Solodovnikova v. Attorney General of the United States , 555 F. App'x 136 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-2399
______
GANNA SOLODOVNIKOVA
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______
On Appeal from the Board of Immigration Appeals
(Agency No. 088-649-621)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 13, 2014
Before: CHAGARES, SHWARTZ, and GARTH, Circuit Judges
(Opinion filed: February 19, 2014)
______
OPINION
______
GARTH, Circuit Judge.
Petitioner, Ganna Solodovnikova, appeals from a final order of removal,
entered on April 18, 2013 by the Board of Immigration Appeals (“BIA”)
approving an order of removability, entered by the Honorable Rosalind K. Malloy,
U.S. Immigration Judge (“IJ”), on February 25, 2011.
1
We have jurisdiction pursuant to 8 U.S.C. § 1252.1 For the reasons that
follow, we will reverse the decision of the IJ and BIA.
I
Solodovnikova, a citizen of Ukraine and native of the former Ukrainian
Soviet Socialist Republic, entered the United States in August 2000 after being
denied asylum in Canada. In 2008, she received a notice to appear, charging her
as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) 2 for having entered the
United States without being admitted or paroled. Represented by counsel, she
conceded her removability and applied for: (1) asylum; (2) withholding of
removal; and (3) relief under the Convention Against Torture (“CAT”). In support
of her application, she claimed that she had been persecuted in Ukraine on account
of her Baptist faith and would be subject to further persecution if she were
compelled to return to her native land.
On August 4, 2010, at the merits hearing before the IJ, Solodovnikova
testified that, when she was a child in Ukraine, her peers frequently beat her
because of her religion, and school administrators did nothing to prevent or
remedy the violence. She further testified that, as a pregnant adult working at a
state-owned factory, she was required to do hard labor, causing her to miscarry at
1
As discussed infra, however, we lack jurisdiction to consider Solodovnikova’s
asylum claim.
2
The statute provides that “an alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time or place other
than as designated by the Attorney General, is inadmissible.”
2
some point between 16 and 20 weeks. She claimed that, in accordance with the
factory’s policies, pregnant women were not required to do hard labor after the
first four months of pregnancy, but that this protection was only afforded to non-
Baptist women. She also testified that, in 2009, unidentified individuals
vandalized her mother’s home in Ukraine and defaced it with anti-Baptist graffiti.
On February 25, 2011, the IJ denied Solodovnikova’s application.3 The IJ
concluded that Solodovnikova was statutorily ineligible for asylum because she
had not filed her application within one year of entering the United States and had
not demonstrated either changed country conditions or extraordinary
circumstances relating to the delay. See 8 U.S.C. §§ 1158(a)(2)(B), (D). The IJ
also determined that Solodovnikova had failed to corroborate sufficiently the facts
on which she based her withholding of removal claim and that she had failed to
provide evidence that Baptists are persecuted in Ukraine. Finally, the IJ held that
Solodovnikova was ineligible for relief under the CAT because she had not
demonstrated that it was more likely than not that she would suffer torture if she
returned to Ukraine.
Solodovnikova appealed the IJ’s decision to the BIA, and, on April 18,
2013, the BIA dismissed the appeal.
In its decision, the BIA affirmed the IJ’s holdings that Solodovnikova’s
3
The IJ initially issued an oral decision soon after the removal hearing in 2010.
However, on appeal, the BIA remanded the case for preparation of a complete
transcript. On remand, the IJ issued her February 2011 oral decision, which
superseded the 2010 decision.
3
asylum application was time-barred and that she had not demonstrated the
applicability of an exception to the one-year period of limitations. Relying solely
on the IJ’s conclusion about corroboration, the BIA also affirmed the IJ’s denial of
Solodovnikova’s withholding of removal claim. Finally, the Board upheld the IJ’s
denial of relief under the CAT, concluding that Solodovnikova had not established
that it was more likely than not that she would be tortured by, or with the
acquiescence of, the Ukrainian government.
