Antonina Averianova v. Michael Mukasey ( 2007 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-3717
    ___________
    Antonina Averianova,                 *
    *
    Petitioner,             *
    *
    v.                            *
    *
    Michael B. Mukasey, Attorney General *
    of the United States of America,     *
    *
    Respondent.             *
    ___________
    Petition for Review of an Order of
    No. 06-3718                         the Board of Immigration Appeals.
    ___________
    Oksana Averianova,                    *
    *
    Petitioner,              *
    *
    v.                             *
    *
    Michael B. Mukasey, Attorney General *
    of the United States of America,      *
    *
    Respondent.              *
    ___________
    Submitted: September 27, 2007
    Filed: December 10, 2007 (Corrected 12/10/07)
    ___________
    Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.
    ___________
    GRUENDER, Circuit Judge.
    Antonina and Oksana Averianova, citizens of Uzbekistan, petition for review
    of a Board of Immigration Appeals (“BIA”) decision affirming the immigration
    judge’s (“IJ”) denial of the Averianovas’ applications for asylum and for withholding
    of removal.1 For the reasons discussed below, we deny the Averianovas’ petitions.
    I.    BACKGROUND
    Antonina and Oksana Averianova are a mother and daughter seeking asylum
    in the United States because of alleged persecution on account of their Jewish
    ethnicity and religious beliefs.
    Antonina was born in Russia in 1951. Her family moved to Uzbekistan shortly
    after her birth. She has two children, Oleg and Oksana. Antonina claims that her
    father was Jewish and her mother Russian, but her mother “adopted” her father’s
    ethnicity upon marriage. Antonina does not practice Judaism regularly and only
    began practicing in the late 1980s. She cites various incidents of past persecution in
    Uzbekistan, allegedly because of her Jewish background. She testified that she was
    once attacked on a bus because she was not Muslim. On another occasion a man
    yelling about Jews hit her and split her lip. Her son was beaten for not being Muslim
    and having Jewish roots. She did not report any of these incidents to the police. In
    1992, Antonina arrived as a non-immigrant visitor to the United States. She applied
    for asylum in 1993.
    1
    The IJ and BIA also rejected the Averianovas’ claim for protection under the
    Convention Against Torture (“CAT”). The Averianovas have not set forth an
    argument on appeal regarding the CAT ruling. Therefore, petitioners waive this
    claim. See Chay-Velasquez v. Ashcroft, 
    367 F.3d 751
    , 756 (8th Cir. 2004).
    -2-
    Oksana testified to various problems she encountered in Uzbekistan because of
    her alleged Jewish ethnicity. In school, she faced frequent taunting. A group of girls
    once threatened her and pushed her head in a toilet. She recalled incidents of Muslim
    men harassing her, slapping her in the face, calling her a Jewish whore, and
    threatening to cut her legs for wearing a short skirt. She reported that her professors
    at night college prevented her from participating in class and that she had difficulty
    finding employment in Tashkent, the capital of Uzbekistan. Oksana did not report any
    of these incidents to the police. She arrived in the United States in 1996 and applied
    for asylum shortly thereafter. She does not practice Judaism in the United States. The
    IJ consolidated her case with Antonina’s.
    During the asylum proceedings, the Averianovas submitted several birth
    certificates to prove their Jewish ethnicity. (In the former Soviet Union, the
    government considered “Jewish” an ethnicity and listed it on birth certificates as a
    nationality.) None were original documents, and the Averianovas testified that any
    original documents, such as original birth certificates, internal passports, travel
    passports or marriage certificates, had been lost or stolen. The Immigration and
    Naturalization Service (“INS”),2 in conjunction with the American embassy in
    Tashkent, investigated the birth certificates submitted by the Averianovas and
    identified specific discrepancies that called into question their authenticity.
    The Averianovas presented a translated copy of Oksana’s birth certificate,
    notarized in Russia in 1994, which stated that Antonina was “Jewish.” In May 2002,
    the INS gave the copy of Oksana’s birth certificate to American embassy personnel
    in Tashkent. Embassy staff then asked the local register of Tashkent to access
    Oksana’s birth record. The embassy personnel discovered that the official record of
    Oksana’s birth listed Antonina’s nationality as “Russian.” Oksana contended that the
    2
    The INS ceased to exist March 1, 2003, and its functions were transferred to
    the new Department of Homeland Security (“DHS”). See Homeland Security Act of
    2002, Pub. L. No. 107-296, 
    116 Stat. 2135
     (Nov. 25, 2002). We shall continue to
    refer to the DHS as the INS in this opinion.
    -3-
    embassy report was an unreliable, hand-written copy, and that it erroneously listed her
    birth date. American embassy officials subsequently obtained two digital photographs
    of her birth record. The photographs showed Antonina’s nationality as “Russian.”
