NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0503n.06
Case No. 18-3694
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 03, 2019 LYUBOV SLYUSAR, DENYS SLYUSAR, and ) DEBORAH S. HUNT, Clerk VLADYSLAV SLYUSAR, ) ) Petitioners, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS WILLIAM P. BARR, Attorney General, ) ) Respondent. ) OPINION
BEFORE: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.
McKEAGUE, Circuit Judge. Lyubov Slyusar and her two sons petition for review of the
Board of Immigration Appeals’ denial of Slyusar’s motion to reopen immigration proceedings.
We DISMISS the petition in part on jurisdictional grounds and otherwise DENY it.
I.
This is not Slyusar’s first appeal. Slyusar, a Ukrainian citizen and Russian native,
previously sought review of the Board’s 2012 decision upholding an immigration judge’s “denial
of her applications for asylum, withholding of removal, and protection pursuant to the Convention
Against Torture.” Slyusar v. Holder, 740 F.3d 1068, 1070 (6th Cir. 2014). Slyusar contended that
relief was warranted because Ukraine persecuted her for exposing government officials’ pension
fraud in Shepetovka, her hometown, through a radio broadcast. See id. at 1070–72. But the Case No. 18-3694, Slyusar v. Barr
immigration judge did not find Slyusar credible. Id. at 1072. Specifically, the immigration judge
“found numerous inconsistencies between Slyusar’s testimony and the information she had
previously given to the Department of Homeland [S]ecurity—including discrepant information
regarding her employment history, her date of entry into the United States, whether or not she had
a [Ukrainian] passport in her possession when she arrived in the United States, her marriages, and
her attempts to file asylum claims.” Id. at 1073. We denied Slyusar’s petition for review because
she failed to present evidence compelling a contrary credibility finding. See id. But we also
cautioned that immigration judges, who may base a petitioner’s credibility on inconsistencies
“unrelated to the claim itself,” should exercise “due care in evaluating such inconsistencies when
reaching a credibility determination.” Id. at 1075. Some inconsistencies matter, while others may
not. See id.
In December 2017, over three years after our decision, Slyusar moved to reopen
proceedings. She argued that new conditions in Ukraine stemming from a Russian invasion, a new
threat conveyed to her father Anatoliy, ineffective assistance from her lawyers, and our prior
decision cautioning immigration judges all justified reopening. In support, Slyusar submitted new
evidence: affidavits from herself and her son, statements and pictures detailing the new threat, an
expert report about changed conditions in Ukraine, a psychologist’s report finding Slyusar
credible, and bar complaints Slyusar filed in November 2017 against her prior attorneys.
The Board denied Slyusar’s motion to reopen. The Board explained that the motion was
untimely, save Slyusar’s argument about changed conditions in Ukraine. Equitable tolling of the
filing deadline was not warranted, in the Board’s view, because Slyusar failed to demonstrate due
diligence in pursuing her rights. Slyusar’s allegations of ineffective assistance of counsel predated
the Board’s 2012 decision, and she presented no evidence of due diligence since then.
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The Board also found Slyusar fell short of demonstrating prima facie eligibility for relief
based on changed country conditions. The Board discredited her father’s statement on the ground
that it recounts events “already found to be not credible”—that is, Slyusar’s story of government
retaliation for unearthing corruption. The Board held in the alternative that, assuming the
statement is true, it reflects “isolated incidents of verbal harassment or intimidation” not rising to
the level of persecution or torture. Additionally, Slyusar raised only a “generalized fear of violence
based on recent tensions between Russians and Ukrainians” insufficient to show persecution.
Finally, the Board declined to reopen proceedings sua sponte because it did not consider the
circumstances of Slyusar’s case exceptional.
II.
Slyusar timely petitioned for review, arguing that the Board erred in declining to reopen
proceedings sua sponte, failing to credit and consider her evidence of changed conditions in
Ukraine, and refusing to equitably toll the 90-day filing deadline. Because the Board “retains
broad discretion to grant or deny” motions to reopen, we review the Board’s decision for abuse of
discretion. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). The Board “abuses its discretion
when it acts arbitrarily, irrationally or contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532
(6th Cir. 2003).
