Nataliya Kondakova v. John Ashcroft ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4151
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Nataliya Vladimironva Kondakova; *
Yuriy Leonidovich Kondakov; *
Olga Yrievna Kondakova, *
*
Petitioners, * Petition for Review
* of an Order of the
v. * Board of Immigration Appeals
*
John Ashcroft, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: February 12, 2004
Filed: July 29, 2004
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Before MELLOY, McMILLIAN and COLLOTON, Circuit Judges.
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McMILLIAN, Circuit Judge.
Petitioners Nataliya Vladimironva Kondakova,1 her husband, Yuriy
Leonidovich Kondakov, and their daughter, Olga Yrievna Kondakova, who are
citizens of the Ukraine, seek review of a final order entered by the Board of
1
Nataliya Vladimironva Kondakova is the principal applicant; her husband,
Yuriy Leonidovich Kondakov, and their daughter, Olga Yrievna Kondakova, are
derivative applicants. Because Nataliya Vladimironva Kondakova is the principal
applicant, all references to “Kondakova” are to her.
Immigration Appeals (the Board) summarily denying their request for asylum and
withholding of removal. In re Kondakova, No. A75 256 100 St. Paul (B.I.A. Nov. 27,
2002) (order). For reversal, petitioners argue that substantial evidence did not support
the Board’s decision that Kondakova’s claims of past and future religious persecution
were not credible. For the reasons discussed below, we deny the petition for review.
We have jurisdiction to review the order of the Board pursuant to 8 U.S.C.
§ 1252(a). See also id. § 1252(b)(1), (2) (venue proper in this circuit because
proceedings were held in Minnesota).
In July 1996 petitioners entered the United States through Chicago IL as
business visitors. They remained in the United States after the expiration of their
visas. In December 1997 the Immigration and Naturalization Service (INS) issued a
notice to appear, charging them with being subject to removal. Kondakova filed an
application for asylum (which was also deemed to be an application for withholding
of removal) on the basis of religious persecution. Kondakova was born in Kiev,
Ukraine, in 1972. She and her husband, who is also a citizen of the Ukraine, married
in 1994, and they have two young children (their daughter Olga Yrievna Kondakova
was born in the Ukraine; the second child was born in the United States). Kondakova
has been a member of the Seventh Day Adventist Church since 1980. She graduated
from the Kiev University in 1996 with degrees in hydrogeology and mineralogy and
qualified to work as an engineer. She taught Russian language and literature at a
Seventh Day Adventist Church day school in Kiev from 1993 to 1996.
At the administrative hearing before the immigration judge, Kondakova
testified about several incidents of religious persecution she suffered in the Ukraine.
She testified that she was mocked and taunted as a child, and that in 1982 she and her
sister were arrested and her mother was confined to a mental institution for 14 days
(as a means of intimidating the mother). She also testified that in 1992 she was
arrested and imprisoned overnight by the KGB for distributing religious literature, and
that she was beaten while in jail. She also testified that the church day school was
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vandalized in the spring of 1994. The vandals broke windows, wrote graffiti on the
walls and left an anti-religious note on the door. In September 1994 a rock wrapped
in a threatening note was left at the school. The note stated that the next time it would
be a grenade rather than a rock. Kondakova testified that when she complained to the
ministry of security about the vandalism and official indifference, the government
investigator detained her for several hours. She also testified that one of her
university instructors was biased against Adventists and she had to switch professors
in order to pass the course.
Kondakova also testified that on June 26, 1995, her infant daughter was
kidnapped. She testified that this traumatic event prompted her to come to the United
States. She testified that when she went to the militia to report the kidnapping, the
head of the militia made a disparaging remark about her religious beliefs. She
testified that, when she returned home, she found a note that said she did not deserve
a daughter because of her religion. She testified that the militia called and said that
they had the child. Kondakova testified that her daughter was left on the doorstep
with a note that said that they wondered which is more important to people, their
children or their faith, and that they will have to choose.
Kondakova also testified that the government closed the church day school in
September 1995 because the school name was religious and because there were
prohibitions against Bible study. She also testified that the church day school is now
open but that it had been closed and reopened on various occasions.
She also testified that on March 20, 1996, her husband was beaten up. She
testified that her husband gave financial support to the church day school and that she
believed that was the reason for the beating. Her husband testified that in 1993 he
bought oil products that he left in the possession of a state organization. He testified
that the state organization later became private and there was a dispute about the
ownership of the products. There was litigation about the dispute and he ultimately
won the case. He testified that he did not know the identity of his attackers or the
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motive. However, he acknowledged that in the asylum application he indicated that
the defendant firm had hired racketeers to “deal with his family.” He also testified
that he opposed the current Ukrainian government.