    The register also corrected the birth date error after embassy staff identified it. The
    IJ found that the two documents were “identical . . . with one exception”—the
    nationality of “Russian” in the original record had been changed to “Jewish” in
    Oksana’s copy.
    After the INS’s original inquiry into Oksana’s birth certificate, the Averianovas
    initiated a court proceeding in Tashkent on March 5, 2003, to amend Antonina’s
    father’s birth record to state that he was Jewish. Antonina’s father’s original birth
    certificate indicated that he was Russian. The court changed the record on May 21,
    2003. The Averianovas submitted the amended birth certificate and the record of the
    Tashkent court hearing to the IJ.
    Once the INS discovered that Oksana’s birth record actually stated that
    Antonina was “Russian,” not “Jewish,” the Averianovas submitted several more
    copies of birth certificates to the IJ. First, a copy of Antonina’s brother Victor’s birth
    certificate dated August 10, 2002 reflected that his (and Antonina’s) father was
    “Jewish.” The INS obtained digital photographs of the original birth record bearing
    the serial number reflected on the copy submitted by the Averianovas and determined
    that the serial number reflected on the copy actually was contained on a birth
    certificate issued to someone other than Victor. Second, a birth certificate submitted
    for Oleg stated that his mother Antonina was “Jewish.” The INS obtained two digital
    photographs of his actual birth record in Tashkent that listed Antonina’s nationality
    as “Russian.” Third, Antonina submitted a copy of her birth certificate issued in 1992
    that listed her father’s nationality as “Jewish.” The INS found that the serial number
    on this birth certificate also was issued to someone else and obtained a copy of that
    person’s birth record.
    The IJ rejected the Averianovas’ asylum claims. The IJ focused on their claims
    of persecution based upon their Jewish ethnicity because that was the “overwhelming
    -4-
    thrust” of their claims, and they had not provided sufficient testimony regarding
    claims of persecution on account of their non-Uzbek ethnicity. The IJ determined that
    the photographs of Uzbek records were trustworthy and persuasive evidence. The IJ
    found that the Averianovas had submitted fraudulent documents, which adversely
    affected their credibility. He also found that they offered no explanation for the
    discrepancies. He held that without credible proof of their Jewish ethnicity, their
    asylum claims failed. The IJ refused to extend comity to the Tashkent court
    proceeding of March 5, 2003. He also found a “lack of any objective corroborating
    evidence” regarding the Averianovas’ alleged persecution. On account of the lack of
    credible testimony and lack of corroborating evidence, the IJ also rejected their claims
    for withholding of removal.
    In attempting to verify the birth certificates the Averianovas submitted, the INS
    sent them to the American embassy in Tashkent. Embassy staff checked records and
    made inquiries to local Uzbek officials. The Averianovas contended that confidential
    information had been revealed in the course of the investigation in violation of 
    8 C.F.R. § 208.6
    , which generally prohibits disclosing information submitted in an
    asylum application unless the applicant gives written consent. The Averianovas
    argued that the disclosures gave rise to an inference that they had applied for asylum,
    which they claimed created a separate basis for asylum. The IJ found no proof that
    the INS had revealed confidential information to Uzbek authorities. He determined
    that the INS merely investigated a vital statistic, their ethnicity, which could relate to
    any number of ordinary government investigations. Additionally, because the
    Averianovas went to an Uzbek tribunal to alter family birth records regarding their
    Jewish ethnicity, the IJ doubted that the Averianovas had any real concern over a
    release of that information to the Uzbek government. Therefore, the IJ refused to
    grant relief on this basis as well and denied their applications.
    The BIA adopted and affirmed the IJ’s determination. It first agreed that the
    Averianovas had offered “only conjecture” to explain why the false documents
    differed from the official Uzbek records. It also determined that it would not grant
    -5-
    comity to the decision of a foreign tribunal “where fraud and manipulation of the
    immigration laws were present.” Additionally, the BIA held that this adverse
    credibility determination tainted the overall credibility of the Averianovas, which
    affected both the Jewish claims and the non-Uzbek claims. The BIA also agreed that
    the INS did not breach the Averianovas’ confidentiality.
    II.   DISCUSSION
    “When the BIA adopts the IJ’s decision, but adds reasoning of its own, we
    review both decisions.” Setiadi v. Gonzales, 
    437 F.3d 710
    , 713 (8th Cir. 2006). We
    affirm the decisions if they are supported by substantial evidence in the record. Singh
    v. Gonzales, 
    495 F.3d 553
    , 556 (8th Cir. 2007). We review questions of law de novo,
    and we will reverse findings of fact only if the evidence is “so compelling that no
    reasonable fact finder could fail to find in favor of the petitioner.” Turay v. Ashcroft,
    
