Olha Lyaschynska v. U.S. Attorney General ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 4, 2012
No. 11-10559
________________________ JOHN LEY
CLERK
Agency No. A088-258-914
OLHA LYASHCHYNSKA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 4, 2012)
Before DUBINA, Chief Judge, FAY, and KLEINFELD,* Circuit Judges.
FAY, Circuit Judge:
*
Honorable Andrew J. Kleinfeld, United States Circuit Judge, Ninth Circuit, sitting by
designation.
Olha Lyashchynska (“Petitioner”) seeks review of a final order of removal
issued by the Board of Immigration Appeals (“BIA”) dismissing her appeal of an
Immigration Judge’s (“IJ”) ruling denying her application for asylum and
withholding of removal and protection under the Convention Against Torture and
other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”),1 based on
a finding of adverse credibility. On appeal, Petitioner alleges two bases for
reversal: (1) the BIA erred in finding that the IJ considered the totality of the
circumstances regarding the authenticity of the proffered evidence; and (2) the
BIA erred in finding that the State Department Investigator (“Investigator”) did
not violate the confidentiality requirement during the investigation of Petitioner’s
case. After review, we affirm.
I.2
Petitioner, a citizen of the Ukraine, was admitted to the United States on or
about May 23, 2006, as a J-1 exchange visitor. She changed her status to student
on December 11, 2006. On March 28, 2007, Petitioner applied for asylum,
claiming that she had been mistreated in Ukraine due to her sexual orientation.
After being interviewed by an asylum officer, she was denied asylum and her case
1
See 8 C.F.R. §§ 208.16(c), 1208.17 (2008).
2
The following facts are drawn from Petitioner’s testimony at her hearings before the IJ
on February 19, 2009; May 21, 2009; and June 30, 2009.
2
was referred to an IJ. Based on the denial and referral to an IJ, Petitioner was
issued a Notice to Appear, pursuant to section 237(a)(1)(C)(I) of the Immigration
Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(I). As an alien admitted as a non-
immigrant who failed to comply with the conditions of such status, she was
charged with removeability.
In the ensuing proceedings before the IJ, Petitioner renewed her application
for asylum, withholding of removal, and protection pursuant to the CAT. During
the hearing on February 2009, she testified that in March 2004, she was raped by a
man she had been dating for some months (“Boyko”) who is the son of a
Ukrainian government official, and two of his friends. Boyko invited her to his
apartment under the ruse that they would be joining several of his friends. Once
there, Petitioner testified that Boyko and his friends forced her to drink an entire
bottle of vodka, beat her with towels, tore her clothes, slapped and ultimately
raped her. Petitioner testified that they told her that they were teaching her “how
to be a real woman.” After the incident, Petitioner’s mother took her to the
hospital in Ternopil where she remained over night with severe headaches
resulting from a concussion. Petitioner stated that she subsequently filed a
complaint with the police, but that the police closed the investigation due to a
purported lack of evidence.
3
Petitioner also testified that she belonged to a social club off campus where
members were of “untraditional orientation.” The social club was open to “gays.”
Petitioner testified that, in November 2004, six people came into the club and
began calling everyone “filthy gays and lesbians.” Petitioner said that she was
kicked, had her hair pulled, and suffered bruises to her legs. Her girlfriend at the
time, Yulia, was also at the club and she lost a tooth during the incident.
Petitioner identified the attackers as skinheads because of their clothing, but they
escaped arrest by fleeing when they heard the police sirens.
Petitioner also testified that, in another incident in December 2005, she was
on her way home for the holidays and was attacked at a railway station. She stated
that a group of men “rushed” her, beat her, and urinated on her. Due to her
injuries, she required and received medical attention at the railway station, and at
the local hospital’s emergency room. Petitioner testified that she again attempted
to file a police report but, after the officers learned of her sexual orientation, they
would not accept her complaint. After that, Petitioner stated that her parents
received threatening letters from skinheads and that windows at her house were
smashed. Petitioner then decided to come to the United States.3
3
Four months after her arrival in the United States, Petitioner married a man, despite her
sexual orientation, because the guy “was like really nice” to her. That relationship lasted two
months. She never obtained a divorce, however, because she did not have the money and her
4
On cross-examination, Petitioner was asked how she obtained the
documents she submitted to the Department of Homeland Security (“DHS”) in
support of her asylum application. Petitioner responded that her father had to “pay
somebody” to get a copy of the police report. As to the medical records, Petitioner
stated that her parents sent those to her from the Ukraine because her mom kept all
of her medical records. At that point in the proceedings, the DHS attorney
confronted Petitioner with evidence from the record, indicating that Petitioner’s
supporting documents were not authentic.
