Tupikovskaya v. Holder

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2010
• Docket: 05-75501
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 18 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

GALINA EDVARDOUNA No. 05-75501 TUPIKOVSKAYA, Agency No. A095-200-586 Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 1, 2010 Pasadena, California

Before: B. FLETCHER, PREGERSON and GRABER, Circuit Judges.

Galina Edvardouna Tupiµovsµaya ('Tupiµovsµaya'), a native and citizen of

Uzbeµistan, petitions for review of the Board of Immigration Appeals' ('BIA')

order dismissing her appeal from an immigration judge's ('IJ') decision denying

her application for asylum, withholding of removal, and relief under the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Convention Against Torture ('CAT'). We have jurisdiction under 8 U.S.C.

y 1252. We grant the petition and remand to the BIA.

The IJ denied petitioner's applications for relief because he found

Tupiµovsµaya not credible. The BIA affirmed the IJ's decision without opinion

under 8 C.F.R. y 1003.1(e)(4). Accordingly, we review the IJ's decision. See

Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). We review credibility

determinations for substantial evidence. See Soto-Olarte v. Holder, 555 F.3d 1089,

1091 (9th Cir. 2009).

I. Credibility

We recite the facts only as needed to explain our decision. The IJ based his

adverse credibility finding on his misstatements of the record, speculation, failure

to provide an opportunity to explain discrepancies or to consider those

explanations, an unsubstantiated demeanor finding, and an erroneous requirement

of corroborative evidence. We conclude that substantial evidence does not support

the IJ's adverse credibility finding.

a. The IJ misstated the record

In several instances, the IJ misstated the record, maµing factual errors. First,

the IJ erroneously concluded that Tupiµovsµaya did not µnow that BIRLIK's

activities were restricted. Tupiµovsµaya repeatedly demonstrated that she µnew that BIRLIK was an illegal organization through her testimony, asylum

application, and asylum declaration.

Second, the IJ erroneously found that Tupiµovsµaya failed to mention on

direct examination that her activities for BIRLIK's women's section were secret.

Tupiµovsµaya emphasized that her participation in the inspections of health

conditions for worµing women was 'illegal.' Tupiµovsµaya maintained

throughout her testimony, including on direct examination and in her asylum

declaration, that she conducted research under the auspices of a non-profit

organization named 'Counterpart Consortium.' When conducting her research,

Tupiµovsµaya provided a document with a seal from Counterpart Consortium,

although she was really worµing for BIRLIK. Although Tupiµovsµaya was

worµing for BIRLIK, she had to do so under the pretense of worµing for

Counterpart Consortium, the implication being that Tupiµovsµaya's worµ was

secret.

Third, the IJ asµed Tupiµovsµaya what steps she had taµen to help her

husband. The record reveals that in her first response to the IJ's question

Tupiµovsµaya explained that she went to the Israeli embassy to seeµ asylum for

herself and for her husband. The IJ misstated the record, then, when he found that

Tupiµovsµaya had initially answered his question with regard to only herself by

saying that she sought to immigrate to Israel. The IJ's adverse credibility finding cannot stand based on these three

misstatements of record.

b. The IJ engaged in speculation and conjecture

Under Shah v. INS, '[s]peculation and conjecture cannot form the basis of an

adverse credibility finding, which must instead be based on substantial evidence.'

220 F.3d 1062, 1071 (9th Cir. 2000). In this case, the IJ engaged in speculation

and conjecture on at least two occasions.

First, the IJ engaged in speculation and conjecture when he found

Tupiµovsµaya's membership in BIRLIK suspect because she claimed that BIRLIK

sent her to worµ in Moscow. Nothing in the record supports the IJ's belief that

BIRLIK, as an underground organization, would not be able to send its members

abroad. In fact, the record supports the proposition that BIRLIK members were

active outside Uzbeµistan during the 1990s. The 2002 U.S. State Department

Human Rights Country Report for Uzbeµistan states that an exit visa was not

required for Uzbeµi nationals to travel from Uzbeµistan to most countries of the

former Soviet Union.

Second, the IJ engaged in speculation and conjecture when he found that

Tupiµovsµaya and her son's 'close relationship' meant that Tupiµovsµaya would

have informed her son of her BIRLIK activities. The IJ erred in speculating as to

what a mother may or may not share with her son, particularly when information- sharing could be dangerous. See, e.g., Kumar v. Gonzales, 444 F.3d 1043, 1052

(9th Cir. 2006) ('IJ's adverse credibility determination, insofar as it was based

upon his opinion regarding what brothers from India who had grown up and fled

India together might or might not do, was purely conjecture.').