    405 F.3d 663
    , 666–67 (8th Cir. 2005).
    A. Asylum
    “The Attorney General has discretion to grant asylum to a refugee, defined as
    an alien who is unable or unwilling to return to her home country because of past
    persecution or a well-founded fear of future persecution on account of race, religion,
    nationality, membership in a particular social group, or political opinion.” Onsongo
    v. Gonzales, 
    457 F.3d 849
    , 852 (8th Cir. 2006); see 
    8 U.S.C. §§ 1101
    (a)(42)(A),
    1158(b)(1); 
    8 C.F.R. § 208.13
    . The applicant must establish that one of the five
    protected grounds “was or will be at least one central reason for persecuting the
    applicant.” 
    8 U.S.C. § 1158
    (b)(1)(B)(I). An applicant can establish a well-founded
    fear of future persecution by showing that she has a subjective fear of persecution and
    that “credible, direct, and specific evidence” establishes that a reasonable person in
    the applicant’s situation would fear persecution. Mamana v. Gonzales, 
    436 F.3d 966
    ,
    968 (8th Cir. 2006).
    -6-
    1. Adverse Credibility Finding
    An applicant bears the burden of satisfying the IJ that her “testimony is
    credible, is persuasive, and refers to specific facts sufficient to demonstrate that the
    applicant is a refugee.” 
    8 U.S.C. §1158
    (b)(1)(B)(ii). “A credibility determination is
    a finding of fact, and § 1252(b)(4)(B) provides that it should be accepted ‘unless any
    reasonable adjudicator would be compelled to conclude to the contrary.’” Singh, 
    495 F.3d at 556
     (quoting 
    8 U.S.C. § 1252
    (b)(4)(B)). The combination of an adverse
    credibility finding and a lack of corroborating evidence for the claim of persecution
    means that the applicant’s claim fails, “regardless of the reason for the alleged
    persecution.” Sivakaran v. Ashcroft, 
    368 F.3d 1028
    , 1029 (8th Cir. 2004). In this
    case, we find that the record does not compel a conclusion contrary to that reached by
    the IJ and BIA because the Averianovas submitted fraudulent documents, could not
    explain the numerous discrepancies, and failed to provide evidence otherwise
    corroborating their claim of persecution on the basis of their Jewish ethnicity.
    The IJ found that the Averianovas lacked credibility because they submitted
    fraudulent documents. The INS’s investigation provided strong evidence that the
    Averianovas’ actual birth records consistently contradicted the nationality listed in the
    birth certificates that they submitted. The Averianovas supplied additional false birth
    certificates after the birth certificate presented by Oksana had been proven false by
    photographic evidence. The birth certificates purporting to be Oksana’s and Oleg’s
    indicated Antonina’s nationality as “Jewish,” but the INS presented photographs
    showing that the actual birth certificates stated Antonina’s nationality as “Russian.”
    Antonina’s “Jewish” birth certificate was generated in 1992, around the time the
    Averianovas intended to enter the United States. The birth certificates purporting to
    be Antonina’s and her brother’s contained serial numbers of birth certificates issued
    to other individuals, not the Averianovas. “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
    -7-
    the asylum claim.” Kondakova v. Ashcroft, 
    383 F.3d 792
    , 796 (8th Cir. 2004)
    (internal quotation omitted).
    The Averianovas on appeal claim that they had no knowledge that the
    documents were fraudulent, and, therefore, they should not be subject to an adverse
    credibility determination. They rely on Kourski v. Ashcroft, 
    355 F.3d 1038
     (7th Cir.
    2004), which requires the IJ to find that the applicant knew or had reason to know
    about the fraudulent nature of submitted documents. 
    Id.
     at 1039–40. In Kourski, the
    applicant claimed that he received the documents from his mother and that the forgery
    was subtle, which undermined the notion that the applicant knew or had reason to
    know about the fraud. 
    Id.
     We have held that “[a]n IJ may base an adverse credibility
    determination upon submission of fraudulent documents if the petitioner fails to offer
    a legitimate explanation for the suspected fraud.” Onsongo, 457 F.3d at 854. In
    Ignatova v. Gonzales, 
    430 F.3d 1209
     (8th Cir. 2005), for example, we reviewed an
    IJ’s determination that the applicant submitted a frivolous asylum claim, in part
    because she submitted a fraudulent document. We distinguished Kourski because “the
    IJ explicitly found that the document submitted by Ignatova was fraudulent,” and the
    applicant “never provided any explanation about the discrepancy.” 
    Id. at 1214
    . In
    this case, the IJ explicitly made both findings, and he did so regarding not just one, but
    four documents.
    The Averianovas attempt to explain the discrepancies between the submitted
    documents and the official records by attacking the INS’s investigation. They argue
    that the IJ should not have trusted the INS’s investigation because Uzbek officials may
    have altered or provided incorrect documents and because the Averianovas’ expert
