BOROVIKOVA v. U.S. DEPT. OF JUSTICE

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Alla Borovikova, a native of the former Union of Soviet Socialist Republics ("USSR" or "Soviet Union") and a citizen of Ukraine, petitions this Court for review of a November 21, 2002 order of the Board of Immigration Appeals ("BIA") affirming a decision of Immigration Judge Elizabeth A. Lamb ("the IJ") denying her application for asylum and withholding of removal. Case no. A 73 651 621 (February 8, 2000, New York). Petitioner entered the United States on or about February 17, 1995 and was admitted as a nonimmigrant visitor. After overstaying her visa, she applied for asylum largely on the basis of claims that she had been persecuted in Ukraine because she is a Jew. The IJ found petitioner's story not credible and denied her requests. Petitioner argues on appeal that the IJ lacked substantial evidence to support the adverse credibility determination and asks us to hold that any reasonable factfinder would be compelled to grant petitioner's applications for asylum and withholding of removal. See 8 U.S.C. § 1252(b)(4)(B) ("[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary[.]"). She further argues that although she did not request relief under the United Nations Convention Against Torture ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, the IJ and BIA erred in not considering her qualification for such relief sua sponte. We disagree and, accordingly, the petition for review is denied.

Borovikova was born January 12, 1941 in Russia. In her petition for asylum and withholding of removal, she alleges that she suffered anti-Semitic persecution in multiple countries from the time of her childhood until she fled to the United States in 1995. Among other things, she reported the following to the IJ: that (1) as a child she was taunted by neighbors, classmates, and teachers because she was a Jew; (2) while in grade school, when she refused to join the "Komsomol," — a Communist youth organization — because its atheistic tenets violated her religion, she was taunted, assaulted, and beaten by classmates (including an incident in which a classmate threw a stone at her, giving her a "serious head wound") with no response from authorities; (3) when she applied to nursing school in 1958, she was refused admission because she was Jewish; (4) her family then moved to Kiev, Ukraine in hope of escaping persecution but she was again denied admission to nursing school in 1959, this time on the basis of "openly" announced anti-Semitic motives; (5) after finally being admitted to nursing school in 1960, she suffered additional harassment until her graduation in 1963, including having her arm broken by a student in retaliation for her refusal to join the Komsomol; (6) after a period of being denied nursing work, she married and found a nursing job at a hospital near her husband's military post in Taganrog, Russia but could not practice her religion openly because of its potentially negative impact on her husband's military career; (7) in 1972, petitioner's husband was transferred to East Germany, where she was subject to harassment, humiliation, and government surveillance, and her husband suffered mistreatment and denial of promotion at work because of his wife's religion; (8) in January 1992 petitioner and her family moved to Kiev after her husband's discharge from the military; (9) in March 1992 she was attacked at a store, during which two men threw her physically from the premises and she broke her "foot in the shin"; (10) in January 1994 uniformed hooligans burst into petitioner's apartment, shouted anti-Semitic slogans, and poured scalding soup on her, after which medical authorities refused to treat her; (11) in September 1994, while petitioner was visiting her parents' graves, "a crowd of 7 or 8 people . . . dressed in Rukh uniforms" desecrated the cemetery, shouted anti-Semitic slogans at her, chased her, and beat her until she passed out, causing her to suffer a concussion and a fractured leg; (12) in November 1994, nationalists threw a smoke bomb into petitioner's apartment, set her front door on fire, and put a box of mercury under her front door, making petitioner and her daughter ill; and (13) she feared for her safety and decided to spend six months in the United States so that the "nationalists would forget about" her, but, after arriving in the United States in 1995, learned that conditions had worsened and that she "will be persecuted again" should she return to Ukraine. Petitioner now lives in Brooklyn, where she is a member of a Jewish community center and a synagogue.