The evidence submitted by the DHS resulted from an investigation by the
Fraud Detection National Security Section (“Fraud Detection Section”) and the
Department of State to verify the veracity of the various items of supporting
evidence submitted in Petitioner’s asylum application. On October 31, 2007, the
Department of State issued a report (“Report”) of its investigation. As to
Petitioner’s alleged rape, the Report revealed that the United States Embassy in
Ukraine contacted the Ternopil city hospital by telephone and that the hospital was
unable to confirm that Petitioner had been treated by the hospital. In the Report,
the head of the medical commission stated that Petitioner’s document was not
issued by the hospital because, if it had been, it would have contained the
husband’s father was in the hospital.
5
signature of at least three doctors. The copy she provided had only one signature.
Furthermore, the name of the one doctor who was listed was not legible, so the
investigator was unable to verify whether the signing doctor in fact worked at the
hospital. The Report further found that the police report relating to the 2004 rape
incident was not authentic because the person signing that notice left the
department in 2003 and therefore could not have signed a document issued in
January 2004. In regard to the medical report concerning the 2005 railway
incident, the Report indicated that, in a letter faxed to the embassy, the head
physician of the Ternopil city hospital stated that it had no record of issuing
medical certificates to Petitioner, or that she had ever been a patient at the
hospital.
Expressing his concern about the evidence presented in light of the DHS’s
Report, the IJ continued the hearing to allow Petitioner the opportunity to present
rebuttal evidence. The IJ noted that he would not tell Petitioner “what to do or
what not to do” but informed her that there were steps her counsel could take to
resolve the inconsistencies in the evidence.4 As a final matter at that hearing, the
4
The IJ noted that Petitioner’s counsel could obtain a waiver from his client concerning
her medical records and send letters directly to the institutions in the Ukraine asking them to send
documents directly back to the attorney verifying her claim, or that counsel could obtain local
counsel in the Ukraine to assist in the matter.
6
IJ accepted the testimony of Petitioner’s current girlfriend in the Untied States, as
set forth in a statement she provided to the court, stating she had been in a
relationship with Petitioner since April 2008.
On May 4, 2009, Petitioner filed a motion for continuance, which was
denied for failure to demonstrate diligence. The hearing commenced again on
May 12, 2009, at which time Petitioner’s counsel indicated that he had a
polygraph and two statements to submit for consideration. The IJ expressed
hesitation in accepting those documents because they had not been provided to the
government for verification. The IJ again adjourned the hearing because
Petitioner had not yet received a response that she was expecting from the
Ternopil city hospital.
On June 30, 2009, Petitioner appeared before the IJ for a third time but was
again unable to produce any corroborating evidence. Petitioner’s counsel argued
that Ukrainian hospitals were state-run and not private entities and therefore were
not cooperative in providing documents to Petitioner’s counsel. Counsel
submitted a letter from Petitioner’s father, stating that when he went to internal
affairs to get information about his daughter’s rape, the police threatened to arrest
and imprison him, and accused him of insulting the head of the department.
Petitioner’s counsel also submitted purported originals of the medical reports that
7
had been previously submitted with her asylum application. The IJ noted that
those were the same documents that the hospital had reviewed and found
fraudulent in the Report. At that time, Petitioner’s counsel argued that the
confidentiality provisions regarding asylum applicants had been violated by the
Investigator in procuring the information listed in the Report.
At the culmination of the third hearing on June 30, 2009, the IJ issued an
oral decision denying Petitioner’s application and ordering her removal to the
Ukraine. The IJ noted that Petitioner had not provided credible evidence to
corroborate the alleged medical treatment she received for her attacks, or the
police documents provided to the asylum officer. The IJ concluded that Petitioner
had been given ample time to clarify those inconsistencies and failed to do so or to
provide any credible explanation that would account for the inconsistencies.
On January 11, 2011, Petitioner appealed the IJ’s findings to the BIA, which
the BIA dismissed. The BIA, like the IJ, held that based on the record evidence,
Petitioner did not demonstrate that the IJ’s adverse credibility determination was
clearly erroneous. Moreover, the BIA noted that Petitioner did not cite to any
information in the country conditions evidence that showed the medical
institutions of the Ukraine are in collusion with security forces to hide treatment of
injuries afflicted by third parties. The BIA also rejected Petitioner’s argument that
8
the Investigator violated the confidentiality requirements during the investigation
of her medical and police reports by disclosing her name to Ukrainian officials.