Motions to reopen must “be filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C § 1229a(c)(7)(C)(i); see 8 C.F.R. § 1003.2(c)(2). This
filing deadline, which Slyusar admittedly missed, has only a few narrow exceptions. Barry v.
Mukasey, 524 F.3d 721, 723 (6th Cir. 2008). Relevant here are two exceptions: (1) when the Board
decides to reopen proceedings sua sponte; and (2) when “new, material evidence that could not
have been discovered or presented at the time of the original proceeding” demonstrates “changed
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circumstances in the country of nationality.” Id. (quoting Qeraxhiu v. Gonzales, 206 F. App’x
476, 480 (6th Cir. 2006)); see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(a), (c)(3). Equitable
tolling is effectively a third exception, but applies only where a diligent petitioner could not timely
file a motion to reopen due to circumstances out of her control. See id. at 724–25.
A.
As for the first exception, we lack jurisdiction to review the Board’s “determination to
forgo the exercise of its sua sponte authority.” Barry, 524 F.3d at 724; see Harchenko v. I.N.S.,
379 F.3d 405, 410–11 (6th Cir. 2004); see also Lisboa v. Holder, 570 F. App’x 468, 472 (6th Cir.
2014) (noting Barry and Harchenko remain binding precedent). So to the extent Slyusar argues
the Board should have reopened proceedings sua sponte, even on due process grounds, we dismiss
the petition for lack of jurisdiction. See Rais v. Holder, 768 F.3d 453, 464 (6th Cir. 2014).
B.
That brings us to the second exception, changed country conditions. To take advantage of
this exception, a petitioner must show both changed country conditions (using new, material
evidence) and prima facie eligibility for relief. See Maldonado-Torres v. Holder, 573 F. App’x
474, 476 (6th Cir. 2014). A petitioner can make a prima facie case by showing to a “reasonable
likelihood” that, among other things, she has a “well-founded fear of persecution” based on her
protected status upon removal to her home country. Trujillo Diaz v. Sessions, 880 F.3d 244, 249–
50 (6th Cir. 2018) (quoting 8 U.S.C. §§ 1101(a)(42)).
First, we note that Slyusar never explains in her opening brief how she is prima facie
eligible for relief based on changed conditions in Ukraine. She simply incorporates her “pleadings
before the Board” by reference. We don’t allow argument by reference to the briefing below.
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Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 452–53 (6th Cir. 2003). So Slyusar
has forfeited her arguments on this important but not dispositive score. See id.
Instead, Slyusar argues the Board abused its discretion by discrediting her father Anatoliy’s
statement and failing to address corroborative evidence. According to Anatoliy, he received a
threatening call on September 6, 2017 from “an unknown man who demanded . . . that [Slyusar]
remove information from the Internet about corruption in [Shepetovka.]” A.R. at 212. That is,
the man demanded Slyusar remove from the internet our prior decision in this case, Slyusar v.
Holder, 740 F.3d 1068 (6th Cir. 2014). See id. at 184. Ten days later, “two unfamiliar men” sent
by Slyusar’s former employer vandalized Anatoliy’s front door with paint. Id. at 212. The men
made the same demand, explaining that the police were on their side and adding that Slyusar must
“write a refutation about everything and upload[] it to the Internet.” Id. Otherwise, the men would
“tear out [Slyusar’s] lying tongue and tie her hands in a knot.” Id. All this reminded Anatoliy of
“everything that happened to [Slyusar] before she left Ukraine”—her arrest, imprisonment, and
torture. Id. Anatoliy claims he suffered “discirculatory encephalopathy” from the experience. Id.
at 213, 232.
