Shermamat Abdullozoda v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3114
___________
SHERMAMAT ABDULLOZODA, ET AL.,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
On Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A098 485 325-329
Immigration Judge: Annie S. Garcy
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
on November 17, 2009
Before: AMBRO, ALDISERT and ROTH, Circuit Judges
(Filed: February 12, 2010)
___________
OPINION OF THE COURT
___________
ALDISERT, Circuit Judge.
The lead petitioner Shermamat Abdullozoda, a native and citizen of Uzbekistan, of
Iranian descent, seeks a review for himself and members of his family of a decision of the

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Board of Immigration appeals (“BIA” or “Board”) denying asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”) on the ground
that the petitioners did not meet their burden of showing past harm rising to the level of
persecution or a well-founded fear of future persecution. They also contend that the BIA
abused its discretion by declining to equitably toll the filing deadline for petitioners’
motion to reopen based on a Human Rights Watch letter. Finally, petitioners argue that
indiscernible testimony in the record of the IJ’s proceedings prevented the Board from
conducting a meaningful review. We have jurisdiction under 8 U.S.C. § 1252. We will
deny the petition.
I.
An alien who is in violation of the Immigration and Nationality Act, 8 U.S.C. §
1101 et seq., is subject to removal from the United States. However, the Attorney General
in the exercise of discretion may grant relief from removal in the form of asylum to an
alien who proves that he or she is a refugee. An alien is a refugee if he or she is unable or
unwilling to return to his or her country for the so-called statutory grounds “of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion[.]” 8 U.S.C. §
1101(a)(42)(A). The burden of proof is on the alien to establish that he or she is a refugee.
8 U.S.C. § 1158(b)(1)(B)(i).
An application for asylum in removal proceedings is also considered to be a

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request for withholding of removal. To succeed in attaining withholding of removal, the
alien in the proceedings bears the burden of establishing that he or she would “more likely
than not” suffer persecution in a country of removal on account of one of the enumerated
statutory grounds. Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir. 2005). This requires an
alien to show a “clear probability” of persecution. INS v. Stevic, 467 U.S. 407, 429
(1984). Withholding of removal is also available on separate grounds under the CAT for
any person to a country in which there are substantial grounds for believing that the
person would be in danger of being subjected to torture. The burden is on the alien “to
establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Protection under the CAT
differs from asylum or withholding of removal because it does not require a showing that
the mistreatment was or would be on account of any particular characteristic of the victim
such as race, religion, nationality, membership in a particular social group, or political
opinion.
We now address the facts with these legal precepts in mind.
II.
Abdullozoda testified at the hearing before the Immigration Judge (“IJ” or
“judge”) that he was called names in elementary school and a student once burned him.
While serving his military duty, he was called “black face” and beaten once because of
his Iranian ancestry, and was dishonorably discharged after six months of service. In

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1985, Abdullozoda's college application was denied. He did not pass the entrance
examination, and he believes that he failed due to his nationality. Abdullozoda was
admitted to college in 1987. He began working for the Ministry of Finance in 1996. In the
course of auditing investment projects, he learned that his supervisor was accepting bribes
for her approval of projects. He complained, but other Ministry workers rejected his
concerns and, according to the Petitioner, insulted his Iranian ancestry.
Abdullozoda testified that in 2000 he returned home after a visit to the United
States and two men attacked him. Abdullozoda also testified that they threatened him and
said, “Stop putting your nose into other people's business – you're an Arab!” He testified
that the men stabbed him in the hand, that he was rushed to the hospital for surgery, and
that his wife went to the police to report the incident, but they failed to find or arrest the
perpetrators. Abdullozoda believes that the police did not find them because of his
nationality. A letter from the police states that the investigation was closed due to a lack
of witnesses. In December 2002, Abdullozoda received a summons to appear in the
District Department of Internal Affairs where he was ultimately questioned about a
Muslim extremist organization, held overnight, and then released. Abdullozoda testified
that in the Fall of 2003 his children had problems in school, culminating with his son
Sardor coming home with bruises after fighting with several children who accused his
family of being terrorists.
In February 2004, a person followed Abdullozoda after work and attacked him on

