Alla Yakovenko v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4123
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Alla Yakovenko, *
*
Petitioner - Appellant, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent - Appellee. *
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Submitted: February 15, 2007
Filed: February 23, 2007
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Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Alla Yakovenko petitions for review of an order of the Board of Immigration
Appeals denying her application for asylum, withholding of removal, and relief under
the Convention Against Torture. We deny her petition.
The petitioner is a Ukrainian citizen whose mother is Jewish. Her claims of
persecution rest upon allegations of physical abuse at the hands of a college classmate,
Dmitri Kutsenko, and rape by Kutsenko and three unidentified accomplices. She
claims these actions were motivated by anti-semitism. These same allegations
underlie her claims of torture, but without reference to the assailants’ motivation. She
alleges the government is unable or unwilling to control her assailants. She also
alleges Kutsenko is a member of an ultranationalist, anti-semitic political organization
that the government is unable or unwilling to control.
According to the petitioner, she did not experience abuse until her final year of
college because she concealed her Jewish identity until that time. Her identity was
revealed when some of her classmates saw her leaving a synagogue. After this
general disclosure, she began to notice that people treated her differently. With the
exception of the alleged assault by Kutsenko and the rape by Kutsenko and the other
assailants, however, she does not identify any adverse actions that rise to the level of
persecution or torture.
Regarding Kutsenko, she alleges a first instance of abuse during which he made
anti-semitic comments and hit her in the stomach, causing her to double over. He then
beat and kicked her on the head with sufficient force to cause her to lose
consciousness. The administrative record contains a hospital report that purports to
detail her examination and treatment following this abuse. The report states she had
contusions and a concussion. The petitioner alleges that an investigator questioned
her about the attack and that she named Kutsenko as the attacker. The investigator
subsquently told her it was necessary to close the investigation because her
identification of the attacker, standing alone, was insufficient to maintain the case.
The second instance of abuse is the rape. She alleges Kutsenko and three other
young men forced her into a car, drove her to a wooded area on the outskirts of her
town, made anti-semitic remarks, and beat and raped her until she lost consciousness.
The administrative record contains a second hospital report that she alleges relates to
her medical treatment following the rape. This second report details abdominal pain,
but the report makes no reference to claims of rape, abuse, or signs of physical trauma.
In fact, it discusses routine rather than trauma-related medical issues. She alleges a
different investigator questioned her after she reported the rape, and she again
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identified Kutsenko, this time from pictures provided by the investigator. According
to the petitioner, the investigator subsequently told her he was closing the
investigation because Kutsenko had an alibi and witnesses who placed him at another
location at the time of the alleged rape.
The petitioner claims she and her family were unsatisfied with the
investigations and sought further explanation from higher-ranking police officials.
The administrative record contains a response letter from police which states only,
“The investigation regarding [y]our case is terminated. Your case is closed due to
lack of evidence.” The letter does not identify the subject matter of the referenced
case or any specific information about the case to indicate that it involved the alleged
beating or rape.
According to the petitioner, she eventually fled the Ukraine and traveled to
Mexico. She claims she decided to leave the Ukraine after she received a threatening,
anti-semitic letter. She also claims, however, that she obtained a Mexican visa from
the Mexican Embassy in Warsaw, Poland, one day after she reportedly received the
letter.
The petitioner reports she met a woman named Maria on the plane to Mexico
and lived and worked with Maria in Mexico for a period of about seven months. The
petitioner does not remember Maria’s last name or address or the name or address of
the business where she and Maria worked. The petitioner claims she entered the
United States near Tijuana by walking across the border with a group of people whom
the border guards elected not to stop or question. She also claims she obtained a plane
ticket and flew to the Twin Cities the following day.
In her application for asylum, she claimed she entered the United States on June
24, 2001. She later claimed this date was a typo and she actually entered the United
States on July 24, 2001. This distinction is important because she filed her application
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for asylum on July 10, 2002, making her application timely if she entered the United
States on July 24, 2001, but untimely if she entered on June 24, 2001.
When her case ultimately came before an Immigration Judge (“IJ”) for a
hearing on the merits, she submitted documentary evidence, including the documents
described above, which provided some support for her allegations of persecution. The
IJ found she entered the United States on June 24, 2001 and her application for asylum
was untimely. As to her claims for withholding of removal and relief under the
Convention Against Torture, it was established at the hearing that her only allegations
of past persecution or fears of future abuse were at the hands of Kutsenko and the
other men who allegedly raped her. The IJ found she had not sufficiently
demonstrated that these alleged criminal acts were sanctioned or condoned by the
government. The IJ found the alleged initiation and abandonment of investigations
by police did not demonstrate governmental unwillingness or inability to stop abuse
or torture. Rather, the termination of the alleged investigations for lack of evidence
was reasonable and showed at most poor policework.
