Julia Boicova v. U.S. Attorney General , 256 F. App'x 266 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11122 NOVEMBER 21, 2007
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A95-241-852
JULIJA BOICOVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 21, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Julija Boicova petitions for review of the order by the Board of Immigration
Appeals (BIA) affirming the immigration judge’s (IJ’s) order denying her
application for asylum and withholding of removal.1 After review, we deny
Boicova’s petition.
I. BACKGROUND
A. Boicova’s Application and Hearing Testimony
Boicova, a native of Latvia and a citizen of Lithuania, filed an asylum
application contending that she was persecuted in Lithuania because of her Russian
heritage. According to Boicova, she was abducted by “the mafia” and sent to
Germany to work as a sex slave. After the German police freed her, Boicova
returned to Lithuania and received medical treatment.
Once back in Lithuania, Boicova and her family began to receive death
threats from the mafia if she spoke about her abduction. Boicova went to the
police, who refused to protect her because she was Russian speaking. After a
police detective advised Boicova to disappear for a few weeks, Boicova moved to a
farm about 60 kilometers from her hometown. While Boicova was living at the
farm, her father was beaten and asked where Boicova could be found.
1
On appeal, Boicova does not challenge the denial of CAT relief. Consequently, she has
abandoned that claim. See Sepulveda v. U.S Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
2
Boicova approached a journalist who was doing a story on women and
prostitution. Boicova agreed to be interviewed for a television program and
described her abduction and the failure of the Lithuanian police to help her. After
the program aired, the police detained Boicova for three days, threatened to put her
in jail for five years, and released her only after she agreed not to speak about her
abduction. Ten days after she was released, a group of men attempted to abduct
Boicova, but failed after she screamed and neighbors called the police. She was
injured and had to be hospitalized for two weeks.
Approximately three weeks after the abduction attempt, Boicova’s door was
set on fire. Instead of reporting this incident, Boicova concluded that the police
would not help her and decided to leave the country. Boicova claims that her
father’s business was confiscated and that since her departure her father has
received threatening telephone calls asking for her location.
Boicova entered the United States on September 14, 2001 as a nonimmigrant
with authorization to remain until March 12, 2002. On March 4, 2002, Boicova
filed an application for asylum and withholding of removal.
Boicova also submitted the following documents in support of her
application: (1) a medical record from the Mazhekiai Hospital in Lithuania dated
May 16, 2001 indicating that Boicova was diagnosed with “having a dug vagina
and break vulvas” and told to seek treatment from a family doctor; (2) a medical
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record from the Mazhekiai Hospital dated August 10, 2001 indicating that Boicova
was diagnosed with “multiple bruises of head and trunk” and was referred to a
neuropathologist for six months’ supervision; (3) a document from the Lithuanian
fire department indicating that the door to Boicova’s apartment had been set on fire
on February 11, 2001; (4) a letter from Boicova’s father stating that “the mafia
people have come and called to our home several times” asking for Boicova’s
whereabouts and that he feared for Boicova’s safety if she returned to Lithuania;
(5) a document entitled Verification re: Employment of Mr. Vladimir Boicov dated
November 19, 2003, indicating that Mr. Boicov’s forestry and lumbering business
was “registered off” on January 23, 2001 because “[d]ue to immense input required
for lumbering business and hard lumbering work of four individuals advanced in
years, Vladimir Boicov’s enterprise could not proceed with contractual works”;
and (6) a document from the Vilnuis Chief Police Department stating that a lawsuit
had been commenced based on Vladimir Boicov’s application “in compliance with
Article 140 of the Criminal Code of the Republic of Lithuanians (minor health a
disorder) and Article 187 Section 1 of the Criminal Code of the Republic of
Lithuanians (deliberate destruction of or damage to property).” These documents
were translated into English by a woman named Larisa Sapronova, who also
assisted Boicova in preparing her asylum application.
4
Boicova also relies on the State Department’s 2004 Country Report on
Human Rights Practices for Lithuania, submitted by the government, which
indicates that “trafficking in women and girls for the purpose of sexual exploitation
was a problem” and that traffickers targeted young women from ethnic minorities.
Traffickers lured young women with deceptive offers of domestic work in Western
European countries and then ensured compliance with threats and the withholding
of their documents. According to the Country Report, Europol estimated that
about 1,200 Lithuanian women are victims of trafficking every year.
Following an asylum interview, Boicova was issued a Notice to Appear, in
which she was deemed removable for having remained in the United States for a
time longer than permitted, in violation of INA § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B). At her removal hearing, Boicova conceded removability.
Before allowing Boicova to testify, the IJ expressed concerns about certain
documents Boicova had submitted. For example, the IJ questioned the validity of
one document from the fire department that contained different typesettings.
Boicova then testified about her abduction to Germany, her release by
German police and attempts to seek protection upon her return to Lithuania.
