Gulizar Suleymanova v. Attorney General United States , 539 F. App'x 29 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1367
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GULIZAR SULEYMANOVA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
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APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
(Agency No. A200 919 355)
Immigration Judge: Honorable Steven Morley
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Submitted Under Third Circuit LAR 34.1(a)
October 10, 2013
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Before: FUENTES, COWEN and BARRY, Circuit Judges
(Opinion Filed: October 29, 2013 )
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OPINION
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BARRY, Circuit Judge
Petitioner Gulizar Suleymanova, a native of Turkmenistan and citizen of Russia,
petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We will deny
the petition.
I.
Because we write primarily for the parties, we set forth only those facts relevant to
our analysis. In 2010, Suleymanova entered the United States on a visitor’s visa and
applied for asylum, withholding of removal, and relief under the CAT, claiming that she
had been persecuted in the past in Russia and Turkmenistan due to her Lak ethnicity and
feared that she would be persecuted, injured or killed if she returned to either country.1
She concedes that she is otherwise removable for having overstayed her visa.
At a hearing before the IJ, Suleymanova testified that she was born in
Turkmenistan in 1984 and lived there until 2002, when she moved with her family to
Russia. Suleymanova claimed that, when visiting her grandmother in Moscow in the
summer of 1999, she was subjected to persecution due to her Lak ethnicity. In one
incident, she was chased on foot by two men whom she described as “skinheads,” who
accosted and taunted her; she was not, however, physically injured. In another incident,
she was walking on a sidewalk when a car followed her and then drove up onto the
sidewalk and struck her, forcing her into the wall of a building and causing her serious
injuries, which were confirmed by hospital records. Suleymanova believed the men in
the car to be “skinheads” who targeted her because of her ethnicity. She also testified
1
We note that Suleymanova initially applied for asylum from Turkmenistan and Russia
but stated before both the BIA and this Court that she no longer sought asylum from
Turkmenistan. We note as well that she has not pressed before us the denial of her claims
for withholding of removal and CAT relief, and so we do not address those claims.
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that they looked at her “aggressively” and that they said something she could not hear.
Suleymanova testified that the police came to the hospital and told her that this was not
an isolated occurrence, and that a few people of Asian Caucasus appearance also claimed
to have been hit by vehicles. In support of her application, Suleymanova submitted a
letter from her mother that discussed the vehicle attack and stated that the police had also
told her that this was not the first incident of skinheads attacking non-Russians.
Suleymanova testified that, while she lived with her family in Russia from 2002 to
2010, she was harassed due to her ethnicity and could not pursue work or education. She
stated that she feared leaving the house from 2002 to 2010, although she traveled to
China, in 2008, and the Czech Republic, in 2009, to seek treatment for headaches. She
returned to Russia after both trips.
On June 8, 2011, the IJ denied Suleymanova’s application, finding that she failed
to demonstrate past persecution or a well-founded fear of future persecution. While the
IJ found Suleymanova to be generally credible, he concluded that the first incident where
she was chased on foot by “skinheads” did not rise to the level of persecution, and that
there was insufficient evidence to establish that the vehicle attack, even if intentional,
was motivated by her ethnicity. The IJ also concluded that there was a lack of
corroboration regarding the discrimination faced by Suleymanova and her family while
living in Russia, as well as a lack of evidence corroborating her testimony that from 2002
to 2010 she was housebound, could not find employment, and could not further her
education due to her ethnic background. With respect to a fear of future persecution, the
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IJ found that while there was evidence of a rise of nationalist violence in Russia and
discrimination against those perceived to be from the Caucasus or Central Asia, the
documentation did not support a determination of systemic, pervasive, or organized harm.