Presently before us is Solodovnikova’s timely filed petition for review of
the BIA’s decision.4
II
We review questions of law de novo, Caroleo v. Gonzales, 476 F.3d 158,
162 (3d Cir. 2007), but we “will not disturb the IJ’s credibility determination and
findings of fact if they are supported by reasonable, substantial and probative
evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d
180, 184 (3d Cir. 2003) (internal quotation marks omitted). We “appl[y]
substantial evidence review to agency findings of fact, departing from factual
findings only where a reasonable adjudicator would be compelled to arrive at a
contrary conclusion.” Mendez-Reyes v. Att’y Gen. of the U.S., 428 F.3d 187, 191
(3d Cir. 2005). Finally, “[w]here the BIA issues a decision on the merits, we
review only the BIA’s decision. However, we will look to the IJ’s analysis to the
extent that the BIA deferred to or adopted it.” Calla-Collado v. Attorney Gen. of
4
Solodovnikova’s removal has been stayed pending the resolution of her petition.
4
U.S., 663 F.3d 680, 683 (3d Cir. 2011) (citing Chavarria v. Gonzalez, 446 F.3d
508, 515 (3d Cir. 2006)).
III
On appeal, Solodovnikova contests the BIA’s rulings on each of her three
claims: (1) that she is entitled to asylum; (2) that she is entitled to CAT relief; and
(3) that she is entitled to withholding of removal.
A
To apply for asylum, an alien must “demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
A tardy application may be considered if the alien demonstrates to the
satisfaction of the Attorney General the existence of either of the following
circumstances: “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating to
the delay in filing an application within the period specified in
subparagraph (B).”
Sukwanputra v. Gonzales, 434 F.3d 627, 631 n. 2 (3d Cir. 2006) (quoting 8 U.S.C.
§ 1158(a)(2)(D)).
We generally lack jurisdiction to review the BIA’s determination that an
alien’s asylum application is untimely and that she has failed to establish
extraordinary circumstances excusing the late filing. See 8 U.S.C. § 1158(a)(3);
Sukwanputra, 434 F.3d at 634-35. Therefore, our jurisdiction to review the BIA’s
denial of Solodovnikova’s asylum claim is “narrowly circumscribed in that it is
limited to colorable claims or questions of law.” Pareja v. Attorney Gen. of U.S.,
5
615 F.3d 180, 186 (3d Cir. 2010) (internal quotation marks omitted). A claim is
not colorable if “it is immaterial and made solely for the purpose of obtaining
jurisdiction or is wholly insubstantial and frivolous.” Arbaugh v. Y & H Corp.,
546 U.S. 500, 513 n. 10 (2006) (internal quotation marks and citations omitted).
To that end,
[a] petition for review that fails to present . . . a colorable claim is nothing
more than an argument that the IJ abused his discretion in determining that
the petitioner did not meet the requirement of exceptional and extremely
unusual hardship, which is a matter over which we have no jurisdiction.
Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (internal quotation
marks and citation omitted), quoted in Pareja, 615 F.3d at 187. “If a claim is
frivolous . . . we lack jurisdiction to review it, no matter its label.” Pareja, 615
F.3d at 187 (citing Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 189 (3d Cir.
2007)).
On appeal, Solodovnikova has attempted to raise both a constitutional and a
legal challenge to the BIA’s denial of her asylum claim. First, she argues that the
BIA erred in failing to consider her argument that the initial denial of her asylum
application in Canada discouraged her from timely filing for asylum once she
entered the United States. She also asserts that the agency applied an incorrect
legal standard in assessing whether extraordinary circumstances existed.
Consistent with the law of our sister Circuits, however, we have held that
“despite the changes of the REAL ID Act, 8 U.S.C. § 1158(a)(3) continues to
divest the court of appeals of jurisdiction to review a decision regarding whether
6
an alien established changed or extraordinary circumstances that would excuse his
untimely filing.” Sukwanputra, 434 F.3d at 635. Accordingly, bound by this
precedent, we conclude that the vague assertions and references to “due process”
that comprise Solodovnikova’s argument fail to rise to the level of a “colorable
claim.” Therefore, we lack jurisdiction to review the BIA’s determination that
Solodovnikova’s asylum claim is time-barred.
However, we retain jurisdiction over the other issues raised in
Solodovnikova’s petition pursuant to 8 U.S.C. § 1252(a)(1).
