Dimitri Prokopenko v. John Ashcroft ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2920
___________
Dimitri Prokopenko, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
John Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: May 14, 2004
Filed: June 16, 2004
___________
Before MURPHY, HEANEY, and MAGILL, Circuit Judges.
___________
MURPHY, Circuit Judge.
Dimitri Prokopenko petitions for review of a decision of the Board of
Immigration Appeals denying his requests for asylum, withholding of removal, and
relief under the Convention Against Torture. He argues that he has been and will be
persecuted in Georgia on account of his Russian ethnicity and Baptist religion.
Prokopenko, a 25 year old ethnic Russian and citizen of Georgia, belongs to
an active Baptist family. Although he has never been baptized, he occasionally
attended a Baptist church in Georgia. Several members of his family received asylum
in the United States in the 1990s because of religious persecution in Georgia; they
had all been active in the Baptist Church. At the time of the hearing, his mother and
younger sister remained in Georgia, and no evidence was presented to suggest that
they were then being persecuted on account of their religion or ethnicity.
Prokopenko entered the United States on April 3, 1999 on a tourist visa with
authorization to remain until October 2, 1999. The month before his visa was to
expire, he filed an affirmative asylum application with the Immigration and
Naturalization Service (INS) alleging that he had suffered and feared persecution in
Georgia because of his ethnicity and religion. An asylum officer interviewed him and
then referred him for commencement of removal proceedings. He was served with
a notice to appear on December 23, 1999, charging him with removability for having
overstayed his visa. Prokopenko then conceded removability at a hearing on April 6,
2000, but sought asylum, withholding of removal, relief under the Convention
Against Torture,1 and voluntary departure.
A hearing was held before an immigration judge (IJ) on May 9, 2001.
Prokopenko testified that from an early age he had suffered persecution in Georgia
on account of his religion. In 1986 the director of his elementary school in Tblisi
repeatedly asked his mother why she took him to church, and his first grade teacher
once humiliated him before the class for being a Baptist and hit him with a pointing
stick. Prokopenko's family moved to Lagodehi, Georgia in 1987, and he has not
claimed to have suffered persecution there. In 1994 they returned to Tblisi where
Prokopenko attended culinary school, and he says his fellow students harassed him
1
Although his petition raised a claim for relief under the Convention Against
Torture, Prokopenko points to no evidence in the record to suggest a probability that
he would be tortured within the meaning of the Convention if removed to Georgia.
See 8 C.F.R. §§ 208.16(c), 208.18(a)(1). Because there was a lack of evidence in the
record to support his Convention claim, we will not address it further.
-2-
and started fights. Although his mother attended church regularly upon the family's
return to Tblisi, Propokenko attended only occasionally.
Prokopenko also testified that he was repeatedly stopped and harassed by the
police in Tblisi because he is Russian. He says that a random bullet grazed his body
when a drunken police officer discharged his firearm in 1995, and he was taken by
the police to a hospital for treatment. He also testified that police stopped him in
October 1997, demanded to see his documents, and then took him to the station for
twelve hours where they beat him and said that a Russian should not be walking in
that area. He says police stopped him again in July 1998 and again asked for
documents. He told them he was not required to carry any, and the police took him
to the station where they beat him for eight to twelve hours, reviving him when he
became unconscious. He claims he was unable to do anything for about a month after
the incident.
The IJ found much of Prokopenko's testimony not credible. It appeared
inconsistent with statements he previously made to an asylum officer, and he did not
mention any police beatings in his initial asylum affidavit. The IJ also found that it
was unlikely Prokopenko would be persecuted on account of his religion because
unlike many of his relatives, he had never been active in the Baptist Church in
Georgia. Prokopenko's requests for relief were denied on December 20, 2001, and
a member of the Board of Immigration Appeals affirmed without opinion on June 30,
2003. Prokopenko timely filed his petition for review.
We treat the IJ's opinion as that of the board when it has affirmed without a
written opinion. See 8 C.F.R. § 1003.1(a)(7) (2004); Dominguez v. Ashcroft, 336
F.3d 678, 679 n.1 (8th Cir. 2003).2 The board's factual determinations must be upheld
2
Prokopenko argues that the Board improperly affirmed without opinion, but
the decision to streamline is not generally subject to judicial review. Ngure v.