Accordingly, the BIA affirmed the IJ’s decision and dismissed Petitioner’s appeal.
This appeal followed.
II.
“When the BIA issues a decision, we review the BIA’s decision, except to
the extent that the BIA has expressly adopted the IJ’s decision.” Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007) (citing Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001)). “In that instance, we review the IJ’s decision as well.” Id.
(citation omitted). If the BIA’s decision is supported by reasonable, substantial,
and probative evidence when the record is considered as a whole, this Court must
affirm. Id. (citing Ashcroft, 257 F.3d at 1284). “To conclude the BIA’s decision
should be reversed, ‘we must find that the record not only supports the conclusion,
but compels it.’” Id. (citing Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th
Cir. 2002)). “Factual determinations, including credibility determinations, are
reviewed under a substantial evidence standard, which provides that the decision
can be reversed only if evidence compels a reasonable fact finder to find
otherwise.” Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir. 2009)
(internal quotations omitted) (citing Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
9
1230 (11th Cir. 2005)). We must affirm the agency’s decision “if it is supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)
(citations and quotations omitted). III.
There are two issues on appeal: (1) whether the IJ and the BIA weighed the
evidence of document authenticity in light of the totality of the circumstances
when making their respective credibility determinations; and (2) whether the
Investigator conducting the investigation of Petitioner’s alleged abuse in the
Ukraine failed to comply with the confidentiality requirement of 8 C.F.R. §1208.6,
which generally prohibits disclosing information submitted in an asylum
application unless the applicant gives written consent. We address each issue in
turn.
A.
“An applicant bears the burden of satisfying the IJ that her testimony is
credible, is persuasive, and refers to specific facts sufficient to demonstrate that
the applicant is a refugee.” Averianova v. Mukasey, 509 F.3d 890, 897 (8th Cir.
2007) (quotations omitted) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)). An adverse
credibility determination coupled with a lack of corroborating evidence for a claim
of persecution means that the applicant’s claim fails. Id. at 895. “Where there are
10
two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 574 (1985) (citation omitted). “If an alien’s testimony is credible, it may be
sufficient, without corroboration, to satisfy his burden of proof in establishing his
eligibility for relief from removal.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231
(11th Cir. 2006) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005)); see also 8 C.F.R. §§ 208.13(a), 208.16(b). A denial of relief, however, can
be supported solely by an adverse credibility determination, especially if the alien
fails to produce corroborating evidence. See Mohammed v. U.S. Att’y Gen., 547
F.3d 1340, 1347 (11th Cir. 2008) (“Th[e] language in [8 C.F.R. § 208.13] plainly
indicates that if the trier of fact either does not believe the applicant or does not
know what to believe, the applicant’s failure to corroborate his testimony can be
fatal to his asylum application.”) (alternation in original) (citing Sidhu v. INS, 220
F.3d 1085, 1090 (9th Cir. 2000)).5 The record simply fails to compel a conclusion
contrary to that reached by the IJ and the BIA.
5
For applications filed after the REAL ID Act’s effective date of May 11, 2005, the
statute provides that an IJ may base a credibility determination on the demeanor or
responsiveness of the applicant, the inherent implausibility of the account, consistency between
the applicant’s written and oral statements, the consistency of the applicant’s statements with
other evidence on the record, and any inaccuracies or falsehoods, all “without regard to whether
an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see REAL ID Act § 101 (h)(2) (the new asylum
provisions of the REAL ID Act to applications filed after May 11, 2005).
11
Petitioner claims that both the IJ and the BIA failed to consider the totality
of the circumstances when denying her application for relief. Record evidence,
however, shows the contrary. Substantial evidence supports the BIA’s finding that
Petitioner failed to meet her burden of proof establishing eligibility for relief and
protection from removal. The IJ and the BIA made adverse credibility findings
based on specific, cogent reasons, including a number of inconsistencies in the
record, which Petitioner was given ample opportunity to rebut. She failed to do so.
For instance, the IJ continued Petitioner’s hearing on two separate occasions
to give Petitioner the opportunity to corroborate her testimony with credible
evidence. At the first hearing, the IJ told Petitioner exactly what his issues with
the evidence presented were and gave Petitioner time to address them. The IJ
went as far as suggesting several avenues Petitioner’s counsel could take in doing
so. Nonetheless, Petitioner presented insubstantial evidence at the second and
third hearings. Petitioner introduced the “originals” of the same documents that
were submitted along with her application for asylum (and found to be fraudulent
by the Report) and a polygraph report, which was afforded less weight because
Petitioner did not establish either the expertise or competence of the individual
administering the test, or the circumstances under which the test was administered.
