Vladislav Pavlov v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3408
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VLADISLAV PAVLOV a/k/a Vladislav Vladimirovich Pavlov;
DANIL PAVLOV;
ILYA PAVLOV,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Appeal for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A201-139-917, A201-139-918, A201-139-919)
Immigration Judge: Steven A. Morley
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Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2015
Before: SMITH, JORDAN and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: June 9, 2015)
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OPINION*
______________
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
VAN ANTWERPEN, Circuit Judge.
Vladislav Pavlov (“Pavlov”) and his sons Danil Pavlov (“Danil”) and Ilya
Pavlov (“Ilya”) filed this Petition for Review of the decision of the Board of
Immigration Appeals (“BIA”), dated June 27, 2014, affirming the Immigration
Judge’s (“IJ”) September 20, 2012 denial of their collective application for asylum,
withholding of removal, and protection under Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). Because substantial evidence supported the IJ’s finding that
Pavlov’s testimony was not credible and that petitioners did not have a well-founded
fear of future persecution, we will deny the Petition for Review.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Because we write for the parties, we will only set forth the facts as necessary
to inform our analysis. Pavlov, a native and citizen of Turkmenistan, is the lead
petitioner in this case. Pavlov’s sons, Danil and Ilya, are also natives and citizens of
Turkmenistan and are derivatives of Pavlov’s petition. Pavlov and his sons are
ethnically Russian. This appeal arises from Pavlov’s alleged past persecution in
Turkmenistan based on his Russian ethnicity and his fear of future persecution if his
family is required to return to Turkmenistan.
The following description of events leading to the Pavlov family’s departure
from Turkmenistan for the United States in 2010 is based on Pavlov’s account of
those events. After the fall of the Soviet Union, Pavlov and his now ex-wife, Elena
Pavlova (“Elena”), also an ethnic Russian, began to experience harassment and
2
verbal abuse in public places. In October 1994, Pavlov was fired from his job as a
mechanic on account of his Russian ethnicity. Pavlov then began to sell records and
videotapes at a marketplace to earn money. He and other Russian vendors had to
bribe Turkmen police officers in order to remain open.
In December 1996, two men stole Elena’s purse, but the police refused to take
a report of the incident because of her ethnicity. A second incident occurred in 1996,
when Pavlov and a friend were riding in a taxicab and the cab driver picked up
another passenger. The police stopped the cab and discovered that the new passenger
had drugs. The police beat Pavlov and his friend, even though they were not involved
in the illegal activity.
In 1999, Pavlov opened an office in Turkmenibad for a company that gave
seminars—mainly attended by ethnic Russians—to help people find jobs.
Government officials demanded bribes and harassed Pavlov for not hiring more
Turkmen employees. Eventually the Assistant Mayor of Turkmenibad asked Pavlov
to shut down his business in order to prevent him from publicizing employment
problems, particularly among the ethnic Russian community.
In 2002, Elena took Ilya to a playground where she was attacked by Turkmen
women who told her that ethnic Russians did not belong there. Pavlov then went to
the playground to confront the women. When he arrived, three Turkmen men tried to
fight him, called him a “Russian pig,” and told him to go back to Russia. (IJ1 at 41).
1
“IJ” refers to the September 20, 2012 decision of the Immigration Judge in
this matter. This decision begins at page 37 of the Appendix to the Appellant’s Brief.
3
In August 2004, police officers harassed Pavlov while he was waiting outside
of a store for a friend to finish shopping. Pavlov and his friend were then arrested,
taken to the police station, and released from custody approximately eight hours
later. The police spoke negatively about Pavlov’s ethnicity. They told him that the
power of the Soviet Union had ended and that it was time to live according to
Turkmen laws.
Elena moved to the United States in May of 2004 because of the incident at
the playground. In June 2007, police interrogated Pavlov about Elena because she
applied for asylum in the United States. The police asked if she had anything against
the Turkmen government or president. The police threatened that if Pavlov did not
divorce Elena, they would imprison Pavlov and place his children in a foster home.