Ashcroft, 2004 WL 1087149, *9 (8th Cir. May 17, 2004). Moreover, it does not
-3-
if supported by reasonable, substantial, and probative evidence on the record
considered as a whole. Tang v. INS, 223 F.3d 713, 718 (8th Cir. 2000). Prokopenko
had the burden to prove that he had suffered past persecution or had a well founded
fear of future persecution in Georgia on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8 C.F.R. § 208.13(a)
(2002); Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997). He had to present credible
evidence to show that a reasonable person in his position would fear persecution if
returned to Georgia. See Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993)
(per curiam). An applicant who fails to establish a well founded fear of persecution
also fails under the more stringent standard of proof required for withholding of
removal. See Wondmneh v. Ashcroft, 361 F.3d 1096, 1099 (8th Cir. 2004).
Prokopenko argues that he presented sufficient evidence to compel the
conclusion that he is eligible for asylum and withholding of removal. He points
particularly to his testimony about beatings by the Georgian police and about past
religious persecution. He contends that the IJ's credibility findings were tainted by
the improper admission of an asylum officer's report containing credibility
assessments and were not supported by substantial evidence in the record. He asserts
that his account of mistreatment by Georgian police is corroborated by several scars
on his face and body, and he also argues that the IJ failed to make findings
particularized to his individual circumstances.
Prokopenko contends that the IJ should not have admitted an asylum officer's
report containing references to his credibility and that its admission is prohibited by
an Operating Policies and Procedures Memorandum (OPPM) then in effect. See
violate an alien's due process rights. Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir.
2003) (amended Apr. 28, 2004). Even if this decision were subject to judicial review,
the board did not err in streamlining its review of Prokopenko's case. See 8 C.F.R.
§ 1003.1(e)(4)(i).
-4-
OPPM 96-1, at *7 (superceded by OPPM 00-01, Aug. 4, 2000). This OPPM stated
an internal INS policy that documents containing references to an asylum officer's
credibility findings should not be filed with the immigration court, and if filed "the
Court Administrator should promptly notify the INS to discontinue any such filings
and return those documents to INS . . ." OPPM 96-1, at *7-8. It is doubtful that an
internal agency memorandum of this sort could confer substantive legal benefits upon
aliens or bind the INS. See Romeira de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir.
1985) (INS operating instructions are internal directives which do not have the force
of law). Cf. Schweiker v. Hansen, 450 U.S. 785, 789-90 (1981) (Social Security
Administration not bound by internal claims procedure manual). That issue need not
be developed further in this case, however, because here the IJ used the officer's
report only as a record of what statements Prokopenko made at the interview. She
expressly disavowed any reliance upon the asylum officer's credibility assessments.
An IJ is required to "make a de novo determination as to whether there is a significant
possibility, taking into account the credibility of the statements made by the alien in
support of the alien's claim and such other facts as are known to the immigration
judge, that the alien could establish eligibility for asylum . . ." 8 C.F.R. § 1003.42
(2004). It was not inappropriate for the IJ to take note of Prokopenko's earlier
statements to the asylum officer in performing her de novo review of the complete
record, as required by the regulation.
Prokopenko argues that the IJ erred in finding that his testimony about ethnic
persecution by Georgian police was not credible. Much of her credibility
determination was based on inconsistencies between Prokopenko's statements to the
asylum officer and those he made at the hearing. Although he told the officer that he
had presented his passport to Georgian police when he was stopped in 1997, he
testified at his hearing that he was detained and beaten because he had not been
carrying his documents. He told the asylum officer that police beat him for three to
four hours in 1998, but he later testified that he was beaten for eight to twelve hours.