B
We turn, therefore, to the BIA’s denial of relief to Solodovnikova under the
CAT.
“An applicant for relief on the merits under [Article III] of the Convention
Against Torture bears the burden of establishing ‘that it is more likely than not that
he or she would be tortured if removed to the proposed country of removal.’”
Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002) (quoting 8 C.F.R. §
208.16(c)(2)). “Torture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Therefore,
“even cruel and inhuman behavior by government officials may not implicate the
torture regulations.” Sevoian, 290 F.3d at 175.
“[T]orture covers intentional governmental acts, not negligent acts or acts
by private individuals not acting on behalf of the government.” In re J–E–, 23 I. &
7
N. Dec. 291, 299 (BIA 2002). Therefore, “‘[v]iolence committed by individuals
over whom the government has no reasonable control does not implicate’ relief
under the CAT.” Valdiviezo-Galdamez v. Attorney Gen. of U.S., 663 F.3d 582,
592 (3d Cir. 2011) (quoting In re Y–L–, A–G–, R–S–R–, 23 I. & N. Dec. 270, 280
(BIA 2002). Similarly,
the existence of a consistent pattern of gross, flagrant, or mass violations of
human rights in a particular country does not, as such, constitute a
sufficient ground for determining that a particular person would be in
danger of being subjected to torture upon his or her return to that country.
Specific grounds must exist that indicate that the individual would be
personally at risk.
In re S–V–, 22 I. & N. Dec. 1306, 1313 (BIA 2000), quoted in Valdiviezo-
Galdamez, 663 F.3d at 592.
Here, the agency’s decision denying CAT relief is supported by substantial
evidence. Solodovnikova contends that she may be subject to arbitrary arrests,
beatings, and “other forms of physical attacks and mistreatment” based on anti-
Baptist sentiments. In support of these claims, she relies primarily on past
anecdotal evidence (e.g., the vandalism, violence encountered as a child, etc.). In
opposition, the Government proffered country reports and testimony asserting that
the Ukranian Baptist population was on the rise and that while human rights
abuses might exist in Ukraine, Solodovnikova had produced insufficient evidence
to demonstrate either that: (1) she had been tortured in the past, under the relevant
8
statutory definition;5 or (2) it was more likely than not that she would be tortured
in the future.
Based on the record before us, we conclude that a reasonable factfinder
would not be compelled to find that it is more likely than not that Solodovnikova
would be tortured upon her return to Ukraine. See Mendez-Reyes, 428 F.3d at
191. Accordingly, we affirm the decision of the BIA denying Solodovnikova
relief under the CAT.
C
For the reasons that follow, however, we reach a different result with
respect to Solodovnikova’s withholding of removal claim. Because the BIA erred
in rejecting Solodovnikova’s withholding of removal claim based on her alleged
failure to corroborate, we remand this matter for further proceedings in light of our
precedent governing aliens’ burden of providing corroborating evidence.6
An IJ may reasonably conclude that an applicant will corroborate facts that
are central to her claim and easily subject to verification. Abdulai v. Ashcroft, 239
F.3d 542, 554 (3d Cir. 2001). “Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise credible testimony,
5
See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.”).
6
The Government challenges our jurisdiction to review the BIA’s corroboration
determination, arguing that Solodovnikova failed to raise it in her appeal to the
Board. Because the BIA sua sponte reviewed the IJ’s corroboration finding, we
retain jurisdiction to consider the issue. See Lin v. Att’y Gen. of the U.S., 543
F.3d 114, 126 (3d Cir. 2008).
9
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).
Further, we will not reverse a fact-finder’s determination on the availability of
corroborating evidence unless we conclude “that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable,” 8 U.S.C.
§ 1252(b)(4)(D); Chen v. Gonzalez, 434 F.3d 212, 218 (3d Cir. 2005).
In order to dismiss a claim based on a lack of sufficient corroboration, an IJ
or the BIA must perform the following three-step inquiry that we articulated in
Abdulai:
(1) an identification of the facts for which it is reasonable to expect
corroboration; (2) an inquiry as to whether the applicant has provided
information corroborating the relevant facts; and, if he or she has not, (3) an
analysis of whether the applicant has adequately explained his or her failure
to do so.
