Yauheniya Valeryevna Trashchotkina v. U.S. Attorney General , 591 F. App'x 783 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13895
Non-Argument Calendar
________________________
Agency No. A201-255-600
YAUHENIYA VALERYEVNA TRASHCHOTKINA,
ALEXANDER LISITSYN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 20, 2014)
Before ED CARNES, Chief Judge, HULL and MARTIN, Circuit Judges.
PER CURIAM:
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Yauheniya Trashchotkina, a citizen of Belarus, seeks review of the Board of
Immigration Appeals’ (BIA) decision that affirmed the Immigration Judge’s (IJ)
order to have her removed from the United States.1 Trashchotkina conceded her
removability but pursued relief from removal through either asylum or withholding
of removal.2 The IJ and the BIA denied relief on both grounds.
I.
To obtain asylum, Trashchotkina needed to demonstrate that she is a
“refugee.” See 8 U.S.C. § 1158(b)(1)(A). She is only a refugee if she “is unable
or unwilling to return to [her 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.” See id. § 1101(a)(42)(A).
Trashchotkina claimed that she is a refugee based on the oppression she
experienced as a political dissident in Belarus. Finding her testimony implausible
1
Trashchotkina’s husband, Alexander Lisitsyn, is a rider on her application. See 8 U.S.C.
§ 1158(b)(3)(A). He brings no claims of his own, and whether we grant him relief depends
entirely upon our disposition of Trashchotkina’s petition.
2
Trashchotkina also sought relief under the Convention Against Torture (CAT). See 8
C.F.R. §§ 208.16(c), 1208.16(c). The IJ denied that request. The BIA held that because she “did
not meaningfully challenge the Immigration Judge’s denial of CAT protection, the issue is
waived on appeal.” She does not now challenge either of those conclusions, so we do not
consider her claim under the CAT. See Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1269 n.11
(11th Cir. 2012) (“Because Dormescar did not raise that issue before the IJ or the Board, we
cannot and do not consider it here. Nor did he raise the issue before this Court, which is another
reason we do not consider it.”) (citation omitted).
2
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and insufficiently corroborated, the IJ concluded that she is not a refugee. On
appeal, the BIA agreed with that conclusion.
“We review the decision of the Board, and we review the decision of the
Immigration Judge to the extent that the Board expressly adopted the opinion of
the Immigration Judge.” 3 See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009) (quotation marks omitted). When considering the IJ’s and
the BIA’s decisions, we review their legal conclusions de novo and their
factfindings only for substantial evidence. Id.
The substantial evidence standard is highly deferential. It makes the IJ and
BIA’s findings “conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). It binds us to decide “only
‘whether there is substantial evidence for the findings made by the BIA, not
whether there is substantial evidence for some other finding that could have been,
but was not, made.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004)
(en banc). And throughout this inquiry, we must view the record in the light most
favorable to those findings, drawing all reasonable inferences in their favor.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).
3
In this case, the BIA adopted some, but not all, of the IJ’s findings and reasoning. It also
made its own findings and expanded on parts of the IJ’s reasoning.
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This all means that we may not reverse just because we decide the record
could support a contrary decision. We may reverse only if the record leaves us
with no reasonable choice but to disagree with the IJ and the BIA’s findings. See
Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1345 (11th Cir. 2008) (“We may
reverse a finding of fact only when the record compels a reversal; the mere fact
that the record may support a contrary conclusion is not enough to justify a
reversal of the administrative findings.”) (quotation marks omitted).
II.
As a general rule, asylum-seekers do not need to present any proof of
“persecution or a well-founded fear of persecution” other than their own credible
testimony. See Lin Lin Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir.
2009) (“If an alien’s testimony is credible, it may be sufficient, without
corroboration, to satisfy her burden of proof in establishing her eligibility for relief
from removal.”). If Trashchotkina’s testimony was “credible,” “persuasive,” and
referred to “specific facts,” the IJ could have granted her asylum without
considering any other evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii). But the IJ did
not find Trashchotkina’s testimony credible, persuasive, and specific. The IJ
discounted parts of her testimony as implausible, and the BIA agreed.
Trashchotkina contends that they improperly discounted her testimony.
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A.
The IJ found that Trashchotkina’s testimony describing her experience as a
Belarusian dissident was implausible from the beginning. She testified that she
began studying jurisprudence at Belarus State University (BSU) in the fall of 2006
on an academic scholarship. She lived off campus her first year, but because of her
high grades, BSU awarded her a place on campus in student housing for her second
year. The IJ found these details in tension with the State Department’s report on
Belarus. See Imelda v. U.S. Att’y Gen., 611 F.3d 724, 728 (11th Cir. 2010) (“We
have held that the BIA may rely heavily on State Department reports about a
country.”).