The IJ noted that Suleymanova voluntarily returned to Russia from China and the Czech
Republic in 2008 and 2009, and that she failed to demonstrate why she could not return
to the Smolensk region of Russia, where her family resides, or to Dagestan, the area of
Russia containing the largest number of Laks.2
On January 23, 2013, the BIA affirmed the decision of the IJ and dismissed
Suleymanova’s appeal. The BIA found no clear error in the IJ’s finding that the first
incident in Russia did not rise to the level of persecution, and no clear error in the IJ’s
finding that the vehicle attack was not shown to be motivated by Suleymanova’s
ethnicity. The BIA agreed that Suleymanova presented insufficient evidence to
demonstrate an objectively reasonable fear of future persecution in Russia. Finally, the
BIA found no error in the IJ’s conclusion that Suleymanova could safely relocate within
Russia to the Smolensk region or Dagestan. Suleymanova now petitions for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Generally, when the BIA
issues an opinion we review that decision as the final agency decision. Sarango v. Att’y
Gen., 651 F.3d 380, 383 (3d Cir. 2011). Here, because the BIA’s decision “both adopts
2
We note that the IJ erroneously stated that Suleymanova failed to provide evidence
documenting her ethnicity. Because, however, the IJ proceeded on the assumption that
Suleymanova was perceived to be from the Caucasus, which could subject her to
discrimination in Russia, we agree with the BIA that this constituted harmless error.
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the findings of the IJ and discusses some of the bases for the IJ’s decision,” however, “we
have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004).
We review for substantial evidence, which requires us to examine the IJ’s and the
BIA’s findings to determine whether they are “supported by evidence that a reasonable
mind would find adequate.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
We may reverse a finding only when “no reasonable fact finder could make that finding
on the administrative record.” Id. In other words, “to obtain judicial reversal of the
BIA’s determination, [the applicant] must show that the evidence he [or she] presented
was so compelling that no reasonable factfinder could fail to find the requisite fear of
persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
To prevail on an asylum claim, an alien must demonstrate an unwillingness or
inability to return to his or her country of origin “because 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). Pursuant to the
REAL ID Act, which applies to applications filed after May 11, 2005, the burden of proof
is on the applicant to “establish that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). While the applicant’s
testimony may be sufficient to sustain this burden of proof without corroboration,
“[w]here the trier of fact determines that the applicant should provide evidence that
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corroborates otherwise credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain the evidence.” 8
U.S.C. § 1158(b)(1)(B)(ii).
To establish a well-founded fear of future persecution, “the alien must show both a
subjective fear and that a reasonable person in his position would fear persecution, either
because he would be individually singled out for persecution or because there is a pattern
or practice in his home country of persecution against a group of which he is a member.”
Khan v. Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012) (internal quotation marks omitted).
The source of the persecution must be “the government or forces that the government is
unwilling or unable to control.” Id.III.
As an initial matter, Suleymanova invokes Abdulai v. Ashcroft, 239 F.3d 542, 554
(3d Cir. 2001), and argues that the IJ erred with reference to the need for corroboration of
her testimony. In Abdulai, we held that when considering the need for corroboration, the
IJ should (1) identify what particular aspects of the applicant’s testimony it would be
reasonable to expect be corroborated, (2) explain why the evidence applicant submitted
failed to do so, and (3) state why the applicant’s explanations for that failure were
insufficient. Abdulai, 239 F.3d at 545. The IJ must “give the applicant notice of what
aspects of the applicant’s testimony need corroboration,” and must offer the applicant an
opportunity to explain why he or she cannot produce the corroborating evidence. Sandie
v. Att’y Gen., 562 F.3d 246, 253 (3d Cir. 2009).
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Here, the IJ cited Abdulai and “adequately worked through the three-part Abdulai
inquiry” by identifying the facts for which he sought corroboration, analyzing the
information that was provided, and considering whether or not Suleymanova adequately
explained her failure to provide additional evidence. See Sandie, 562 F.3d at 253.
Significantly, Suleymanova does not argue that the IJ failed to provide her with an
opportunity to present the corroborating documents he requested, that the IJ failed to give
her notice of the fact that she would need to corroborate her testimony, or that the IJ
failed to offer her an opportunity to explain why she did not provide the requested
corroborating documents. Instead, she argues that the IJ should have concluded that the
corroborating evidence she did provide was adequate to sustain her burden of proof. For
the reasons discussed below, however, a reasonable fact finder could conclude that
Suleymanova failed to carry her burden of proof to establish eligibility for asylum, and
we turn to that.
