Veronika Nikolajuk v. Eric Holder, Jr.

527 F. App'x 439
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 4, 2013
Docket12-3802
StatusUnpublished

This text of 527 F. App'x 439 (Veronika Nikolajuk v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Veronika Nikolajuk v. Eric Holder, Jr., 527 F. App'x 439 (6th Cir. 2013).

Opinion

COOK, Circuit Judge.

Veronika Nikolajuk, a native and citizen of Belarus, seeks review of a Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the following reasons, we DENY the petition.

I.

Nikolajuk lawfully entered the United States in June 2006 using a J1 visa. Instead of departing when her visa expired that September, she sought asylum on the ground that she feared political persecution from Belarusian police. The Department of Homeland Security (“DHS”) charged her as removable for overstaying her visa. See 8 U.S.C. § 1227(a)(1)(B). In April 2009, Nikolajuk, through counsel, conceded removability and sought asylum, withholding of removal, and protection under the CAT.

Nikolajuk, the sole witness at her removal hearing, testified as follows. As a teenager, she read some of her cousin’s political science books, which caused her to question the Belarusian government’s policies. She did not, however, express these political objections until enrolling at Bela-rusian State University. While living in the school dorms, she joined a “secret group” of students who opposed the Bela-rusian government. The extent of her involvement in the dissident group, however, remains uncertain, as her affidavit and testimony conflict on this point. In her asylum affidavit, Nikolajuk claimed to have participated in a mass meeting taking place near the university dorms in March of 2006, but during her removal hearing, *441 she disavowed any personal involvement in the demonstration and asserted that it was her boyfriend, Sasha, who actively supported the protesters by bringing them food. Sasha’s contribution to the protest netted him two days in jail. Sometime after his release, authorities searching for Sasha found him in Nikolajuk’s dorm room and began beating him. When Nikolajuk intervened, a police officer pushed her out of the way, causing her to strike her head against the wall. In her affidavit, she claimed that one of the officers told her to keep quiet about the injury, warning that no one would believe her. She did not mention this threat during the removal hearing.

Next, Nikolajuk attested that, in late April 2006, two men in police uniforms attacked her during the night, raping and beating her as she walked to her dorm room. She testified that one of her attackers told her no one would believe her if she came forward about the attack, but in her asylum affidavit, she reported that he threatened to kill her if she reported the rape. Additionally, although her affidavit states that she “somehow” reached a hospital soon after the attack, she testified that she waited until the following day to seek treatment. And her mother’s letter gave a different date for the hospitalization altogether — several days before the alleged attack. Though Nikolajuk submitted documents confirming that she was hospitalized around this time, the hospital records list the reason as “a chronic disease” and kidney trauma. Furthermore, she claimed that she visited her OB-GYN, but this visit appears nowhere in the records. Nikola-juk never reported the rape, explaining that she feared police retaliation and that no one would believe her. Last, she mentioned some conversations with her mother that suggested the police inquired about Nikolajuk’s whereabouts. Nevertheless, she admitted that police never issued any warrant for her arrest, as she broke no laws prior to leaving Belarus.

The translator scheduled for Nikolajuk’s merits hearing failed to show, so a telephonic interpreter — who struggled to keep up with Nikolajuk’s “rambling” answers— filled in. The IJ repeatedly cautioned Ni-kolajuk to slow down and speak in “clear and short[ ] statements,” but she failed to heed these instructions. At the close of the hearing, the IJ orally denied all of Nikolajuk’s claims for relief, concluding that she was not credible. Alternatively, the IJ held that Nikolajuk’s testimony, if credited, did not rise to the level of persecution on a protected ground.

Nikolajuk appealed to the BIA, which upheld the IJ’s credibility findings and its conclusion that she failed to present a “nexus” between her alleged harm and a statutorily protected ground. It also rejected Nikolajuk’s claimed prejudice resulting from the telephonic interpretation. She timely petitioned this court for review.

II.

A. Standard of Review

“Where, as here, the BIA affirms an IJ’s ruling and adds its own comments, we review both the IJ’s decision and the BIA’s additional remarks.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir.2012) (alteration and internal quotation marks omitted). We apply a substantial evidence standard to the BIA’s factual findings, including its credibility assessment, reversing only if the evidence “not only supports a contrary conclusion, but indeed compels it.” Klawit-ter v. INS, 970 F.2d 149, 152 (6th Cir. 1992). In this post-REAL ID case, the IJ could take into account the totality of the circumstances when making its credibility assessment. This includes: “the consistency between the applicant’s ... written and oral statements ... and any inaccura *442 cies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); see also El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.2009).

B. Asylum

To qualify for asylum, an applicant must demonstrate that she fits 8 U.S.C. § 1101(a)(42)(A)’s definition of a refugee: an alien who is unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1158(b)(1)(A). Proof of past persecution raises a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).

First, we consider Nikolajuk’s challenge to the BIA’s and IJ’s adverse credibility findings. Reviewing Nikolajuk’s application and testimony, the BIA noted numerous inconsistencies that diminished her credibility. For example, she testified that after the sexual assault, one police officer warned that no one would believe her if she reported the rape. Yet in her written affidavit, she claimed that the officer threatened to kill her if she told anyone about the assault. The BIA also noted that Nikolajuk gave different dates for when the police came to her room searching for Sasha and when she went to the hospital.

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