As such, the IJ's findings, based on speculation and conjecture, do not

provide substantial evidence to support the IJ's adverse credibility finding.

c. The IJ failed to provide Tupiµovsµaya with a reasonable opportunity to address inconsistencies

A petitioner must be provided with a 'reasonable opportunity to offer an

explanation of any perceived inconsistencies that form the basis of a denial of

asylum.' Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999). In this case,

the IJ failed, on at least two occasions, to provide Tupiµovsµaya with a reasonable

opportunity to explain any perceived inconsistencies.

First, the IJ based his adverse credibility finding in part on Tupiµovsµaya's

failure to seeµ asylum from the U.S. Embassy in Moscow, yet the IJ did not give

Tupiµovsµaya an opportunity to explain her failure to do so.

Second, the IJ erred in basing his adverse credibility finding in part on his

perceived discrepancy between the description Tupiµovsµaya gave in her asylum

application of the clothing she wore to her U.S. embassy interview in Tashµent,

Uzbeµistan, and the description of that clothing that Tupiµovsµaya gave at her hearing. The only inconsistency between Tupiµovsµaya's two descriptions of her

attire was that Tupiµovsµaya's asylum declaration listed that she wore darµ glasses,

while she did not mention wearing glasses in court.1 The IJ did not, however,

question Tupiµovsµaya in court about whether she was wearing darµ glasses or

anything else at her U.S. Embassy interview in Tashµent. Thus, the IJ erred in

basing his adverse credibility finding on this perceived discrepancy because

Tupiµovsµaya had no opportunity to explain any potential inconsistency.2

d. The IJ failed to consider and address Tupiµovsµaya's explanations for several discrepancies

The IJ must consider and address a petitioner's explanation for a

discrepancy. See, e.g., Soto-Olarte, 555 F.3d at 1091 ('[IJ's] lacµ of consideration

given to [petitioner's] proffered explanation was error and prevent[ed] the

underlying inconsistency from serving as substantial evidence.'). Here, the IJ

failed to address Tupiµovsµaya's plausible explanations for discrepancies in her

case on five occasions and erroneously rejected her explanation on one occasion.

1 The difference in Tupiµovsµaya's description between a 'blacµ µerchief' and a 'darµ shawl' is possibly a minor inconsistency and possibly no inconsistency at all due to a discrepancy in translation. Therefore it cannot support an adverse credibility finding. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). 2 Also, the inconsistency liµely does not go to the heart of Tupiµovsµaya's asylum claim. See Singh v. Ashcroft, 301 F.3d 1109, 1111-12 (9th Cir. 2002). First, the IJ made his adverse credibility finding in part on Tupiµovsµaya's

lacµ of µnowledge regarding the specific date that her political organization,

BIRLIK, was banned. Tupiµovsµaya explained that all opposition organizations in

Uzbeµistan were banned in 1993, and that she was unsure of BIRLIK's exact ban

date because she joined after BIRLIK was already underground. None of the

country conditions materials, including the 2002 Country Report, found in the

record give a definitive date for when BIRLIK was banned. The IJ's expectation

that Tupiµovsµaya would µnow the specific date BIRLIK was banned is liµely

unreasonable and he erred in failing to address Tupiµovsµaya's explanation for her

lacµ of µnowledge of BIRLIK's specific ban date.

Second, the IJ based his adverse credibility finding in part on

Tupiµovsµaya's failure to submit the published report containing the data she

collected on BIRLIK's behalf. Tupiµovsµaya explained that she did not write or

publish the report, but only compiled the research and emphasized that she did not

receive a copy of, or even µnow the name or publication date of, the report.

Tupiµovsµaya explained that she learned her name was associated with the report

because the Uzbeµ security service, when in the process of arresting, detaining, and

beating her, told her that they µnew her name because she stated her name to enter

the factories where she gathered data for the report. The IJ erred in failing to address Tupiµovsµaya's explanation for her failure to submit the report as

evidence.

Third, the IJ based his adverse credibility finding on Tupiµovsµaya's failure

to maµe additional efforts to help her incarcerated husband. Tupiµovsµaya

explained that she feared for her own life and was told by members of BIRLIK to

go into hiding, not to call anybody, and not to leave the house. The record

supports this explanation. Further, Tupiµovsµaya explained that no

communication was allowed with political prisoners, so she relied on reports from

BIRLIK members regarding her husband's location. The IJ erred in failing to

address Tupiµovsµaya's explanation for her failure to maµe additional efforts to

help her husband.

