Aziz Abdurakhmanov v. Eric Holder, Jr. , 735 F.3d 341 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0064a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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AZIZ A. ABDURAKHMANOV,
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Petitioner,
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No. 10-4263
v.
,
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A095-309-105.
Argued: September 20, 2011
Decided and Filed: March 1, 2012
Before: BATCHELDER, Chief Judge; McKEAGUE and STRANCH, Circuit
Judges.
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COUNSEL
ARGUED: Charleston C. Wang, Cincinnati, Ohio, for Petitioner. C. Frederick
Sheffield, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: E. Dennis Muchnicki, Dublin, Ohio, for Petitioner. C.
Frederick Sheffield, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
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AMENDED OPINION
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JANE B. STRANCH, Circuit Judge. Aziz Abdurakhmanov (“Abdurakhmanov”),
a citizen of Uzbekistan, alleges that he was targeted for investigation and beaten by
Uzbeki police because of his membership in the Dungan ethnic minority. He further
alleges that if he is returned to Uzbekistan, he will face the same fate as his late wife,
1
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who died of injuries inflicted on her by Uzbeki police during a three-day detention. The
Immigration Judge and the Board of Immigration Appeals denied his applications for
asylum, withholding of removal, and relief under the Convention Against Torture based
on both an adverse credibility determination and a lack of corroborating evidence
supporting his claims. The agency’s decision suffers from a number of errors regarding
its findings on credibility and corroborating evidence. Nonetheless, one critical
credibility finding is supported by substantial evidence, and so we must dismiss
Abdurakhmanov’s petition for review.
I. BACKGROUND
A. Facts
During 1998, while living in Tashkent, Abdurakhmanov graduated from medical
school, married, and had a son, Aziz. He, his wife, Yelena, and son are all members of
the Dungan ethnicity, a group he says is readily distinguishable from ethnic Uzbekis
because they have lighter skin and hair and are shorter. Abdurakhmanov claims that
both he and his wife faced substantial persecution due to their ethnicity. He was arrested
at least one time while in Uzbekistan, on February 16, 1999, and was accused of
terrorism after an explosion that was aimed at taking the life of then-President Karimov.
Abdurakhmanov claims that he happened to be in the vicinity of the explosion and was
rounded up along with other Dungans for questioning due solely to his ethnicity. He was
held for three days, during which he was beaten repeatedly with batons in an effort to
force a written confession, which he did not sign.
After graduation, Abdurakhmanov began working at a clinic as an abdominal
surgeon. As compared to Uzbeki surgeons, he claims that he made less money, was
forced to work longer and more difficult shifts, and was denied the types of surgeries
that would give him meaningful experience as a surgeon. He was disciplined for his
absence from work due to his arrest in 1999 and eventually left this employment.
In late-March 2000, Yelena was stopped by two Uzbeki police officers who
began taunting her. Abdurakhmanov claims that she was stopped because she was
No. 10-4263 Abdurakhmanov v. Holder Page 3
Dungan and the officers wanted to humiliate her. They made numerous sexual advances
and when she refused, they took her into police custody for three days during which she
was repeatedly beaten and sexually assaulted. Abdurakhmanov claims that she was
harmed emotionally and physically and could not recuperate. He took her to the hospital
three days after her release where she died. Her death certificate states that she died on
April 5, 2000 as a result of head trauma. Abdurakhmanov claims that he attempted to
force an investigation into his wife’s death but that neither police nor prosecutors would
help him due to his ethnicity. Not long after, he obtained a visa to come to the United
States.
B. Procedural History
Abdurakhmanov obtained a non-immigrant visa for pleasure and entered the
United States on April 7, 2001. He renewed the visa once in October before eventually
applying for asylum with the former Immigration and Nationality Service on March 26,
2002. The Service denied his application and referred him to an Immigration Court as
removable. He reapplied for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).