    witnesses identified possible record-keeping errors systemic to the former Soviet
    Union. The IJ weighed this evidence and determined that the INS’s investigation was
    trustworthy, particularly because of photographic proof submitted by the INS.
    Therefore, the IJ found that these circumstances resulted in an adverse credibility
    finding. We are not convinced that a reasonable adjudicator would be compelled to
    find the contrary.
    -8-
    In light of the adverse credibility finding, the Averianovas attempted to present
    evidence corroborating their Jewish ethnicity and of their past persecution or well-
    founded fear of future persecution on account of it. The only corroborating evidence
    the Averianovas offer in regard to their Jewish ethnicity was the Tashkent tribunal
    decision amending their father’s ethnicity from “Russian” to “Jewish” on a birth
    certificate issued in Chelyabinsk, Russia, which they urge deserves comity.3 It is
    questionable whether comity should be extended to an ex parte, quasi-administrative
    proceeding initiated ten years after filing the original asylum claim in the United
    States. The proceeding began only after the Averianovas received word from the INS
    that their original documentation was false, calling into question their claims
    regarding their ethnicity. The BIA pointed out that retroactive foreign judgments
    regarding marital status are not granted comity where “fraud, misrepresentation, or
    manipulation of the immigration law” are present. Matter of Magana, 
    17 I. & N. Dec. 111
    , 113 (B.I.A. 1979). The BIA concluded that, similarly, comity would not be
    extended to the decision of the Uzbek court in a proceeding regarding birth certificate
    information initiated after asylum proceedings began because of the presence of
    “fraud and manipulation.” Under the circumstances of this case, where an applicant
    initiates a foreign court proceeding after an asylum case has begun and in light of the
    evidence of fraud and manipulation, we agree and refuse to find that the Tashkent
    court’s actions constitute sufficient corroborating evidence such that a reasonable
    adjudicator would be compelled to find the Averianovas’ testimony credible.
    Even assuming arguendo that the Tashkent court order provides sufficient
    corroborating evidence that the Averianovas are Jewish, the Averianovas still do not
    offer sufficient corroborating evidence that they suffered past persecution or that they
    3
    Comity “is the recognition which one nation allows within its territory to the
    legislative, executive or judicial acts of another nation, having due regard both to
    international duty and convenience, and to the rights of its own citizens, or of other
    persons who are under the protection of its laws.” Hilton v. Guyot, 
    159 U.S. 113
    ,
    163–64 (1895).
    -9-
    have a well-founded fear of future persecution. They reported no incidents of abuse
    to the police. Their only corroborating evidence comes in the form of expert witness
    testimony regarding conditions in Uzbekistan. Those experts could not testify to the
    Averianovas’ past persecution. The experts could only attest to the country conditions
    regarding the reasonableness of their well-founded fear of future persecution. On the
    other hand, the IJ cited the INS’s country condition reports regarding civil liberties
    and human rights in Uzbekistan, which indicated that Jews enjoy religious freedom
    and that no pattern of discrimination against Jews exists. These country condition
    reports constitute substantial evidence supporting the IJ’s and BIA’s decisions. See
    Kondakova, 
    383 F.3d at
    796–97 (finding that reliance upon country condition reports
    constitutes substantial evidence to support a determination that petitioner failed to
    provide corroborating evidence to overcome an adverse credibility finding).4
    2. Confidentiality
    The Averianovas also claim that the INS breached their confidentiality in its
    investigation of the authenticity of the birth certificates they submitted and that this
    breach provides them a new and independent basis for an asylum claim. Courts
    4
    The Averianovas insist that the IJ failed to consider their non-Jewish claims,
    such as fear of returning to Uzbekistan because they are non-Uzbeks or fear of
    returning because they have lived in the United States for several years. Because of
    the adverse credibility finding, the Averianovas must have offered sufficient
    corroborating evidence regarding persecution against them on non-Jewish grounds,
    which they failed to do. They presented one statement from one expert’s testimony
    that marginally supported their claim. This scant evidence cannot make up for the
    lack of credible testimony. See Sivakaran, 
    368 F.3d at 1029
     (holding that an asylum
    claim fails when there is an adverse credibility finding and a lack of corroborating
    evidence). Additionally, they did not testify that they feared persecution from Uzbek
    officials, and they failed to offer evidence that they would be persecuted by
    individuals the government is unable or unwilling to control. Nabuwala v. Gonzales,
    