According to that report, “[h]igh school students feared that they would not
be allowed to enroll in universities without joining” the Belarusian Republican
Youth Union, a group that supports Alexander Lukashenko, the Russocentric
president of Belarus since 1994. University students reported that Youth Union
membership “was often needed to register for popular courses or to receive a
dormitory room.” The education minister made membership a prerequisite for
professional training in foreign affairs, state administration, or journalism.
Trashchotkina never testified that she joined the Youth Union, nor even that she
ever showed any outward support at all for Lukashenko. She nonetheless was
admitted to BSU, allowed to study law, and awarded both a scholarship and a spot
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on campus in student housing. The IJ found this implausible in light of the
evidence that admission to BSU — not to mention a scholarship and on-campus
housing — was tied to support for Lukashenko.
The IJ found Trashchotkina’s account of her second year at BSU even more
implausible. She testified that, during that fall, her lack of outward support for the
political establishment turned into vocal opposition. In November 2007 she joined
the Belarusian Popular Front (BPF), a nationalistic political party opposed to
President Lukashenko. The record establishes that Lukashenko’s treatment of BPF
is occasionally violent. Trashchotkina testified that she attended her first BPF rally
in January 2008 and that she was one of about a dozen protestors who were
arrested. The police threatened and interrogated her, and then let her go after
recording the information on her student ID card. When testifying, Trashchotkina
mentioned no consequences that she suffered. She retained her enrollment in BSU,
her scholarship, and her place in on-campus housing. BSU’s administration did
not even warn her about her political activities. The IJ found it implausible that, in
light of the university’s refusal to admit applicants who did not support
Lukashenko, BSU would turn a blind eye to a student’s arrest at an opposition
rally.
In addition to agreeing with the IJ’s findings, the BIA also found that the
government’s indifference to Trashchotkina’s political activities raised doubts
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about her story. That first arrest meant the Lukashenko regime knew
Trashchotkina was a dissident as early as January 2008. In spite of that, it awarded
her a visa to travel to the United States as an exchange student during the summer
of 2008. The BIA found it improbable that the Lukashenko regime, a concededly
oppressive one, would allow a known opposition member to travel outside the
country, in particular to the United States.
The IJ found similar details in Trashchotkina’s account of her third year at
BSU to be implausible. She testified that she attended another BPF rally, on
Valentine’s Day 2009, which resulted in a melee with the riot police. She stated
that a policeman pulled her from the crowd, took her student ID, pushed her to the
ground, kicked her in the stomach, and left. She claimed to have suffered a
concussion from the attack and that soon afterwards, BSU’s dean called
Trashchotkina into his office. She said he told her that the police had brought her
student ID to him and that he had informed the faculty of her involvement with
BPF. Although he urged Trashchotkina to join the pro-Lukashenko Youth Union,
he did not threaten any particular action. After her third year, the Lukashenko
government again awarded Trashchotkina a visa to travel to the United States,
despite her allegations about two arrests at BPF rallies and the BSU’s growing
interest in her. The IJ and the BIA found it improbable that the Belarusian
authorities would continue to ignore Trashchotkina’s political activities.
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The IJ also found Trashchotkina’s account of BSU’s punishments of her,
which she testified had finally begun during her fourth year there, to be
implausible. BSU did not punish her until the fall of 2009, over a year-and-a-half
after she was first arrested. The school branded her an “oppositional activist” and
kicked her out of her dorm room. After that, BSU and the police ignored her
participation at a rally in December 2009, but then, on her way to a rally in March
2010, she was arrested. She claimed that the police interrogated, threatened, and
beat her, and then they returned her possessions, including her BPF ID card, and let
her go. The IJ found it particularly implausible that the police would return her ID
card.
Trashchotkina testified to a rapid crescendo of harassment targeted
specifically at her in the late spring of 2010. In May a group of men assaulted her
outside her apartment, dislocating her elbow and threatening to do worse if she
continued supporting BPF. On June 1 BSU did not allow Trashchotkina to sit for
exams. When she complained, the dean told her that her case had been sent to the
rector, who was considering expelling her because of her political activities. On
June 8 four policemen showed up at her apartment with a warrant. They searched
the apartment and confiscated anything BPF-related that they could find. They
then arrested and interrogated Trashchotkina again. Her interrogator told her she
had slandered President Lukashenko, a crime for which she could spend years in
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prison, and then forced her to sign a transcript of the interrogation, telling her to
expect a court summons.