Pavlov and Elena decided that they should divorce for the family’s safety. Elena
subsequently filed for and obtained a divorce from Pavlov in the United States.
On August 21, 2009, Turkmen individuals attacked Ilya while he was playing
in a courtyard. Ilya suffered a head injury after being struck on the head with a stick.
Pavlov reported the incident to the police, but the police refused to take action and
classified the incident as an accident.
The final event occurred in August of 2010, when Pavlov and his brother were
waiting in line at a motor vehicle inspection station. Both of them were casually
dressed in the same manner as the Turkmen customers waiting in line. They were
told that their car inspection documents could not be processed until they went home
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and changed their clothes. Pavlov was told that “[y]ou Russians have to follow our
rules now.” (IJ at 43).
After these incidents, Pavlov decided that his family needed to leave
Turkmenistan. Pavlov, Danil, and Ilya entered the United States on October 19, 2010
and were authorized to remain in the United States until April 18, 2011. On July 7,
2011, the Department of Homeland Security (“DHS”) issued Pavlov and his sons a
Notice to Appear, charging them with being removable as aliens who remained in the
United States for a time longer than permitted.
DHS commenced removal proceedings against Pavlov and charged him with
removability under § 237(a)(1)(B) of the Immigration and Nationality Act (“INA”).
Pavlov conceded his removability, but he filed claims for asylum, withholding of
removal, and protection under CAT, with Danil and Ilya as derivatives of his
petitions. The IJ held merits hearings in February and May of 2012 to evaluate
Pavlov’s application. He issued a decision finding Pavlov removable and denying
Pavlov’s application for asylum, withholding of removal, and protection under CAT
on September 20, 2012.
The IJ found Pavlov’s testimony not credible—noting that Pavlov’s testimony
at the merits hearings was materially inconsistent with statements made in an
affidavit he submitted with his application. Furthermore, the IJ found that Pavlov’s
testimony about Ilya’s head injury was inconsistent with other evidence in the record.
Alternatively, the IJ found that Pavlov’s claims failed because he did not demonstrate
past persecution or a well-founded fear of future persecution. Specifically, the IJ
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found that while Russians face economic discrimination and are treated as second-
class citizens, that treatment does not rise to the level of persecution. The IJ further
explained that there was no evidence that the military hazing of ethnic Russians was
more severe than that faced by individuals from any other ethnic, geographic, or
tribal background. Accordingly, the IJ denied Pavlov’s application for asylum,
withholding of removal, and relief under CAT.
Following the IJ’s decision, Pavlov petitioned the BIA for review. The BIA
dismissed Pavlov’s appeal, finding that the IJ’s adverse credibility determination was
proper and finding no other clear errors in the IJ’s decision. This timely petition for
review followed.
II. DISCUSSION2
1. Standard of Review
When the BIA issues its own decision, this Court will review that decision and
not the decision of the IJ. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009).
However, “[w]hen the BIA adopts or defers to the underlying decision of the IJ, we
review the IJ’s opinion as the decision of the agency.” Garcia v. Att’y Gen., 665 F.3d
496, 502 (3d Cir. 2011). Here, the BIA issued a decision that substantially relied on
the IJ’s decision, and it deferred to the IJ’s findings on each issue. Accordingly, we
review the IJ’s decision as the decision of the agency. Id.
2
The BIA had jurisdiction to review the IJ’s decision pursuant to 8 C.F.R.
§ 1003.1(b)(3). This Court has jurisdiction to review final orders of removal pursuant
to 8 U.S.C. § 1252(a).
