Kyrylenko v. Holder , 389 F. App'x 645 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NATALIYA KYRYLENKO, No. 07-73268
Petitioner, Agency No. A075-758-576
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2009 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Nataliya Kyrylenko (“Kyrylenko”), a native and citizen of Ukraine, petitions
for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal
of an Immigration Judge’s (“IJ”) decision ordering her removed from the United
States. The IJ and the BIA found that Kyrylenko was not credible and that her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
asylum application was untimely. We have jurisdiction over this matter pursuant
to 8 U.S.C. § 1252(a)(1), and we deny Kyrylenko’s petition.
The facts of this case are known to the parties. We repeat them only as
necessary.
I
“When the BIA affirms and adopts an IJ’s decision, this court reviews the
decision of the IJ.” Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). When the
BIA provides additional reasons for adopting the IJ’s decision, we review those
additions as well. See Rodriguez-Roman v. INS, 98 F.3d 416, 425 n.11 (9th Cir.
1996).
We will uphold the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Abebe v.
Gonzales, 432 F.3d 1037, 1039–40 (9th Cir. 2005) (en banc) (internal quotation
marks omitted). Pursuant to 8 U.S.C. § 1252(b)(4)(B), substantial evidence exists
“unless any reasonable adjudicator would be compelled to conclude to the
contrary.”
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II
Substantial evidence supports the IJ’s and BIA’s conclusion that Kyrylenko
untimely filed her asylum application and failed to demonstrate extraordinary
circumstances to excuse her delay.
In order to be eligible for asylum, an alien must “demonstrate by clear and
convincing evidence that [the alien’s asylum] application has been filed within 1
year after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). This deadline can be excused if the alien shows that
“extraordinary circumstances” prevented the alien from filing the asylum
application within the 1 year deadline. 8 U.S.C. § 1158(a)(2)(D).
Here, Kyrylenko entered the United States on or about July 29, 1998 and
withdrew from the college in Kentucky in late 1998. She did not file her asylum
application until May 2001, almost three years after entering the United States and
two and a half years after withdrawing from the college. Her application was thus
filed well after the one year limit set forth in 8 U.S.C. § 1158(a)(2)(B). She has
also failed to demonstrate any extraordinary circumstances to excuse the delay.
III
Substantial evidence also supports the IJ’s and BIA’s adverse credibility
finding.
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“[T]he use of a fraudulent document may, considering the totality of the
record, lend support to an adverse credibility finding.” Yeimane-Berhe v. Ashcroft,
393 F.3d 907, 911 (9th Cir. 2004); see also Desta v. Ashcroft, 365 F.3d 741, 745
(9th Cir. 2004) (holding that forged documents that go the heart of an alien’s claim
can support an adverse credibility finding). Still, a counterfeit document will not
support an adverse credibility finding if the petitioner’s “testimony was
corroborated by other testimony and evidence, nothing else in the record suggests
that [the petitioner] is not credible, and there is no evidence indicating that [the
petitioner] knew the document was fraudulent.” Yeimane-Berhe, 393 F.3d at 911.
Here, the IJ and BIA found Kyrylenko to not be credible for several reasons.
Kyrylenko submitted a forged birth certificate in an attempt to prove her Jewish
ethnicity, a critical element of her assertion that she would suffer persecution in
Ukraine for ethnic reasons. Kyrylenko offered inconsistent testimony about the
document’s counterfeit nature, first claiming that it was the original document her
parents received at her birth and then asserting that it was a reproduction obtained
when she ten.
Additionally, Kyrylenko offered implausible testimony that she did not
know that Mid-Continent Baptist Bible College was a religious institution. The
record indicates that Kyrylenko is well educated, rendering entirely implausible her
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testimony that she was unaware of the religious nature of an overtly religious
institution. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005) (holding
that “testimony that is ‘implausible in light of the background evidence’ can
support an adverse credibility finding” (internal citations and emphasis omitted)).
In the aggregate, these considerations provide substantial evidence for the
IJ’s and BIA’s adverse credibility finding. Kyrylenko has not presented evidence
sufficient to “compel[]” a finding contrary to that of the IJ. 8 U.S.C.
§ 1252(b)(4)(B).
IV
Substantial evidence supports the IJ’s and BIA’s conclusion that Kyrylenko
failed to demonstrate that she would be subjected to persecution on account of an
enumerated ground.
In order to be granted withholding of removal, an alien must demonstrate a
“clear probability” that he or she “would be subject to persecution on [protected
grounds].” INS v. Stevic, 467 U.S. 407, 429–30 (1984). In order to show clear
probability of persecution, an alien may demonstrate either past persecution or a
threat of future persecution. 8 C.F.R. § 1208.16(b).
Here, Kyrylenko was properly found to not be credible regarding her
assertions that she is of Jewish ethnicity. Even if she had been deemed credible,
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the country reports do not indicate that Kyrylenko would have suffered persecution
on account of being ethnically Jewish.
Likewise, Kyrylenko’s claim of potential persecution on account of political
opinion is entirely uncompelling. Kyrylenko failed to provide any evidence that
she wrote articles critical of the Ukraine government and any testimony that she
had ever suffered persecution for political reasons. Absent any such evidence and
in light of the IJ’s and BIA’s proper adverse credibility finding, substantial
evidence supports the denial of Kyrylenko’s application for withholding of
removal.
V
Finally, the IJ’s and BIA’s denial of relief under CAT is supported by
substantial evidence.
In order to be granted relief under CAT, an alien must show “that it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2); see also Kamalthas v. INS, 251 F.3d 1279,
1282 (9th Cir. 2001). CAT relief is not warranted “absent evidence of public
officials’ consent or acquiescence.” Azanor v. Ashcroft, 364 F.3d 1013, 1019 (9th
Cir. 2004) (internal quotations and citations omitted).
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Here, Kyrylenko has failed to provide any detailed account, much less a
plausible one, in support of her claim that she would be detained and tortured with
the consent of the Ukraine government. On the contrary, the country reports
generally indicate the Ukraine government combats anti-Semitism and prohibits
torture. The country reports combine with the adverse credibility determination
and the dearth of compelling evidence in favor of Kyrylenko’s assertions to
provide substantial evidence supporting the denial of Kyrylenko’s application for
CAT relief.
VI
Kyrylenko’s remaining argument regarding due process is without merit.
DENIED.
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