Boicova’s testimony at times was inconsistent with statements made either in her
asylum application or her asylum interview. For example, as to her ordeal in
Germany, Boicova testified that she was freed by the German police and taken to
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the Lithuanian embassy. However, in her asylum application, Boicova stated
merely that she “managed to escape” from the brothel in Germany. Boicova stated
in her asylum interview that she was held captive in Germany for six days before
German police freed her and that she was first taken to the police station and the
Red Cross before being taken to the Lithuanian embassy. However, at the hearing,
Boicova testified that she was held captive in Germany for ten days and taken by
the German police directly to the Lithuanian embassy with “[n]o stops.” Boicova
stated in her asylum interview that she was abducted after she had searched for a
job with a company called “ASTRA.” However, at the hearing, Boicova testified
on direct that the company was called “Obtka” and on cross-examination that the
company name was “Optika.” In her asylum application, Boicova stated that,
while in Germany, she was forced to engage in prostitution. At the hearing,
Boicova testified that she did not engage in prostitution in Germany, but that she
was raped on three occasions by four Arab guards.
With regard to events after she returned to Lithuania, Boicova testified about
the second abduction attempt and the resulting two-week hospitalization.
However, Boicova failed to mention this incident in either her asylum application
or her asylum interview. At the hearing, Boicova testified that her apartment door
was set on fire, but in her asylum application she stated that her “house was burnt.”
At the hearing, Boicova testified that after her return to Lithuania she relocated to a
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family friend’s farm to avoid threatening phone calls. Boicova stated in her
asylum interview that she relocated to her aunt’s house. At the hearing, Boicova
testified that her father continued to receive threatening phone calls after her
departure. In her asylum interview she claimed that “the mafia” had come to her
parents’ home searching for her after she fled to the United States.
B. Decisions from the IJ and the BIA
In her oral decision, the IJ found Boicova “to be totally incredible.” In
support of his adverse credibility finding, the IJ cited, among other reasons: (1) the
questionable authenticity of the fire department report that contained two different
typesets; (2) inconsistencies between Boicova’s hearing testimony and asylum
interview regarding Sapronova’s address and the details of Boicova’s rescue in
Germany; (3) Boicova’s failure to give the same level of detail in her application
and asylum interview, such as her failure to mention the rape in Germany during
her asylum interview; and (4) inconsistencies between Boicova’s testimony and the
fire department report regarding the date when her apartment door was set on fire.
The IJ noted that in addition to “the numerous discrepancies and/or
omissions,” Boicova’s demeanor during the hearing was suspicious. The IJ
indicated that Boicova had been fidgety and nervous throughout the hearing,
repeatedly rubbing her legs, playing with a paper or tissue and looking at the floor
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during her testimony. The IJ also noted that Boicova had been unresponsive to “a
number of questions” during her testimony.
The IJ concluded that, because Boicova’s “entire claim [was] totally
incredible,” Boicova had failed to meet her burden of proof and denied all relief.
Boicova appealed to the BIA, which adopted and affirmed the IJ’s decision. The
BIA noted several examples of inconsistencies cited by the IJ and concluded that
the IJ properly discredited Boicova. The BIA also emphasized that Boicova’s
corroborative evidence was unconvincing. Accordingly, the BIA dismissed
Boicova’s appeal.
Boicova filed this petition for review.
II. DISCUSSION
On appeal, Boicova argues that the IJ’s credibility finding is not supported
by substantial evidence because, although it was specific, it was not cogent,
supported by the record or pertinent to the heart of her claim.2
An applicant for asylum or withholding of removal may sustain her burden
of proof without corroboration, “but only if the applicant satisfies the trier of fact
2
Where as here the BIA expressly adopts the IJ’s decision, we review both the BIA’s and
IJ’s ruling. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review factual
determinations regarding whether an alien is eligible for asylum or withholding of removal under
the substantial evidence test. Id. at 1283-84. Under the substantial evidence test, “we must find
that the record not only supports reversal, but compels it.” Mendoza v. U. S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003). A credibility determination, like any other fact finding, may
not be overturned unless the record compels it. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287
(11th Cir. 2005).
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that the applicant’s testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.” INA §§ 208(b)(1)(B)(ii),
241(b)(3)(C), 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). On the other hand, a
denial of relief “can be supported solely by an adverse credibility determination,
especially if the alien fails to produce corroborating evidence.” Chen v. U.S. Att’y
Gen., 463 F.3d 1228, 1231 (11th Cir. 2006).
The IJ must make an explicit credibility determination and offer “specific,
cogent reasons for the finding.” Id. If the IJ has made an explicit credibility
finding, the alien bears the burden to show that the finding is not supported by
“specific, cogent reasons” or is not supported by substantial evidence. Id.Here, the IJ’s reasons for discrediting Boicova were specific, cogent and
supported by substantial evidence. The IJ listed numerous inconsistencies between
Boicova’s testimony and her asylum application and her asylum interview. Many
of the inconsistencies relate directly to Boicova’s claim that she was persecuted,
including events she claims occurred in Lithuania after she returned from
Germany, such as her attempt to relocate, the second abduction attempt and the fire
at her home. The documentation Boicova submitted is insufficient to compel a
conclusion that Boicova is credible or that, without her testimony, she suffered
persecution.
9
Accordingly, substantial evidence supports the determination by the IJ and
the BIA that Boicova failed to carry her burden of proving her status as a refugee
for asylum purposes. Because Boicova failed to establish eligibility for asylum,
she likewise has failed to show that she is eligible for withholding of removal. See
Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).3
PETITION DENIED.
3
Boicova alternatively requests that the Court reinstate her period for voluntary departure,
which has expired. We lack jurisdiction to do so. See Nkacoang v. INS, 83 F.3d 353, 356-57
(11th Cir. 1996); Bocova v. Gonzales, 412 F.3d 257, 267-68 (1st Cir. 2005).
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