Filed: Mar. 18, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-18-2009 Alan Bagaev v. n Precedential or Non-Precedential: Non-Precedential Docket No. 08-1718 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Alan Bagaev v. n" (2009). 2009 Decisions. Paper 1728. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1728 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-18-2009 Alan Bagaev v. n Precedential or Non-Precedential: Non-Precedential Docket No. 08-1718 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Alan Bagaev v. n" (2009). 2009 Decisions. Paper 1728. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1728 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-18-2009
Alan Bagaev v. n
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1718
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Alan Bagaev v. n" (2009). 2009 Decisions. Paper 1728.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1728
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1718
___________
ALAN BAGAEV,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-560-252)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 18, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: March 18, 2009)
___________
OPINION
___________
PER CURIAM
Alan Bagaev seeks review of a final order of the Board of Immigration Appeals
(“BIA”) affirming a decision of the Immigration Judge (“IJ”) denying his applications for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). For the following reasons, we will deny Bagaev’s petition for review.
I.
Bagaev is a Russian citizen of Ossetian ethnicity who lived in the Russian
Republic of North Ossetia-Alania. On December 31, 2004, Bagaev entered the United
States at Miami International Airport, where he was apprehended and questioned by
immigration authorities. He was placed in a detention center, and on January 12, 2005, an
asylum officer conducted a credible fear interview. A Russian-language interpreter was
present at the interview and an attorney represented Bagaev via telephone.
According to the materials prepared by the asylum officer who conducted the
credible fear interview, Bagaev claimed that he was mistreated and threatened by
Chechen terrorists because he helped rescue hostages during the 2004 Beslan school
hostage tragedy.1 He alleged that, in October 2004, three masked individuals bearing
firearms and driving a black car blocked his automobile and shot at him as he drove away.
The interview report states that Bagaev feared that terrorists “targeted [him] for revenge”
and tried to kill him because he helped rescue hostages. The asylum officer determined
that Bagaev established a credible fear of persecution, and Bagaev was released from
1
On September 1, 2004, Chechen terrorists seized an elementary school in
Beslan, North Ossetia-Alania, and took hostage more than one-thousand people. Over the
next three days, the terrorists killed many of the hostages. On September 3rd, Russian
military and security forces raided the school. The government’s assault ended the
hostage situation but resulted in the deaths of hundreds of hostages and (apparently) all of
the terrorists except for one, who was subsequently tried and convicted.
2
detention on parole.
On October 28, 2005, Bagaev, represented by a new attorney, filed an application
for asylum, withholding of removal, and CAT relief that was supported by a signed
declaration. In his signed declaration and at his subsequent merits hearing, Bagaev
alleged persecution not by Chechen terrorists but by the Russian and North Ossetian
governments due to: (1) his Ossetian nationality; (2) his political activities against the
Russian government and the Russian-backed president of the Republic of North Ossetia-
Alania; (3) his attempt to resolve the Beslan school crisis through a mediator and to
prevent the Russian assault on the school by physically blocking a Russian tank; and (4)
his participation in protests and other activities criticizing the manner in which the
government handled the hostage crisis.
In an October 26, 2006 written decision, the IJ found Bagaev to be not credible
and denied all requested relief. On January 31, 2008, the BIA affirmed the IJ’s decision
without opinion.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA affirmed
the IJ’s decision without opinion, we review the IJ’s opinion and scrutinize its reasoning.
Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003). We review the IJ’s findings of fact
under the substantial evidence standard and will uphold the determinations “unless the
evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,
3
333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). Because Bagaev filed his
application for asylum and related relief after May 11, 2005, the REAL ID Act applies to
this case. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, § 106.
Bagaev first challenges the IJ’s adverse credibility determination. Comparing
Bagaev’s account from the credible fear interview with his subsequent claims of
persecution, the IJ concluded that Bagaev’s “fundamental story changed over time from
fear of [Chechen] terrorists to fear of the Russian government.” Bagaev argues that the IJ
inappropriately relied on inconsistencies between his credible fear interview, asylum
application, and testimony at the hearing. According to Bagaev, his credible fear
interview was as unreliable as a typical airport interview, which we have found is not a
valid ground upon which to base an adverse credibility determination. See In re
Balasubramanrim, 143 F.3d 157, 162-64 (3d Cir. 1998); cf. 8 U.S.C. § 1158(b)(1)(B)(iii).