To start, we reject Slyusar’s suggestion that under Trujillo Diaz the Board had to address
all her evidence, not just Anatoliy’s statement. While the Board may not silently discredit a
reasonably specific affidavit, Trujillo Diaz, 880 F.3d at 253, it need not “mention every piece of
evidence before it or every logical element of a motion.” Zhang v. Mukasey, 543 F.3d 851, 854
(6th Cir. 2008). Slyusar’s other submissions were derivative or uncorroborative of Anatoliy’s
statement: supporting affidavits merely recite what Anatoliy told Slyusar; a statement from
Anatoliy’s neighbor, Anatoliy’s medical records, a receipt for a new door, and an expert report
about worsening corruption in Ukraine say nothing of who threatened Anatoliy or why. The
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Board, therefore, “owed no duty to rehearse the rest of [the] evidence for sake of completeness.”
Id. at 855. Assuming Slyusar established changed conditions in Ukraine, Anatoliy’s statement
was the key to showing a well-founded fear of future persecution. And in discrediting Anatoliy’s
statement, the Board “analyze[d] and explain[ed] the basis on which it decided against” Slyusar,
albeit cursorily. Id. at 854.
But we can’t say the Board abused its discretion in discrediting Anatoliy’s statement. As
the Board noted, the statement recounts as true Slyusar’s arrest, imprisonment, and torture—the
events which an immigration judge found incredible. The Board upheld that adverse credibility
finding, reasoning that Slyusar’s inconsistent testimony “call[ed] into question the veracity of [her]
story.” A.R. at 559. We upheld the Board. Slyusar, 740 F.3d at 1073. Under these circumstances,
the Board was entitled to find Anatoliy’s statement, including his claims about who vandalized his
door and why, “inherently unbelievable.” Trujillo Diaz, 880 F.3d at 253 (quotation omitted).
Weaving the possible in with the incredible in a single narrative is just the sort of defect which
allows the Board to disbelieve evidence. See id. (“internal inconsistency” permits the Board to
discredit an affidavit); cf. Arias-Hernandez v. Sessions, 685 F. App’x 372, 378 (6th Cir. 2017)
(applying the maxim “false in one, false in all” in upholding the Board’s decision to discredit
affidavits).1
Slyusar responds that she was not actually found incredible in her prior asylum claim. The
adverse credibility finding “had nothing to do with the asylum case on its merits, but rather [with]
ancillary issues.” Thus, the argument goes, her father’s statement should be accepted as true. But
1 The Ninth Circuit has held the Board may not apply the maxim “false in one, false in all” to find evidence supporting a motion to reopen “inherently unbelievable.” Yang v. Lynch, 822 F.3d 504, 508–09 (9th Cir. 2016) (arguing the maxim cannot apply because it is “discretionary rather than mandatory”). We note the Board in that case discredited a petitioner’s affidavit solely because of a prior adverse credibility determination, not because the affidavit was internally inconsistent or recounted events found incredible as true. See id. at 507. Regardless, we, along with the Second Circuit, take a broader view of inherent unbelievability. Trujillo Diaz, 880 F.3d at 253; Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007).
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Slyusar wasn’t found incredible solely because of immaterial inconsistencies as she suggests. The
immigration judge also found her story incredible because she never mentioned anything about
completing a bachelor’s degree program while the government persecuted her for exposing
corruption at the pension office she worked at. A.R. at 705. Nor did Slyusar consistently explain
fleeing Shepetovka to live in hiding with her grandmother-in-law—all the while finishing her
degree. Id. These are hardly “ancillary issues.” They go to the heart of Slyusar’s story. See
Masiko v. Holder, 562 F. App’x 469, 473 (6th Cir. 2014) (discrepancies about “what happened
and where it took place” are central to a petitioner’s claim). Moreover, Slyusar overlooks that we
previously held there were “enough inconsistencies in her testimony and documents” to support
the immigration judge’s credibility determination even if the judge erred in not allowing her to
submit more evidence. Slyusar, 740 F.3d at 1073.
Slyusar has not rehabilitated her credibility, either. See Zhang, 543 F.3d at 855. While a
psychologist concluded Slyusar has “[m]emory problems” and her “reported experiences . . .
appear genuine,” the psychologist’s report and Slyusar’s affidavit aren’t enough. Both documents
are silent as to the bachelor’s program, fleeing Shepetovka, and other inconsistencies the
immigration judge found suspect. Assuming Slyusar can even relitigate her credibility at this late
stage, with previously available evidence no less, she “has not presented evidence that would
compel a reasonable adjudicator to disagree with the” immigration judge’s adverse credibility
finding. Slyusar, 740 F.3d at 1073.