According to Trashchotkina’s testimony, as of June 2010, she was not only a
known BPF member but also had been told by law enforcement to expect a
summons to appear in court. BSU’s dean had told her that her expulsion was
under consideration. And yet, despite these ongoing investigations, the
Lukashenko regime awarded Trashchotkina a third visa to travel to the United
States as an exchange student. The BIA found it hard to believe that if she were
telling the truth any oppressive government — much less one as oppressive as the
Belarusian government — would let Trashchotkina leave the country, given the
high risk that she would never return. She did not, in fact, return. She left Belarus
bound for New York on June 16, 2010, and has not returned since. She never
heard whether the government brought criminal charges against her, and only after
leaving Belarus did she hear that BSU had finally decided to expel her.
The IJ also found Trashchotkina’s narrative about her time in the United
States to be implausible. She testified that she began participating in the
Belarusian American Alliance while living in New York, but she never officially
joined that group. And when she moved to Florida, her participation in the group
stopped entirely. The IJ found that Trashchotkina, whose parents and friends still
live in Belarus, had hardly participated at all in the efforts of Belarusian expatriates
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in this country to cause political change in their home country. The IJ found it
implausible that Trashchotkina’s political convictions could be so strong while she
lived in Belarus that she risked her life and her studies for them, and yet so weak
once she set foot in the United States.
B.
The IJ and the BIA’s implausibility finding is a factual one. We therefore
review it only for substantial evidence. Trashchotkina must show not merely that a
reasonable factfinder could have found her testimony plausible, but that the record
would compel a reasonable factfinder to reverse the IJ and the BIA’s finding. See
8 U.S.C. § 1252(b)(4)(B); Forgue, 401 F.3d at 1286 (holding that credibility
determinations are reviewed only for substantial evidence).
Trashchotkina first asserts that the report of Dr. Ralph Clem, her expert on
Belarus, explains any implausibility in her testimony. His report explains that the
Lukashenko regime takes a “gradualist approach” to dissident students, meaning
that it tries to persuade the students to stop dissenting and turns to coercion only if
that persuasion fails. Clem’s report provides only a partial explanation for BSU’s
treatment of Trashchotkina. It could explain why BSU did not expel her as its first
response to her political activities, but it does not explain why, without joining the
Youth Union or showing some support for Lukashenko, she was admitted to BSU,
given a scholarship, and awarded a room on campus in the first place. Nor does it
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explain why, after Trashchotkina’s first arrest, BSU waited over a year to even
acknowledge her affiliation with BPF and about a year-and-a-half to punish her.
Clem’s report, by itself, does not compel us to reverse the IJ and the BIA’s
implausibility finding.
Trashchotkina asserts one other explanation that builds on Clem’s report.
She points out that BSU awarded her progressively higher honors — admission,
scholarship, and housing — before she joined BPF and stripped them away
piecemeal as it learned about her political activities. In other words, as soon as
BSU discovered her membership in BPF, it began levying gradually more severe
punishments against her. The timeline in Trashchotkina’s testimony does not
support this reading of BSU’s actions. The police recorded the information on her
student ID card the first time they arrested her in January 2008, but according to
her BSU did not even acknowledge that first arrest and did not begin to punish her
until about a year-and-a-half later. Her account is implausible in that respect.
Other evidence, such as the State Department report, shows the Belarusian
authorities’ intolerance of dissent and indicates that, even if they do punish young
dissidents gradually, they begin to do so much more quickly than they did in
Trashchotkina’s narrative. Finally, much like Clem’s report, this second
explanation only partially responds to the IJ and BIA’s concerns. It does not
explain how, in a country where the government doles out political favors using
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the universities, Trashchotkina received all the benefits from BSU that she did
when, she claims, she never showed any support for the Lukashenko regime.
Even if we could find Trashchotkina’s testimony plausible were we the
factfinder in this case, we are not. Her explanations must convince us that the
record would compel — not permit but compel — a reasonable factfinder to find
her testimony plausible. They do not.