Given three occasions to provide credible evidence, Petitioner could not satisfy the
12
threshold required by the IJ. However, Petitioner maintains that the credibility
determination reached by the IJ and the BIA was nonetheless based on speculation
and conjecture.
In support, Petitioner relies on Tang, 578 F.3d at 1270,6 where, similar to
the facts before us, we reviewed a BIA decision dismissing an appeal of an IJ’s
denial of an application for asylum and withholding of removal. Id. at 1273. In
Tang, however, the inconsistencies we found were in the grounds on which the IJ
based its credibility determination, id. at 1281, none of which are present here.
The inconsistencies on these facts lie in Petitioner’s own testimony and evidence.
Moreover, the petitioner in Tang was able to provide credible medical records
confirming the injuries she suffered in China due to the religious persecution she
faced there. Id. at 1275. Here, Petitioner could not provide accurate and credible
medical records to rebut the State Department’s Report showing that her
documents were fraudulent.
Petitioner’s next contention is that the agency did not consider the 2009
Department of State report on human rights practices in the Ukraine, which was
6
Petitioner also cites Farquharson v. U.S. Att’y Gen., 246 F.3d 1317 (11th Cir.
2001) for the premise that the Board’s decision demonstrates a completely inaccurate perception
of the record, which compels reversal. Farquharson is inapposite; it is a criminal case that
involved an illegal entry without inspection and conviction for a controlled substance violation.
Id. at 1321. It is of no consequence to the discussion before this Court.
13
submitted to show corruption in the Ukrainian government. Petitioner’s argument
that, if considered, it would have explained her failure to provide corroborating
evidence is unavailing. First, Petitioner fell short of providing any credible
evidence, from an independent source, that would compel a reversal on that
ground. Cf. Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir. 1991) (“We note
that agency action is entitled to a presumption of regularity, and thus the burden is
on the petitioners to convince us that the BIA gave short shrift to the evidence
they presented.”) (internal citations omitted). Additionally, the record does not
support Petitioner’s contention that the proffered country conditions evidence was
ignored. Petitioner acknowledges that the IJ addressed her theory that the
Ukraine’s public healthcare system explained her sparse medical records and the
United States Embassy’s inability to confirm her treatment at the Ternopil city
hospital. The IJ and the BIA found that, even assuming the police might wish to
cover up its failure to investigate Petitioner’s rape, nothing in the country
conditions evidence suggested that medical institutions in the Ukraine are in
collusion with the government. They found that, while it might be reasonable that
a corrupt police agency would not verify its own misdeeds, Petitioner’s allegation
of a cover-up by the medical institution was mere speculation. Thus, Petitioner’s
claim that the BIA ignored her country conditions evidence is unfounded.
14
Petitioner’s country conditions argument is also unavailing because, while
she urges the Court to accept the contention that corruption in the Ukraine is too
rampant to secure any credible information from them, she urges that we accept
the uncorroborated evidence she secured through her own sources. There is either
too much corruption to secure any documents or they are available through
diligent research. Based on the totality of the circumstances, both the IJ and the
BIA weighed the evidence of authenticity and determined that the State
Department’s Report was more credible than Petitioner’s testimony and the claims
of her family. Their determinations were not based on any single source or
inconsistency, but on substantial record evidence. We find no reason to disturb
these rulings. We therefore affirm the denial of relief as to this issue.
B.
Next, Petitioner argues that the Investigator disclosed her name to Ukrainian
officials during the course of his investigation, violating the confidentiality
provision pertaining to asylum applicants, 8 C.F.R. §1208.6(a). In its review of
the case, the BIA noted that the Investigator stated that he was aware of the
confidentiality requirement and complied with it. Upon consideration, the BIA
determined that the investigation was conducted appropriately. Specifically, the
BIA found that the objective of verifying police and medical records was satisfied,
15
and that the methods used in conducting the investigation, contacting Ukrainian
officials, and circumstances surrounding the request for information were also
proper.
