Kiselev v. Attorney General of the United States

282 F. App'x 196
CourtCourt of Appeals for the Third Circuit
DecidedJune 12, 2008
Docket07-2773
StatusUnpublished

This text of 282 F. App'x 196 (Kiselev v. Attorney General of the United States) 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
Kiselev v. Attorney General of the United States, 282 F. App'x 196 (3d Cir. 2008).

Opinion

OPINION

PER CURIAM.

Marina, Victor, and Roman Kiselev petition for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.

I.

We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented here for review. To summarize briefly, petitioners are, save for the youngest Roman who is both a native and citizen of Israel, a family of Ukrainian natives and citizens of Israel. Petitioners entered the United States legally, and after overstaying them visitor visas, were placed in removal proceedings in November 2004. Marina Kiselev (“Kiselev”), the lead respondent below, applied for relief from removal in an asylum application, and accompanying affidavit, filed on September 17, 2004. 1 In her application, Kiselev alleged that she was persecuted in the Ukraine (formerly Russia) because of her Jewish heritage. The application alleged no instances of persecution involving the remaining Kiselev family members.

On November 5, 2004, Kiselev attended an asylum office interview and confirmed her account of persecution in the Ukraine. At a master calendar hearing on June 7, 2005, the Kiselevs conceded that they were removable as charged under INA § 237(a)(1)(B). Kiselev filed another Form 1-589 and accompanying affidavit at this time. In this second claim for asylum, Kiselev claimed that instead of being persecuted in Russia, the family was actually *198 persecuted in Israel where they had lived prior to coming the United States. Asked to explain the disparity between her two applications, Kiselev described an encounter with an attorney named “David” who led her to believe that if she mentioned her experience in Israel she would not be granted asylum in the United States. Kiselev alleged that “David” instructed her to lie in this regard and, for this reason, Kiselev also conceded not being truthful during her asylum office interview.

After a hearing at which Marina and Igor Kiselev testified, 2 the Immigration Judge (“IJ”) denied the various applications for relief and ordered the Kiselevs removed to Israel. In her oral decision, the IJ noted that Marina Kiselev’s story concerning “David” was credible and took judicial notice that such an attorney had been providing similar advice to former residents of Eastern Europe and Russia in particular. The IJ determined, however, that the remainder of Marina Kiselev’s testimony was not credible. The IJ also found, in the alternative, that even if Kiselev were credible she had not established past persecution or a well-founded fear of persecution in Israel. Kiselev filed a timely appeal to the BIA. The BIA affirmed the IJ’s decision and dismissed the appeal. The BIA noted the inconsistencies in matters such as the nature, circumstances, and severity of the harm the Kiselevs endured in Israel put forth in Kiselev’s testimony. In affirming the IJ’s credibility determination, however, the BIA did not affirm the IJ’s alternative holding that, even if Kiselev were credible, she did not establish eligibility for asylum. Kiselev timely filed a petition for review.

II.

The BIA had jurisdiction over Kiselev’s appeal under 8 C.F.R. § 1003.1(b)(3). This court has jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Findings of fact are reviewed for substantial evidence and, therefore, may not be set aside unless a reasonable fact-finder would be compelled to find to the contrary. Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir.2006). The BIA’s interpretation of the Immigration and Nationality Act in an opinion dismissing an alien’s appeal is entitled to deference. See Augustin v. Attorney General of the U.S., 520 F.3d 264, 268 (3d Cir.2008). We will not reverse the BIA as long as “a reasonable fact finder could make a particular finding on the administrative record.” See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003). In cases involving an adverse credibility determination, we must deny the petition for review as long as that determination is “supported by such relevant evidence as a reasonable mind would find adequate.” Id. at 250. In addition, we review the IJ’s decision to the extent that the BIA adopted it. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003).

III.

When evaluating an adverse credibility determination, we must “ensure that it was appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence on country conditions.” Dia, 353 F.3d at 249 (quotation and citation omitted). “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.” *199 Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quotation and citation omitted). Further, “deference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.1998) (citation omitted). Findings of adverse credibility “must be based on inconsistencies and improbabilities that go to the heart of the asylum claim.” 3 Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005) (quotation and citations omitted).

The IJ and BIA properly based their adverse credibility determination upon marked inconsistencies and flaws in — and between — Kiselev’s two persecution accounts and her subsequent testimony. As the IJ noted, Kiselev provided strikingly different reasons for requesting asylum at various points in the administrative process. The first of these claims was based upon persecution suffered in the Ukraine because Kiselev was Jewish. The second claim was based upon persecution suffered by the Kiselev family in Israel because the Kiselevs were Russian and not considered to be Jewish by Israelis. As the IJ noted, Kiselev’s encounter with “David,” and his poor advice, explained what had happened with Kiselev’s first claim to some degree.

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282 F. App'x 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiselev-v-attorney-general-of-the-united-states-ca3-2008.