Lekomtsev v. Garland

FILED NOT FOR PUBLICATION MAY 26 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT IGOR VLADIMIROVICH No. 21-864 LEKOMTSEV, Petitioner, Agency No. A216-160-251 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 11, 2023 Seattle, Washington Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges. Igor Vladimirovich Lekomtsev, a native and citizen of Russia, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision of an Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition. The agency’s adverse credibility determination is supported by substantial evidence. The agency based its determination in part on inconsistencies between Lekomtsev’s 2017 application for asylum (the 2017 Application) and his 2020 application for asylum, withholding of removal, and CAT relief (the 2020 Application). The 2017 Application claimed past persecution and fear of future persecution on account of his sexual orientation, and reported only one past experience of harm: a 2016 arrest for “propaganda of homosexuality.” After the government learned that Lekomtsev was wanted in Russia for allegedly committing an online sex crime against a minor under the age of 14 (for which he was arrested in 2015), Lekomtsev filed the 2020 Application, in which he disclosed the 2015 arrest and prosecution for the first time, as an additional past experience of harm. In explaining the inconsistency between the two applications to the IJ, Lekomtsev stated, among other reasons, that he deliberately omitted his 2015 arrest and prosecution because he feared he would be “deported right away” if he disclosed that there was an active criminal case against him in Russia for an alleged online sex crime against a minor. Lekomtsev’s admission that he 2 deliberately omitted highly relevant information that goes “to the heart” of his claim for persecution based on sexual orientation is substantial evidence supporting the agency’s adverse credibility determination. Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010). The agency’s adverse credibility determination is also supported by the discrepancies between Lekomtsev’s written declaration accompanying his 2020 Application and his testimony in immigration proceedings. In his declaration, Lekomtsev stated that “it was likely that the [prosecution for sexual abuse of a minor] would be thrown out” because the Russian government had yet to produce the requisite second witness against him. By contrast, in his testimony before the IJ, Lekomtsev admitted the Russian government had procured the second witness and that he was likely to be convicted. Such “[i]nconsistencies . . . may support an adverse credibility determination.” Dong v. Garland, 50 F.4th 1291, 1297 (9th Cir. 2022); see also 8 U.S.C. § 1158(b)(1)(B)(iii). We also uphold the agency’s denial of …

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