Andrushkevich v. Attorney General

150 F. App'x 121
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 14, 2005
Docket04-3541
StatusUnpublished

This text of 150 F. App'x 121 (Andrushkevich v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrushkevich v. Attorney General, 150 F. App'x 121 (3d Cir. 2005).

Opinion

OPINION

SLOVITER, Circuit Judge.

Alena Andrushkevich, a native and citizen of the Republic of Belarus, petitions for review of the final decision of the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) directing petitioner’s removal and denying her claim for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). This court has jurisdiction pursuant to 8 U.S.C. § 1252(a). For the reasons stated below, we will deny the petition for review.

I.

Because the parties are familiar with the factual and procedural background of this case, we refer only to those facts that are pertinent to our disposition. Andrushkevich arrived at the San Ysidro, California Port of Entry on December 6, 1999, bearing no valid entry document. When the immigration inspector asked her to state her country of citizenship, Andrushkevich responded that she was a United States citizen. That same day, she was interviewed by another immigration inspector who took a sworn statement from her with the aid of an interpreter. In the statement, Andrushkevich claimed that her relatives would kill her if she returned to Belarus because she “left a lot of debts” by borrowing money from relatives and friends to secure passage to the United States. Id. at 303. In response to a question, she also stated that Belarusian authorities were not after her. When asked if she meant to tell the inspector she was a United States citizen when she said, “U.S.,” she answered, “Yes.” Id. at 303. The statement also bears a Certificate of Translation, signed by the translator, attesting that it was read back to Andrushkevich in Russian, a language she understands.

Two weeks after entry, Andrushkevich, who was then in prison, was interviewed by another immigration officer with her lawyer present. She was released from custody two weeks thereafter and left California for New Jersey. The INS 1 commenced removal proceedings by filing a Notice to Appear (“NTA”), charging Andrushkevich as removable under 8 U.S.C. § 1182(a)(6)(C)(ii) for misrepresenting herself as a United States citizen and under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for not possessing valid entry documents.

In January 2001, Andrushkevich consulted a lawyer in Philadelphia. When the IJ asked why she let almost a year elapse before seeking a lawyer, Andrushkevich responded that she “had to have time to get back to [herjself, regain [her] composure literally.” App. at 155.

On July 17, 2001, Andrushkevich applied for asylum, withholding of removal and protection under the CAT, claiming persecution on account of political opinion. At a hearing before the IJ beginning on November 12, 2002, Andrushkevich testified that the immigration officer who inter *123 viewed her was rude, frightened her, and told her to sign the statement without reading it back to her. She also claimed that she left Belarus because authorities persecuted her based on her membership in Young Gromada, a branch of the Belarus People’s Front, an opposition group.

Andrushkevich testified that as a member of Young Gromada, she attended some fifteen demonstrations, citing three in particular in support of her application. She claimed that at each of these three demonstrations spanning from July to October of 1999, she was arrested, interrogated, and beaten. She claims that there were 10,000 people at one of these demonstrations. She testified that despite the threats and abuse, she never yielded to her interrogators.

After the protest in October, she received two summons to report to an investigator. Allegedly fearing for her life and that of her parents, Andrushkevich fled the country.

In addition to these events, Andrushkevich claimed that “the president’s people” visited her seven times during that summer and fall. Id. at 185. They questioned her parents about her activities, threatened to imprison her, send her to Chernobyl, or execute her parents if she did not support the State.

On cross examination, Andrushkevich was asked why her affidavit did not mention that her parents’ lives were threatened or that she was threatened with forced labor at Chernobyl; her answer was vague and unresponsive. However, she did say that the affidavit contained her entire story, and that it was read back to her in her native language.

When the IJ asked her if she claimed to be a United States citizen, Andrushkevich admitted answering “yes” when the officer asked her if she meant she was a United States citizen, but responded that she meant to say she was heading to the U.S., not that she was a citizen. Asked why she did not tell the inspector about being persecuted, she claimed it was because the officer frightened her.

The IJ also asked her why she did not file her asylum application within a year of her entry into the United States, and Andrushkevich told him that she had to undergo a “rehabilitation process.” Id. at 224. She then stated that she did not have enough money to hire an attorney to file an application.

Andrushkevich also provided an expert, Dr. Zaprudnik, to testify in support of her application. He told the IJ about the harsh conditions in Belarus for people who oppose the government. Dr. Zaprudnik did not know Andrushkevich, but stated that he believed the government would keep a file on her based on what he read in her affidavit and that he feared she would be arrested if she were returned.

Following the hearing, the IJ denied all claims for relief and found Andrushkevich incredible and her application frivolous. On appeal, the BIA held that the IJ had erred in finding that Andrushkevich filed a frivolous asylum application, but agreed with the IJ’s other determinations. The BIA issued a final order denying petitioner’s claim for asylum, withholding of removal and protection under the CAT.

II.

When the BIA conducts an independent analysis of the record, we review only the BIA decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). Factual determinations, such as an adverse finding of credibility or a determination that Andrushkevich misrepresented herself as a United States citizen, are reviewed under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, *124 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (standard of review for determinations of asylum eligibility); Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (according substantial evidence review to IJ determination that Ateka made a false claim to U.S. citizenship).

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