The immigration judge (IJ) concluded that petitioners failed to produce
sufficient or concrete direct evidence to show that they have a well-founded fear of
religious persecution. The IJ specifically found that petitioners’ testimony was not
“sufficiently detailed, consistent or believable to provide a plausible and coherent
account of the basis for [their] fears.” Slip op. at 12 (transcript of oral decision). In
particular, the IJ noted that “all of the major incidents described in their testimony
relating to the incidents of religious persecution were not even mentioned in the initial
asylum application.” Id. Kondakova explained that a neighbor helped her prepare the
application and that she did not know exactly what incidents had been included in the
application, that she did not read or write English, and that she did not want to relive
the traumatic events. The IJ did not credit the explanation. Id. at 12-13 (noting that
the most serious incident, the kidnapping of their daughter, was not included in the
application, and that petitioners are highly educated and reasonably should have been
expected to insure that the information in the application was complete and accurate).
The IJ was also concerned about the absence of any documentation about any of the
incidents. Id. at 13 (noting, for example, that petitioners did not submit any police
reports about the kidnapping).
The IJ also found that the incidents did not amount to persecution and that
petitioners failed to show that the incidents were the result of their religious beliefs.
Id. at 14. The IJ also noted that Kondakova’s testimony about the status of the church
day school was confusing. Id. at 15 (noting that Kondakova testified that the school
was closed by the government in September 1995 but that she taught at the school
until June 1996). The IJ also found that petitioners’ claims of religious persecution
were not consistent with the 1997 country conditions reports prepared by the Bureau
of Democracy, Human Rights and Labor and the United States State Department,
which reported no evidence of harassment or persecution of Evangelical Christians
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in the Ukraine, or with the experience of Kondakova’s mother who served as an
elected government official. Id. The IJ also noted that petitioners failed to establish
countrywide persecution, that is, that they would be persecuted in another part of the
country. Id. at 16. Finally, the IJ noted that because petitioners failed to satisfy the
lower burden of proof for eligibility for asylum, they also failed to satisfy the higher
burden of proof for eligibility for withholding of removal. Id. The IJ granted
petitioners voluntary departure.
The Board summarily affirmed the decision of the IJ, and this petition for
review followed.
The [Board’s] determination that an alien is not
eligible for asylum or withholding of [removal] is reviewed
for substantial evidence, and may not be overturned unless
“the evidence was so compelling that no reasonable fact
finder could fail to find the requisite fear of persecution.”
“Under this standard, this court must determine whether,
based on the record considered as a whole, the [Board’s]
decision was supported by reasonable, substantial, and
probative evidence.” This court defers to an immigration
judge’s [adverse] credibility finding where the finding is
“supported by a specific, cogent reason for disbelief.”
Under the Immigration and Nationality Act, the
Attorney General has the discretion to grant asylum to a
refugee, defined as a person who is unable or unwilling to
return home “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.” “In most cases, the critical inquiry is whether the
applicant has a well-founded fear of future persecution
upon return to his or her country.” The applicant must
demonstrate a fear that is subjectively genuine and
objectively reasonable. For an alien’s fear of persecution
to be objectively reasonable, the fear must have a basis in
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reality and must be neither irrational nor so speculative or
general as to lack credibility. “The applicant is entitled to
a presumption of a well-founded fear of future persecution
if past persecution is established, and the burden then shifts
to the [government] to show by a preponderance of the
evidence that ‘conditions in the applicant’s country . . .
have changed to such an extent that the applicant no longer
has a well-founded fear of being persecuted if he or she
were to return.’”
Perinpanathan v. INS, 310 F.3d 594, 597-98 (8th Cir. 2002) (citations omitted).
Kondakova argues that her testimony provided the requisite specific and
detailed incidents of religious persecution and, even though some of the incidents
were not included in the asylum application, she mentioned some of them generally.
She argues that the inconsistencies were due to a combination of a neighbor’s
assistance in filling out the application, their lack of proficiency in English, and their
ignorance about what to include in the application. She also argues that she does not
need corroborating evidence to establish her credibility given the specific and detailed
nature of her testimony. She also argues that her specific and detailed testimony
contradicts the State Department's country conditions report.
The IJ noted the numerous inconsistencies between petitioners’ testimony and
the asylum application as the basis for the adverse credibility determination. While
minor inconsistencies and omissions will not support an adverse credibility
determination, inconsistencies or omissions that relate to the basis of persecution are
not minor but are at “the heart of the asylum claim.” Chebchoub v. INS, 257 F.3d
1038, 1043 (9th Cir. 2001) (citation omitted). Here, as noted by the IJ, petitioners’
asylum application did not refer to the most serious incidents of religious persecution,
specifically, Kondakova’s arrest in 1992, the incidents of vandalism at the church day
school in 1994, or the kidnapping of her daughter in 1995. Kondakova did not present
any documentation of these incidents, such as copies of the police reports or the
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threatening notes. These incidents are not minor but go to the heart of her claims of
religious persecution.
Kondakova argues that corroboration is not essential to establish credibility,
citing Sotelo-Aquije v. Slattery, 17 F.3d 33 (2d Cir. 1994). We believe that case is
distinguishable. In that case, the Board found that the applicant was credible. Id. at
37 n.2 (noting that, with credible testimony, applicant need not present other
corroborating evidence to establish eligibility for asylum). “[An applicant’s]
testimony, if credible, may be sufficient to sustain his [or her] burden of proof without
corroboration. However, . . . ‘if the trier of fact either does not believe the applicant
or does not know what to believe, the applicant’s failure to corroborate his [or her]
testimony can be fatal to his [or her] asylum application.’” Chebchoub v. INS, 257
F.3d at 1042 (citation omitted). Here, the IJ found that Kondakova was not credible
and her failure to provide any corroborating documentation seriously undermined her
claims of religious persecution.