Our dissenting colleague emphasizes that only Slyusar was found incredible, not her story,
Anatoliy, or Anatoliy’s new claims. We don’t find this distinction meaningful. In Zhang, we
upheld the Board’s decision to discredit an uncorroborated letter from the petitioner’s best friend
because the petitioner was not credible. 543 F.3d at 855. The petitioner also failed to rehabilitate
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her credibility, which was diminished in part by her prior submission of what an immigration judge
found to be fraudulent documents. Id. at 852, 855. And in Vakeesan v. Holder, we held the Board
was within its discretion to deny reopening where “the factual predicate” of the petitioner’s motion
to reopen was “not independent of the testimony” already found unbelievable by an immigration
judge. 343 F. App’x 117, 125 (6th Cir. 2009) (citing Gebreeyesus v. Gonzales, 482 F.3d 952, 955
(7th Cir. 2007)); accord Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009); Paul v. Gonzales, 444
F.3d 148, 154 (2d Cir. 2006); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (in denying a
motion to reopen, the Board cannot rely on an adverse credibility determination “utterly unrelated”
to a petitioner’s new claims). Neither Zhang nor Vakeesan turns on the distinction between people
and stories; they instead turn on a petitioner’s credibility. See Zhang, 543 F.3d at 855; Vakeesan,
343 F. App’x at 125–26. We have even equated a petitioner’s credibility with his story’s. See
Ahmed v. Holder, 495 F. App’x 605, 612 (6th Cir. 2012); Vakeesan, 343 F. App’x at 125–26.
Whether the dissent quotes these cases with selective emphasis or not, the point stands: the
petitioner’s credibility is king, particularly where a key witness relies on the petitioner’s version
of events.
More to the point, here, Slyusar has not rehabilitated her credibility, yet she depends on
her prior incredible testimony. Anatoliy’s statement intertwines the new with the old. He not only
references Slyusar’s prior allegations of persecution but also claims Slyusar’s former employer is
the one now dispatching thugs. A.R. at 403. The immigration judge, however, doubted Slyusar
worked where she claimed she did. Id. at 705–06. Exclude the incredible from Anatoliy’s
statement, and the record is devoid of any evidence of future persecution. Vakeesan, 343 F. App’x
at 126 (“Absent the accounts of past persecution, the record is devoid of any evidence to suggest
that Vakeesan faces a reasonable possibility of being singled out individually for persecution if
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deported to Sri Lanka.”). The Board might have forgiven this inconsistency between new and old,
possible and incredible. That it didn’t is not an abuse of discretion.
C.
Last is equitable tolling. The Board can consider a late motion to reopen on its merits by
equitably tolling the 90-day filing deadline. Barry, 524 F.3d at 724. “Equitable tolling may apply
when a petitioner has received ineffective assistance of counsel.” Ljucovic v. Gonzales, 144 F.
App’x 500, 503 (6th Cir. 2005). But we still require a petitioner to show that she acted with “due
diligence in pursuing her rights.” Barry, 524 F.3d at 724–25 (collecting cases). Specifically, a
petitioner must “prove that the delay in filing the motion to reopen was due to an exceptional
circumstance” outside her control. Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir. 2007)
(quotation omitted).
Slyusar argues the Board abused its discretion in finding she didn’t exercise due diligence.
In her view, the evidence shows she received ineffective assistance of counsel throughout
proceedings, was suffering from “severe psychological conditions” that prevented her from
pursuing her rights, and did not retain competent counsel until 2017. The Board’s failure to even
mention this evidence warrants reversal, she suggests.