The IJ also found a lack of evidence to corroborate the petitioner’s position that
anti-semitism was generally sanctioned, supported, or tolerated by the Ukrainian
government. Country reports and other evidence of nationwide conditions indicated
governmental disapproval of anti-semitic activities and also described the growth of
open and visible Jewish institutions in the country. These same reports acknowledged
the presence of anti-semitism and ultranationalist groups in the country, but stated that
adverse actions by these groups were on the decline and were not supported by the
government. Finally, the IJ noted that the petitioner’s Jewish mother and half-Jewish
sister still lived in the same home in the same town where the petitioner had lived, the
petitioner's mother worked as a laboratory doctor in the hospital where the petitioner
had been treated, and neither of these women had suffered any harm or torture.
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The IJ ultimately determined the petitioner was not credible based on the
omissions in her recollection of her time in Mexico, the unbelievability of the timing
between her decision to leave the Ukraine and her receipt of a Mexican visa, the
failure of the medical report to substantiate her claim of rape, the absence of
information in the police letter to tie the letter to her claims of abuse, and the
incredible nature of her story of entry into the United States. The IJ found in the
alternative that, because the petitioner’s claimed fear related to the actions of an
isolated group of men, because her family remained in the Ukraine unharmed, and
because the official stance in the Ukraine was not shown to be one of support for the
persecution of Jewish people, the petitioner had failed to show a risk of harm that
extended to other parts of the Ukraine and prevented relocation within the Ukraine.
The Board affirmed on the same grounds set forth by the IJ.
II. Discussion
A. Asylum
On appeal, the petitioner challenges all of the Board’s rulings. The government
asks that we affirm for the reasons set forth by the IJ and the Board and argues we
lack jurisdiction to review the finding that the application for asylum was untimely.
We agree that we lack jurisdiction to address the petitioner’s asylum claim.
Absent changed or extraordinary circumstances, asylum relief is unavailable to a
petitioner who fails to file her application for asylum within one year of entry into the
United States. 8 U.S.C. § 1158(a)(2)(B) and (D). Our review is precluded generally
by § 1158(a)(3), which provides, “No court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2).” Although the REAL ID
Act of 2005, Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119 Stat. 231, 310
(2005), codified in relevant part at 8 U.S.C. § 1252(a)(2)(B) and (D), expressly grants
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us limited jurisdiction to review decisions under § 1158(a)(2), that jurisdiction only
extends to the review of alleged constitutional violations or errors of law.1 See, e.g.,
Munoz-Yepez v. Gonzales, 465 F.3d 347, 351 (8th Cir. 2006) (finding jurisdiction
under the REAL ID Act to review questions of law and constitutional claims). The
REAL ID Act does not grant us jurisdiction to review discretionary decisions or
factual determinations under § 1158(2). Ignatova v. Gonzales, 430 F.3d 1209, 1213-
14 (8th Cir. 2005) (finding that jurisdiction did not exist under the REAL ID Act to
review either a discretionary determination that no “extraordinary circumstances”
existed to excuse an untimely application or to review “questions of fact underlying
discretionary decisions of the Attorney General”).
We believe it is clear that the determination of a date of entry is a factual
finding that is shielded from our review by § 1158(a)(3) and not within the scope of
the jurisdictional grant contained in the REAL ID Act. Other courts examining this
issue in light of the REAL ID Act agree. See, e.g., Chacon-Botero v. U.S. Attorney
General, 427 F.3d 954, 957 (11th Cir. 2005) (finding no jurisdiction under the REAL
ID Act to review the factual determination of untimeliness); Vasile v. Gonzales, 417
F.3d 766, 768 (7th Cir. 2005) (“[D]iscretionary or factual determinations continue to
fall outside the jurisdiction of the court of appeals entertaining a petition for review.”).
The petitioner in the present case does not allege a legal error or a constitutional
1
8 U.S.C. § 1252(a)(2)(D), "Judicial review of certain legal claims" provides:
Nothing in subparagraph (B) or (C), or in any other provision of
this chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance
with this section.
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violation such as a deprivation of due process under the Fifth Amendment. See, e.g.,
Munoz-Yepez, 465 F.3d at 351 (finding jurisdiction to review an arguably
discretionary decision by the Board where a panel of our court characterized the
Board’s decision as one that involved a question of law, namely, interpretation of a
definition set forth in the Immigration & Nationality Act); Ibarra-Terrazas v.