At his merits hearing before the Immigration Judge (“IJ”) on May 6, 2008,
Abdurakhmanov testified about the mistreatment he and his wife suffered in Uzbekistan
and provided corroborating evidence including his 2002 asylum application, his 2005
asylum application completed on the updated form, various country reports, and reports
on the treatment of Dungans in Uzbekistan. The exhibits attached to the 2002
application were: a health certificate of his physical condition after his release from
detention in 1999; a summons to appear at a military department; his wife’s death
certificate; and, his son’s birth certificate.
After the hearing, the IJ filed a written decision denying the relief sought based
on Abdurakhmanov’s lack of credibility and a lack of corroborating evidence.
Abdurakhmanov appealed the IJ’s decision to the Board of Immigration Appeals
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(“BIA”), which upheld the IJ’s decision.1 Specifically, the BIA found that the IJ’s
adverse credibility determination was not clearly erroneous based on three
inconsistencies: (1) the circumstances under which Abdurakhmanov left his job as a
surgeon; (2) the number of times he had been arrested; and, (3) his wife’s condition upon
release from detention. As to Abdurakhmanov’s corroborating evidence, the BIA agreed
with the IJ that some of the documents actually undermined his credibility and that they
deserved little weight because they were not contemporaneous documents or originals.
II. DISCUSSION
A. Standard of Review
“Because the BIA adopted and supplemented the IJ’s decision, we review the
opinion of the IJ in conjunction with the BIA’s additional comments and discussion.”
Cruz-Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir. 2010). The agency’s findings
of fact are reviewed for substantial evidence, and questions of law are reviewed de novo.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). The substantial-evidence standard
requires us to defer to the agency’s findings of fact “if supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mikhailevitch
v. I.N.S., 146 F.3d 384, 388 (6th Cir. 1998) (quoted authorities omitted). “Under this
standard, we will not reverse a factual determination . . . unless we find ‘that the
evidence not only supports a contrary conclusion, but compels it.” Ceraj v. Mukasey,
511 F.3d 583, 588 (6th Cir. 2007) (citation and emphasis omitted).
We have previously articulated the legal standard for granting asylum:
“The disposition of an application for asylum involves a two-step
inquiry: (1) whether the applicant qualifies as a refugee as defined in 8
U.S.C. § 1101(a)(42)(A), and (2) whether the applicant merits a
favorable exercise of discretion by the Attorney General.” Kouljinski v.
Keisler, 505 F.3d 534, 541 (6th Cir. 2007) (internal quotation marks
1
The IJ also found that Abdurakhmanov had not adequately proven that he was of Dungan
ethnicity. Specifically, the IJ credited a Wikipedia article about Dungans over Abdurakhmanov’s
testimony, stating that Abdurakhmanov did not appear to share the characteristics that the article attributed
to Dungans. The BIA held, however, that Abdurakhmanov’s testimony should not be discredited based
on a Wikipedia excerpt and declined to consider this ground on appeal.
No. 10-4263 Abdurakhmanov v. Holder Page 5
omitted). “[T]o qualify as a refugee,” the applicant must establish “that
he or she has suffered past persecution on the basis of race, religion,
nationality, social group, or political opinion; or . . . show[] that he or she
has a well-founded fear of persecution on one of those same bases.” Id.;
see also 8 C.F.R. § 1208.13(b). If an individual is eligible for asylum,
then the applicant bears the “burden of establishing that the favorable
exercise of discretion is warranted.” Kouljinski, 505 F.3d at 542 (internal
quotation marks omitted).