The Board didn’t abuse its discretion. Again, the Board is not obligated to mention
evidence by name in its decision, so long as it “analyze[d] and explain[ed] the basis on which it
decided against” the petitioner. Zhang, 543 F.3d at 854. The Board did so here. It stated the
correct standard for applying equitable tolling, then explained Slyusar wasn’t diligent because
whatever ineffective assistance of counsel she suffered ended by 2012, and she didn’t show that
her delay in moving to reopen since then was out of her control.
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And that explanation holds up. True, a psychologist concluded Slyusar suffers from
“[m]emory problems” and “persistent avoidance of stimuli associated with [her] trauma.” The
inference that Slyusar wants us to draw from this, though—that her condition precluded
diligence—is pure speculation. The psychologist never connected Slyusar’s condition with her
failing, for over three years, to engage new counsel or otherwise pursue her rights. Nor does
Slyusar explain that failure in her affidavit. While she describes the ineffective assistance she
received through 2014, she doesn’t explain her inactivity between 2014 and 2017. Instead, she
indicates she knew about her attorneys’ missteps since 2014 but was unaware she had to file bar
complaints. By not acting on what she did know, however, Slyusar failed to exercise due diligence.
See Tapia-Martinez, 482 F.3d at 424 (“Petitioner failed to exercise due diligence because she did
not file a motion alleging ineffective assistance [of counsel] until fifteen months after she
discovered [counsel’s] deficient performance.”); see also Barry, 524 F.3d at 725 (collecting cases);
cf. Iturribarria v. I.N.S., 321 F.3d 889, 899 (9th Cir. 2003) (petitioner exercised due diligence by
filing motion to reopen one month after discovering his prior attorney’s misdeed). The Board did
not, therefore, abuse its discretion in declining to equitably toll the reopening deadline.2
III.
In sum, the Board did not abuse its discretion in denying Slyusar’s motion to reopen. We
DISMISS the petition for review in part and DENY it in part. The stay of removal previously
entered is VACATED.
2 Slyusar also argues the Board abused its discretion by allowing the government to respond to her motion to reopen five months late. We disagree. The Board can, “in its discretion,” consider an untimely brief. 8 C.F.R. § 1003.2(g)(3). Slyusar cites no authority for her suggestion that the Board’s discretionary consideration of the government’s untimely brief shows favoritism. (It doesn’t, by the way. See Liteky v. United States, 510 U.S. 540, 555 (1994).) Moreover, even if the Board should have disregarded the government’s brief and deemed Slyusar’s motion unopposed, that wouldn’t mandate “an automatic grant of the motion.” Khakhnelidze v. Holder, 432 F. App’x 564, 575 (6th Cir. 2011). The Board “retains the discretion to deny relief even when no responsive brief is filed.” Id.
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
In her motion to reopen based on changed country conditions, Slyusar presented an account of
events post-dating her last appeal, by a new witness. She also provided an expert affidavit
describing worsening violence and corruption by police and public officials in Ukraine—the very
people she claims abused her and continue to threaten her life. The majority concludes that the
Board of Immigration Appeals (“BIA”) did not abuse its discretion when it dismissed her new
evidence and denied her motion. For the reasons that follow, I dissent with respect to the
majority’s holding on changed country conditions.
In her initial removal proceedings, Slyusar testified that she had been working for a
nonprofit organization assisting pensioners in Shepetovka, Ukraine when she discovered a pension
fraud implicating local government officials. Slyusar v. Holder, 740 F.3d 1068, 1070 (6th Cir.
2014). After she exposed the fraud, she reportedly received death threats and was picked up,
detained, and abused by the police. Id. at 1070–71. The Immigration Judge (“IJ”) found that
Slyusar was not credible based on the “numerous inconsistencies” in her testimony and denied
relief, and the BIA upheld that decision. Id. at 1072–73. Specifically, the IJ noted “discrepant
information regarding her employment history, her date of entry into the United States, whether or
not she had a Ukrainian passport in her possession when she arrived in the United States, her
marriages, and her attempts to file asylum claims.” Id. at 1073. Acknowledging that “under the
REAL ID Act, even ancillary inconsistencies in a petitioner’s testimony support adverse credibility
determinations,” we upheld the IJ and BIA’s decisions because, “while another IJ might have ruled
differently, . . . no evidence has been presented that compels a different ruling.” Id.