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the street. The person called him an Arab and broke his nose. Petitioner filed a police
complaint after he went to the hospital and he testified that the police took no further
action. In May 2004, he and his family returned home to find that their home was
burglarized. The intruders left a sign stating, “Arab, get out of Uzbekistan! You are a
traitor!” The sign warned Abdullozoda to “keep [his] mouth shut!” The police responded
to his call, but a day later informed Abdullozoda in writing that they would not investigate
the case due to a lack of witnesses and lack of harm to anyone. Abdullozoda stated that
when the police came to his home, they wanted to know whether he might be a terrorist.
In June 2004, he came to the United States and applied for asylum. His family had already
arrived for an academic competition for the children. Abdullozoda was subsequently fired
from his job for leaving it. In May 2005, Abdullozoda's brother was allegedly murdered.
Abdullozoda testified that the perpetrators were never found. We now turn to the
evaluation of his testimony by the IJ.
III.
The IJ found Abdullozoda and his wife credible, but concluded that the
discrimination Abdullozoda and his wife suffered in their schooling did not constitute
past persecution, and in any event, certain events to which he testified were too remote in
time to support a fear of future persecution. The IJ noted that the incident involving their
son at school was an isolated event, and further found that Abdullozoda's brief detention
in 2002 did not constitute an act of persecution, as police made clear that they were

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simply questioning his involvement in any terrorist organization, and they did not harm
him.
The IJ recognized that whistle blowers who expose government corruption might
be able to establish asylum eligibility and discussed several cases where aliens publicized
their concerns and were then deprived of employment, liberty and safety. The judge stated
that Abdullozoda only complained within his workplace, and when he was threatened to
stop complaining, he did so, and there was no evidence that Abdullozoda exposed the
corruption, nor that he was fired or demoted. The judge also noted that Abdullozoda
could not connect his physical assaults to his workplace or to the government. The attacks
were not only committed by strangers, but too remote in time to be connected with later
events. The IJ found it possible that the crimes were random acts of nationalist violence,
and determined that Abdullozoda did not adequately explain why his co-workers would
have turned into “thugs” to threaten him instead of simply having him discharged. The
judge also determined that there was no evidence of a pattern or practice of persecution
against Iranians, and concluded that Abdullozoda had not proven that he was persecuted
by the authorities on this basis.
The IJ also noted that Abdullozoda did not attempt to move or look for a new job.
Rather, he retained his position in public employment, took vacations paid in part by his
employers, and did not seek asylum when he first came to the United States. The judge
noted that there was no evidence showing that the government would consider

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Abdullozoda a minority or encourage the harm that took place. To the contrary, the
government issued passports recognizing the family as Uzbekistani nationals, and did not
appear to believe that he was connected with a banned political party or part of any
Islamist movement. Although ultimately the crimes against Abdullozoda were not solved
due to lack of evidence, the police both responded and opened files on the crimes.
Significantly, the judge noted that Abdullozoda did not tell the police whom he suspected
was responsible for the crimes, and the police investigated the incidents that occurred and
provided reasonable explanations for closing the cases. Finally, the IJ stated that there
was not enough information to connect Abdullozoda to the murder of his brother in 2005,
more than a year after Abdullozoda left Uzbekistan. An unsuccessful appeal to the BIA
followed.
IV.
Abdullozoda contends in his petition for review that documentation from the
Human Rights Watch constituted new evidence establishing a change in Uzbekistan
policy. He states that Uzbekistan took a confrontational position with the United States
and started to persecute formerly successful pro-Western politicians like himself. The
Human Rights Watch letter describes growing anti-Western sentiment over the past four
years, particularly since 2005, and the Uzbekistan government’s attempts to locate people
with ties to Western governments. The letter from the Human Rights Watch opines that if
Abdullozoda's story is true, he would face a high risk of persecution on account of his