Fourth, the IJ based his adverse credibility finding in part on the fact that

Tupiµovsµaya's son, Yevgenii, did not µnow the date that his stepfather, Ilia, had

joined BIRLIK. Ilia had joined BIRLIK before he married Yevgenii's mother.

Yevgenii explained that he was not close to Ilia and did not talµ to him about

BIRLIK. Further, Yevgenii and Ilia shared a home for less than a year,

approximately six months. The IJ did not address these facts, which adequately

explained why Yevgenii did not µnow when Ilia joined BIRLIK.

Fifth, the IJ erred in basing his adverse credibility finding on his finding that

Yevgenii attributed Tupiµovsµaya's 1998 arrest to Tupiµovsµaya or Ilia having made a speech on the radio in January 2000. Yevgenii began his testimony by

explaining that he only had a 'little bit' of µnowledge about his mother's activities.

Yevgenii had no firsthand µnowledge of either of his mother's arrests because he

had moved to the U.S. in August 1998, before either of Tupiµovsµaya's arrests

occurred. He admitted that he did not µnow the date of his mother's arrest and that

he thought her arrest was 'probably' because of her activities in Moscow. Further,

the government's questioning of Yevgenii regarding Tupiµovsµaya's arrests was

confusing. The government attorney asµed Yevgenii if he µnew why his mother

had been arrested, without specifying to which arrest he referred - the arrest in

Uzbeµistan in 1998 or the arrest in Moscow in 2000. Thus the IJ erred in finding

that Yevgenii's testimony undermined Tupiµovsµaya's claim and in failing to

address Yevgenii's explanation for his confusion.

Sixth, and finally, the IJ based his adverse credibility finding in part on the

inconsistency regarding Tupiµovsµaya's employment history. In the section for

the name and address of the employer, Tupiµovsµaya's asylum application listed

her occupation between 1990 and 1999 as an engineer for a company attached to

the Uzbeµ Ministry of Agriculture. When the IJ questioned Tupiµovsµaya about

this job, she immediately answered that she was 'considered to be on the list

there.' Tupiµovsµaya testified that according to her documents, she was

employed, but in reality she was not employed. Tupiµovsµaya explained that she did not actually go to worµ, but that she was µept on the payroll so that the officials

at the company could µeep her paychecµ. Rather than worµing, Tupiµovsµaya

stated that she stayed at home caring for her son and worµed on BIRLIK

assignments, which she also referred to as the 'opposition organization,' after she

joined BIRLIK in May 1997.

The IJ did not believe Tupiµovsµaya's explanation that she was merely 'on

the booµs' and stated that Tupiµovsµaya sought to downplay her role as an

engineer affiliated with the government because the job would undermine her

claim of persecution for her opposition activities. Even if Tupiµovsµaya had been

employed by a government affiliated company, the IJ's conclusion that she could

not also be a member of BIRLIK is speculative and unsupported by any record

evidence. The IJ ignored testimony from Tupiµovsµaya's son who explained that

Tupiµovsµaya worµed when she 'was younger,' but was then a housewife doing

'basic stuff' during the 1990s. When the IJ asµed Tupiµovsµaya what she was

doing during the nine year period at issue, Tupiµovsµaya replied that she '[w]as

staying at home; was busy with assignments from BIRLIK.' This statement is

consistent with Tupiµovsµaya's previous testimony that she joined BIRLIK in May

1997. From 1990 to May 1997, Tupiµovsµaya was 'staying at home,' which she

later specified meant that she was caring for her son; after May 1997, she worµed

on BIRLIK assignments. The IJ also ignored Tupiµovsµaya's testimony that she and her husband were both laid off after the fall of the Soviet Union. Therefore,

the IJ erred in not accepting Tupiµovsµaya's plausible explanation for why she

listed her employer on her asylum application.

e. The IJ did not specifically and cogently explain his finding on Tupiµovsµaya's demeanor

Special deference is accorded to credibility determinations based on an

applicant's demeanor. Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999).

An IJ's demeanor-based negative credibility finding must specifically and cogently

refer to the non-credible aspects of the applicant's demeanor. See Arulampalam v.

Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003).

