Elvira Viktorovna Bazarova v. U .S. Atty. Gen. , 369 F. App'x 103 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 12, 2010
No. 09-12359 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-642-773
ELVIRA VIKTOROVNA BAZAROVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 12, 2010)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Elvira Viktorovna Bazarova, a native and citizen of Russia, petitions for
review of the denial of her application for asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). Bazarova contends that the Board of
Immigration Appeals (“BIA”) erred in affirming the adverse credibility finding of
the Immigration Judge (“IJ”). She also contends that the IJ violated her due
process rights by denying her motion to continue. After careful review, we DENY
the petition.
I. BACKGROUND
Bazarova entered the United States on 14 June 2005 as a temporary
nonimmigrant visitor with authorization to stay until 15 April 2006. In July 2006,
she received a notice to appear charging her with removability under the INA for
overstaying her visa.
Bazarova applied for asylum, withholding of removal, and CAT protection.
She claimed that she was raped in May 2005 by a group of people called the
Slepovtsy1 because her boyfriend owed them money. On 20 February 2007,
Bazarova appeared before an IJ and conceded her removability as charged.
1
Although Bazarova identified the group as the “Slepovtsi” in her asylum application,
she spelled the name as “Slepovtsy” during her asylum hearing.
2
Bazarova’s counsel requested extra time to supplement her application.
Accordingly, the IJ scheduled the hearing for 28 September 2007 and directed
counsel to file any supporting evidence by 20 June 2007. The IJ also informed
Bazarova’s counsel that he could file a motion for more time if needed. No
additional documents were ever filed by Bazarova.
At the merits hearing on 28 September 2007, Bazarova filed a motion to
continue in order to obtain affidavits from a nurse and two Russian neighbors. The
IJ denied the motion for lack of good cause as the motion gave no reason why the
affidavits were not obtained during the past seven months. The IJ also noted that
an interpreter had already been paid for and the IJ had been flown in from New
Jersey for the hearing. Nevertheless, the IJ indicated that she might reconsider her
ruling after hearing Bazarova’s testimony about her efforts to secure the affidavits.
Bazarova then testified as follows. The Slepovtsy is a dangerous group of
criminals akin to a mafia. Bazarova’s boyfriend was a member of the Slepovtsy
gang though she did not know this while they were dating. Bazarova never found
out what type of work her boyfriend did because “[i]t’s not that prestigious to talk
about your jobs back home.” Administrative Record (“AR”) at 127. Bazarova was
content that he made “good money” and could help support her and her parents.
Id. at 127-29. Starting in November 2004, her boyfriend would come home “all
beaten up.” Id. at 114. After he disappeared in April 2005, Bazarova began
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receiving threatening phone calls, warning her to either find her boyfriend or repay
his debt. Scared, Bazarova moved into her sister’s apartment in another part of the
city.
On 15 May 2005, several people from the Slepovtsy broke into her sister’s
apartment, beat Bazarova, and raped her. Bazarova did not seek medical treatment
because she was told that things would be worse for her if she went to any
establishments. Instead, a nurse, who was a friend of Bazarova’s sister, examined
Bazarova. The next day, Bazarova reported the incident to the police, but they
merely laughed at her and told her to disclose her boyfriend’s location or give them
the money he owed. Bazarova believes the police and the Slepovtsy are connected
and “do everything together.” Id. at 117.
Before she began dating her boyfriend in 2002, Bazarova was assaulted by
the Slepovtsy one other time. The incident occurred during a birthday party at a
restaurant wherein several people grabbed her and hit her head against some glass
shelves. They wanted to “imprison” her, which means take her to a place where
they could rape her, but a friend managed to convince them not to. Id.
After she left Russia, Bazarova learned of her boyfriend’s death, but she
knows nothing about the circumstances of his death or even when he died. She did
not contact his family. Bazarova testified that the Slepovtsy have continued to
threaten her parents, sister, and other relatives because they want to collect on her
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boyfriend’s debt and kill her. She is unwilling to return to Russia because she
fears the police will catch her if she moves to another city and “imprison” her the
same way the Slepovtsy do to other women.