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reformist views.
V.
In the appeal to the BIA, the petitioners were unsuccessful on the merits. They
then filed a motion for reconsideration, reopening, and reissuance of the BIA's decision,
alleging ineffective assistance of counsel because Attorney Sirota failed to notify them of
the Board's dismissal of appeal and failed to contact Human Rights Watch in the initial
litigation. The Human Rights Watch letter was submitted with the motion. The Board
denied the motion for reconsideration because it was untimely and did not allege any error
of law or fact in its prior decision. The motion for reissuance was treated as a motion to
reopen and was granted with respect to the ineffective assistance claim, for failure to
advise petitioners of the Board's decision. The Board vacated and reissued its original
decision. The Board did not equitably toll the deadline with respect to the Human Rights
Watch letter because, according to the Board, it did not contain new information, as
demonstrated by Abdullozoda’s previous argument that counsel should have offered the
information at the hearing before the IJ. The Board further found that petitioners failed to
comply with the requirements of Matter of Lozada by not raising the issue in their bar
complaint and failing to show resultant prejudice. 19 I. & N. Dec. 637 (BIA 1988); See
Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir. 2001) (“We conclude that the Lozada
requirements are a reasonable exercise of the Board's discretion[.]”).
VI.

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We review an agency's findings regarding asylum for substantial evidence. See 8
U.S.C. § 1252(b)(4)(B) (“administrative findings of facts are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”). Because the
Board adopted the findings of the IJ, we have jurisdiction to review both decisions. Chen
v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Petitioners failed to establish past
persecution and therefore are not entitled to a presumption that they harbored a well-
founded fear of future persecution in Uzbekistan. To show a well-founded fear of
persecution an alien must demonstrate that his or her fear is both genuine and objectively
reasonable. We conclude that substantial evidence supports the IJ and BIA's conclusion
that petitioners failed to show eligibility for asylum based either on a pattern or practice
of persecution or on an individualized showing of a well-founded fear. Accordingly, it
follows that petitioners did not meet the higher burden of proof for withholding of
removal. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004).
When an alien claims that a deficient record prevents the Board from conducting
meaningful review or his or her appeal, the alien must show how the alleged deficiencies
in the record were prejudicial. Bhiski v. Ashcroft, 373 F.3d 363, 370 (3d Cir. 2004). Here
petitioners do not identify a single incident of indiscernible testimony that might have
established their eligibility for asylum, withholding of removal or the CAT protection.
They have therefore failed to show that the deficiencies in the record caused them
prejudice.

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Motions to reopen are “disfavored” because of the threat they pose to finality. INS
v. Doherty, 502 U.S. 314, 323 (1992). “This is especially true in a deportation proceeding,
where, as a general matter, every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States.” Id. We consider questions of law de
novo, but we otherwise review an order denying a motion to reopen under a highly
deferential abuse of discretion standard. See Fadiga v. Att’y Gen., 488 F.3d 142, 154 (3d
Cir. 2007); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The BIA’s discretionary
decision will not be disturbed unless it is arbitrary, irrational or contrary to law. See Guo,
386 F.3d at 562. In the interest of finality, a motion to reopen generally “shall be filed
within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. §
1229a(c)(7)(C)(i). In this case, Abdullozoda filed his motion to reopen five months after
the Board’s decision and over two months after the 90-day deadline. Under some
circumstances, equitable tolling is available for a motion to reopen. See Borges v.
Gonzales, 402 F.3d 398, 406 (3d Cir. 2005). Petitioners alleged ineffective assistance of
counsel, which can serve as a basis for equitable tolling, if substantiated, and if
accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248,
252 (3d Cir. 2005). However, to rely on an ineffective assistance of counsel claim to toll a
time limit, the BIA requires an alien to comply with the procedural requirements of
Matter of Lozada, a requirement we have held to be reasonable. Lu, 259 F.3d at 129.
Petitioners did not comply with the Lozada requirements and did not show that Attorney