In this case, the IJ observed that Tupiµovsµaya 'displayed virtually no

emotion' when testifying about her husband's sentence and that she 'seemed

almost indifferent' to his fate. The IJ failed to specifically explain which aspects

of Tupiµovsµaya's demeanor led him to draw these conclusions. The IJ did not

specifically and cogently refer to the non-credible aspects of Tupiµovsµaya's

demeanor, as required under Arulampalam, 353 F.3d at 686.

f. The IJ erred in requiring corroborative evidence

Where an IJ's adverse credibility finding is unsupported by substantial

evidence, no corroborative evidence is required. See Kataria v. INS, 232 F.3d

1107, 1113 (9th Cir. 2000) ('the BIA may not require independent corroborating evidence from an asylum applicant who testifies credibly. . . .').3 As discussed

above, substantial evidence does not support the IJ's adverse credibility finding, so

Tupiµovsµaya should be deemed credible. Because corroborative evidence is not

required where a petitioner has testified credibly, the IJ erred in finding

Tupiµovsµaya not credible because she failed to submit the published BIRLIK

report on women's health.

IV. Judicial Bias

In her opening brief Tupiµovsµaya claimed that the IJ was biased and that

his adverse credibility finding should be overturned. The government claimed that

Tupiµovsµaya failed to exhaust her administrative remedies with respect to the bias

claim because she did not raise it in front of the BIA. At oral argument

Tupiµovsµaya all but abandoned her judicial bias claim. We need not address this

issue because we vacate the IJ's adverse credibility finding and remand

Tupiµovsµaya's case to the BIA.

V. Conclusion

Because the IJ's adverse credibility finding was not supported by substantial

evidence, we GRANT the petition and REMAND to the BIA for further

3 Tupiµovsµaya filed her application for relief on November 26, 2001, prior to May 11, 2005, the effective date of the REAL ID Act. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying pre-REAL ID Act standards because petitioner's asylum application was filed before May 11, 2005). proceedings to determine whether, accepting Tupiµovsµaya's testimony as

credible, she is eligible for relief. See, e.g., Singh v. Gonzales, 439 F.3d 1100,

1113 (9th Cir. 2006).

PETITION GRANTED AND REMANDED FILED Tupiµovsµaya v. Holder, No. 05-75501 FEB 18 2010

MOLLY C. DWYER, CLERK GRABER, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

I respectfully dissent. Substantial evidence supported the immigration

judge's (þIJþ) adverse credibility finding. At a minimum, three points on which the

IJ relied support that finding.

First, there were discrepancies between Petitioner's testimony and that of her

son. Petitioner's son testified that he was þcloseþ to Petitioner and that they

þshare[d] details about [their] lives.þ Petitioner's son testified that he did not learn

of Petitioner's asserted membership in BIRLIK until 1999, despite Petitioner's

claim to have joined BIRLIK in 1997. In addition, Petitioner testified that she was

arrested once in Uzbeµistan because of her research and arrested a second time in

Moscow because of her speech at a political rally there. Petitioner's son testified

that Petitioner þtold [him] . . . what happenedþ regarding her arrest in Uzbeµistan

with the exception of þdates.þBut Petitioner's son then testified that Petitioner had

been arrested only once, in Uzbeµistan, probably because of her speech in

Moscow. The IJ's questions were not confusing and do not account for these

discrepancies.

Second, the IJ's statement that Petitioner showed þvirtually no emotion

when testifying aboutþ her husband's alleged imprisonment for his BIRLIK

activities constituted a specific and cogent reference to an aspect of Petitioner's demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003).

Petitioner's explanation for her lacµ of emotion--that she was not emotionally

committed to her husband--was inconsistent with the claim on her asylum

application that Petitioner þlived in constant fear for the life and safety of [her]

husbandþ after his arrest.

Third, the IJ relied on Petitioner's failure to provide a copy of the research

results, as well as other documents, to corroborate her story. Because the IJ had

valid reasons to doubt Petitioner's credibility, the IJ could properly consider

Petitioner's failure to produce corroborating evidence. Unuaµhaulu v. Gonzales,

416 F.3d 931, 938 (9th Cir. 2005). Petitioner testified that she had been told that

the research results were published in England. Thus, the evidence does not

compel a reasonable trier of fact to conclude that the research results were

unavailable. 8 U.S.C. y 1252(b)(4); see also REAL ID Act of 2005, Pub. L. No.

109-13, div. B, y 101(h)(3), 119 Stat. 231, 305-06 (providing that the standard of

review for availability of corroborating evidence applies to final removal orders

regardless of the date on which they were issued).

The inconsistencies identified by the IJ go to the heart of Petitioner's claim

that she had been persecuted or had a well-founded fear of future persecution in

Uzbeµistan for her association with BIRLIK. See Li v. Ashcroft, 378 F.3d 959,

962 (9th Cir. 2004). Accordingly, I would deny the petition.