I. Relevant Legal Standards

The standards for evaluating claims of asylum and requests of withholding of removal overlap considerably. Because the standard for a successful withholding of removal claim is higher than for an asylum claim — and because we find in this case that petitioner's asylum claim must be denied — we do not treat her withholding claim separately in detail. Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999).

The statute governing asylum claims — the Immigration and Nationality Act of 1952, as amended — gives the Executive discretion to grant asylum to an alien who "is a refugee within the meaning of" the statute. See 8 U.S.C. § 1158(b)(1)(A) ("Eligibility"); id. § 1101(a)(42) (defining "refugee"). An alien seeking asylum bears the burden of proving by a preponderance of the evidence that he is a "refugee" "with a well-founded fear of persecution." See id. § 1158(b)(1)(B); Matter of Acosta, 19 I. N. Dec. 211, 215 (BIA 1985); see also Damko v. INS, 430 F.3d 626, 632-34 (2d Cir. 2005) (according deference to the BIA's statutory interpretation in Matter of Acosta as mandated by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Because asylum determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, our review of factual determinations by an IJ is tightly circumscribed. See 8 U.S.C. § 1252(b)(4)(B) (stating that, on appeal, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004) ("[W]e defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence."). In cases like this one, in which the IJ bases her denial of asylum on a finding that a petitioner's application is not credible, our review is especially limited and "highly deferential." Zhou Yi Ni v. DOJ, 424 F.3d 172, 174 (2d Cir. 2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir. 2005); Jin Hui Gao v. United States Attorney Gen., 400 F.3d 963, 964 (2d Cir. 2005); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (holding that we afford "`particular deference to the credibility determinations of the IJ'") (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997)); Zhou Yun Zhang, 386 F.3d at 74 ("Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.").

An adverse credibility finding, however, may not be upheld if based entirely upon "a misstatement of the facts" or "bald speculation or caprice." Zhou Yun Zhang, 386 F.3d at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (indicating that IJ's reasons for an adverse credibility finding must be "specific" and "cogent" and must bear "legitimate nexus" to petitioner's claim of persecution). In evaluating a disputed adverse credibility finding, our role does not extend to "hypothesiz[ing] excuses" for the inconsistencies in an asylum applicant's testimony. Zhou Yun Zhang, 386 F.3d at 74; see Jin Yu Lin v. DOJ, 413 F.3d 188, 191 (2d Cir. 2005).

The facts stated by petitioner present a colorable asylum claim inasmuch as they allege a pattern of persecution on the basis of religion, which is a protected ground. See 8 U.S.C. § 1101(a)(42). The IJ denied petitioner's claim, however, upon finding that her story was not credible. Specifically, the IJ based her adverse credibility determination on three grounds: (1) that the birth certificate petitioner submitted was likely fraudulent; (2) that petitioner's original application for asylum and her supplemental affidavit presented contradictory stories, particularly regarding petitioner's experiences while living in East Germany; and (3) that petitioner gave inconsistent testimony at her hearing before the IJ concerning a document that purportedly supported her claim to have suffered a broken leg during an anti-Semitic attack. Upon a review of the record and the IJ's decision, we conclude that any of the three bases enumerated by the IJ, which we discuss in turn, could by itself have supported an adverse credibility finding. We therefore hold that the IJ's factual determination is "supported by substantial evidence" and decline to disturb the IJ's decision.

A. The Birth Certificate

The first ground on which the IJ rested her adverse credibility determination was a finding that petitioner likely submitted a forged birth certificate. This finding is based primarily upon a report by an Immigration and Naturalization Service ("INS") employee stationed at the United States Embassy in Moscow ("Embassy Report"). The Embassy Report described two "inconsistencies in [petitioner's] birth certificate leading [the INS employee] to believe that the submitted document is fraudulent." Specifically, the Embassy Report indicated that in 1960, when the document was purportedly issued in Kiev, Ukraine, Soviet documents produced outside of Russia "contained the language of the republic in the body of the document." Petitioner's document, however, contained the words "Birth Certificate" in Russian only, rather than in Russian and Ukrainian. Additionally, petitioner's birth certificate did not have "in the bottom left corner," as was standard in the USSR, "a registration (or act) number along with the date of registration." For these reasons, the Embassy Report concluded, "It appears that the submitted document is a forgery."