Cruz-Samayoa, 607 F.3d at 1150-51. “An applicant who establishes past persecution
is presumed to have a well-founded fear of future persecution.” Pilica v. Ashcroft,
388 F.3d 941, 950 (6th Cir. 2004). Otherwise, to establish a well-founded fear of future
persecution, the applicant must demonstrate “(1) that he has a fear of persecution in his
home country on account of race, religion, nationality, membership in a particular social
group, or political opinion; (2) that there is a reasonable possibility of suffering such
persecution if he were to return to that country; and (3) that he is unable or unwilling to
return to that country because of such fear.” Id. Withholding of removal claims are
analyzed under the same framework, except that the “alien must show a ‘clear
probability’ of persecution.” Dugboe v. Holder, 644 F.3d 462, 471-72 (6th Cir. 2011).2
B. The Adverse Credibility Determination
“Credibility determinations are findings of fact,” and are reviewed for substantial
evidence. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004).3 An “immigration judge’s
conclusion must be supported by specific reasons and must be based upon issues that go
to the heart of the applicant’s claim. In other words, if discrepancies cannot be viewed
as attempts by the applicant to enhance his claims of persecution, they have no bearing
on credibility.” Ceraj, 511 F.3d at 591 (internal citations and quotation omitted). We
review separately each of the three inconsistencies upon which the IJ and BIA based the
adverse credibility determination.
2
The BIA held that Abdurakhmanov did not “meaningfully challenge the denial of CAT
protection” in his appeal and thus deemed that claim waived. As Abdurakhmanov has not raised the issue
of relief under CAT in his briefs before this Court, we also deem it waived. See, e.g., United States v.
Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006).
3
Abdurakhmanov filed his asylum application prior to the May 11, 2005 effective date of the
REAL ID Act of 2005. Consequently, his petition is not subject to the provisions of that Act.
No. 10-4263 Abdurakhmanov v. Holder Page 6
We begin with the agency’s third finding of inconsistency because it is most
easily resolved. This ground is based on a purported discrepancy between
Abdurakhmanov’s hearing testimony and his wife’s death certificate. The death
certificate indicates that Yelena died from “hard injury to the back of the head.” The IJ
found Abdurakhmanov incredible because “[h]e made no mention of his wife having
received a massive head injury that caused her death,” and the BIA considered this
“[a]nother notable discrepancy” supporting the IJ’s adverse credibility determination.
This finding is flatly contradicted by Abdurakhmanov’s testimony that the police “beat
her up on the chest, on the head, they used batons.” Therefore, this ground cannot
support the agency’s adverse credibility finding.
The second ground is based on a purported discrepancy between
Abdurakhmanov’s asylum application and his testimony. In the application,
Abdurakhmanov alleged that he was arrested and beaten in 1999, after the assassination
attempt, and that he was also detained and beaten in 2000 after demanding an
investigation into his wife’s death. Specifically, Abdurakhmanov stated in his asylum
application that he was “defended [arrested?] in the police dept. and beaten because I
wanted to find the guilties in my wife’s death.” At the hearing, however, he reported in
response to the IJ’s query that he had been arrested only once in 1999. This response
persuaded the IJ that Abdurakhmanov was not credible because he did not testify about
any beating in relation to the 2000 detention, and the BIA agreed that “[t]he respondent
also gave varying accounts of the number of times he had been arrested in Uzbekistan.”
The agency’s credibility finding on this ground appears to be questionable. The
asylum application used the phrase “defended [arrested?].” Abdurakhmanov’s inartful
description of his treatment at the hands of Uzbeki police does not confirm that he was,
in fact, arrested in 2000. The most direct way to obtain clarification about the meaning
of the asylum application would have been for the IJ to ask Abdurakhmanov exactly
what he meant by “defended [arrested?].” Instead, the IJ asked how many times he had
been arrested, “officially or unofficially.” Abdurakhmanov responded that he had been
No. 10-4263 Abdurakhmanov v. Holder Page 7
arrested one time.4 Considering the question posed, Abdurakhmanov’s answer is no
more indicative of incredibility than it is indicative of an inability to distinguish between
an official arrest and an unofficial, yet still relevant, physical detention. Our view is
supported by Abdurakhmanov’s insertion of a question mark beside the term “arrested”
in his asylum application, indicating he held some reservation about use of that term.
