Dorosh v. Attorney General

427 F. App'x 127
CourtCourt of Appeals for the Third Circuit
DecidedMay 10, 2011
DocketNos. 09-3141, 09-3926
StatusPublished

This text of 427 F. App'x 127 (Dorosh 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
Dorosh v. Attorney General, 427 F. App'x 127 (3d Cir. 2011).

Opinion

[129]*129OPINION

PER CURIAM.

Petitioners, Oleksiy Dorosh and Andriy Kucherov, seek review of final orders of removal. For the reasons that follow, we will deny their petitions for review.

I.

Petitioners are natives of the former Soviet Union and citizens of Ukraine. On December 7, 2004, they arrived at San Francisco International Airport without valid travel documents. They were screened at the airport and provided sworn statements to immigration officials. On December 16, 2004, an asylum officer conducted credible fear interviews, and the government served notices to appear the same day. In a joint proceeding before an Immigration Judge (“IJ”) in Philadelphia, petitioners conceded their removability as charged, and they applied for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. Petitioners submitted documentary evidence and testified in support of their claim that they suffered past persecution in Ukraine, and fear future persecution in that country, as a gay couple.

In a lengthy written decision, the IJ rejected the credibility of petitioners’ testimony due to a “plethora” of inconsistencies, and further denied relief because petitioners failed to corroborate their factual contentions. Assuming credibility, the IJ also denied asylum on the merits, holding that petitioners did not suffer past harm rising to the level of persecution inasmuch as they were the victims of a single assault resulting in minor injuries that did not require hospitalization. On the issue of future persecution, the IJ was satisfied that petitioners have a subjective fear of harm, but concluded that they failed to show as an objective matter that they might be particularly targeted due to their sexuality, or that there is a pattern- or practice of persecution of gays, in Ukraine. The IJ also denied withholding of removal and CAT relief.

Petitioners appealed separately to the Board of Immigration Appeals (“BIA”), which dismissed the appeals. In Dorosh’s case, the BIA held that the adverse credibility determination was not clearly erroneous and was based on numerous inconsistencies. In addition, the BIA determined that the IJ properly considered the evidence of record in finding no well-founded fear of future persecution. In Kucherov’s case, the BIA noted that it had already dismissed Dorosh’s appeal; because Kucherov raised the same arguments as Dorosh, the BIA dismissed his appeal for the same reasons. Petitioners timely filed separate petitions for review, which have been consolidated for briefing and disposition.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA stated that the IJ’s adverse credibility determination was not clearly erroneous and essentially adopted the IJ’s analysis in rejecting the issues that petitioners raised on appeal, our review is of the IJ’s decision. Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009). We apply substantial evidence review to factual findings, including an adverse credibility determination, “departing from factual findings only where a reasonable adjudicator would be compelled to arrive at a contrary conclusion.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir.2005); see Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir.2006). We must uphold a factual determination if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Wu, 571 F.3d at 317. Our review of legal [130]*130conclusions is de novo, subject to principles of deference. Id.

Petitioners first challenge the adverse credibility determination. They argue that the IJ failed to consider the totality of the circumstances, that the inconsistencies cited by the IJ are either nonexistent or fail to provide specific and cogent reasons for the adverse determination, and that the IJ failed to afford an adequate opportunity for petitioners to explain the inconsistencies that do exist. Petitioners’ Br. at 20. We discern no error.

Because petitioners filed their asylum applications after May 11, 2005, the IJ applied the credibility standard of the REAL ID Act of 2005.1 See Caushi v. Att’y Gen., 436 F.3d 220, 229 n. 5 (3d Cir.2006). Under the REAL ID Act, an IJ may base an adverse credibility determination on inconsistencies, inherent implausibilities, inaccuracies, and other factors, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).

According to petitioners’ own tally, the IJ identified at least sixteen separate inconsistencies or falsehoods in their testimony. Petitioners’ Br. at 20-32. The IJ found that petitioners contradicted themselves and each other through statements made in their various applications and interviews with immigration authorities, as well as in their court testimony. The IJ cited inconsistencies covering numerous issues, including information about petitioners’ prior marriages in Ukraine, details about their relationship with each other, specifics about threats that they allegedly received (or did not receive) prior to being assaulted on October 28, 2004, and the nature of the injuries that they allegedly suffered in the assault. As the BIA observed on appeal, the many inconsistencies “covered most aspects of’ petitioners’ case. A.R. at 3.

Petitioners seek to characterize much of the inconsistent testimony as “minor” and “largely innocent mistakes.” Petitioners’ Br. at 34. We agree that certain of the inconsistencies, such as the slight discrepancy in the dates on which petitioners met and moved in together, could be viewed as inconsequential, and likely would not alone support an adverse credibility finding in this case. But some of the inconsistencies cannot be portrayed as irrelevant to petitioners’ claims for relief, such their conflicting statements about whether, if it all, they received threats prior to being assaulted, and about the injuries they allegedly suffered. In addition, petitioners concede the existence of two obvious falsehoods in their dealings with immigration officials: (i) Dorosh lied about whether he has children (he has two, a fact that he acknowledged before the IJ but had denied in earlier sworn statements); and (ii) Kucherov falsely stated during his credible fear interview that he has no relatives in the United States (his mother was present when petitioners arrived and is a lawful permanent resident).

Considering the record as a whole, we cannot conclude that a reasonable factfinder would be compelled to determine that [131]*131petitioners provided credible testimony. The IJ’s adverse finding is rooted in the evidence of record, and the “plethora” of inconsistencies identified provides a reasonable basis upon which to reject petitioners’ credibility.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lin v. Attorney General of the United States
543 F.3d 114 (Third Circuit, 2008)
Hua Wu v. Attorney General of the United States
571 F.3d 314 (Third Circuit, 2009)
Xiu Jin Yu v. Attorney General of the United States
513 F.3d 346 (Third Circuit, 2008)
Sioe Tjen Wong v. Attorney General of United States
539 F.3d 225 (Third Circuit, 2008)
Odd v. Malone
538 F.3d 202 (Third Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
427 F. App'x 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorosh-v-attorney-general-ca3-2011.