Oleksndr Petruk v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JUN 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLEKSNDR PETRUK; HALYNA No. 12-74152
PETRUK,
Agency Nos. A098-263-872
Petitioners, A098-263-873
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2015**
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and IKUTA, Circuit Judges.
Oleksndr Petruk (Mr. Petruk) and Halyna Petruk (Ms. Petruk) petition for
review of the Board of Immigration Appeals’ (BIA) decision. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioners are citizens of the Ukraine and members of the Church of
Evangelist Christian Baptists, a minority religion in Ukraine. Forensic document
analysis of Petitioners’ immigration materials supports the BIA’s finding that
Petitioners entered the United States using fraudulent admission stamps and then
attempted to gain permanent residency status using those same stamps. The BIA’s
conclusion that Petitioners’ purported ignorance of the fraud was implausible was
based on Mr. Petruk’s education and previous experience with the United States
visa application process, and did not rely on conjecture or speculation. Substantial
evidence supports the BIA’s finding that Petitioners are removable under 8 U.S.C.
§ 1182(a)(6)(C)(i) for knowingly attempting to procure an immigration benefit by
fraud or wilful misrepresentation. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th
Cir. 2006) (“We review the BIA’s findings of fact, including credibility findings,
for substantial evidence and must uphold the BIA’s finding unless the evidence
compels a contrary result.” (quoting Monjaraz–Munoz v. INS, 327 F.3d 892, 895
(9th Cir. 2003))).
Substantial evidence also supports the BIA’s adverse credibility finding,
which served as the basis for the denial of Mr. Petruk’s application for asylum and
withholding of removal. The BIA’s adverse credibility determination considered
the totality of the circumstances and rested on “specific and cogent reasons” related
2
to Mr. Petruk’s demeanor, evasiveness, numerous non-trivial inconsistencies in his
testimony, and the reasonable rejection of the explanations Mr. Petruk provided for
these inconsistencies. Shrestha v. Holder, 590 F.3d 1034, 1039–46 (9th Cir.
2010); 8 U.S.C. § 1158(b)(1)(B)(iii). Without credible testimony, the documentary
evidence in the record is insufficient to demonstrate Mr. Petruk suffered past
persecution or has a well-founded fear of future persecution on account of his
Baptist religion. Shoafera v. I.N.S., 228 F.3d 1070, 1073–74 (9th Cir. 2000) (past
persecution or a well-founded fear of future persecution is necessary element of
asylum claim). Accordingly, substantial evidence supports the denial of Mr.
Petruk’s application for asylum and withholding of removal.1 Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003).
Substantial evidence also supports the BIA’s denial of CAT protection. Mr.
Petruk’s testimony was not credible, and the BIA concluded that the other evidence
in the record did not support a finding that it is “more likely than not” Mr. Petruk
will be tortured upon his return to Ukraine. Almaghzar, 457 F.3d at 922–23. The
police and medical records, country condition reports, and other documentary
evidence in the record do not compel a contrary conclusion.
1
Ms. Petruk was listed as a derivative beneficiary on her husband’s asylum,
withholding of removal, and Convention Against Torture (CAT) applications.
3
Finally, the BIA did not abuse its discretion in denying Petitioners’ motion
to remand to the IJ. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir.
2006). Mr. Petruk was given an opportunity to explain inconsistencies between his
testimony and the medical records. Even if a corroborating medical opinion could
have provided additional information about Mr. Petruk’s injuries, it would not have
affected the adverse credibility determination underpinning the BIA’s denial of
relief.
PETITION DENIED.
4