    481 F.3d 1115
    , 1118 (8th Cir. 2007).
    -10-
    “generally accord Government records and official conduct a presumption of
    legitimacy.” U.S. Dep’t of State v. Ray, 
    502 U.S. 164
    , 179 (1991); accord Lin v. U.S.
    Dep’t of Justice, 
    459 F.3d 255
    , 265 (2d Cir. 2006) (adopting language of Ray in
    breach of confidentiality analysis). We give substantial deference to the BIA’s
    interpretation of its statutes and regulations. Varela v. Ashcroft, 
    368 F.3d 864
    , 866
    (8th Cir. 2004); Lin, 
    459 F.3d at 262
    . We look to the INS’s interpretation of its own
    regulation, but only “if the meaning of the words used is in doubt.” Bowles v.
    Seminole Rock & Sand Co., 
    325 U.S. 410
    , 414 (1945); see Hailemichael v. Gonzales,
    
    454 F.3d 878
    , 883 (8th Cir. 2006) (citing Seminole Rock).
    Section 208.6 requires that “[i]nformation contained in or pertaining to any
    asylum application . . . shall not be disclosed without the written consent of the
    applicant.” 
    8 C.F.R. § 208.6
    (a).5 The regulation provides for certain exceptions to the
    general prohibition, and the INS argues that, pursuant to an exception, it may reveal
    information to government officials who need to examine an asylum application. See
    