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Sirota's failure to contact Human Rights Watch amounted to ineffective assistance of
counsel, causing prejudice. We agree with the Board's conclusion that petitioners failed to
show “a ‘reasonable likelihood’ that the result would have been different” if the Human
Rights Watch letter had “been offered at the hearing.” (BIA Decision, June 26, 2008
(citing Fadiga, 488 F.3d at 159).) Furthermore, petitioners did not exercise the due
diligence necessary to win equitable tolling. See Borges, 402 F.3d at 407. Petitioners have
not shown that the BIA's decision was arbitrary, irrational or contrary to law.
*****
We have considered all the contentions raised by the parties and conclude that no
further discussion is necessary. The petition for review will be denied.
Shermamat Abdullozoda, et al. v. Attorney General of the United States
No. 08-3114
AMBRO, Circuit Judge, dissenting
When an alien claims that a deficient record riddled with “indiscernible” notations
prevents the BIA from conducting a meaningful review of his or her appeal, the relevant
question is whether the “indiscernibles” occur at a “critical juncture” in the transcript.
McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986). “Transcript deficiencies reflect adversely

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upon the integrity of the administrative process, and upon the possibility of meaningful
review during the critical appellate stage.” Id.
The transcript provided for our review is unfathomably poor; by my count there are
184 instances of “indiscernible” in only 13 pages of expert testimony alone, and the
remainder of the transcript is riddled with other instances. Over 20 years ago we noted
that we were “appalled by such faulty records, and we do not take petitioner’s objection
lightly.” Id. Twenty years later, it seems that the Government has made little progress
toward fulfilling its statutory duty to provide “a complete record . . . of all testimony and
evidence produced at the proceeding.” 8 U.S.C. § 1229a(b)(4)(C); see 8 C.F.R. § 1240.9
(“The hearing before the immigration judge . . . shall be recorded verbatim.”).
The IJ made a number of factual conclusions based, in part, on the expert. In
particular, the IJ noted that “[the expert] did not conclude that Respondents would be
subjected to persecution and also did not conclude that Respondents are members of a
group subject to a pattern or practice of persecution in Uzbekistan.” App. 140 (IJ
Decision, Mar. 27, 2006). The IJ based her analysis on this fact, noting that
[w]ith regard to ethnicity or nationality of the Respondents as Iranian, [the
expert] does not conclude that there exists a pattern or practice of
persecution in Uzbekistan against Iranian[] nationals. The written evidence
concerning country conditions also does not contain such a conclusion.
Therefore, Respondents are obliged to prove an individualized claim to
asylum to prevail.
App. 149. Thus, the IJ’s evaluation of the expert testimony was a critical factor in her
factual assessment of whether the Abdullozodas would face persecution on their return to

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Uzbekistan.
The transcript of the expert’s testimony is practically incomprehensible. Although
the expert was a live witness, the transcript nonetheless contains an average of over 14
instances of “indiscernible” per page. In particular, the expert’s conclusions, as
transcribed, are riddled with “indiscernible” notations. This is a portion of the testimony,
as transcribed:
Q. And, doctor, would you please tell the Court how are (indiscernible)
are treated in Uzbekistan?
A. After the break of the Soviet Union when (Indiscernible) Uzbekistan
(Indiscernible) how to (Indiscernible) and actually a few choices, or
four choices, (Indiscernible). Choice number one was democracy,
(Indiscernible) choice number two was (Indiscernible) and choice
number three nationalism, choice number four (Indiscernible)
religious state. He went through the path of nationalism and
nationalism became like major (Indiscernible), though this point
(Indiscernible) were integrated in society, and (Indiscernible)
suffered discrimination, persecution in (indiscernible). It lead to
enormous migration out of the country by (Indiscernible), none of
the populations (Indiscernible), ethnic Russian, which comprised
with biggest, I would say one of the biggest ethnic groups in
Uzbekistan (Indiscernible) their number, a number of [J]ews got
(Indiscernible) five times. Okay, I would say that other groups with
some perception are (Indiscernible) and these people shows the
position of (Indiscernible) ethnic groups which played a very
important role in being (Indiscernible), just (Indiscernible), and after
the (Indiscernible). First of all, (Indiscernible) the majority of
(indiscernible) homes (Indiscernible). The (Indiscernible) agencies
were (indiscernible) from (Indiscernible), the Russians, and it
(Indiscernible) were (Indiscernible) nationally (Indiscernible) it was
(Indiscernible). And, since the time the Government followed the
policy of weeding out non (indiscernible).
Q. Okay, and what is (indiscernible)?

