al opinions at that age, it does seem unlikely that they would spring f ull blown the way the respondent claimed they have, and it also seems very unlikely that the respondent would have had the ability to g enerate the attendance that he claims at a demonstration, which he claims was based on political ideas. Id. at 51-52. That is an adequate explanation of why the IJ doubted Sviridov’s claim that his creation and participation in the gr oup was motivated by political beliefs rather than a simple labor dispute with his former company.

C. Adequacy of Sviridov’s showing of future harm Sviridov argues the IJ erred in finding that he hadshown no basis why he would be targeted for harm. Sviridov repeats here his claim that he had adequately demonstrated that he held “political opi nions” which put him at odds with Gromov, who would persecute him should he retu rn to Russia. As explained-16-

above, when asked about his political views and tho se of the group to which he belonged, Sviridov could only respond in vague gene ralities, which were equally indicative of mere disgruntlement with having been fired from his job. We cannot say that the IJ’s conclusion that Sviridov failed t o show that he was in danger because of his political views is “contrary to whata reasonable factfinder would have been compelled to conclude.” Vatulev v. Ashcroft , No. 02-9573, 2003 WL 23098615, at *3 (10th Cir. Dec. 31, 2003).

D. Eligibility for withholding of removal and relief under the Convention Against Torture An applicant seeking withholding of removal bears the burden of showing “a clear probability of persecution attributable to race, religion, nationality, membership in a particular social group, or political opinion.” Tsevegmid , 336 F.3d at 1235 (further quotation omitted). Relief u nder the Convention Against Torture requires a showing that it is more likely t han not that Sviridov would be tortured if returned to Russia. Having reviewed th e entire record, we conclude that substantial evidence supports the IJ’s determi nation that Sviridov failed to show a clear probability of persecution based upon his political views and activities. Substantial evidence also supports the IJ’s decision denying Sviridov relief under the Convention Against Torture.-17-

IV. Haoud Decision Sviridov has belatedly raised an argument concernin g his asylum claim based upon the recent First Circuit decision in Haoud . Sviridov’s application for asylum was untimely. The IJ rejected his claim forasylum because of that untimeliness and because Sviridov failed to show “e xtraordinary circumstances” excusing the untimely application, pursuant to 8 U. S.C. § 1158(a)(2)(D). We and numerous other circuits have held that, although we generally have jurisdiction to review the denial of an asylum request, we lack ju risdiction to review a determination on the timeliness of an asylum applic ation: Section 1158(a)(3) expressly provides that the courts do not have “jurisdiction to review any determination” on wheth er the alien filed his application within a year of entry or whether “ changed circumstances” exist “which materially affect the applicant’s eligibility for asylum or extraordinary circumstanc es relating to the delay in filing an application.” Tsevegmid , 336 F.3d at 1235 (quoting 8 U.S.C. § 1158(a)(3)). Sivirdov argues, citing Haoud , that because the BIA member summarily affirmed the IJ’s decision without an opinion or explanation of its reasons, we cannot tell whether the BIA affirmed on an unreview able basis (untimeliness) or on a reviewable basis (the merits of his asylum app lication). If in fact the BIA affirmed on a reviewable basis, Sviridov would be d eprived of that review if we conclude that the existence of an additional, unrev iewable basis deprives us of jurisdiction.-18-

In Haoud , the applicant filed an untimely petition for asyl um. The IJ denied his application, finding that the applicant “failed to establish changed circumstances to excuse that untimeliness.” Haoud , 350 F.3d at 203. The IJ also, however, held in the alternative that “Haoud’s appl ication failed to demonstrate either past persecution or a well-founded fear of f uture persecution based on a reasonable possibility that he would suffer harm in Algeria.” Id. Shortly after the IJ rendered his decision denying Haoud’s asylum app lication, the BIA decided another case, In re Amine Touarsi , A78-161-736 (BIA Dec. 28, 2000), involving a man in essentially the identical situation as Haoud . “Although the IJ denied Touarsi’s asylum application, the Board on appeal r eversed upon concluding that Touarsi had ‘a well-founded fear of persecution in Algeria based on imputed political opinion.’” Haoud , 350 F.3d at 204. The First Circuit first observed that the affirmanc e without opinion of the IJ decision in that situation “gives us no guidance as to whether the Board affirmed the IJ’s decision on a non-reviewable basi s, i.e. untimeliness, or a reviewable basis, i.e. the merits of Haoud’s asylum claim.” Id. at 206. After noting that when the BIA affirms without opinion orexplanation, “‘a Court of Appeals must then review the decision of the IJ,’” id. at 207 (quoting Albathani v.
INS , 318 F.3d 365, 373 (1st Cir. 2003)), the court went on to state that that “approach is inapposite here because the IJ never h ad the opportunity to consider-19-