Trashchotkina has failed entirely to explain some of the IJ and the BIA’s
concerns. For example, the BIA found it unlikely that the Lukashenko regime
would issue three travel visas to Trashchotkina if her story were true. The
“gradualist approach” to dissidents cannot explain why the oppressive Belarusian
government would repeatedly issue a visa to her, a known dissident, permitting her
to travel to the United States of all places. Neither does she attempt to explain the
Belarusian authorities’ burst of punitive energy in the spring of 2010. Up to that
point, they had all but ignored her multiple arrests at BPF rallies. Their earlier
response — slow-footed and faltering as it was — renders implausible their sudden
interest in her. Nor does she explain why the police, each time after arresting her
for BPF activities, returned her BPF ID card to her. Finally, she points to no
evidence of her involvement in the Belarusian expatriate political community
beyond that which the IJ found insufficient. Her explanations do not compel us to
find that her testimony was plausible.
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III.
Because parts of Trashchotkina’s testimony are implausible, the IJ and the
BIA looked to the record for corroborating evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (allowing the IJ to require the introduction of corroborating
evidence); Feng Chai Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005) (“The weaker an applicant’s testimony, however, the greater the need for
corroborative evidence.”). Finding a lack of corroborating evidence, the IJ and the
BIA denied Trashchotkina’s claim. She argues that, assuming her testimony is
implausible, she presented enough corroborating evidence to meet her asylum
burden.
A.
When an IJ requires corroborating evidence, even for “otherwise credible
testimony, such evidence must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii)
(emphasis added). The IJ and the BIA found that Trashchotkina had failed to
present enough evidence to corroborate her implausible testimony. We may
reverse that factual determination only if the record compels reversal. See id.
§ 1252(b)(4)(B); Forgue, 401 F.3d at 1286.
Trashchotkina first points to medical records from Belarusian and American
doctors as corroboration. The Belarusian records show that she was treated for
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injuries like those her testimony described and on dates close to those in her
testimony, but the records show nothing about the cause of those injuries. The
American records fail for similar reasons. They prove that an American doctor,
years after the fact, said that a scar on Trashchotkina’s forehead could have come
from being pushed to the ground by a policeman. The medical records do not
connect her injuries to any political activities in Belarus nor to any oppression by
the Lukashenko regime. Viewed in the light most favorable to the BIA’s decision,
they do not compel us to find that Trashchotkina presented enough corroborating
evidence.
Trashchotkina points next to two documents from other BPF members. The
IJ failed to acknowledge either of these documents, which was error. See Lin Lin
Tang, 578 F.3d at 1280 (“We do not expect a judge to selectively consider
evidence, ignoring that evidence that corroborates an alien’s claims and calls into
question the conclusion the judge is attempting to reach.”) (quotation marks
omitted). But this error does not require us to reverse. Viewed in the light most
favorable to the agency decision, see Forgue, 401 F.3d at 1286, the documents do
not compel us to hold that Trashchotkina presented enough corroborating evidence.
The first document, which is a letter from the “Chairperson of the BPF,” on
BPF letterhead, and with a BPF seal, states that Trashchotkina attended BPF
meetings and rallies, in particular those rallies mentioned in her testimony. It also
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states, without providing any details, that Trashchotkina “was apprehended
multiple times” and “faced humiliating treatment [and] physical abuse” from the
police. The second document, written by Valeria Levanenka, bears a notary’s seal
on its final page. It mentions a number of details from Trashchotkina’s testimony,
although it admits that Levanenka knew about many of the details only because
Trashchotkina had told them to her.
As an initial matter, neither document can compel reversal of the IJ and the
BIA’s decision because neither is authenticated. See Xiu Ying Wu v. U.S. Att’y
Gen., 712 F.3d 486, 497 (11th Cir. 2013) (“‘[W]e cannot depend of [the] veracity’
of unauthenticated documents . . . .”) (citation omitted) (second alteration in
original); Feng Chai Yang, 418 F.3d at 1202 n.3 (“[T]his document has not been
authenticated, and thus we cannot depend on its veracity.”). Trashchotkina
presented no authentication evidence to the IJ and neither document is self-
authenticating. Cf. Fed. R. Evid. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims
it is.”); Fed. R. Evid. 902 (listing the ways a document may be self-
authenticating).4 Furthermore, Levanenka’s statement admits that it does little
4
We acknowledge that “it is a well-settled principle that the Federal Rules of Evidence do
not apply in administrative proceedings.” See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347
(11th Cir. 2010) (brackets omitted) (quotation marks omitted). We cite the authentication rules
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more than repeat a narrative that Trashchotkina told her. Viewed in the light most
favorable to the agency’s decision, a secondhand account of the contents of
Trashchotkina’s testimony cannot corroborate that testimony.