The IJ considered the evidence submitted by petitioner to rebut the Embassy Report and found that "the rebuttal evidence [does not] overcome the embassy report," largely because the documents petitioner offered had not been authenticated pursuant to applicable regulations. See note 10, post. Petitioner objects to the IJ's finding, arguing that the IJ erroneously relied on Matter of O-D-, 21 I. N. Dec. 1079 (BIA 1998), in concluding that because a government report cast doubt upon the legitimacy of petitioner's document, an "overall lack of credibility" is suggested. In an effort to distinguish this case from Matter of O-D-, petitioner notes the report here is of uncertain authority because the credentials and expertise of the INS employee who wrote the Embassy Report are unknown. In contrast, the report in Matter of O-D- came from the INS "Forensic Document Laboratory." See id. at 1079. We disagree with petitioner's contention that the holding in Matter of O-D- depended on the particular credentials of the report's author. Although certain reports deserve greater deference than others, it was not error for the IJ to credit the sworn affidavit of an INS employee working at the United States Embassy in Moscow concerning the authenticity of Soviet documents. The IJ therefore correctly concluded that, absent a satisfactory explanation or rebuttal by petitioner, the Embassy Report impeached her general credibility.

The rebuttal evidence proffered by petitioner was such that a reasonable IJ could arguably have accepted its validity and set aside the conclusion of the Embassy Report, but that evidence by no means was sufficiently persuasive to compel any reasonable IJ to reject the Embassy Report. See 8 U.S.C. § 1252(b)(4)(B) (requiring acceptance of IJ's factual findings on appeal "unless any reasonable adjudicator would be compelled to conclude to the contrary"). To support her argument that her birth certificate looked unusual, not because it was a forgery, but instead because it was reissued in 1960 after state authorities lost the original, petitioner presented: (1) an affidavit and accompanying documents from another woman who claimed that her own birth certificate (reissued in Ukraine in 1984) was printed in Russian only, rather than in both Russian and Ukranian; (2) a letter from a Ukranian official stating that a birth certificate in petitioner's maiden name was registered in a Kiev "civil registry book" on September 24, 1960 (the date on the certificate proffered by petitioner) and that it memorialized her birth on January 12, 1941 (petitioner's date of birth); (3) speculation that some numbers on petitioner's birth certificate may constitute a registration number, contrary to the Embassy Report's finding that the document bore no registration number. Neither this evidence nor any other evidence or argument provided by petitioner convinces us that the IJ's determination that the birth certificate was likely fraudulent was not "supported by substantial evidence." Zhou Yun Zhang, 386 F.3d at 73. The IJ therefore could have rested her adverse credibility determination on this finding alone.

B. Petitioner's Experiences Prior to 1992

The second ground on which the IJ rested her adverse credibility finding was that petitioner's narrative of her life prior to 1992 in her initial asylum application differed considerably from the account she presented in her supplemental affidavit. For instance, petitioner's original application described her time in East Germany as follows:

In 1972 my husband was sent to serve in the Eastern Germany. I worked as a nurse in a military hospital. Our life was balanced, and during that time I didn't experience negative feelings of people towards me or any restrictions because of my nationality. Everything was O.K. in my relationships with colleagues and friends. However, some pressure was felt on the part of my husband's chiefs. They knew that his wife was a Jew, and Vitaliy was never promoted despit[e] many years of service. My husband's friends became high ranking officer[s.] However, I didn't know about that, and only his heart felt that pain.

Our family experienced the first blow in 1992, when Soviet troops started to leave Eastern Germany.