    id.
     § 208.6(c)(1). The Averianovas, however, do not contest the INS revealing
    information to American embassy personnel in Tashkent. Instead, they claim that
    revealing information to Uzbek officials violated their confidentiality. Therefore, that
    exception to the regulation does not apply.
    The Averianovas’ breach of confidentiality claim fails because the record
    reveals no evidence that the INS “disclosed” any “information contained in or
    pertaining to any asylum application” to Uzbek officials when examining the
    Averianovas’ official birth records. The INS gave the birth certificate copies
    submitted by the Averianovas to American embassy staff to determine their
    authenticity. The record does not reveal, nor do the Averianovas argue, that the INS
    5
    The Averianovas each orally consented to an investigation on the record and
    in the presence of counsel, but they did not provide “written consent.” See 
    8 C.F.R. § 208.6
    (a). Although an investigation undoubtedly requires a minimal amount of
    disclosure, such as revealing an applicant’s name and date of birth, we do not reach
    the issue of whether the Averianovas’s oral consent to the investigation was sufficient.
    -11-
    or American embassy personnel presented those documents to Uzbek officials. At
    best, the record reflects that the INS and embassy staff had possession of the birth
    certificates and that the INS and embassy staff obtained copies of Uzbek birth records
    by requesting Uzbek officials for access to them.
    In the Second Circuit’s Lin decision, the INS provided the applicant’s criminal
    “Certificate of Release,” a document commonly related to asylum claims, to the
    Chinese government. Lin, 
    459 F.3d at 265
    . In this case, however, the record does not
    reflect that the INS gave such a document to Uzbek officials. The INS requested
    copies of birth records, which is not a disclosure of information contained in an
    asylum application. Embassy staff asked what forms Uzbek officials used when
    producing birth certificates, obtained digital photographs of the Averianovas’ birth
    records, and asked local police contacts about specific information found in Uzbek
    birth records. These inquiries did not disclose any information contained in or
    pertaining to an asylum application to Uzbek officials. The record only reflects
    inquiries regarding information contained in Uzbek records. We find that the
    Averianovas have not overcome the presumption of regularity in the INS’s
    investigation. The IJ did not err in finding that these inquiries did not constitute a
    disclosure prohibited by the regulation.
    The Averianovas also claim that the INS revealed their names and Oksana’s
    date of birth to Uzbek officials. Additionally, the Averianovas assert that making
    specific inquiries of Uzbek officials regarding their ethnicity rose to the level of a
    disclosure of information pertaining to their asylum applications. Even if we assumed
    that these inquiries constituted disclosures under the regulation, that alone does not
    necessarily entitle them to asylum relief.
    Because the regulation itself provides no remedy at all, we look to the INS’s
    interpretation of its own regulation, which is “controlling unless plainly erroneous or
    inconsistent with the regulation.” Auer v. Robbins, 
    519 U.S. 452
    , 461 (1997) (internal
    quotation omitted); see Lin, 
    459 F.3d at 262
    . The INS has interpreted § 208.6 in a
    memorandum known as the “Cooper Memo” and in a guide to confidentiality known
    -12-
    as the “Fact Sheet.”6 The Cooper Memo describes three types of disclosures that
    could result in a breach of confidentiality.
    Generally, confidentiality of an asylum application is breached when
    information contained therein or pertaining thereto is disclosed to a third
    party, and the disclosure is of a nature that allows the third party to link
    the identity of the applicant to: (1) the fact that the applicant has applied
    for asylum; (2) specific facts or allegations pertaining to the individual
    asylum claim contained in an asylum application; or (3) facts or
    allegations that are sufficient to give rise to a reasonable inference that
    the applicant has applied for asylum.
    Cooper Memo at 3–4; see Lin, 
    459 F.3d at 263
    .
    The INS has also suggested that if a disclosure gives rise to a reasonable
    inference that an applicant has applied for asylum, an applicant may have a new and
    independent basis for an asylum claim. The Fact Sheet states, “[P]ublic disclosure
    might, albeit in rare circumstances, give rise to a plausible protection claim where one
    would not otherwise exist by bringing an otherwise ineligible claimant to the attention
    of the government authority or non-state actor against which the claimant has made
    allegations of mistreatment.” Fact Sheet at 2; see Lin, 
    459 F.3d at 263
    .
    Pursuant to the INS’s interpretation of § 208.6, a disclosure that does not give
    rise to a reasonable inference that the applicant has applied for asylum “does not
    necessarily require the vacatur of an order of removal.” Lin, 
    459 F.3d at 267
    . Instead,
    6
    The Averianovas rely upon the Cooper Memo and the Fact Sheet in their brief
    and do not contest the INS’s interpretation of its regulation. See Memorandum from
    Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS Director of Int’l Affairs,
    Confidentiality of Asylum Applications and Overseas Verification of Documents and
    Application Information (June 21, 2001) (“Cooper Memo”), available at http://
    judiciary.house.gov/legacy/82238.pdf at 39–45; U.S. Citizenship and Immigration
    Services, Fact Sheet: Federal Regulations Protecting the Confidentiality of Asylum
    Applicants (June 3, 2005) (“Fact Sheet”), available at http://www.uscis.gov/files/
    pressrelease/FctSheetConf061505.pdf.
    -13-
    an applicant may establish a new and independent basis for asylum by showing that
    the disclosure gives rise to a reasonable inference that the applicant has applied for
    asylum.7 See Lin, 
    459 F.3d at
    266–68 (finding the INS interpretation not plainly
    erroneous and reaching a similar conclusion); see also Abdel-Rahman v. Gonzales,
    