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A. The word (indiscernible) is Russian, which is very difficult to
translate, because (Indiscernible) writing down, but (Indiscernible)
translation. (indiscernible) means (Indiscernible) belief, again,
(indiscernible) this idea from the Soviet Union, historically the
(Indiscernible) and (Indiscernible) special registration which is
mandatory at the time, and (Indiscernible) into the country which
indicated (Indiscernible), and this box (Indiscernible) and the
(Indiscernible) according to (Indiscernible). The (Indiscernible) by
the special (Indiscernible) and by the officers or by the officials who
support (indiscernible), or regional administrative, original
(indiscernible).
Q. Does it exist the name Uzbekistan?
A. Yes, it exists, (Indiscernible).
App. 180–82 (IJ Proceedings Tr. 24:22–26:13). It is difficult to follow this portion of the
transcript in which the expert attempts to describe the history of ethnic tension in
Uzbekistan.
This sets up the next portion of his testimony – the attempt to describe what
specifically would happen to the Abdullozodas if they were returned to Uzbekistan:
Q. And in accordance with local rules what does a person living in the
country have to do upon his arrival back to Uzbekistan?
A. When the person comes back (Indiscernible) at a time, he’ll
(Indiscernible), or (Indiscernible), this point the person had to report
to (Indiscernible) that he or she have arrived to (Indiscernible), or he
has to take care of that and to do (Indiscernible), arrange
(Indiscernible).
Q. Okay, and sir, in your opinion what can happen to the respondent if
he returns to Uzbekistan?
A. (Indiscernible) this gentleman can experience a lot of (Indiscernible)
--

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JUDGE TO MR. KOTLER [the expert witness]
Q. You read the asylum application?
A. Yes, because (Indiscernible) to get (Indiscernible).
Q. Well, I just needed to know whether you read it Doctor Kotler, that
was all.
A. I’m sorry.
Q. Go ahead.
A. And, (Indiscernible) understand the full situation and to this point
(Indiscernible) problems with the authorities (Indiscernible) he can
face persecution again and his (Indiscernible) would be known to the
authorities because he must go to the police and report himself.
App. 182–183 (IJ Proceedings Tr. 26:14–27:13). Unlike the transcript in McLeod, which
involved 96 instances of “indiscernible” occurring largely “within colloquies between the
judge and counsel that [did] not bear on the legal or factual issues of the case,” 802 F.2d
at 95, the testimony in our case occurred during the testimony of an expert witness, and
“the import of many of the omissions” is not “detectable from the context of the
dialogue,” id. In particular, the expert’s conclusion is indecipherable and, unlike
colloquies between the judge and counsel, it is undoubtedly a critical juncture in the
transcript. Id.
In our case, the BIA “note[d] that the transcript contains numerous
‘indiscernibles,’ particularly during the testimony of the respondents’ expert witness.”
App. 99 (BIA Decision, July 30, 2007). It found the expert’s testimony to be “‘too

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general and broad-brushed’ to support the respondents’ requests for relief.” Id. (citing
Ambartsoumian v. Ashcroft, 388 F.3d 85, 88 (3d Cir. 2004)). It further concluded that
“the transcript deficiencies do not prevent us from determining that the Immigration
Judge’s findings are not clearly erroneous.” Id.
Given the embarrassingly poor quality of the transcript provided to the BIA, I am
at a loss to understand how the BIA could have discharged in earnest its duty to review
the IJ’s factual findings for clear error on the record in this case. See 8 C.F.R.
§ 1003.1(d)(3)(i). I simply cannot tell from the transcript whether the IJ made a clearly
erroneous factual finding—indeed, from the transcript it is difficult to divine the expert’s
conclusion on the persecution question.
While I pass no judgment on the ultimate conclusion of the IJ or the BIA, I cannot
conclude that the BIA discharged its duty in this case. I would grant the petition for
review and remand to the BIA with instructions either to obtain a clear copy of the
transcript or, if no such copy is obtainable, remand this case to the IJ for a new hearing. I
thus respectfully dissent.

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