Whether we would be compelled, on this record, to come to a contrary
conclusion as to Abdurakhmanov’s credibility on this point is perhaps in doubt. We
need not definitively resolve the issue, however, because the agency’s adverse credibility
determination on another ground is supported by substantial evidence.
This last issue again concerns a discrepancy between the asylum application and
the hearing testimony. In the application, Abdurakhmanov wrote: “My boss said,
‘You’re fired.’ I asked why. He said, ‘Police call me. Maybe you extremist.’ I lost my
job.” When his own attorney asked him at the hearing whether he was fired from his job
as a surgeon, however, Abdurakhmanov unequivocally stated that he was not fired and
he quit because he was not given the same surgical opportunities as Uzbeki surgeons.
This discrepancy suggests that the asylum application was drafted in an attempt to
enhance Abdurakhmanov’s claim of persecution. Like the IJ, the BIA held that
Abdurakhmanov’s lack of credibility on this point “call[s] into question the veracity of
the claimed arrest” and thus “go[es] to the heart of his claim.” We find this rationale
substantially supported on the record as a whole. Thus, on this basis alone, the agency’s
adverse credibility determination can be affirmed. Abdurakhmanov’s reliance on Sylla
v. INS, 388 F.3d 924 (6th Cir. 2004), and Koulibaly v. Mukasey, 541 F.3d 613 (6th Cir.
2008), is misplaced because in both of those cases, minor inconsistencies did not go to
the heart of the aliens’ claims. Also, in the latter case, the BIA’s adverse credibility
determination was based in part on an Assessment to Refer that lacked reliability.
Koulibaly, 541 F.3d at 620-24.
4
An IJ has not only an ability, but an obligation, to ask questions of the alien during the hearing
to establish a full record. 8 U.S.C. § 1229a(b)(1). However, that questioning should not be used to draw
out testimony that would support the IJ’s already-formed determination of adverse credibility; it should
be designed to elicit testimony relevant to the fair resolution of the alien’s applications. Cf. Torres v.
Mukasey, 551 F.3d 616, 626-27 (7th Cir. 2008).
No. 10-4263 Abdurakhmanov v. Holder Page 8
C. The Finding of a Lack of Corroborating Evidence
“‘[W]here it is reasonable to expect corroborating evidence for certain alleged
facts pertaining to the specifics of an applicant’s claim, such evidence should be
provided[.]’” Lin v. Holder, 565 F.3d 971, 977 (6th Cir. 2009) (quoted authorities
omitted). A failure to submit such reasonably available evidence can support the
agency’s determination that the applicant did not meet her burden of proof. Id. An
applicant is only required to supply those types of documents that can be “reasonably
expected” given his or her circumstances—i.e., only of “the type that would normally
be created or available in the particular country and is accessible to the alien, such as
through friends, relatives, or co-workers.” Dorosh v. Ashcroft, 398 F.3d 379, 382–83
(6th Cir. 2004) (quoted case omitted). “An immigration judge’s determination regarding
the availability of corroborating evidence will not be reversed ‘unless the court finds . . .
that a reasonable trier of fact is compelled to conclude that such corroborating evidence
is unavailable.” Lin, 565 F.3d at 977.
The corroborating evidence standard is typically invoked by IJs when the
applicant has submitted little or no evidence to corroborate her testimony. In this case,
however, Abdurakhmanov submitted several items of corroborating evidence which the
IJ found either to contradict his testimony, to affect his credibility adversely, or to be of
little or no weight because the documents were not originals submitted
contemporaneously with his asylum application.
First, the IJ found that Yelena’s death certificate contradicted Abdurakhmanov’s
testimony about the manner of his wife’s death. We have already explained that the IJ
misstated Abdurakhmanov’s hearing testimony. Consequently, this finding is not
supported by substantial evidence.
