Dorosh v. INS

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 20, 2004
• Docket: 03-3246
• Status: Unpublished

Opinion

NOT FOR FULL-TEXT PUBLICATION File Name: 04a0181n.06 Filed: December 20, 2004

NO. 03-3246

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

GANNA ROMANIVNA DOROSH,

Petitioner, ON APPEAL FROM THE v. IMMIGRATION AND NATURALIZATION SERVICE JOHN ASHCROFT, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE,

Respondents. _______________________________________/

BEFORE: SUHRHEINRICH and BATCHELDER, Circuit Judges; and McKEAGUE, District Judge.*

Petitioner Ganna Romanivna Dorosh (“Petitioner”) appeals from the decision of the Board

of Immigration Appeals (“BIA”) denying her applications for asylum and withholding of removal.

For the reasons that follow, we AFFIRM the decision of the BIA.

I.

Petitioner grew up in West Ukraine with her Jewish mother and her Catholic father. In 1980,

her father was murdered by his co-workers, presumably because he married a Jewish woman. In

1982, her mother was allegedly imprisoned for speaking out about anti-Semitism. Petitioner lived

temporarily at an orphanage, where she claims she was humiliated and punished for being Jewish.

Petitioner describes other incidents of anti-Semitism. She claims she was arrested and

* The Honorable David W. McKeague, United States District Judge for the Western District of Michigan, sitting by designation. detained for a week in 1995 because her mother had participated in a Jewish-rights’ demonstration.

Police allegedly brutalized her and tried to force her to sign a document denouncing her mother’s

activities in fighting anti-Semitism. Shortly thereafter, the apartment where she and her mother had

been living was ransacked. Also in 1995, a speeding car tried to run her down.

On April 4, 1996, Petitioner entered the United States as a non-immigrant for pleasure,

remaining beyond the time permitted by the Immigration and Naturalization Service (“INS”). On

May 3, 1997, the INS commenced removal proceedings against her.

Petitioner applied for asylum pursuant to 8 U.S.C. § 1158(a), testifying that she feared she

would suffer persecution and torture if she returned to the Ukraine. Since her application for asylum

was made after the institution of removal proceedings, it was also considered a request for

withholding of removal under §241(b)(3) of the Immigration and Naturalization Act (“INA”). At

her hearing with the Immigration Judge (“IJ”), Petitioner requested that the court consider her

application for withholding of removal pursuant to the Convention against Torture. In the

alternative, she also applied for the privilege of voluntary departure from the United States in lieu

of deportation.

On March 24, 1999, the IJ denied Petitioner’s applications for asylum, withholding of

removal, and relief under the Convention Against Torture, finding she was not credible and did not

meet her burden of proving eligibility for any form of relief. The IJ’s credibility determination was

based on Petitioner’s demeanor, implausible accounts, internal inconsistencies, and inconsistencies

between her application and her testimony. Petitioner appealed the decision to the BIA.

On April 21, 1999, the BIA reversed the IJ’s adverse credibility finding, determining that

Petitioner’s testimony was adequately consistent both internally and with her written application.

2 The BIA agreed with the IJ, however, that Petitioner had not met her burden of proving eligibility

for relief because she did not provide sufficient corroboration of her claims. On March 27, 2003,

this Court granted Petitioner’s motion to stay the order of removal pending disposition of this

appeal.

II.

In order to reverse the BIA’s factual determination, this Court must find that “the evidence

not only supports a contrary conclusion, but indeed compels it.” Klawitter v. INS, 970 F.2d 149, 152

(6th Cir. 1992) (quoting Elias-Zacarias, 502 U.S. at 481, n.1 (1992)) (emphasis in the original). By

contrast, when this Court reviews the BIA’s “application of legal principles to undisputed facts,

rather than its underlying determination of those facts or its interpretation of its governing statutes,

the review of both the BIA’s asylum and withholding of deportation determinations is de novo.”

Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).

Petitioner’s arguments on appeal are three-fold. First, she claims that the BIA’s reversal of

the IJ’s adverse credibility ruling is, in itself, a ruling that she is credible. Second, she argues that

since she was credible, the BIA judge erred in requiring corroboration. Third, she claims that even

if the BIA can require corroboration, she met her burden of proof by producing some evidence and

an adequate explanation for not producing further evidence.

According to INS regulations “[t]he testimony of the applicant, if credible, may be sufficient

to sustain the burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a), 208.16(b). The BIA

has interpreted this permissive language to mean that “where an alien’s testimony is the only

evidence available, it can suffice where [it] is believable, consistent, and sufficiently detailed to

provide a plausible and coherent account of the basis of the alien’s alleged fear.” In re M-D-, 21 I.

3 & N. Dec. 1180, 1182 (BIA 1998) (citing Matter of Dass, 20 I. & N. Dec. 120, 124 (BIA 1989)).

However, the BIA has also stated that “where it is reasonable to expect corroborating evidence for

certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be

provided . . . . The absence of such corroborating evidence can lead to a finding that an applicant

has failed to meet her burden of proof.” In re S-M-J-, 21 I. & N. Dec. 722, 724-26 (BIA 1997).

As explained below, we need only decide Petitioner’s second and third arguments to dispose

of this matter. However, a brief comment about Petitioner’s first argument is helpful. Petitioner

argues that the BIA found her credible. However, the BIA merely stated that there were no

inconsistencies between her oral testimony and her written statement. It did not indicate whether

Petitioner was believable or whether her story provided adequate detail to support her application.

