Ludmila Pak v. Eric Holder, Jr. , 509 F. App'x 485 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1311n.06
No. 12-3267 FILED
Dec 27, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
LUDMILA VALENTINOVNA PAK, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: CLAY, COOK, and ROTH,* Circuit Judges.
PER CURIAM. Ludmila Valentinovna Pak, a native of the former Soviet Union and a
citizen of Kyrgyzstan, petitions this court for review of an order of the Board of Immigration
Appeals (BIA) dismissing her appeal from an immigration judge’s (IJ) decision denying her
application for asylum and withholding of removal and ordering her removal to Kyrgyzstan. We
deny the petition for review.
On November 14, 2006, Pak entered the United States as a nonimmigrant visitor for pleasure
with authorization to remain for a temporary period. After that period expired, Pak filed an
application for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). Pak generally claimed in her application that she was “persecuted, abused,
*
The Honorable Jane R. Roth, Senior Circuit Judge of the United States Court of Appeals for
the Third Circuit, sitting by designation.
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Pak v. Holder
maltreated, beaten up, assaulted verbally and physically, [and] humiliated” in Kyrgyzstan because
of her Baptist religion and that she was mistreated by local nationalists whose actions were supported
by government authorities.
On May 14, 2008, the Department of Homeland Security served Pak with a notice to appear
charging her with removability under Section 237(a)(1)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(1)(B), as an alien who was admitted as a nonimmigrant but remained for a time
longer than permitted. Appearing before an IJ, Pak admitted the factual allegations in the notice to
appear and conceded removability as charged.
At the removal hearing, Pak withdrew her application for protection under the CAT. The
hearing proceeded on her remaining claims, with Pak as the sole witness. At the conclusion of the
hearing, the IJ denied Pak’s application for asylum and withholding of removal and ordered her
removal to Kyrgyzstan. The IJ found that Pak was not a credible witness and that, even if her
testimony was accepted as credible, she failed to demonstrate past persecution or a well-founded fear
of future persecution on account of a protected characteristic, as required by 8 U.S.C.
§ 1101(a)(42)(A).
Pak appealed the IJ’s decision to the BIA. Dismissing Pak’s appeal, the BIA upheld the IJ’s
adverse credibility determination as not clearly erroneous and declined to address the IJ’s other
reasons for denying Pak’s application. This timely petition for review followed.
Pak contends that the BIA summarily affirmed the IJ’s adverse credibility determination
without considering the testimony and other evidence on record. To the contrary, the BIA issued a
three-page order reviewing the evidence that supported the finding that Pak was not credible. Where,
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Pak v. Holder
as here, “the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than
summarily affirming the immigration judge’s decision, we review the BIA’s decision as the final
agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “To the extent the BIA
adopted the immigration judge’s reasoning, however, this Court also reviews the immigration
judge’s decision.” Id. An adverse credibility determination is a finding of fact reviewed for
substantial evidence; we will reverse that determination “only if any reasonable adjudicator would
be compelled to conclude to the contrary.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011).
Pak argues that the adverse credibility determination was based on minor inconsistencies that
did not go to the heart of her claim. Pak filed her application after the effective date of the REAL
ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in scattered sections of 8 U.S.C.), which
“changed the standard governing credibility determinations, stating that those determinations may
be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.’” Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)).
The record does not compel a conclusion contrary to the adverse credibility determination.
Pak’s written application lacked any specific details about her alleged mistreatment in Kyrgyzstan;
as the IJ found, there was no evidence that her more detailed personal statement was filed with her
application. As the IJ noted, Pak’s testimony on direct examination was “detailed and quite
responsive to questioning by her counsel,” but on cross examination, she “prevaricated,”
demonstrating her “willingness to take certain liberties with the truth if she believes that it will
enhance her cause.” See Diallo v. Holder, 312 F. App’x 790, 801 (6th Cir. 2009) (“The IJ is in the
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best position to determine credibility based on the demeanor of the witness and the presentation of
testimony.”). Although detailed and internally consistent, Pak’s testimony was inconsistent with her
supporting documentation. Pak’s written application indicated that she was never arrested or
detained in Kyrgyzstan, but she testified that she was detained once and released later that evening.
Her friend Oksana Mazur submitted a letter stating that, when she and Pak were arrested, the officers
assaulted them, called them names, and “put their hands in inappropriate places.” Pak testified that
the officers merely called them names. Svetlana, another friend, submitted a letter stating that Pak
was once detained for two days; Pak did not mention this detention in her testimony. Pak testified
that she injured her ankle when nationalists pushed her down a flight of stairs, but her medical record
did not mention any assault and stated that her ankle was injured “while descending stairs.” Despite
her alleged mistreatment in Kyrgyzstan, Pak came to the United States and voluntarily returned to
Kyrgyzstan on two occasions, which further undermines her credibility. See Bleta v. Gonzales, 174
F. App’x 287, 292 (6th Cir. 2006) (holding that the fact that petitioner “voluntarily left and returned
to Albania at least three times during the period of alleged persecution” supported an adverse
credibility determination).
Without a threshold showing of credibility, Pak cannot establish that she is entitled to asylum
or withholding of removal. See Zhao v. Holder, 569 F.3d 238, 249 (6th Cir. 2009); Singh v.
Ashcroft, 398 F.3d 396, 404 (6th Cir. 2005). Accordingly, we deny Pak’s petition for review.
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