Prokopenko says that what he meant before the asylum officer was that he was held
-5-
until three or four o'clock, but the IJ rejected this explanation and Prokopenko offers
nothing to show why it must be accepted. See INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992). His asylum application instructed him to "explain in detail" the basis
of his claim, but his initial affidavit, prepared with the assistance of an attorney,
contains no mention of any beatings by Georgian police. When an IJ has articulated
specific and cogent reasons for disbelieving an alien's testimony, her credibility
determinations deserve deference, and that is the case here. Perinpanathan v. I.N.S.,
310 F.3d 594, 597 (8th Cir. 2002).
Prokopenko argues that his testimony was corroborated by scars on his face
and body which he received during beatings by the Georgian police, but he failed to
support this claim. An IJ may properly request evidence to corroborate an alien's
claims if his credibility is in question. See Nyama v. Ashcroft, 357 F.3d 812, 817
(8th Cir. 2004). The IJ requested copies of Prokopenko's treatment records to see
what explanation he might have given medical providers in the United States for a
scar on his abdomen. Although the IJ made the request on May 9, it was not until
November 2, 2001 that he furnished a spreadsheet showing five instances of medical
treatment in the United States. He did not provide physician notes or medical
histories as requested, and there appears to be no evidence that he actually provided
the IJ with a signed medical records release since the form in the appellate record is
undated and incomplete. It was Prokopenko's responsibility, not that of the IJ or the
INS, to gather evidence in support of his asylum claim. See Farbakhsh v. INS, 20
F.3d 877, 881 (8th Cir. 1994). His failure to provide the requested documents to
corroborate the source of the scars provided further reason to doubt his credibility.3
3
There were additional examples involving documents which contributed to the
IJ's finding that Prokopenko lacked credibility. Prokopenko failed to provide his
original Georgian internal passport, and the copy he furnished appeared to have been
altered. Although he claimed on his 1999 visa application that his father would
support him during his time in the United States, he eventually supplied a copy of his
father's 1993 death certificate.
-6-
Prokopenko's claims of persecution on account of his Russian ethnicity were
founded principally upon his uncorroborated testimony of police beatings which was
found to lack credibility. His claim that he was shot by a drunken police officer in
1995 does not evidence past persecution because it was a random act not premised
on Prokopenko's ethnicity or his religion. After studying the record, we conclude that
there was substantial evidence to support the IJ's rejection of his claim that he would
face ethnic persecution if returned to Georgia.
Prokopenko also renews his argument that he has been and will again be
persecuted on account of his Baptist religion. The harassment he described in grade
school took place in 1986 during the Communist period, and it abated when his
family left Tblisi in 1987. Unlike his relatives who received asylum in the United
States, Prokopenko attended church in Georgia only occasionally, was never
baptized, and played no prominent role in the church. While there is evidence that
Georgian police and security forces have occasionally harassed and beaten members
of nonorthodox religious minorities, see U.S. Dept. of State, Bureau of Democracy,
Human Rights, and Labor, Country Report on Human Rights Practices for 2000:
Georgia, at *12-13 (February 28, 2001), there was substantial evidence to support the
IJ's finding that Prokopenko was not an "actively participating Baptist," making it
unlikely that he would suffer religious persecution if returned to Georgia. His claim
is further undercut by the fact that his mother, an active and baptized member of the
Baptist Church, remains in Georgia with his sister and there is no evidence that either
is suffering persecution. See In re A-E-M-, 21 I. & N. Dec. 1157 (B.I.A. 1998).
There was substantial evidence to support the IJ's finding that Prokopenko did not
demonstrate past persecution or a well founded fear of future persecution in Georgia
on account of religion.
Prokopenko finally argues that the IJ issued a boilerplate decision which failed
to consider the merits of his individual case and that "[c]ookie cutter credibility
-7-
findings are the antithesis of the individualized determination required in asylum
cases." Parasamy v. Ashcroft, 295 F.3d 1047, 1048 (9th Cir. 2002). He says that the
IJ's decision in his uncle's case is "worded almost identically" to his and argues that
her credibility determinations were not tailored to each individual applicant. We note
that there are similarities between the two opinions, but that is not surprising since
both applicants raised virtually identical claims and relied on much of the same
evidence. More importantly, the IJ provided individualized credibility determinations
in the two cases as required by Parasamy. After our review we are satisfied that the
IJ considered and rejected each of Prokopenko's claims on their own merits.
For these reasons, we deny the petition for review.
______________________________
-8-