First, we agree with the IJ and BIA that the incident in which Suleymanova was
chased by “skinheads” did not rise to the level of persecution. As we have held, “brief
detentions, where little or no physical harm occurs, generally do not rise to the level of
persecution.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 342 (3d Cir. 2008) (holding
that being twice rounded up by armed men at gunpoint and warned not to fraternize with
government officers did not rise to the level of persecution, as the detentions were brief
and petitioner was not physically injured or robbed).
Second, we agree with the IJ and BIA that Suleymanova failed to provide
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sufficient evidence to establish that the vehicle attack was motivated by her ethnicity.
Applicants for asylum bear the burden of providing evidence, direct or circumstantial,
that persecution was based on a statutorily protected ground. Ndayshimiye v. Att’y Gen.,
557 F.3d 124, 131 (3d Cir. 2009). The IJ and BIA took into consideration
Suleymanova’s testimony regarding her observations of the men in the car, her testimony
that they looked “aggressively” at her, her testimony that she heard them say some
unintelligible words, and her testimony and her mother’s letter indicating that the police
told them that similar attacks by skinheads had occurred.3 This evidence, even when
taken together with evidence of the country conditions and Suleymanova’s other
allegations of harassment, does not compel a finding that the attack was motivated by her
ethnicity.
Indeed, as the IJ observed, even assuming Suleymanova was struck intentionally,
any number of reasons could have provoked the attack, including random violence. In
her brief to this Court, Suleymanova herself recognizes that “it is not impossible that the
skinheads were involved in a random act of violence” when they attacked her. (Pet’r Br.
at 17.) As we have found, “ordinary criminal activity does not rise to the level of
persecution necessary to establish eligibility for asylum.” Abdille v. Ashcroft, 242 F.3d
477, 494 (3d Cir. 2001); see also Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005)
3
Suleymanova contends that the IJ erred by failing to take into consideration the letter
from her mother which corroborated her claim that the police stated that the vehicle
attack was not an isolated incident. Although we agree that the IJ appears to have
overlooked this letter, the BIA explicitly considered the letter and found it wanting in that
it provided only generalized and second-hand corroboration.
8
(affirming BIA decision that use of a “single ethnic slur” during a robbery was
insufficient to establish that the persecutors were motivated by the victims’ ethnicity).
For example, in Abdille, petitioner presented evidence of “a generalized climate of
hostility in South Africa toward African refugees and foreign street vendors,” but no
evidence that the two attacks he experienced “were not mere acts of random lawlessness,
but rather were perpetrated on account of his race, nationality, or membership in a
particular social group.” Abdille, 242 F.3d at 495. We held that “[s]uch tenuous evidence
may support an inference that the assaults [petitioner] suffered rose to the level of
persecution, but it does not compel such a conclusion. Accordingly, given our deferential
review, the BIA’s decision as to past persecution must stand.” Id. Similarly, here,
because the evidence does not compel a conclusion that the vehicle attack constituted
past persecution, we must uphold the BIA’s decision.
A reasonable fact finder could also conclude that Suleymanova failed to establish
a well-founded fear of future persecution in Russia. As the IJ and the BIA concluded, the
evidence of country conditions in Russia, which referred to an “increase” in violence
against individuals perceived to be from the Caucasus, reflected random acts of violence
rather than systemic or pervasive persecution. In addition, Suleymanova twice returned
voluntarily to Russia in 2008 and 2009, and her family continues to reside there. These
facts undermine her claimed fear of future persecution. See Jean v. Gonzales, 461 F.3d
87, 91 (1st Cir. 2006) (petitioner’s “willingness to return voluntarily to Haiti on multiple
occasions undermines the contention that [petitioner] experienced persecution and has a
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well-founded fear of persecution there”); Lie, 396 F.3d at 357 (holding that “when family
members remain in petitioner’s native country without meeting harm, and there is no
individualized showing that petitioner would be singled out for persecution, the
reasonableness of a petitioner’s well-founded fear of future persecution is diminished”).
IV.
We will deny the petition for review.
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