Gonzales, 461 F.3d 1046, 1048 (8th Cir. 2006) (finding jurisdiction under the REAL
ID Act to review a question of law where a petitioner alleged the Board violated
certain regulations by failing to make a decision on the merits of an issue); Ming Ming
Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir. 2006) (recognizing that jurisdiction
does exist under the REAL ID Act to address constitutional claims, but finding no
jurisdiction to review a petitioner’s claim of an alleged due process violation under
the Fifth Amendment where the petitioner had failed to raise the claim with the
Board). Accordingly, we lack jurisdiction to review the asylum claim.
B. Withholding of Removal/Convention Against Torture
We must defer to an IJ’s finding that the petitioner is not credible “so long as
it is supported by ‘a specific, cogent reason for disbelief.’” Begna v. Ashcroft, 392
F.3d 301, 304 (8th Cir. 2004) (quoting Perinpanathan v. INS, 310 F.3d 594, 597 (8th
Cir. 2002)). Because “the [Board] . . . denied withholding of removal, the petitioner
bears the heavy burden of showing that [her] evidence was ‘so compelling that no
reasonable factfinder could fail to find the requisite fear of persecution.’” Madjakpor
v. Gonzales, 406 F.3d 1040, 1044 (8th Cir. 2005) (quoting Melecio-Saquil v.
Ashcroft, 337 F.3d 983, 986 (8th Cir.2003)); see also 8 U.S.C. § 1252(b)(4)(B)
(codifying this standard of review).
The IJ’s stated reasons for disbelieving the petitioner were sufficiently specific
and cogent to preclude reversal. The hospital report purportedly associated with the
alleged rape failed to support the petitioner’s claim. She told an unbelievable story
regarding the timing of how she obtained her visa for Mexico and how she entered the
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United States. Further, she could not recall basic information regarding her time in
Mexico. Vague histories and general information lack the type of detail an IJ can
reasonably expect and may form the basis of an adverse credibility assessment. See
Ombongi v. Gonzales, 417 F.3d 823, 825 (8th Cir. 2005) (“If testimony is ‘meager,
general, and not the type of specific or detailed evidence necessary to obtain asylum,’
the IJ is within his or her discretion to deny the claim.”) (quoting Krasnopivtsev v.
Ashcroft, 382 F.3d 832, 836 (8th Cir. 2004)). The absence of medical documentation
regarding the rape is particularly troublesome because the petitioner claims to have
reported the rape and visited the hospital following the rape, but the petitioner failed
to provide corroborating documents—documents that would presumably be easy to
obtain given the fact that her mother works as a laboratory doctor at the same hospital.
In light of this evidence and given the deferential standard of review, we cannot
disturb the IJ’s rejection of the petitioner’s allegations.
Even if the petitioner had been deemed credible, she would not be entitled to
relief. To be entitled to withholding of removal, the petitioner must establish a past
or future threat to life or freedom on account of a protected basis at the hands of
governmental actors or persons the government is unable or unwilling to control. 8
C.F.R. § 208.16(b)(1); Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998). Absent
such past harms, a petitioner must prove that it is more likely than not she will suffer
such harm if returned to her homeland. 8 C.F.R. § 208.16(b)(2)(ii). To be entitled to
relief under the Convention Against Torture, it is not necessary that torture be
motivated by a protected basis, but there must be a clear probability the petitioner will
be tortured if returned to her homeland. Id. at § 208.16(c)(2).
For both forms of relief, it generally is insufficient that a petitioner has been a
victim of criminal attack by one person or group of accomplices. Rather it is
necessary that conditions within a country make internal relocation an unsafe and
unreasonable alternative. See 8 C.F.R. § 208.16(b)(1)(i)(B) and (b)(2) (withholding
of removal under the Immigration and Nationality Act is unavailable where a
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petitioner could “avoid a future threat to . . . her life or freedom by relocating to
another part of the . . . country of removal and, under all the circumstances, it would
be reasonable to expect the applicant to do so.”); id. at § 208.16(c)(3)(ii) (noting that,
when assessing the likelihood of future torture under the Convention Against Torture,
the Board should consider, “[e]vidence that the applicant could relocate to a part of
the country of removal where he or she is not likely to be tortured.”). The Board
correctly determined that the petitioner’s allegations of abuse by Kutsenko and his
accomplices failed to show it would be unsafe or unreasonable to relocate within the
Ukraine.
We affirm the Board and deny the petition for review.
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