Svetlana Mironenko v. Atty Gen USA ( 2012 )

IMG-034 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2546
___________
SVETLANA MIRONENKO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-480-041)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 22, 2012
Before: SLOVITER, GREENAWAY, JR., AND COWEN, Circuit Judges
(Opinion filed: February 23, 2012)
___________
OPINION
___________
PER CURIAM
Svetlana Mironenko, a citizen of Russia and a native of Ukraine in the former
Union of Soviet Socialist Republics, entered the United States using a temporary visa on
March 3, 2000, and did not leave when her visa expired. In 2003, she filed an application
for asylum, withholding, and relief under the Convention Against Torture (“CAT”) based
on her experiences as a Baptist in Russia and Ukraine. The Government charged her as
removable for overstaying her visa, which she conceded.
The Immigration Judge (“IJ”) denied Mironenko’s applications for relief from
removal. The IJ denied the asylum and withholding applications on the basis of an
adverse credibility finding and the conclusion that Mironenko had not adequately
corroborated her claims. The IJ then held that Mironenko was not eligible for asylum in
any event because the application was untimely filed (rejecting, in the process, on the
basis of credibility concerns, Mironenko’s claim that, in February 2001, she met with,
and paid, a person who represented that he would file an asylum application for her).
Assuming the veracity of Mironenko’s claims, the IJ also held that Mironenko had not
met the standard for CAT relief.
Mironenko filed an appeal with the Board of Immigration Appeals (“BIA”). The
BIA agreed with the IJ that Mironenko was statutorily ineligible for asylum (and that no
exceptional circumstance excused the untimely filing). The BIA also held that the
adverse credibility finding, which it characterized as an alternative basis for the asylum
denial and the basis for the denial of withholding, was not clearly erroneous. The BIA
further agreed with the IJ that Mironenko did not submit sufficient corroborative
evidence. The BIA rejected Mironenko’s argument that the IJ did not consider the
corroborative evidence that she did submit. The BIA also held that Mironenko had not
shown that she was eligible for CAT relief.
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Mironenko presents a petition for review. She contends generally that she is
entitled to asylum, withholding, and CAT relief. She claims that the BIA erred in
affirming the IJ’s decision and did not provide her the individualized determination to
which she was due. Also, and more specifically, she argues that the BIA erred in
affirming the IJ’s negative credibility determination because the determination was not
based on record evidence and violated her right to due process. She also contends that
the finding that she failed to corroborate her claims is not supported by the record and
that the BIA erred in finding that she failed to meet the extraordinary circumstance
exception to the filing deadline.
The Government opposes her petition, stating that we are without jurisdiction to
review the determination that Mironenko’s failure to file a timely asylum application was
not excused by extraordinary circumstances. The Government also argues that no record
evidence compels a conclusion different from those reached by the agency about
Mironenko’s credibility. The Government contends that the agency cited specific and
cogent reasons that go to the heart of her claim. The Government also states that the
agency reasonably required corroboration and concluded that the failure to provide
corroboration undercut the claims. Further, the Government argues that the ruling on the
CAT claim was correct.
First, we define the scope of our jurisdiction. We have jurisdiction to review
constitutional claims and questions of law but not factual or discretionary determinations
concerning the timeliness of Mironenko’s asylum application. See 8 U.S.C.
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§§ 1158(a)(3) & 1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir.
2006). In relation to the ruling that her application was not timely filed, Mironenko
challenges two bases for the BIA’s rejection of her claim that exceptional circumstances
excused the late filing. However, these bases, an adverse credibility finding and the
conclusion that Mironenko could not corroborate that prior counsel existed or that she
had any agreement with prior counsel to file an earlier asylum application, are factual
determinations outside the purview of our review. Although she also protests that the
BIA did not meaningfully review the entire record and thereby deprived her of due
process, we conclude that this claim is without merit based on the record before us.
We otherwise have jurisdiction over the issues raised in Mironenko’s petition
pursuant to 8 U.S.C. § 1252(a). We review the final order of the BIA, but to the extent
that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine
whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405
F.3d 150, 155 (3d Cir. 2005). We consider questions of law de novo. See Gerbier v.
Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2002). We review factual findings, like an
adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429
F.3d 430, 433 (3d Cir. 2005). We evaluate whether a credibility determination was
“appropriately based on inconsistent statements, contradictory evidences, and inherently
improbable testimony . . . in view of the background evidence of country conditions.”
Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). We afford an adverse credibility
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finding substantial deference, so long as the finding is supported by sufficient, cogent
reasons. See Butt, 429 F.3d at 434.
After reviewing the matter, we cannot say that the record compels a conclusion
different from the one reached by the agency in regards to the credibility determination.
In her affidavit, Mironenko related an account of nine attacks between 1982 and 1999.
The first occurred when she, at 15 years of age, was returning from worship. Describing
it in her affidavit, she stated that she and unidentified others were attacked by a group.1
She suffered a blow to the back of her head, which resulted in a concussion and
hospitalization. In her testimony, however, she added information to her account, stating
that the attackers made several statements during the attacks, including, “Why are you
singing those songs? Why are you wearing those hankerchiefs? You have to change
your religion.” R. 250. The IJ reasoned that this inconsistency goes to the heart of
Mironenko’s claim2 because the added statements were an attempt to establish a nexus
between the attack and a protected ground.
The second attack reported by Mironenko occurred on the day of her baptism. In
her affidavit, she described screaming and cursing from the riverbank of the river where
1
In her affidavit, she originally described these persons as a group of nationalists wearing
khakis and armbands, but later filed a correction to specify that the group consisted of
persons who harassed Baptists and Evangelical Christians. (She explained that someone
who helped her with her affidavit had urged her to exaggerate.)
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In a pre-REAL-ID Act case, which this is, the discrepancies identified by the agency
must go to the heart of the claim to support the adverse credibility determination. See
Gao v. Ashcroft, 299 F. 3d 266, 272 ( 3d Cir. 2002).
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the ceremony was taking place, followed by an attack that led to the death of three
persons also being christened (she reported that the river ran red with blood). Also, in her
affidavit, she reported the date as June 30, 1985. When she testified, she first described
the baptism as occurring in June 1989 (later, she changed her testimony to state that it
was July 13, then June 13, then June 30, 1985). Also, although she mostly described the
baptism as occurring in Shostka, Ukraine, she responded to a question asking whether she
knew the persons killed with the response, “Not very well. You see in the city of
Murmansk [interruption for the spelling of Murmansk] you [sic] talking about a city.
Murmansk [in Russia] is a city. It’s a big place.” R. 253-54. After her counsel prompted
her that the baptism was in Shostka, the IJ asked where the event occurred, to which
Mironenko responded “Shostka. Shostka. You see Shoska also has prayer houses.” Id. at
254. Also relating to her baptism, she did not state, in her affidavit, that she was hit or
hurt by the assailants. However, on direct examination at her hearing, directly after
testifying that young men came into the water with batons, she stated that she was hit
(although she also said that she did not sustain an injury). On cross-examination, she
clarified that she was hit with a hand but “sustained no injuries whatsoever.” R. 316.
The IJ also pointed to inconsistencies in Mironenko’s accounts of two other
attacks. On direct examination, Mironenko stated that, in 1995, she and her husband
were walking home from a prayer house when they were attacked by four or five
individuals wielding sticks and batons. She testified that “[s]imply, [the attackers] did
not say anything. All they did [was] use their batons or sticks.” R. 264. However, on
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cross-examination she said that the assailants said something to them during the incident
(and that she did not recall testifying to the contrary). R. 359. In relation to an attack on
New Year’s Eve in 1996, Mironenko testified that assailants who broke into her home
where she was celebrating with friends told her and her friends to change their religion,
and said “[u]p to a point that you change your religion, we will be after you, we will be
literally persecuting you.” R. 94. However, in her affidavit, Mironenko did not include
information about any statements made by the intruders, which, as the IJ noted, relate to
the heart of Mironenko’s claim because they provide a nexus between the attack and the
protected ground.
Also, despite saying that she had told the IJ everything, R. 379, Mironenko
omitted two incidents from her testimony that she had included in her affidavit. The IJ
noted that the incidents omitted were not insignificant parts of her claim of persecution,
as one incident resulted in fractured ribs and a month’s absence from work and the other
resulted in her being hospitalized for a week.
Furthermore, Mironenko offered a shifting story about why it took her longer than
her husband to leave Russia, first stating that it was a visa problem, then claiming it was a
passport issue, and then finally explaining that it took time to reach an agreement with
her first husband about the care of their children. Also, as the IJ detailed, Mironenko also
presented different accounts of how she completed the asylum application she filed in
2003.