In contrast, petitioner's supplemental affidavit describes the years in East Germany as follows:

In 1972, my husband was transferred to serve in Eastern Germany. There, my family was being constantly watched by KGB agents. My husband and I never went anywhere, because we were afraid of insults and humiliations that I was being subjected to by the personnel, because I was Jewish. My husband was badly mistreated by his superiors, because I was Jewish. He was never promoted, but often degraded and humiliated because of that. Yet, I taught my daughter to be proud of being Jewish, and I brought her up in the Jewish rites and traditions. My husband supported me in my love for my religion.

Upon consideration of these two documents describing the same experiences, the IJ concluded that "the story changes totally." The IJ noted further allegations of persecution in petitioner's supplemental affidavit that had been omitted from the I-589 form. Petitioner contends on appeal that her initial application omitted various instances of persecution because, as petitioner told the IJ at her hearing, she was instructed when filing the form to describe only "the most serious incident." Petitioner characterizes the supplemental affidavit as adding detail to her prior account, not contradicting it or changing her story, much less changing it "totally." Our dissenting colleague describes the supplemental affidavit as "ascrib[ing] more urgency to the claimed discrimination against [petitioner's] husband" and containing "nothing inconsistent [with] her statement that she was not persecuted by her colleagues and friends at the time she worked in the military hospital." Dissent, post, at 164. We disagree and hold that there was substantial evidence to justify the IJ's finding that the documents contained material inconsistencies.

Although petitioner's initial application mentioned her husband's problems at work in East Germany, it did not merely omit further details of persecution then suffered by petitioner's family. Instead, it specifically stated that petitioner "didn't experience negative feelings of people towards [herself] or any restrictions because of [her] nationality." In the supplemental affidavit, petitioner asserted that her "family was constantly being watched by KGB agents." She also stated that she and her husband "never went anywhere, because we were afraid of insults and humiliations that I was being subjected to by the personnel, because I was Jewish." Although one could imagine a benign explanation for these apparent inconsistencies, our role does not extend to "hypothesiz[ing] excuses" for the inconsistencies in an asylum applicant's testimony. Zhou Yun Zhang, 386 F.3d at 74; see Jin Yu Lin, 413 F.3d at 191 (2d Cir. 2005). We reject petitioner's argument that no inconsistency exists between the statement that she "didn't experience negative feelings" or "any restrictions" on the basis of her "nationality" and the report that KGB agents stalked her family, which feared traveling lest petitioner and her husband "be subjected" to "insults and humiliations." Whereas in the initial application all was well for petitioner in East Germany except for her husband's difficulties at work, in the supplemental affidavit, government agents and others placed petitioner's family in constant fear. Because such instances of persecution are directly related to petitioner's claimed eligibility for asylum — persecution on the basis of her religion — we hold that these inconsistent statements were material and therefore that the IJ did not err in basing her adverse credibility finding upon them. Indeed, the IJ's adverse credibility finding could have rested on these inconsistencies alone.

C. The Medical Document

The third ground on which the IJ based her adverse credibility finding concerned petitioner's testimony about the provenance of a document she presented to support her claim that her leg was broken by anti-Semitic attackers. Because the instance of persecution allegedly recorded in this document ranks among the most serious described in petitioner's supplemental application for asylum, questions about the legitimacy of the document bear a "legitimate nexus" to petitioner's claim. See Secaida-Rosales, 331 F.3d at 307. Our dissenting colleague argues that "even if we accept the IJ's characterization of this testimony as inconsistent, the testimony hardly goes to a matter material to Borovikova's claim." Dissent, post, at 167. Since questions concerning the authenticity of documents may be vital to an IJ's decision whether an asylum applicant is recalling true events or struggling to parrot a script, the testimony at issue — concerning when petitioner received a medical document and how it reached the United States — is material to her claim.

