Ana Mahu v. Eric Holder, Jr. , 502 F. App'x 296 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1495
ANA MAHU; DENIS IGOREVICH ZERNYUKOV,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 9, 2012 Decided: December 28, 2012
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Alexander J. Segal, GRINBERG & SEGAL, P.L.L.C., New York, New
York for Petitioners. Stuart F. Delery, Acting Assistant
Attorney General, Blair T. O’Connor, Assistant Director, Rosanne
M. Perry, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ana Mahu, a native and citizen of Moldova, and her
husband, Denis Igorevich Zernyukov, a native and citizen of
Russia, petition for review of an order of the Board of
Immigration Appeals (“Board”) dismissing their appeal from the
immigration judge’s order denying Mahu’s applications for asylum
and withholding from removal. 1 The Petitioners make several
challenges to the adverse credibility finding and to the finding
that they failed to supply sufficient corroborating evidence.
In addition, they challenge the finding that Mahu failed to show
past persecution or a well-founded fear of persecution. We have
considered their arguments and deny the petition for review. 2
The current state of the law regarding this court’s
review of final orders denying asylum and withholding of removal
was recently summarized in Djadjou v. Holder, 662 F.3d 265, 272-
74 (4th Cir. 2011). The INA vests in the Attorney General the
discretionary power to grant asylum to aliens who qualify as
refugees. A refugee is someone “who is unable or unwilling to
return to” his native country “because of persecution or a well-
founded fear of persecution on account of . . . political
1
Mahu is the primary asylum applicant, and Zernyukov is a
derivative applicant.
2
The Petitioners affirmatively waive any challenge to the
denial of relief under the Convention Against Torture.
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opinion” or other protected grounds. 8 U.S.C. § 1101(a)(42)(A)
(2006). Asylum applicants have the burden of proving that they
satisfy the definition of a refugee to qualify for relief. They
satisfy this burden by showing that they were subjected to past
persecution or that they have a well-founded fear of persecution
on account of a protected ground such as political opinion. See
8 C.F.R. § 208.13(b)(1) (2012). If the applicant establishes
past persecution, he has the benefit of a rebuttable presumption
of a well-founded fear of persecution.
Aliens face a heightened burden of proof to qualify
for withholding of removal. They must show a clear probability
of persecution on account of a protected ground. If they meet
this heightened burden, withholding of removal is mandatory.
However, if applicants cannot demonstrate asylum eligibility,
their applications for withholding of removal will necessarily
fail as well.
When the Board adopts the immigration judge’s decision
and includes its own reasoning, this Court reviews both
decisions. Djadjou, 662 F.3d at 273. This Court will uphold
the Board’s decision unless it is manifestly contrary to the law
and an abuse of discretion. Id. The standard of review of the
agency’s findings is narrow and deferential. Id. Factual
findings are affirmed if supported by substantial evidence. Id.Substantial evidence exists to support a finding unless the
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evidence was such that any reasonable adjudicator would have
been compelled to conclude to the contrary. Id.This Court reviews an adverse credibility
determination for substantial evidence and gives broad deference
to the Board’s credibility determination. Djadjou, 662 F.3d at
273. The Board must provide specific, cogent reasons for making
an adverse credibility determination. Id. This Court
recognizes that omissions, inconsistent statements,
contradictory evidence, and inherently improbable testimony are
appropriate reasons for making an adverse credibility
determination. Id. The existence of only a few such
inconsistencies, omissions, or contradictions can be sufficient
for the Board to make an adverse credibility determination as to
the alien’s entire testimony regarding past persecution. Id. at
273-74. An inconsistency can serve as a basis for an adverse
credibility determination even if it does not go to the heart of
the alien’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); 3 see
Djadjou, 662 F.3d at 272-74 (citations omitted).
An adverse credibility finding can support a
conclusion that the alien did not establish past persecution.
3
Mahu’s application is governed by the provisions of the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, because
it was filed after May 11, 2005. See Singh v. Holder, 699 F.3d
321, __, 2012 WL 5383287, *5 (4th Cir. 2012).
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See Dankam v. Gonzales, 495 F.3d 113, 121-23 (4th Cir. 2007);
see also Chen v. Attorney Gen., 463 F.3d 1228, 1231 (11th Cir.
2006) (denial of asylum relief can be based solely upon an
adverse credibility finding).