In 2017, Slyusar moved to reopen her proceedings based on a change in country conditions.
See A.R. at 151. She asserts that the officials she exposed in Shepetovka found our decision in
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Slyusar online and have demanded that she post a refutation of her account. See Pet. Br. at 21–29;
A.R. at 212. She claims that two men threatened her father, Anatoliy, over the phone on two
separate occasions, demanding that she take the Slyusar decision off the Internet. A.R. at 212.
About a week later, the men came to Anatoliy’s house, painted his door with the word “bitch,” and
told him they would find Slyusar, “tear out her lying tongue and tie her hands in a knot” if she did
not recant. See Pet. Br. at 21–29; A.R. at 212, 234. The men said they were sent by the former
head of the department of social protection of the Shepetovka district, whose work involved
pensions. See A.R. at 212. Additionally, beyond her personal circumstances, Slyusar asserts that
corruption and violence by state institutions in Ukraine have worsened more generally. Pet. Br. at
23–25.
In support of her motion to reopen, Slyusar submitted, among other things, an affidavit by
her father describing the threats, documentary evidence corroborating his account, and an expert
affidavit on country conditions in Ukraine. A.R. at 172–74. The BIA denied her motion, affording
her father’s affidavit “minimal weight,” as it “recounts events . . . already found to be not credible.”
Id. at 5. Moreover, even if it were credible, his affidavit was “insufficient to make a prima facie
showing” of the requisite potential harm because his claims that “government officials vandalized
his front door and verbally threatened” Slyusar merely amount to “‘isolated incidents of verbal
harassment or intimidation, unaccompanied by any physical’” harm. Id. (quoting Mikhailevitch v.
I.N.S., 146 F.3d 384, 390 (6th Cir. 1998)). The BIA did not discuss the remaining evidence. See
id.
Unless the BIA finds the evidence “inherently unbelievable,” it “must accept as true
reasonably specific facts proffered by an alien in support of a motion to reopen.” See Trujillo Diaz
v. Sessions, 880 F.3d 244, 252 (6th Cir. 2018) (quotation omitted). Here, rather than take
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Anatoliy’s account of events as true, the BIA afforded it “minimal weight.” A.R. at 5. It did so
on the basis that his account was merely a new chapter in an already-discredited story. See id. But
adverse credibility findings do not apply to stories—they apply to the people that tell them. See
8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible . . . .”); Niyibizi v. Mukasey, 300 F. App’x 371, 376 (6th Cir.
2008) (concluding the BIA abused its discretion when it applied the applicant’s adverse credibility
finding to reject accounts from other witnesses). Neither the IJ nor the BIA had previously
received an affidavit or testimony by Anatoliy, and his account sets out entirely new events post-
dating Slyusar’s prior appeal. See A.R. at 559, 681–94. The BIA therefore erred by applying
Slyusar’s adverse credibility finding to Anatoliy’s affidavit.1 It also mischaracterized Anatoliy’s
account as an isolated event, when in fact he details two threatening phone calls that culminated
in the visit where they vandalized his door. See id. at 212; Shabo v. Sessions, 892 F.3d 237, 239–
40 (6th Cir. 2018) (“Factual errors can qualify as legal errors when ‘important facts have been
totally overlooked and others have been seriously mischaracterized.’”) (quoting Ventura-Reyes v.