Kondakova also argues that the State Department's country conditions report
is not binding, citing Gailius v. INS, 147 F.3d 34 (1st Cir. 1998). In that case the IJ
found that the applicant’s testimony was inconsistent with the general country
conditions. Because the applicant’s testimony about the threats to his family was
corroborated by specific documentary evidence, including copies of the threatening
letters and an affidavit of his father, the court of appeals held that the IJ could not
reject the applicant’s testimony on the basis of the general country conditions and
instead must also determine that the other evidence was not genuine or, for some other
adequate reason, not persuasive. Id. at 45. “[G]eneral changed country conditions . . . .
are relevant in assessing an applicant’s credibility because an uncorroborated story
that is at odds with what is known about country conditions is less likely to be
accurate than one that is consistent with country conditions.” Id. n.6. Here, as in
Gailius, the IJ concluded that Kondakova’s testimony was inconsistent with the State
Department's country conditions report. However, unlike the applicant in Gailius,
Kondakova did not produce any corroborating documentary evidence of the major
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incidents of alleged religious persecution or any evidence of changed country
conditions.
In sum, Kondakova’s omissions, inconsistencies and failure to provide
corroborating evidence provided specific and cogent reasons to support the IJ’s
adverse credibility determination, and those reasons are supported by substantial
evidence in the record.
We agree with the IJ that Kondakova failed to show past persecution or a well-
founded fear of future persecution on account of religion. Persecution “involves ‘the
infliction or threat of death, torture, or injury to one’s person or freedom, on account
of’ one of the enumerated grounds in the refugee definition. The mere presence of
some physical harm does not require a finding of past persecution.” Tawm v.
Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004) (citation omitted). Kondakova testified
that she was taunted as a child and was insulted by the militia and government
officials. Slurs and harassment do not constitute persecution. See, e.g., Fisher v. INS,
291 F.3d 491, 497 (8th Cir. 2002). Kondakova also testified that she was briefly
detained several times, that she was beaten up while in jail but did not require medical
attention, and that her husband was beaten up. “[M]inor beatings and brief detentions,
even detentions lasting two or three days, do not amount to [religious] persecution,
even if government officials are motivated by [religious] animus.” Eusebio v.
Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004) (citations omitted). Kondakova failed
to produce any evidence to document or corroborate any connection between the
kidnapping and her religion. The fact that Kondakova remained in the Ukraine for a
year after the kidnapping and completed her university education weighed against a
finding of past persecution. See, e.g., Fisher v. INS, 291 F.3d at 497. In addition,
although Kondakova testified that she believed that her husband was beaten up
because of his financial support of the church day school, her husband did not testify
about a religious motive, and the asylum application attributed the beating to a
commercial dispute and litigation. Kondakova also testified that the government
forced the church day school to remove the religious reference from the school name
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and curriculum. However, there was no evidence that petitioners were unable to
practice their religion or that the government treated other private schools differently.
See, e.g., Bucur v. INS, 109 F.3d 399, 405 (7th Cir. 1997) (noting that forbidding
practice of religion and closing all of religious sect’s schools but no other private
schools would be persecution).
Because petitioners failed to demonstrate past persecution, they are not entitled
to a presumption of future persecution and “must independently establish a well-
founded fear of future persecution, based on both objective and subjective elements.”
Tawm v. Ashcroft, 363 F.3d at 743 (citation omitted). “[The applicant] must
genuinely fear persecution and must provide credible, specific evidence that a
reasonable person in his [or her] position would fear persecution if returned.” Id.
Kondakova failed to show that her fear of future persecution was either well-founded
or reasonable. As noted by the IJ, Kondakova’s claims of future religious persecution
are inconsistent with the country conditions reports (which she did not rebut), her
mother’s service as an elected government official (despite the mother's religious
affiliation), and the apparent reopening and continued operation of the church day
school. Cf. Manivong v. District Director, 164 F.3d 432, 433 (8th Cir. 1999) (noting
fear of future persecution may not be objectively reasonable if immigrant attends
school and works in home country and family lives there for years without incident).
Finally, the IJ did not err in holding that petitioners failed to satisfy the
requirements for withholding of removal.
Withholding of removal involves a higher degree of
certainty that persecution will occur than that required for
asylum eligibility. Before the government will grant
withholding, the alien must present evidence to establish
that it is “more likely than not that the alien would be
subject to persecution on one of the specified grounds.”
This standard requires an objectively established “clear
probability.”
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Tawm v. Ashcroft, 363 F.3d at 744 (citation omitted). Because Kondakova failed to
carry the lesser burden of proof to demonstrate asylum eligibility, she necessarily
failed to meet the higher burden of proof required for withholding of removal.
Accordingly, the petition for review is denied.
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