On appeal, Petitioner does not point to any compelling evidence that would
lead this Court to disturb the BIA’s determination. Under the confidentiality
requirement of 8 C.F.R § 1208.6(a),
Information contained in or pertaining to any asylum application,
records pertaining to any credible fear determination conducted pursuant
to § 1208.30, and records pertaining to any reasonable fear
determination conducted pursuant to § 1208.31, shall not be disclosed
without the written consent of the applicant, except as permitted by this
section or at the discretion of the Attorney General.
8 C.F.R § 1208.6(a). Courts generally accord government records and official
conduct a presumption of legitimacy. See Averianova, 509 F.3d at 897 (citing
U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991)). Courts also give
substantial deference to the BIA’s interpretation of its statutes and regulations.
See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
Although this is an issue of first impression for this Circuit, there are a few
decisions from sister Circuits that provide some instruction. See e.g., Averianova,
509 F.3d at 897 (finding that disclosure of applicants names and dates of birth did
not give rise to such an inference); Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 270
16
(2d Cir. 2006) (“Many documents, such as birth certificates, marriage licenses, or
even some court records, do not necessarily imply that a foreign national is
seeking asylum.”); Che v. Mukasey, 532 F.3d 778 (8th Cir. 2008) (finding that the
agency’s conclusion that confidentiality regulations were not breached should not
be disturbed because the applicants name could be linked to many documents and
did not necessarily imply that the applicant was seeking asylum).
In Averianova, the petitioners’ claims for breach of confidentiality failed
because the record did not show that the INS had disclosed any information
contained in or pertaining to an asylum application. Id. at 898. Therefore, the
Eight Circuit held that the disclosure of the applicants’ names and dates of birth
could not establish a breach. In its decision, the Eight Circuit relied on an INS
memorandum interpreting its own regulation (“Cooper Memo”), which lists
specific scenarios when disclosure of an applicant’s information does rise to the
level of a breach.7 According to the Cooper Memo, a breach occurs when
information is disclosed to a third party and the disclosure is significant enough
that it allows the third party to connect the identity of the applicant to: (1) the fact
7
See Memorandum from Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS
Director of Int’l Affairs, Confidentiality of Asylum Applications and Overseas Verification of
Documents and Applications Information (June 21, 2011), available at
http://judiciary.house.gov/legacy/82238.pdf at 39-45.
17
that the applicant is seeking asylum; (2) specific facts or allegations pertaining to
the individual asylum claim in the application; or (3) facts or allegations that are
sufficient to give rise to a reasonable inference that the person is seeking asylum.
Averianova, 509 F.3d at 899 (citing Lin, 459 F.3d at 263).
Here, at most, the disclosure of Petitioner’s name was made to a hospital
administrator (to determine if she had ever been treated at that facility) but not to
police officials or other government actors. Petitioner would have this Court
equate disclosure to a hospital administrator with disclosure to a government
official and presume a violation. Such an argument is a non-starter, particularly
under the facts at issue here. Petitioner did not present any evidence showing that
hospitals are in the business of covering up government actions. On these facts,
even if this was a disclosure, it does not give rise to the inference that Petitioner
applied for asylum. Disclosure of a person’s name is not sufficient for a breach of
confidentiality; indeed without disclosure of a name, investigating these claims
would be impossible. There might be many other reasons to request such medical
information, such as an investigation relating to adoption or guardianship of a
child, and asylum is not among the more obvious. See Averianova, 509 F.3d at
894 (requesting copies of birth records does not give rise to a reasonable inference
of an asylum application because the documents “could relate to any number of
18
ordinary government investigations”). Regardless, Petitioner contends that,
because she lives in a small town in the Ukraine, everyone would necessarily
know that the Investigator was seeking information in connection with her
application for asylum. In order to succeed on her claim, Petitioner needed to
demonstrate that the disclosure in question gave rise to a reasonable inference that
the person in question applied for asylum, and she failed to do so.
Similarly, Petitioner’s claim is distinguishable from the Second Circuit’s
decision in Lin. There, the court found that Lin’s confidences were violated
because the INS provided the Chinese government with a document that is
typically associated with asylum claims. Lin, 459 F.3d at 262. Here, however, the
record does not reflect that the Investigator provided any documents to any
government officials in connection with his investigation. Nor did the
Investigator’s inquiries disclose any facts that would lead one to conclude that
Petitioner was applying for asylum.
Accordingly, we find that Petitioner did not overcome the presumption of
regularity afforded to government investigations. Therefore, we affirm the BIA’s
finding that Petitioner’s right to confidentiality in the asylum application process
was not breached.
IV.
19
In conclusion, we affirm the findings of the IJ and the BIA denying relief.
AFFIRMED.
20