1 The majority cites Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008), and two unpublished decisions for its proposition that past adverse credibility findings sometimes apply to new evidence setting out new events. In Zhang, the IJ found the petitioner not credible after determining that her testimony was unreliable and that she had submitted fraudulent documents as evidence. Id. at 852. The BIA relied upon that adverse credibility finding in denying her motion to reopen because her argument that she faced an individualized risk of persecution hinged solely on a letter from a friend, presented without corroborating evidence. Id. at 853. Because the IJ found “her not credible and her documents fraudulent,” “we [could not] say the Board abused its discretion in declining to credit a letter from Zhang’s best friend without corroboration.” Id. at 855 (emphasis added). Applying Zhang’s limited holding to this case, the BIA abused its discretion here because (1) Slyusar was never found to defraud the court, and (2) in support of her motion to reopen, Slyusar produced evidence corroborating Anatoliy’s account. See, e.g., A.R. at 226–27 (photos of vandalized door); id. at 228–31 (proof of payment for repairs to door); id. at 234 (affidavit from neighbor describing the vandalized door); id. at 232 (proof of Anatoliy’s hospitalization following the incident). Moreover, the unpublished decisions cited by the majority are, respectively, inapposite, see Vakeesan v. Holder, 343 F. App’x 117, 126 (6th Cir. 2009) (“Absent the accounts of past persecution, the record is devoid of any evidence to suggest that Vakeesan faces a reasonable possibility of being singled out individually for persecution if deported to Sri Lanka.”) (emphasis added), and unpersuasive, see Ahmed v. Holder, 495 F. App’x 605, 613 (6th Cir. 2012) (mistaking our rationale in Zhang for the IJ’s basis for its credibility finding).
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Lynch, 797 F.3d 348, 360 (6th Cir. 2015)). Therefore, the BIA abused its discretion when it denied
Slyusar’s motion to reopen based on changed country conditions.
The majority states that the BIA was “entitled to find Anatoliy’s statement, including his
claims about who vandalized his door and why, ‘inherently unbelievable.’” Maj. Op. at 6 (quoting
Trujillo Diaz, 880 F.3d at 253). Though it is true that the BIA is entitled to discredit an affidavit
as “inherently unbelievable,” it did not do so here. See Trujillo Diaz, 880 F.3d at 252–53. The
BIA did not “explicitly find” that the affidavit was inherently unbelievable in this appeal, or that
the story was inherently unbelievable in the last. See A.R. at 5, 559; Trujillo Diaz, 880 F.3d at
253. Nor did it “make any findings that would indicate that it reached this conclusion.” See A.R.
at 5, 559; Trujillo Diaz, 880 F.3d at 253. In this appeal, the BIA “did not find any internal
inconsistencies” in Anatoliy’s affidavit, see Trujillo Diaz, 880 F.3d at 253—instead it dismissed
his statements as incredible because his daughter was previously found to be not credible, see A.R.
at 5. In the last appeal, the BIA upheld the IJ’s adverse credibility determination because the
inconsistencies in her testimony, such as her statements regarding her marriages and her date of
entry, “call[ed] into question the veracity of the respondent’s story.” Id. at 559. No court has
found that the threats, detention, and abuse Slyusar described is itself farfetched or impossible to
believe. See id. at 5, 681–94; Slyusar, 740 F.3d at 1073.
Finally, having discredited Anatoliy’s account, the BIA never considered Slyusar’s country
conditions expert affidavit that, taken as true, demonstrates that corruption and violence in Ukraine
are on the rise. See A.R. at 133–42; Zhang v. Holder, 702 F.3d 878, 879–80 (6th Cir. 2012) (“[A]
change in personal circumstances that is unaccompanied by a change in country conditions is
insufficient to reopen proceedings.”). Since her first appeal in 2012, corrupt politics and “the
outbreak of war with Russia in 2014 have compounded an already unstable and dangerous situation
- 14 - Case No. 18-3694, Slyusar v. Barr
in Ukraine.” A.R. at 135. The war, in particular, has “seriously eroded the stability of Ukraine
writ large, both in the territorial and the political-economic contexts.” Id. at 142. According to
her expert, and consistent with findings by the Department of State, “the use of the police to
intimidate Ms. Slyusar is very much in keeping with official corruption in Ukraine, as the police
themselves are highly corrupted and act with impunity in almost all cases.” Id. at 140, 142. This
context potentially lends credibility to Slyusar’s new evidence of threats and should be considered
in making a prima facie determination of eligibility for relief.
The BIA improperly discredited and mischaracterized Anatoliy’s account and failed to
address evidence of changed country conditions. For these reasons, I respectfully dissent.
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