Touarsi , which was rendered following the IJ’s decision.” Id. Thus, the court concluded that “[a]s Touarsi bears strongly on Haoud’s asylum application, an AWO affirming an IJ’s decision that never considered Touarsi fails to meet th[e] mandate [that the Board give a reasoned administrative decision].” Id. at 208. Our case is distinguishable from Haoud . First, the IJ in this case did not rule in the alternative on the merits of Sviridov’s asylum claim. Rather, the IJ clearly denied the asylum application because it wa s untimely and Sviridov failed to show extraordinary circumstances excusing that u ntimeliness. The IJ plainly did not reach the merits of the asylum application. Secon d, as the First Circuit acknowledged, when the Board affirms without an opi nion pursuant to 8 C.F.R. § 3.1(e)(4), as it did here, the IJ’s decision beco mes the final agency decision and that is what we review. See Yuk , 2004 WL 79095, at **7-8. There is no reason in this case, as there may have been in Haoud , that such review is “inapposite.” Accordingly, looking directly at the IJ’s decision, the IJ clearly denied Sviridov’s asylum application on the exclusive grou nd of untimeliness. We have no jurisdiction to review that decision. We do nothold that there could never be a situation where a summary affirmance might leave us in doubt as to whether the agency’s decision was on a reviewable or an unrevie wable basis. That is not the situation, however, on the particular facts of this case.-20-

V. Stay of Voluntary Departure Finally, Sviridov has moved for a stay of voluntarydeparture. When the BIA, on October 17, 2002, affirmed the IJ’s decisio n denying Sviridov’s application for asylum, withholding of removal and relief under the Convention Against Torture, the Board granted Sviridov permiss ion to voluntarily depart the United States “within 30 days from the date of this order or any extension beyond that time as may be granted by the district directo r [of the INS].” Order, Admin. R. at 2. No extension was granted. The period of time for Sviridov to voluntarily depart has, therefore, long ago expired. Sviridov moves for “a stay of voluntary departure nunc pro tunc to the date of this motion, which stay shall not expire until t he issuance of the final mandate in this petition for review.” Pet’r’s Mot. for Nun c Pro Tunc Stay of Voluntary Departure at 1. We decline to do so. He gives no explanation for failing to file his motion earlier, and cites no binding authority permitting a nunc pro tunc order8 He relies on two recent cases from other circuits, El Himri v. Ashcroft ,

344 F.3d 1261 (9th Cir. 2003), and Nwakanma v. Ashc roft , 352 F.3d 325 (6th Cir. 2003) to argue we have the equitable power to grantsuch a stay. In both those cases, the applicant filed a motion for a stay of v oluntary departure before the period for voluntary departure had expired. See El Himri , 344 F.3d at 1263 n.2; Nwakanma , 352 F.3d at 327. Indeed, the Ninth Circuit expre ssly stated it did “not decide the issue of whether this court may stay the voluntary departure time period if the motion for stay of voluntary departur e is filed after expiration of the voluntary departure time period.” El Himri , 344 F.3d at 1263 n.2. -21- in these circumstances. 8 We are not aware of any such authority. As we have stated:The Latin phrase [ nunc pro tunc ] is merely descriptive of the inherent power of the court to make its records spe ak the truth—to record that which was actually done, but omitted to be recorded. It is no warrant for the entry of an order to record thatwhich was omitted to be done. There was no authority for a nunc pro tunc order to show the timely filing of a claim which was not in fact timely. W.F. Sebel Co. v. Hessee (In re Fractman) , 214 F.2d 459, 462 (10th Cir. 1954) (citation omitted).

CONCLUSION For the foregoing reasons, we deny the petition forreview and affirm the BIA and IJ’s decision denying Sviridov withholding of removal and relief under the Convention Against Torture. We deny his motionfor a stay of voluntary removal.