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Given the inconsistencies and omissions the IJ found, there is a basis in the record
for the adverse credibility determination. The BIA did not err in affirming the finding.
Despite her claim to the contrary, neither the IJ’s nor the BIA’s consideration of the
matter violated Mironenko’s right to due process.
The BIA also affirmed the IJ’s determination that Mironenko had not submitted
sufficient corroborative evidence. In considering whether corroboration was properly
required, we consider whether the agency has (1) identified facts for which it is
reasonable to expect corroboration; (2) inquired as to whether the applicant has provided
information or corroboration in the record; and (3) analyzed whether the applicant has
adequately explained his or her failure to do so. See Abdulai v. Ashcroft, 239 F.3d 542,
554 (3d Cir. 2001). The agency chose facts for which corroboration was reasonably
expected. The IJ looked for affidavits from individuals with knowledge of the attacks
Mironenko described. In doing so, it may have been unreasonable to look for an affidavit
from one of Mironenko’s sons, who was only about 8 to 13 at the relevant times,
although Mironenko did testify that her son was aware of at least one hospitalization and
that she keeps in regular contact with him. However, the general analysis, including the
conclusion that Mironenko did not provide sufficient corroborating evidence to overcome
the adverse credibility finding, is supported by the record.
Although the IJ accepted Mironenko’s statement that some of the attacks occurred
too long ago to find witnesses, the IJ expected Mironenko to submit evidence from her
parents about the attacks. In doing so, the IJ did not ignore the affidavit from her mother
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that Mironenko produced, as Mironenko argues. The IJ (and the BIA) noted it, but found
it too general and lacking corroboration of specific attacks. Indeed, the affidavit is very
general (stating merely that Mironenko is a Baptist who was “water-baptized” and that
her family has “constantly been persecuted”). R. 499. Mironenko did not provide an
affidavit from her father, whom she had identified as reporting an early attack to the
police. The agency considered, but rejected Mironenko’s explanation, which essentially
was that she did not know to procure that information and that her parents live together,
so she did not know she would need statements from both. As the BIA noted, her claim
that she did not know that she needed to procure corroborating evidence is undermined
by the facts that she did ask her mother for an affidavit and that the IJ had discussed the
need for corroboration at an earlier hearing, R. 209-12.
Mironenko contends that the agency did not properly credit her husband’s
affidavit, which included similar accounts of three attacks. She contends that the
treatment of the affidavit was akin to the impermissible use of the “missing witness rule”
that informed an adverse credibility determination in Tabaku v. Gonzales, 425 F.3d 417,
421-22 (7th Cir. 2005). However, in this case, unlike in Tabaku, the IJ did not base the
adverse credibility determination in part on her husband’s failure to testify. As the BIA
explained, the IJ merely gave limited weight to the document.
The IJ also looked for medical evidence that would verify Mironenko’s claims, as
Mironenko stated that she had gone to the hospital several times for treatment after
attacks. Mironenko stated that her mother failed to get any hospital records, and her son
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refused to try to obtain them. The IJ noted that the mother’s affidavit included no
description of any efforts to get the records. After considering why Mironenko did not
try to obtain them herself, the IJ rejected Mironenko’s statement that she did not because
it is “impossible” to get the truth “over there.” The IJ noted that Mironenko could not
really believe that if her other assertion, that she requested family members to get the
records, was true. Mironenko claims that the medical evidence that she provided was not
properly evaluated. However, it was considered; it was given limited weight because it
was not contemporaneous with her injuries and it did not describe all the injuries she
purported to have suffered (although the IJ and BIA noted that it confirmed one injury, a
broken arm). The IJ also considered that Mironenko had not produced any police
records. Asked about their absence, Mironenko offered that she had no records because
she did not know she needed them and that she and her husband “were running.”
However, as noted above, there is evidence she was apprised of the need for
corroboration. Also, there was a gap of years between the last incident in Russia and her
departure for the United States.
In short, the three part analysis required by Abdulai was properly performed.
Furthermore, as noted above, the adverse credibility determination finds support in the
record. Accordingly, the BIA did not err in denying Mironenko’s withholding claim
based on the adverse credibility finding and the lack of corroboration. Also, we conclude
that the BIA did not err in concluding that Mironenko did not meet the standard for CAT
relief. Mironenko did not establish that it is more likely than not that she will be tortured
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upon her return to Russia. For these reasons, we will deny Mironenko’s petition for
review.
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