With respect to her attempt to secure affidavits, Bazarova stated that the
eight hour time difference made it difficult to contact witnesses in Russia and that
many were too scared to help. She also testified that her phone had problems
connecting to Russia for several months. Although she tried mailing a few items,
mail delivery was slow and unreliable. She did not obtain affidavits from her
parents because some friends had informed her that relatives could not serve as her
witnesses.
In a written decision, the IJ first addressed Bazarova’s motion to continue.
The IJ rejected Bazarova’s time-difference argument on grounds that she could
have written letters, placed phone calls to pre-arrange conversations, or adjusted
her schedule to the needs of her Russian witnesses. The IJ also found no
convincing evidence to support her claim of mail and telecommunication
problems. Finally, the IJ discounted as unreasonable Bazarova’s reliance on her
friends’ advice that relatives could not be witnesses. The IJ concluded that
Bazarova had not shown good cause for granting a continuance.
Next, the IJ determined that Bazarova was not credible. While Bazarova’s
testimony was consistent with her written statement, the brevity of her application
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left open the possibility that Bazarova had enhanced her claim during the hearing.
The IJ also found that Bazarova’s testimony was vague and implausible at times
concerning her purported boyfriend, the threats against her, and her decision to
avoid seeking medical treatment. The IJ rejected her reasons for not obtaining
corroborating evidence as “patently unreasonable excuses” which only added to
her lack of credibility. Id. at 55. The IJ further determined that the 2006 Country
Report on Human Rights Practices in Russia did not corroborate her claims of
persecution. Though the report documented general police corruption, it did not
mention the Slepovtsy or any police involvement in organized gang activity.
Moreover, even if Bazarova was credible, the IJ found that her past persecution
was not on account of any protected ground and that she did not have a well-
founded fear of future persecution in Russia. The IJ ultimately denied asylum,
withholding of removal, and CAT relief.
On appeal, the BIA adopted and affirmed the IJ’s decision. In particular, the
BIA found no clear error in the IJ’s adverse credibility determination “based upon
the various problems and inconsistences in the record” as detailed by the IJ. Id. at
3. The BIA further noted that Bazarova failed to provide corroborating evidence
from her family even though that evidence was reasonably available. Additionally,
the BIA found no error in the IJ’s denial of the motion to continue given the lack of
good cause for a continuance. In any event, the BIA noted that no prejudice had
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been shown because the affidavits had still not been obtained.
In her pro se petition for review, Bazarova contends that the IJ’s adverse
credibility finding was not supported by specific details. She notes that the IJ
faulted her for not corroborating her claims while at the same time denying her
motion to continue which would have allowed her time to obtain corroborating
evidence. Bazarova further contends that her persecution occurred on account of a
protected ground. Specifically, she argues that the government was cooperating
with the criminals in the Slepovtsy and that she is a female in a social group which
was targeted. Finally, Bazarova asserts that the denial of her motion to continue
violated her due process rights.
II. DISCUSSION
A. Denial of Asylum, Withholding of Removal, and CAT protection
When the BIA expressly adopts the IJ’s opinion and reasoning, as here, we
review both the IJ’s and BIA’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). We review credibility determinations under the substantial
evidence test and “may not substitute [our] judgment for that of the [IJ] with
respect to credibility findings.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255
(11th Cir. 2006) (per curiam) (quotation marks and citation omitted). As with all
factual findings, we may reverse a credibility finding only if the record compels it.
See id. Furthermore, we must view all evidence and draw all reasonable inferences
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in favor of the agency’s decision. Id.Bazarova’s application is governed by the REAL ID Act, which permits an
adverse credibility determination to be based on any inconsistencies, even ones that
do not go to the heart of the applicant’s claim, provided that such a determination
is supported by the “totality of the circumstances.” 8 U.S.C. § 1229a(c)(4)(C)
(2005). Relevant factors include an applicant’s consistency on direct examination,
consistency between the applicant’s written and oral statements, and the absence of
embellishments. Ruiz, 440 F.3d at 1255. An alien’s testimony need not be
corroborated if credible. See id. “Conversely, an adverse credibility determination
alone may be sufficient to support the denial of an asylum application” where the
applicant does not produce evidence other than her own testimony. Id. (quotation
marks and citation omitted). The burden then shifts to the applicant to show that
the adverse credibility finding was not supported by “specific, cogent reasons” or
substantial evidence. Id. (quotation marks and citation omitted).
