Mironenko v. Attorney General of the United States

462 F. App'x 234
Court of Appeals for the Third Circuit·Decided February 23, 2012·No. No. 11-2546·Published

Opinion

OPINION

PER CURIAM.

Svetlana Mironenko, a citizen of Russia and a native of Ukraine in the former Union of Soviet Socialist Republics, entered the United States using a temporary visa on March 3, 2000, and did not leave when her visa expired. In 2003, she filed an application for asylum, withholding, and relief under the Convention Against Torture (“CAT”) based on her experiences as a Baptist in Russia and Ukraine. The Government charged her as removable for overstaying her visa, which she conceded.

The Immigration Judge (“IJ”) denied Mironenko’s applications for relief from removal. The IJ denied the asylum and withholding applications on the basis of an adverse credibility finding and the conclusion that Mironenko had not adequately corroborated her claims. The IJ then held that Mironenko was not eligible for asylum in any event because the application was untimely filed (rejecting, in the process, on the basis of credibility concerns, Mironen-ko’s claim that, in February 2001, she met with, and paid, a person who represented that he would file an asylum application for her). Assuming the veracity of Mironen-ko’s claims, the IJ also held that Mironen-ko had not met the standard for CAT relief.

Mironenko filed an appeal with the Board of Immigration Appeals (“BIA”). The BIA agreed with the IJ that Mironen-ko was statutorily ineligible for asylum (and that no exceptional circumstance excused the untimely filing). The BIA also held that the adverse credibility finding, which it characterized as an alternative basis for the asylum denial and the basis for the denial of withholding, was not clearly erroneous. The BIA further agreed with the IJ that Mironenko did not submit sufficient corroborative evidence. The BIA rejected Mironenko’s argument that the IJ did not consider the corroborative evidence that she did submit. The BIA also held that Mironenko had not shown that she was eligible for CAT relief.

Mironenko presents a petition for review. She contends generally that she is entitled to asylum, withholding, and CAT relief. She claims that the BIA erred in affirming the IJ’s decision and did not provide her the individualized determination to which she was due. Also, and more specifically, she argues that the BIA erred in affirming the IJ’s negative credibility determination because the determination was not based on record evidence and violated her right to due process. She also contends that the finding that she failed to corroborate her claims is not supported by the record and that the BIA erred in finding that she failed to meet the extraordinary circumstance exception to the filing deadline.

The Government opposes her petition, stating that we are without jurisdiction to review the determination that Mironenko’s failure to file a timely asylum application was not excused by extraordinary circumstances. The Government also argues that no record evidence compels a conclusion different from those reached by the agency about Mironenko’s credibility. The Government contends that the agency cited specific and cogent reasons that go to the heart of her claim. The Government also states that the agency reasonably required [236] corroboration and concluded that the failure to provide corroboration undercut the claims. Further, the Government argues that the ruling on the CAT claim was correct.

First, we define the scope of our jurisdiction. We have jurisdiction to review constitutional claims and questions of law but not factual or discretionary determinations concerning the timeliness of Mi-ronenko’s asylum application. See 8 U.S.C. §§ 1158(a)(3) & 1252(a)(2)(D); Suk-wanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir.2006). In relation to the ruling that her application was not timely filed, Mironenko challenges two bases for the BIA’s rejection of her claim that exceptional circumstances excused the late filing. However, these bases, an adverse credibility finding and the conclusion that Mironenko could not corroborate that pri- or counsel existed or that she had any agreement with prior counsel to file an earlier asylum application, are factual determinations outside the purview of our review. Although she also protests that the BIA did not meaningfully review the entire record and thereby deprived her of due process, we conclude that this claim is without merit based on the record before us.

We otherwise have jurisdiction over the issues raised in Mironenko’s petition pursuant to 8 U.S.C. § 1252(a). We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). We afford an adverse credibility finding substantial deference, so long as the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434.

After reviewing the matter, we cannot say that the record compels a conclusion different from the one reached by the agency in regards to the credibility determination. In her affidavit, Mironenko related an account of nine attacks between 1982 and 1999. The first occurred when she, at 15 years of age, was returning from worship. Describing it in her affidavit, she stated that she and unidentified others were attacked by a group.1 She suffered a blow to the back of her head, which resulted in a concussion and hospitalization. In her testimony, however, she added information to her account, stating that the attackers made several statements during the attacks, including, “Why are you singing those songs? Why are you wearing those hankerchiefs? You have to change your religion.” R. 250. The IJ reasoned that this inconsistency goes to the heart of Mironenko’s claim2 because the added [237] statements were an attempt to establish a nexus between the attack and a protected ground.

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Mironenko v. Attorney General of the United States, 462 F. App'x 234 (3d Cir. 2012).

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