6
This Court reviews legal determinations de novo, subject to the principles of
deference established in Chevron v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We review
adverse credibility determinations and other findings of fact under the substantial
evidence standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009). Under
this standard, factual findings are upheld so long as they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). This court “cannot
supersede an administrative agency’s findings simply because an alternative finding
could be supported by substantial evidence.” Yan Lan Wu v. Ashcroft, 393 F.3d 418,
424–25 (3d Cir. 2005). However, this deference is not warranted when “any
reasonable adjudicator would be compelled to conclude to the contrary.” Lin-Zheng,
557 F.3d at 155 (citing 8 U.S.C. § 1252(b)(4)(B) (2012)).
2. Asylum Claim
Pavlov first appeals the denial of his petition for asylum. The INA authorizes
the Attorney General to grant asylum to any person who has established that he is a
refugee. 8 U.S.C. § 1158(b)(1)(A) (2012). To establish refugee status, an applicant
must show either past persecution or a well-founded fear of future persecution based
on a protected characteristic. Id. at § 1101(a)(42)(A) (2012); 8 C.F.R. § 208.13(b)
(2014). The applicant must also prove that his “race, religion, nationality,
membership in a particular social group, or political opinion was or will be at least
one central reason” for persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (2012).
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A. Adverse Credibility Determination
Pavlov first argues that the IJ erred by concluding that his testimony was not
credible “based on minor omissions and inconsistencies between his affidavit and his
testimony.” (Appellant’s Br. at 16). Pavlov further argues that minor inconsistencies
or omissions that “do not go to the heart” of the asylum claim cannot support an
adverse credibility determination. (Id. at 17). The burden is on the applicant to
establish that he is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i) (2012); 8 C.F.R. §
208.13(a) (2014). An applicant’s testimony standing alone may satisfy this burden,
“but only if the applicant satisfies the trier of fact that the applicant’s testimony is
credible.” 8 U.S.C. § 1158(b)(1)(B)(ii) (2012).
Therefore, in evaluating whether an applicant has sustained his burden, the IJ
must make a credibility determination. The REAL ID Act sets forth the standard for
credibility determinations for asylum applications that were filed after May 11, 2005.
8 U.S.C. § 1158(b)(1)(B)(iii) (2012); Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d
Cir. 2007). Pursuant to the REAL ID Act, the IJ’s credibility determination must be
based on “totality of the circumstances, and all relevant factors,” including:
the demeanor, candor, or responsiveness of the applicant or witness,
the inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and
considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
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8 U.S.C. § 1158(b)(1)(B)(iii) (2012) (emphasis added). Prior to the REAL ID Act,
minor omissions or inconsistencies that did not go to the heart of the asylum claim
could not support an adverse credibility determination. See Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002) (“Generally, minor inconsistencies and minor admissions
that reveal nothing about an asylum applicant’s fear for his safety are not an adequate
basis for an adverse credibility finding.” (internal quotation marks and citations
omitted)). However, the Real ID Act created a new standard that permits the trier of
fact to base credibility determinations on a wide variety of factors, regardless of
whether an inconsistency relates to the heart of the asylum claim.
Generally, the IJ’s overall credibility determination “is more properly decided
on the cumulative effect of the entirety of the [applicant’s testimony]” rather than on
each individual element. Jishiashvili v. Att’y Gen., 402 F.3d 386, 396 (3d Cir. 2005).
This Court generally defers to the IJ on credibility questions where the IJ’s findings
and conclusions are supported by the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d
Cir. 2003). However, the IJ must give the applicant the opportunity to explain any
inconsistencies in his testimony before making a credibility determination. Caushi v.
Att’y Gen., 436 F.3d 220, 226 (3d Cir. 2006).
The REAL ID Act provisions concerning testimonial credibility govern this
analysis because Pavlov filed his asylum petition in 2012—well after the May 2005
date in which the REAL ID Act took effect. 8 U.S.C. § 1101 (2012). The REAL ID
Act specifically authorized the IJ to base his credibility determination of Pavlov’s
testimony “without regard to whether the inconsistency . . . goes to the heart of the
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applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2012). Therefore, it was
permissible for the IJ to base his credibility determination solely on issues that did
not go to the heart of Pavlov’s asylum claim. The REAL ID Act compels us to reject
Pavlov’s argument that the IJ erred by basing his adverse credibility determination on
inconsistencies that allegedly do not go to the heart of Pavlov’s asylum claim.