Bagaev relies on Fiadjoe v. Attorney General, 411 F.3d 135 (3d Cir. 2005), to
support his contention that his interview statements should not be used to support an
adverse credibility finding. We determined that the particular circumstances in Fiadjoe
made irrelevant possible inconsistencies between the petitioner’s asylum interview and
her subsequent
testimony. 411 F.3d at 158-60. Although Bagaev emphasizes that, at the
time of his asylum interview, he was in detention and had not previously consulted with
his attorney, the circumstances here do not warrant a finding similar to that made in
4
Fiadjoe.2 As the IJ recognized, Bagaev’s credible fear interview was conducted under
oath by a trained asylum officer more than a week after Bagaev’s arrival in the United
States. The interview itself was rather extensive, a Russian-language interpreter was
used, and Bagaev had the benefit of legal representation. While Bagaev was
understandably nervous, the interview documentation indicates that the asylum officer
expressly informed Bagaev that he was going to ask him questions about “why [he]
fear[ed] returning to [his] country,” and that his answers would not be disclosed to the
Russian government barring exceptional circumstances. The documentation further
stated that the asylum officer read a summary of the terrorist-based claim back to Bagaev,
who confirmed its accuracy.
Bagaev nonetheless argues that his interview statements regarding the terrorist-
based claim of persecution were mistranslated. His asylum declaration stated that “some
of my statements were not properly translated with respect to alleged statements of mine
that I believed they were terrorists who took revenge against me for helping women and
children in Beslan,” and that he actually told the asylum officer that he “had no idea
whether they were terrorists or Russian soldiers.” The IJ properly rejected Bagaev’s
2
The result in Fiadjoe was not so much a commentary on the reliability of
asylum interviews as it was a recognition that the petitioner’s condition and her particular
asylum claim made her interview unreliable. The petitioner in Fiadjoe was diagnosed
with severe post traumatic stress disorder, was still in a “state of shock” at her asylum
interview, and was faced with revealing the “shameful and taboo incidents of incestuous
rape” to a male asylum officer. 411 F.3d at 157-161.
5
assertion of an “interpreter problem” as “not reasonable.” Bagaev testified that he did not
request an Ossetian interpreter at the credible fear interview because he understood
Russian. Furthermore, the interview documentation states that the “interpreter and
applicant confirmed that they understood each other.” For these reasons, the IJ properly
relied on inconsistencies between Bagaev’s asylum interview, application, and testimony
to make an adverse credibility finding.3 See Dia, 353 F.3d at 249 (stating that
inconsistent statements may support an adverse credibility finding).
Bagaev also asserts that the IJ erred by concluding that the conditions in Russia
and Ossetia were inconsistent with his claim that the Russian government targeted him,
and will persecute him if he returns to North Ossetia-Alania, for witnessing and
criticizing its management of the Beslan hostage crisis. The record does not compel a
conclusion contrary to the IJ’s decision on this point. The IJ cited to documents in the
record that stated that individuals and organizations have condemned the government’s
handling of the crisis and that the government has publicly admitted to making mistakes.
Bagaev, on the other hand, points to other documents, including a 2004 U.S. State
Department report, indicating that journalists have been murdered for criticizing
government policies, and that the Russian government controlled the press coverage of
3
To the extent that Bagaev argues that the IJ’s reliance on purportedly
“minor inconsistencies” was improper, we note that, under the REAL ID Act, an adverse
credibility determination may be based on inconsistencies and other factors without
regard to whether they go to the heart of the applicant’s case . See 8 U.S.C. §
1158(b)(1)(B)(iii).
6
the tragedy and detained a number of journalists. Although parts of the record support
Bagaev’s claim, the IJ’s decision regarding country conditions in Russia and North
Ossetia-Alania is supported by substantial evidence. See Zubeda, 333 F.3d at 471.
For the foregoing reasons, we will deny Bagaev’s petition for review.
7