We conclude that the adverse credibility finding was
supported by substantial evidence. The immigration judge listed
specific and cogent reasons for making the finding. While Mahu
offered an explanation for each finding, plausible explanations
do not need to be accepted by the immigration judge. See
Dankam v. Gonzales, 495 F.3d 113, 122 (4th Cir. 2007) (plausible
explanations may be rejected by the immigration judge);
Tewabe v. Gonzales, 446 F.3d 533, 539 (4th Cir. 2006) (plausible
testimony does not necessarily lead to a credibility finding if
the immigration judge can provide specific, cogent and non-
speculative reasons for finding the alien not credible). In
light of the broad deference afforded credibility
determinations, we conclude that there was no error in rejecting
Mahu’s explanations. See Djadjou, 662 F.3d at 273.
We also conclude there was no error when the
immigration judge took into consideration the lack of readily
available corroborating evidence. Even when there is credible
testimony, “‘corroboration may be required when it is reasonable
to expect such proof and there is no reasonable explanation for
its absence.’” Maryenka v. Holder, 592 F.3d 594, 601 (4th Cir.
5
2010) (quoting Lin-Jian v. Gonzales, 489 F.3d 182, 191-92 (4th
Cir. 2007)).
Turning to consider Mahu’s arguments regarding
persecution, we conclude that substantial evidence supports the
finding that Mahu failed to establish past persecution.
Persecution is an extreme concept, and not every incident of
mistreatment or harassment constitutes persecution within the
meaning of the INA. Qiao Hua Li v. Gonzales, 405 F.3d 171, 177-
78 (4th Cir. 2005). Brief detentions and repeated
interrogations, even those occurring over a substantial period
of time, do not necessarily amount to persecution. Id. at 177.
Moreover, courts “have been reluctant to categorize detentions
unaccompanied by severe physical abuse or torture as
persecution.” Id.; see Kondakova v. Ashcroft, 383 F.3d 792, 797
(8th Cir. 2004) (finding that “[m]inor beatings and brief
detentions” do not constitute persecution). The Board has found
persecution to include “threats to life, confinement, torture,
and economic restrictions so severe that they constitute a
threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240
(3d Cir. 1993) (citing Matter of Acosta, 19 I. & N. Dec. 211,
222 (BIA 1985)). Mahu testified that she was arrested by police
for participating in an anti-government rally and detained for
about five hours until her parents paid a bribe securing her
release. Mahu stated that during her brief detention she was
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beaten with batons on at least two occasions. As a result of
the beatings, Mahu suffered headaches and sought medical
attention. She testified that she still suffers from headaches
but has not sought medical attention since arriving in the
United States. Mahu also testified that during another anti-
government rally, police threw her whistle on the ground and
took her camera. Mahu’s brief detention during which she was
beaten twice, but without evidence of severe injury, and the
single incident of police harassment does not compel a finding
that Mahu was the victim of past persecution. See, e.g.,
Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004) (minor
beatings and detentions lasting two or three days do not amount
to past persecution); Dandan v. Ashcroft, 339 F.3d 567, 573-74
(7th Cir. 2003) (three day detention during which alien was
beaten and deprived of food did not compel a finding of past
persecution).
We also conclude that substantial evidence supports
the finding that Mahu did not establish a well-founded fear of
persecution. The well-founded fear standard contains both a
subjective and an objective component. Gandziami-Mickhou v.
Gonzales, 445 F.3d 351, 353 (4th Cir. 2006). The objective
element requires a showing of specific, concrete facts that
would lead a reasonable person in similar circumstances to fear
persecution. Id. “The subjective component can be met through
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the presentation of candid, credible, and sincere testimony
demonstrating a genuine fear of persecution. [It] must have
some basis in the reality of the circumstances and be validated
with specific, concrete facts, and it cannot be mere irrational
apprehension.” Qiao Hua Li, 405 F.3d at 176 (internal quotation
marks, alterations, and citations omitted). The record shows
that Mahu was able to leave Moldova without incident, supporting
the finding that she was not being targeted by government
authorities. Mahu’s expert witness acknowledged that there was
no record of members of Mahu’s political party being detained or
arrested merely for being a party member and that the government
was investigating charges of police brutality on anti-government
protestors. On this record, we are not compelled to find that
Mahu has a well-founded fear of persecution because there is no
evidence that she is being targeted by authorities or that
persons similarly situated to her face a risk of being
persecuted.
Because we conclude that Mahu failed to show she was
eligible for asylum, she is also not eligible for withholding of
removal. See Djadjou, 662 F.3d at 272.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
8
contentions are adequately presented in the materials before
this Court and argument would not aid the decisional process.
PETITION DENIED
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