On appeal, Pavlov contends that the IJ erred in determining that Pavlov’s
testimony was not credible based on several inconsistencies between his testimony
and the written documentation he submitted. (Appellant’s Br. at 16–20). We
disagree. Substantial evidence supports the IJ’s adverse credibility determination.
For example, Pavlov testified at his merits hearing that after the playground incident
where his wife and son were chased away, he called the police and they did not
respond. (IJ at 41). This information was not included in his affidavit dated April 12,
2011. Pavlov explained that he did not include this information in his affidavit
because if he wrote down everything that happened to him, “it would not fit in the
book.” (Id.). On appeal, Pavlov contends that he did not include his call to the police
because “[i]t was not shocking . . . that the police were disinterested in this incident.”
(Appellant’s Br. at 18). Pavlov submitted a nearly seven-page, single spaced affidavit
detailing events dating back to 1991. As the IJ noted, in this otherwise highly
detailed and lengthy affidavit, this is the type of information that one expects to be
included. (IJ at 55). Applying the substantial evidence standard, we do not reject the
IJ’s conclusion that this explanation was insufficient.
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Pavlov also testified at the merits hearing that the police beat him on the back
and shoulders when he was being interrogated about Elena’s asylum application in
the United States. (Id. at 42). Pavlov did not make any mention of being hit in his
affidavit. When given the opportunity to explain this discrepancy, Pavlov explained
he did not include the incident because he did not consider it to be a “formal beating”
and he did not have corroborating medical evidence. (Id.) However, as the IJ noted,
Pavlov’s affidavit contains descriptions of several other instances that are not
supported by corroborating evidence. (Id. at 56). Pavlov’s affidavit contained a
description of being beaten at the playground. (Appellant’s R. at 66) He did not
supply any evidence corroborating this incident. Therefore, substantial evidence
supports the IJ’s determination that the lack of documentation is an implausible
excuse for Pavlov’s failure to include the beating in his affidavit when he included
other unsubstantiated events.
Finally, substantial evidence supports the IJ’s adverse credibility
determination based on the inconsistencies between Pavlov’s testimony and
documentary evidence regarding Ilya’s head injury. Pavlov testified that Ilya
sustained his head injury on August 21, 2009, when Pavlov was out of town. (IJ at
43). Pavlov stated that when he returned home two days later, on August 23, he saw
Ilya with bandages on his head. (Id.). However, the evidence that Pavlov submitted
in support of his petition, including medical documentation and an affidavit
submitted by Elena’s mother, Valentine Artuhina (“Artuhina”), indicated that Ilya’s
injury took place on August 15, 2009. (Id. at 56).
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Artuhina’s affidavit further stated that she took Danil and Ilya out of town for
a week beginning on August 22, 2009. (Id.). Accordingly, Pavlov could not have
seen Ilya’s bandaged head on August 23, when Pavlov had returned to his hometown
and Ilya was away with his grandmother. Artuhina’s affidavit also stated that the
police came to her home and spoke with her husband while she, Danil, and Ilya were
out of town. (Id.). Pavlov testified that he was present when the police came to the
home. (Id.). However, Artuhina’s affidavit does not make any mention of Pavlov
seeing Ilya’s bandaged head days after the injury nor of him being present when the
police came. (Id.). The material inconsistencies between Pavlov’s testimony and his
documentary evidence support the IJ’s adverse credibility determination.
The IJ’s credibility determination was based on the cumulative effect of these
inconsistencies in Pavlov’s testimony. Jishiashvili, 402 F.3d at 396. Because
“reasonable, substantial, and probative evidence on the record” supports the IJ’s
adverse credibility findings, we affirm that decision. Lin-Zheng, 557 F.3d at 155.
B. Well-Founded Fear of Future Persecution
Pavlov next argues that the BIA and IJ erred in finding that he does not have a
well-founded fear of future persecution because he faces “life-threatening
consequences” for returning to Turkmenistan after filing for asylum. (Appellant’s Br.
at 22–23). He also argues that his sons will be subject to Turkmenistan’s pattern or
practice of hazing ethnic Russians in the military. (Id. at 20–21).