Under BIA rulings, credibility encompasses not just consistency but also plausibility and sufficient

detail. See, e.g., In re M-D-, 21 I. & N. Dec. 1180, 1182 (BIA 1998). The BIA required more than

just consistency between her oral testimony and her written application. It required corroborative

evidence for virtually every significant instance of persecution to which Petitioner testified. We now

turn to her second argument regarding the BIA corroboration rule. If we agree with the BIA, we

do not need to reach the first issue; we need only determine whether the BIA’s corroboration

requirement is correct.

Petitioner asks this Court to adopt the Ninth Circuit’s view on corroboration, which expressly

rejects the BIA corroboration rule in cases in which testimony of an applicant is credible although

it would permit the application of the rule where the applicant’s credibility is questioned or

adversely determined. See Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000) (holding that “an alien’s

testimony, if unrefuted and credible, direct, and specific, is sufficient to establish the facts testified

4 without the need for any corroboration”).

We are not persuaded by the Ninth Circuit view. We decide instead to join the Second and

Third Circuits in expressly approving the BIA’s corroboration rule. See Guan Shan Liao v. U.S.

Dep’t. of Justice, 293 F.3d 61, 71 (2d Cir. 2002) (citing Diallo at 232 F.3d at 285); Kayembe v.

Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (citing Abdulai, 239 F.3d at 554); see also Capric, 355

F.3d 1075,1086 n.4 (7th Cir. 2004) (noting the rule and the Ninth Circuit’s disapproval of it but

neither accepting nor rejecting it). Indeed, this Court has repeatedly emphasized the importance

of corroborating evidence. See, e.g., Micakovic v. Ashcroft, No. 02-4201, 2003 WL 23156635, at

*2 (6th Cir. Dec. 16, 2003) (holding that even if he was credible, the applicant could be reasonably

expected to corroborate his claim that government officials in Kosovo attempted to force him into

military service). We therefore conclude that the BIA corroboration rule does not contradict the

language of 8 C.F.R. §§ 208.13(a) and 208.16(b). Neither does it place unreasonable demands on

an applicant since supporting documentation must be provided only if it “is of the type that would

normally be created or available in the particular country and is accessible to the alien, such as

through friends, relatives, or co-workers.” See Perkovic v. INS, 33 F.3d 615, 726 (6th Cir. 1994).

Applying the BIA rule, we address Petitioner’s third argument. Petitioner claims she offered

an adequate explanation for the proof she lacked in that her letters did not reach her mother, her

mother had no telephone and had to go the post office to call her, and any attempts to talk about

Petitioner’s asylum case or obtain affidavits from others would have jeopardized her mother’s

safety. Similarly, she indicates that contacting girlfriends could put them in danger. Petitioner also

notes that although she provided both the 1996 Country Reports on Human Rights Practice and the

June 1997 Profile of Asylum Claims and Country Conditions, the BIA did not address them.

5 We agree with the BIA that corroborative evidence of Petitioner’s past persecution and the

fear of future persecution could be “reasonably expected” and that Petitioner’s explanation for its

absence was inadequate. Petitioner was in contact with her mother in the Ukraine, yet, as the BIA

noted, she produced no affidavit from her mother corroborating the ill treatment of her daughter.

While contact may not have been convenient, regular, or private, it was sufficient to have allowed

Petitioner to obtain a previous letter from her mother in which her mother documented her own

mistreatment. Petitioner could have requested a letter in a manner that minimized any risk of

sensitive statements being overheard. The BIA also noted that Petitioner did not retain letters from

her girlfriends in the Ukraine documenting the danger Petitioner would face if she returned. It was

reasonable for the BIA to expect Petitioner to have retained these letters, especially since she

offered no special circumstances to explain their absence. Finally, we note that Petitioner had ample

time between her notice of removal and her hearing in which to have obtained documentation.

As to the BIA’s failure to address the country reports, our review of these reports confirms

that the BIA could reasonably expect Petitioner to provide the requested letter from her mother

because discrimination against Jews is not widespread. The Ukraine governments have condemned

anti-Semitism and there has been a resurgence of Jewish religious and cultural institutions.

Petitioner has not proved past persecution or a well-founded fear of persecution. An asylum

applicant must first prove statutory eligibility by “establishing a well-founded fear of persecution”

and then show that the IJ should exercise discretion to grant asylum. Klawitter, 970 F.2d at 151

(citing Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir. 1988)). An application for asylum

is also considered a request for withholding of deportation, id, adjudicated under a “clear probability

of persecution” standard. INS v. Stevic, 467 U.S. 407, 430 (1984).

6 We conclude that there is ample evidence to support the BIA’s decision BIA’s decision to

deny Petitioner’s claims. The test is not whether this Court might have decided differently but

whether this Court is compelled to conclude that the BIA erred. The record does not compel such

a conclusion. Petitioner did not meet her burden of proof necessary for a granting of asylum because

she neither corroborated her testimony with reasonably expected documentation nor provided an

explanation for its absence. Since she did not meet the burden of proof for asylum, she cannot meet

the clear probability standard necessary for a granting of withholding of removal.

III.

For the reasons mentioned above, we AFFIRM the BIA’s denial of Petitioner’s application

for asylum and withholding of deportation.