Roman Gennadyevich Petrov v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 16, 2005
No. 04-12024 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-597-805
ROMAN GENNADYEVICH PETROV,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 16, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Roman G. Petrov, proceeding pro se, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order of removal and denial of his asylum, withholding of removal, and the United
Nations Convention Against Torture (“CAT”) claims. Petitioner’s removal
proceedings commenced after April 1, 1997, and therefore the permanent rules of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (1996) apply.
On appeal, Petrov claims that he qualified for asylum, withholding of
removal and CAT relief. He argues that the IJ’s adverse credibility finding was
erroneous because the IJ essentially took administrative notice when he decided
that without the existence of corroborating documents, Petrov could have not been
attacked by the Russian nationalists for religious reasons. Petrov claims that his
testimony was not only detailed, internally consistent, and corroborated with
abundant evidence, but also plausible in light of the 2001 Country Report and
Religious Freedom Report. Petrov also claims that he was entitled to relief under
CAT because the Russian government ignores the persecution of religious groups
by the neo-Nazis.
The BIA’s factual determinations are reviewed under the substantial
evidence test, and this Court “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation
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omitted). Here, the BIA both adopted the IJ’s reasoning and made its own
observations, so this Court should review the BIA’s order and the IJ’s order, to the
extent the BIA adopted the IJ’s reasoning. Id. at 1284.
Credibility determinations likewise are reviewed under the substantial-
evidence test. D-Muhumed v. United States Attorney General, 388 F.3d 814, 817-
18 (11th Cir. 2004). The trier of fact must determine credibility, and this Court
may not substitute its judgment for that of the BIA with respect to credibility
findings. Id. “An immigration judge alone is in a position to observe an alien’s
tone and demeanor, to explore inconsistencies in testimony, and to apply workable
and consistent standards in the evaluation of testimonial evidence.”
Sarvia-Quintanilla v. U.S. INS, 767 F.2d 1387, 1395 (9th Cir. 1985) (persuasive
authority); accord Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003)
(same).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
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well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . ..
8 U.S.C. § 101(a)(42)(A) (emphasis added). The asylum applicant carries the
burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284.
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of his religion (or other
statutorily listed factor), or (2) a “well-founded fear” that his religion (or other
statutorily listed factor) will cause such future persecution. 8 C.F.R. § 208.13(a),
(b); Al Najjar, 257 F.3d at 1287. A “well-founded fear” of future persecution may
be established by showing (1) past persecution that creates a presumption of a
well-founded fear and overcomes any rebuttal by the INS, (2) a reasonable
possibility of personal persecution that cannot be avoided by relocating within the
subject country, or (3) a pattern or practice in the subject country of persecuting
members of a statutorily defined group of which the alien is a part. 8 C.F.R.
§ 208.13(b)(1), (2). The “well-founded fear” inquiry has both a subjective and
objective component – that is, the applicant must show that his fear of persecution
is subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289.
The subjective component is generally satisfied by the applicant's credible
testimony that he or she genuinely fears persecution. Id. This Court noted that “in
most cases, the objective prong can be fulfilled either by establishing past
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persecution or that he or she has a ‘good reason to fear future persecution.’” Id.
An alien’s uncorroborated but credible testimony alone may be sufficient to
sustain the burden of proof for asylum or withholding of removal. D-Muhumed,
388 F.3d at 819. However, the weaker the applicant’s testimony, the more
compelling is the need for corroborative documentary or other testimonial
evidence. Matter of Y-D-, 21 I&N Dec. 1136, 1138 (BIA 1998). “‘[I]f the trier of
fact either does not believe the applicant or does not know what to believe, the
applicant’s failure to corroborate his testimony can be fatal to his asylum
application.’” Forgue v. Attorney General, 401 F.3d 1282 (11th Cir. 2005)
(quoting Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000)). An adverse
credibility finding must go to the heart of the asylum claim, and not be based on
minor discrepancies, inconsistencies, and omissions. Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002) (persuasive authority); see also Pop v. INS, 270 F.3d 527,
531 (7th Cir. 2001) (same); Chen v. INS, 266 F.3d 1094, 1098 (9th Cir. 2001)
(same), vacated on other grounds by 537 U.S. 1016 (2002). An adverse credibility
finding, supported by substantial evidence, may be sufficient to a petition for
review. D-Muhumed, 388 F.3d at 819. The IJ must offer specific, cogent reasons
for an adverse credibility finding. Id.An alien seeking withholding of removal under the INA must show that his
life or freedom would “more likely than not” be threatened upon return to his
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country because of, among other things, his religion. Mendoza v. United States
Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The burden of proof under
CAT is higher than the burden imposed on an asylum applicant. See Al Najjar, 257
F.3d at 1303-03.
While it is true that the majority of the inconsistencies the IJ identified in
Petrov’s testimony and the asylum application were minor or were not actually
inconsistencies, the IJ’s adverse credibility finding is supported by substantial
evidence because two were true inconsistencies and they were related to his claims
that Captain Melnichenko used neo-Nazis to persecute him based on his religion,
which is the heart of his claim. First, Petrov claimed that he was attacked and
beaten by five persons, allegedly hired by Federal Security Service (FSB) Captain
Melnichenko, on March 3, 1994. They called him a “traitor” and a “dirty person of
a different faith.” The attack occurred a day after Petrov refused to report to
Melnichenko about the foreign students at his school because, he testified, he was
influenced by his mother’s religion, Jehovah’s Witnesses, not to get involved with
the government. However, this attack probably was not motivated by Petrov’s
faith because he did not engage in any Jehovah’s Witness activity until September
1994, and Melnichenko did not know this was the reason that Petrov refused to
become a snitch. Second, even though in his asylum application Petrov claimed
that the FSB often used the neo-Nazis to watch the “opposition people and simply
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beat them up,” there was no evidence in the record supporting his assertion. Even
though Petrov stated that during the threatening phone calls that started after he
refused to cooperate with Melnichenko the neo-Nazis referred to a “respected
person,” this evidence does not compel us to reject the IJ’s finding that there was
no connection between Melnichenko and the threatening phone calls, the
vandalism of his mailbox and door, and the assault on his father by the neo-Nazis.
Additionally, even if Petrov’s testimony were credible, his asylum claim
fails because his fear of persecution was not objectively reasonable because the
government carried its burden of proof by showing that he could escape the
persecution by relocating within Russia. Finally, Petrov’s withholding of removal
and CAT claims also fail because he was unable to meet the burden of proof
required for asylum, which is a lower burden than that required for withholding of
removal and relief under the CAT.
Upon review of the record, and having considered the brief of the parties, we
discern no reversible error. For all the foregoing reasons, substantial evidence
supports the BIA’s decision, and we deny the petition for review.
PETITION DENIED.
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