Second, the IJ and the BIA erred in construing the law applicable to
corroborative evidence. The IJ ruled that, “[b]ecause the respondent does not claim to
have received any of these documents contemporaneously with the events in question,
the authenticity of the documents is suspect, and the DHS could not conduct a forensic
analysis without possession of the originals,” relying on Ramaj v. Gonzales, 466 F.3d
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520 (6th Cir. 2006). The BIA held that “the Immigration Judge was properly concerned
about the lack of contemporaneous documents and originals,” relying on Ramaj and
also Matter of H-L-H-, 25 I & N Dec. 209 (BIA 2010). Neither Ramaj nor Matter of
H-L-H- support this holding.
In Ramaj, we reviewed an IJ’s decision that various documents submitted by the
petitioner should be excluded from the record because there was no verification that the
signatures on the documents were actually those of the persons alleged to have signed
them. 466 F.3d at 529. After reviewing the agency’s regulations on authentication, we
noted that “[t]he IJ may have erred in excluding the . . . documents on this ground[]”
because the agency’s regulation required attestation by an authorized official only where
the document is a copy, and it was unclear whether the documents in that case were
copies or originals. Id. at 530. This Court also noted, without deciding, that further
certification of an attested copy seemed to be “an option and not a requirement.” Id.
Nowhere in the opinion did we address the relative weight to be given originals or
photocopies of documentary evidence, nor did we address whether the documents were
created contemporaneously with the events in question.
In Matter of H-L-H-, the BIA held that documents the applicant obtained from
various governmental bodies in her village in China were “entitled to minimal weight”
because they “were obtained for the purpose of the hearing, are unsigned and
unauthenticated and fail to even identify the authors.” Id. at 214. These documents were
“not a record of a past event, such as a contemporaneously created police report,” but
were “instead a statement from local government officials of what allegedly will happen
to the respondent and her husband in the future if they return.” Id. The BIA qualified
its holding by noting that “asylum applicants cannot always reasonably be expected to
have authenticated documents from an alleged persecutor[.]” Id. at 215, n.5 (citation
omitted).
Abdurakhmanov’s corroborating evidence was “obtained for the purpose of the
hearing,” but unlike the evidence in Matter of H-L-H-, Abdurakhmanov’s documents
were records of past events. They did not purport to speculate about his future treatment
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upon his return to Uzbekistan. For example, his health certificate was made shortly after
his beating; it was not recreated by the doctor years later in anticipation of the asylum
hearing. Comparably, his wife’s death certificate was issued following her death in
2000, not years later for the purpose of an immigration hearing. Abdurakhmanov’s
documents are copies of original documents, recording past events, which were obtained
by his relatives prior to his hearing because he had not brought copies with him when
he fled Uzbekistan. His corroborative evidence is thus distinguishable from that
presented in Matter of H-L-H-. Therefore, Matter of H-L-H- cannot support the
agency’s disregard of Abdurakhmanov’s corroborating evidence on the grounds that the
documents were not made contemporaneously with the events they purported to
document. The agency’s decision regarding Abdurakhmanov’s corroborating evidence
is thus contrary to the law of this Circuit and the agency’s own binding precedents and
cannot be used to support the decision of the IJ or BIA.
III. CONCLUSION
In summary, we find error in the agency’s decision to reject Abdurakhmanov’s
corroborating evidence. We also conclude that at least one, and perhaps two, of the
grounds on which the agency based its adverse credibility determination were not
supported by substantial evidence. We agree, however, that substantial evidence
supports the agency’s determination that Abdurakhmanov lacked credibility when he
gave differing reasons for leaving his hospital employment. This adverse credibility
finding went to the heart of the claim and was fatal to Abdurakhmanov’s asylum
application, as he cannot meet his burden of proof without credible testimony. See El-
Moussa v. Holder, 569 F.3d 250, 256-57 (6th Cir. 2009). For this reason, we DISMISS
Abdurakhmanov’s petition for review.