    493 F.3d 444
    , 454 (4th Cir. 2007) (accepting the Lin court’s reasoning and adopting
    the INS interpretation).
    The Cooper Memo distinguishes between inquiries that breach confidentiality
    and inquiries that do not. For instance, submitting a document known to form the
    basis of an asylum claim could give rise to a reasonable inference that a person has
    made an asylum claim. Cooper Memo at 4; see Lin, 
    459 F.3d at 265
     (finding a
    “Certificate of Release,” commonly related to asylum claims of former Chinese
    prisoners, sufficient to give rise to a reasonable inference that the petitioner had an
    asylum claim). In contrast, the INS does not breach confidentiality if the “inquiry is
    routinely conducted for reasons unrelated to an asylum application, such as for an
    employment application or a visa application.” Cooper Memo at 5.
    At most, the INS provided the Averianovas’ names and Oksana’s date of birth
    to Uzbek officials when requesting copies of their birth records. We find that even if
    these are disclosures, they do not give rise to a reasonable inference that the
    Averianovas had applied for asylum. Additionally, inquiring into their ethnicity, a
    vital statistic commonly found in birth records, also does not give rise to such an
    inference. Indeed, the Second Circuit concluded, “Many documents, such as birth
    certificates, marriage licenses, or even some court records, do not necessarily imply
    that a foreign national is seeking asylum.” Lin, 
    459 F.3d at 270
    . The Averianovas
    have noted that “Jewish” refers to nationality in Uzbekistan and appears in Uzbek
    birth records. The IJ correctly found that the investigation of the contents of a birth
    certificate, including nationality or ethnicity, could relate to an adjustment application,
    7
    We assume without deciding that a person seeking asylum qualifies as a person
    who is a member of a “particular social group” pursuant to 
    8 U.S.C. § 1101
    (a)(42)(A).
    -14-
    a marriage investigation, visa petitions, or other benefits applications. Therefore, we
    agree with the BIA’s conclusion that these inquiries did not give rise to a reasonable
    inference that they applied for asylum.
    Moreover, even if the INS made disclosures that were covered by the regulation
    that were sufficient to give rise to a reasonable basis for a new and independent claim
    for asylum, we would still deny their petition. The BIA also found that the
    Averianovas did not present sufficient evidence that they would be subject to
    persecution as asylum applicants. The Averianovas did not testify that they feared
    persecution from Uzbek officials as asylum applicants, and they failed to offer any
    other evidence that they, as asylum applicants, would be persecuted by individuals the
    government is unable or unwilling to control. See Nabuwala v. Gonzales, 
    481 F.3d 1115
    , 1118 (8th Cir. 2007) (“Persecution may be a harm to be inflicted either by the
    government of a country or by persons or an organization that the government was
    unable or unwilling to control.”) (internal quotation omitted). Thus, the BIA’s finding
    that the Averianovas had not established a well-founded fear of future persecution
    based on having applied for asylum is supported by substantial evidence.
    The BIA did not err in concluding that the Averianovas are not entitled to
    asylum based on their claim that the INS breached their confidentiality.
    B. Withholding of Removal
    To establish a claim for withholding of removal under 
    8 U.S.C. § 1231
    (b)(3),
    an applicant must demonstrate a clear probability of persecution, which is a more
    difficult standard to meet than demonstrating a well-founded fear of future
    persecution. Samedov v. Gonzales, 
    422 F.3d 704
    , 708 (8th Cir. 2005). Because the
    Averianovas have not met the burden of proof for their asylum claims, they also fail
    to meet the higher burden of proof required for obtaining withholding of removal. See
    Ibrahim v. Gonzales, 
    434 F.3d 1074
    , 1079 (8th Cir. 2006).
    -15-
    III.   CONCLUSION
    For the foregoing reasons, we deny the Averianovas’ petitions for review.
    ______________________________
    -16-
    