An applicant can establish eligibility for asylum by demonstrating a well-
founded fear of future persecution based on a protected characteristic. 8 U.S.C.
12
§ 1101(a)(42)(A) (2012); 8 C.F.R. § 208.13(b) (2014). To prove a well-founded fear
of persecution, an applicant must meet a two-pronged test. Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005). First, the applicant must demonstrate a subjective fear of
persecution “through credible testimony that [his] fear is genuine.” Id. Second, the
applicant must show that “a reasonable person in the alien’s circumstances would
fear persecution if returned to the country in question.” Id.
In order to meet this second, objective prong, the applicant must (1) show that
he would be individually singled out for persecution, or (2) demonstrate that his
country of nationality has a pattern or practice of persecuting groups similarly
situated to the applicant based on a protected characteristic. Id. (citing 8 C.F.R.
§ 208.13(b)(2)(iii)(A) (2014)). The INA does not define the country conditions that
constitute a “pattern or practice of persecution.” Id. at 537. However, as a threshold
matter, this Court has held that the persecution of the group must be “systematic,
pervasive, or organized” and sufficiently widespread to constitute a pattern or
practice. Id.
Substantial evidence supports the IJ’s determination that Pavlov failed to
establish a pattern or practice that would lead to future persecution should he and his
sons return to Turkmenistan. 3 The record established that military hazing in
Turkmenistan is severe and is often based on ethnic, geographic, or tribal affiliation.
(IJ at 45, 50). However, we agree with the IJ that Pavlov did not present sufficient
3
The IJ found that Pavlov did not “allege that he will be singled out for
persecution upon return to Turkmenistan” and instead treated Pavlov’s claim as one
based on a pattern or practice of persecution. (IJ at 58).
13
evidence to conclude that ethnic Russians are singled out for more severe hazing than
individuals from other backgrounds. (Id. at 59). The affidavit Pavlov submitted from
one ethnically Russian former conscript on his brutal hazing in the military is not
sufficient to demonstrate that there is a “systematic, pervasive, or organized” pattern
or practice of persecution of ethnic Russians in the Turkmen military. Lie, 396 F.3d
at 537. Pavlov therefore failed to show he had an objective fear of future persecution
based on the Turkmen’s pattern or practice of discrimination.
Furthermore, Pavlov speculates that because of his experience being
interrogated when his wife filed for asylum, he is also “likely” to face danger
because of his asylum application. (Appellant’s Br. at 23). However, he cannot cite
to evidence in the record that Turkmen officials will inflict “life-threatening
consequences” because of his asylum application, or even that they know of it. (Id.)
Pavlov also asserts that because of the dwindling numbers of Russians in
Turkmenistan, there is a strong likelihood that he will be persecuted by civilians and
the police. (Id. at 24). Again, Pavlov does not cite to evidence in the record to
support this assertion. Pavlov has therefore not presented substantial evidence that
would compel us to overturn the IJ’s determination that Pavlov failed to prove a
well-founded fear of persecution.
3. Withholding of Removal and CAT
Pavlov also appeals the decision to deny his request for withholding of
removal pursuant to INA § 241(b)(3) and relief under CAT. This Court has
previously recognized that the threshold for granting asylum “is lower than [the one]
14
for protection under the withholding of removal or CAT provisions.” Yu v. Att’y
Gen., 513 F.3d 346, 349 (3d Cir. 2008). Therefore, the “rejection of the petitioners’
asylum claims necessarily requires that their CAT and withholding claims be rejected
as well.” Id. Because Pavlov has failed to meet his burden in establishing his asylum
claim, he has also failed to meet the more demanding burdens necessary to establish
his claims for withholding of removal and relief under CAT. We therefore deny
Pavlov’s petition for relief from the decisions for withholding of removal pursuant to
INA § 241(b)(3) and relief under CAT.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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