Even if we took these two documents at face value, which the standard of
review does not allow, they establish only that Trashchotkina did participate in
political rallies in Belarus and did suffer some consequences from the police as a
result. Neither document mentions Trashchotkina’s expulsion from BSU or an
outstanding warrant for her arrest in Belarus, which leaves important parts of her
testimony uncorroborated. This shortcoming shows that, although the IJ erred by
failing to discuss these letters, our consideration of them does not compel us to
conclude that Trashchotkina carried her corroboration burden.
Beyond that, even taken together with the medical records, the documents
leave key parts of Trashchotkina’s testimony uncorroborated. At best, the
evidence corroborates her past arrests with nothing more than a vague statement in
the BPF letter that she was apprehended multiple times. In particular, none of the
evidence corroborates her June 2010 arrest, when the police allegedly told her to
expect a court summons. She has presented no evidence that a summons ever
issued or that criminal charges against her are pending. She similarly presented no
here only to illustrate the sort of authentication evidence that we had in mind in Xiu Ying Wu
and Feng Chai Yang.
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corroborating evidence of her expulsion from BSU. The IJ and the BIA found that
she left too many parts of her testimony uncorroborated to warrant refugee status.
She has not shown that the record compels us to disagree with the agency’s
decision.
B.
Nor has Trashchotkina proven that other evidence that could corroborate her
testimony exists but was not reasonably obtainable. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.”) (emphasis added). She argues that the BIA erred
when it found evidence corroborating her testimony — namely, evidence of a
summons issued against her and of her expulsion from BSU — to be reasonably
obtainable. We review that finding for substantial evidence. See 8 U.S.C.
§ 1252(b)(4)(D) (“No court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating evidence” unless the court finds,
“that a reasonable trier of fact is compelled to conclude that such corroborating
evidence is unavailable.”).
Regarding the summons, she asserts that it would have issued after she
moved out of her apartment and left for America, and she therefore had no way of
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obtaining a copy of it. But she testified that the police had come to her parents’
house looking for her on at least one previous occasion, which suggests they would
do so again if charges were pending against her. If so, she could at least get a
statement from her parents regarding the summons, if not a copy of the summons
itself. But the only statement from her parents that she has put in the record, a
letter from her mother, does not mention a summons or any visit by the police
seeking to arrest Trashchotkina. According to her, the letter’s failure to mention
those details suggests that evidence of a summons was not reasonably obtainable.
It just as likely, if not more likely, suggests that no criminal charges are pending
against Trashchotkina. Far from corroborating her testimony, her mother’s letter
undercuts the assertion that politically motivated charges are pending, which is a
key part of Trashchotkina’s asylum claim.
Trashchotkina also contends that no corroborating evidence of her expulsion
from BSU was reasonably obtainable, because any documents about it would have
arrived at her apartment in Belarus after she left for the United States. She testified
that she found out about the expulsion only because some friends told her mother,
who told her. She cannot now acquire a copy of any documents from BSU, she
asserts, because those same friends are too afraid to ask for them. 5 She does not
5
She goes on to assert that there was no basis for believing that documentary evidence of her
expulsion even existed. While we certainly do not permit conclusions based on “conjecture or
speculation,” see Xiu Ying Wu, 712 F.3d at 494 (quotation marks omitted), a factfinder does not
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explain from what source those friends heard about her expulsion in the first place,
nor why they cannot now go to that same, presumably trusted, source for evidence
of it. She points to no evidence in the record at all to corroborate her expulsion.
Not even her mother’s letter mentions it, and she claims her mother heard about
her expulsion. The problems with Trashchotkina’s explanations mean that the
record does not compel us to hold that evidence corroborating the court summons
or her expulsion was not reasonably obtainable.
IV.
Finding that key parts of Trashchotkina’s testimony were implausible and
that she failed to produce enough corroborating evidence to compensate for those
implausibilities, the IJ and the BIA denied her asylum claim. Because the record
does not compel us to conclude otherwise we must affirm that decision.
Trashchotkina’s ineligibility for asylum means that she is also ineligible for
withholding of removal. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820–21
(11th Cir. 2007) (holding that an alien who has failed the “well-founded fear” test
for asylum will necessarily fail the more stringent “more likely than not” test for
withholding of removal).
speculate by presuming that a student’s expulsion from a university would be documented in
some way.
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Having no other challenges to the BIA’s judgment before us, we deny
Trashchotkina’s — and as a result Lisitsyn’s — petition for review.
PETITION DENIED.
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