Document Info

Docket Number: 06-3717

Filed Date: 12/10/2007

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (20)

Bowles v. Seminole Rock & Sand Co. , 65 S. Ct. 1215 ( 1945 )

Zhen Nan Lin v. United States Department of Justice , 39 A.L.R. Fed. 2d 647 ( 2006 )

Olivia Nabulwala v. Alberto R. Gonzales, Attorney General ... , 481 F.3d 1115 ( 2007 )

Genet Hailemichael v. Alberto Gonzales, Attorney General of ... , 454 F.3d 878 ( 2006 )

Singh v. Gonzales , 495 F.3d 553 ( 2007 )

United States Department of State v. Ray , 112 S. Ct. 541 ( 1991 )

Hilton v. Guyot , 16 S. Ct. 139 ( 1895 )

Abdel-Rahman v. Gonzales , 493 F.3d 444 ( 2007 )

Vassili Kourski v. John Ashcroft, Attorney General of the ... , 355 F.3d 1038 ( 2004 )

Sinnathurai Sivakaran v. John Ashcroft, Attorney General of ... , 368 F.3d 1028 ( 2004 )

Mohamed Turay v. John Ashcroft, Attorney General of the ... , 405 F.3d 663 ( 2005 )

Gabriel Setiadi v. Alberto R. Gonzales, 1 Attorney General ... , 437 F.3d 710 ( 2006 )

Martha Beatriz Ibarra De Varela Samuel Varela-Ibarra Karen ... , 368 F.3d 864 ( 2004 )

Tetyana Ignatova v. Alberto R. Gonzales 1 , Attorney ... , 430 F.3d 1209 ( 2005 )

Mamed Samedov v. Alberto Gonzales, 1 Attorney General of ... , 422 F.3d 704 ( 2005 )

Abdul Dahir Ibrahim, Also Known as Abdi-Basid Dahir Brava v.... , 434 F.3d 1074 ( 2006 )

Koffi Mamana v. Alberto Gonzales, 1 Attorney General of the ... , 436 F.3d 966 ( 2006 )

Manuel Admin Chay-Velasquez v. John Ashcroft, Attorney ... , 367 F.3d 751 ( 2004 )

Nataliya Vladimironva Kondakova Yuriy Leonidovich Kondakov ... , 383 F.3d 792 ( 2004 )

Auer v. Robbins , 117 S. Ct. 905 ( 1997 )

View All Authorities »