The record includes multiple contradictory statements concerning this document. For example, the IJ asked petitioner if she ever saw the document while living in Ukraine, and she answered, "Yes." Later the IJ asked, "When did you get" the document? Petitioner answered, "When I filed for political asylum and I had to prove this fact and my daughter made an inquiry to the hospital. . . ." Also, the IJ asked petitioner how the document arrived in the United States. Petitioner answered that she had obtained it on the date of her injury and left it with her daughter when she fled Ukraine, after which "acquaintances were going to the United States and my daughter passed a packet of documents with them in June 1996." When the IJ informed petitioner that the document was dated 1998, petitioner said, "I guess I received assistance and I didn't take the note, I forgot," but soon clarified, "I recall I didn't take the note then, they gave me first aid, but I didn't take a note, they gave me the x-ray film and that was it, yes." Petitioner explained further that her daughter subsequently obtained the document and mailed it to petitioner in the United States.

The excerpts of testimony quoted above clearly illustrate contradictions; at issue is whether petitioner's contradictions exhibit a changing story or mere confusion. We hold that "substantial evidence" supports the IJ's finding even though a reasonable finder of fact could have reached the opposite conclusion. It is not enough that a reasonable person could — as our dissenting colleague does, see Dissent, post, at 167 — believe that petitioner's testimony "hardly reflects obfuscation" and provides "no reason to reject" petitioner's argument that she was confused at first and then gave truthful answers about the document. Id. The question on appeal is not whether, upon an independent evaluation of the cold record, we would credit or discredit an applicant's testimony. Instead, precisely because we did not hear and see what the finder of fact did, we affirm the IJ's factual determinations because we cannot conclude that "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Because the IJ's findings were not unreasonable, we hold that the IJ could have rested her adverse credibility determination on petitioner's conflicting testimony about the medical document alone.

D. Petitioner's Overall Credibility

Each of the three asserted grounds discussed above, standing alone, would have been sufficient to support an adverse credibility determination. Nonetheless, even if no single ground had been persuasive enough on its own, the combination of them all surely was. When an IJ bases an adverse credibility finding on multiple grounds, we review the totality of the IJ's decision, instead of dissecting the IJ's opinion and reviewing each portion in isolation. Here, the IJ found that petitioner presented a false birth certificate, offered inconsistent written statements, and contradicted herself when testifying. These factors, in combination, convinced the IJ that petitioner was not "a credible witness." While we can never be certain that the IJ correctly evaluated a petitioner's truthfulness, the statute that governs our review rests on the presumption that the IJ is in a better position than a reviewing tribunal to decide such questions. Because the IJ properly relied on "substantial evidence" in finding that petitioner lacked credibility, we accept her findings of fact.

An applicant who, like petitioner, fails to establish her eligibility for asylum is necessarily unable to establish her eligibility for withholding of removal. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999). Accordingly, petitioner's request for withholding of removal must be dismissed.

Finally, petitioner argues that although she did not seek relief under the CAT in her proceeding before the IJ, the IJ or BIA should have considered her eligibility for such relief sua sponte pursuant to 8 C.F.R. § 1208.13(c)(1). Because petitioner filed her asylum application on December 14, 1996, which is prior to the effective date of that regulatory provision, such sua sponte review was not required. See id. (describing procedures applicable to applications "filed on or after April 1, 1997"). Accordingly, the petition for review is denied insofar as it relates to petitioner's CAT claims.

Upon our review of the record, we decline to set aside the IJ's adverse credibility finding and we find no fault with her application of the law. The IJ had the opportunity to question petitioner in person, to evaluate her demeanor, and to review all the documents in the record. Her findings can be overruled "only if no reasonable fact-finder could have failed to find" the contrary result. Jian Xing Huang, 421 F.3d 125, 128 (2d Cir. 2005) (internal quotation marks omitted). Because we conclude that that high standard has not been met, we cannot disturb the IJ's decision denying petitioner asylum and withholding of removal.

We have considered all of petitioner's arguments and found each of them to be without merit. Accordingly, we DENY the petition for review, as well as petitioner's pending motion for stay of removal.