Bazarova has not carried her burden in this case. Contrary to her assertion,
the IJ provided numerous examples of vague and inconsistent testimony in support
of the adverse credibility finding. For instance, the IJ noted that Bazarova never
specified the number of times the Slepovtsy threatened her or her family, or how
those threats were communicated each time. Equally vague was her testimony
concerning her relationship with her boyfriend, in that she did not know her
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boyfriend’s profession, that he was a gang member while they were dating, or the
circumstances of his death. Moreover, Bazarova’s failure to correspond to her
boyfriend’s family after his death was inconsistent with her claims that they had
been romantically involved for a long period and often stayed with his parents.
Another inconsistency surfaced in Bazarova’s testimony that threats of reprisal
kept her away from the hospital, but not from the police, after her rape. This
inconsistency was more glaring given Bazarova’s testimony that the police and the
Slepovtsy “do everything together.” AR at 117. In light of the substantial
evidence supporting the IJ’s adverse credibility finding, the record does not compel
us to reverse that finding.
Furthermore, as the IJ found, Bazarova did not provide corroborating
evidence to support her testimony nor establish good cause to excuse her failure to
do so. Although the IJ considered the 2006 Country Report submitted by the
government, that report did not substantiate Bazarova’s claims of persecution by
the Slepovtsy. Accordingly, the adverse credibility determination was sufficient to
support the BIA’s denial of her asylum application. See Ruiz, 440 F.3d at 1255.
Given that withholding of removal under the INA and the CAT entails a higher
standard of proof, we conclude that substantial evidence supports the denials of
those claims as well. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th
Cir. 2006) (per curiam).
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B. Denial of Motion to Continue
We review for abuse of discretion an IJ’s denial of a motion to continue.
See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). An IJ has
discretion to grant a continuance in an immigration proceeding “for good cause
shown.” 8 C.F.R. § 1003.29 (2009). In order to constitute a due process violation,
the denial of the motion to continue must have substantially prejudiced the movant.
See Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir. 1981) (concluding that the
movant was not prejudiced by the denial of his request for a continuance because
the information he needed would not have altered the judgment of the INS in any
way); see also Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007) (“To
prevail on a procedural due process challenge, the petitioner must show that he was
substantially prejudiced by the violation.”).
No abuse of discretion has been shown in this case. Bazarova had several
months to submit evidence or file a motion to continue, but she instead waited until
the day of the hearing to ask for a continuance. Her motion gave no good cause to
excuse her failure to obtain the affidavits during the previous seven months. The IJ
rejected Bazarova’s proffered explanations at the hearing as non-credible, noting
the existence of “calling cards, computer-assisted phone calling methods such as
Skype, overnight delivery services that travel worldwide such as DSL, and alarm
clocks that help a person to be awake at a time convenient to her witnesses.” AR at
10
55. The IJ also found unreasonable Bazarova’s reliance on the advice of her
friends, who were not attorneys, concerning her relatives’ ability to submit
affidavits on her behalf. Based on the record, we conclude that the IJ did not abuse
her broad discretion in denying a continuance for lack of good cause, particularly
in light of the pre-arranged presence of an interpreter and an IJ.
Moreover, we agree with the BIA that Bazarova has failed to demonstrate
the requisite prejudice from the denial of her motion to continue. Although the
affidavits might have provided some corroboration of her claims, they would not
have eliminated the inconsistencies and other problems in her testimony which
supported the adverse credibility finding. Absent a showing of substantial
prejudice, her due process claim fails. See Ka Fung Chan, 634 F.2d at 258.
III. CONCLUSION
The record contains substantial evidence supporting the denial of asylum,
withholding of removal, and CAT relief. We further conclude that the IJ’s denial
of Bazarova’s motion to continue was not an abuse of discretion and did not
violate Bazarova’s due process rights. Accordingly, we DENY Bazarova’s petition
for review.
PETITION DENIED.
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