Quao Lin Dong v. Att’y Gen. of U.S., 638 F.3d 223, 229-30 (3d Cir. 2011)
(quoting Abdulai, 239 F.3d at 554). “We have required faithful adherence to the
three-prong test,” id. at 230, and “only upon such inquiry and analysis can the BIA
hold the lack of corroboration against an applicant.” Chukwu v. Att’y Gen. of the
U.S., 484 F.3d 185, 192 (3d Cir. 2007).
Focusing on the critical need to provide an applicant with notice as well as
importance of preserving a record for appellate review, “[w]e have repeatedly held
that the BIA’s . . . failure to engage in the three-part inquiry described above
requires that the BIA’s findings regarding corroboration be vacated and
remanded.” Toure v. Att’y Gen. of U.S., 443 F.3d 310, 323 (3d Cir. 2006) (citing
10
Voci v. Gonzales, 409 F.3d 607, 617 (3d Cir. 2005); Mulanga v. Ashcroft, 349
F.3d 123, 136 (3d Cir. 2003); Abdulai, 239 F.3d at 555); see also Chukwu, 484
F.3d at 191-92 (noting that the IJ must provide the applicant with “notice” of what
corroboration will be expected).
On appeal, Solodovnikova argues that: (1) the IJ did not identify in advance
of her oral decision which facts required corroboration; and (2) the IJ did not
provide Solodovnikova with an opportunity to submit the required corroborating
evidence. The Government counters that the IJ alerted Solodovnikova to the need
to submit corroborating evidence at various points leading up to and during the
removal hearing.
The Government first points to an exchange that took place between the IJ
and Solodovnikova approximately eighteen months before the final removal
hearing. On January 27, 2009, the IJ asked Solodovnikova what documents she
intended to submit as evidence at the evidentiary hearing and suggested that
Solodovnikova submit country reports from the Department of State and the
World Council of Churches. While Solodovnikova did not submit this evidence,
the IJ ultimately did not deny Solodovnikova’s withholding of removal claim on
the basis of a failure to corroborate her allegations regarding country conditions;
instead, the IJ faulted Solodovnikova for her failure to corroborate particular facts
about her past persecution. Therefore, the IJ’s comments on January 27, 2009 do
not satisfy the first step of the Abdulai test.
11
The Government also contends that a colloquy at the removal hearing
satisfied the Abdulai requirements. During the hearing, the Government asked
Solodovnikova: (1) whether she had attempted to get a letter from her mother or
sister regarding conditions in Ukraine; (2) why she had not submitted proof of the
factory’s policies regarding accommodations for pregnant workers; (3) and
whether the photographs of the alleged vandalism at her family’s home had been
authenticated. Solodovnikova replied that she did not seek a letter from her
mother or sister and that the factory’s policy was no longer available.
However, neither the Government nor the IJ asked Solodovnikova why she
had not sought a letter or why she did not provide more evidence about the
vandalism at her family’s home, thus failing to satisfy the third prong of the
Abdulai test. Further, we conclude that it would be unreasonable to expect
Solodovnikova to obtain a copy of the factory’s policy, given that the state-owned
factory operated under a Communist regime in Ukraine more than 20 years ago.7
Nonetheless, following the hearing, the IJ ruled against Solodovnikova on
corroboration grounds because of her failure to provide: (1) evidence from her
mother, sister, or “anyone else who would be aware of the treatment she received
7
We note that the change in regime that would render obtaining the employment
policies impracticable might also weaken Solodovnikova’s claims that her
treatment at the factory provided evidence that she would suffer persecution in the
future. However, such an inquiry is largely tangential to the issue of corroboration
presently before us and does not alter our analysis here.
12
as a child in school;” (2) evidence of the factory’s policy; and (3) evidence
regarding the identity and motives of the vandals who target her family’s home.
We are mindful that Solodovnikova had numerous opportunities over the
course of her immigration proceedings to bolster her case by providing
corroborating evidence (e.g., prior to her removal hearing; at the hearing itself; on
appeal to the BIA) but that she failed to do so. Nevertheless, her failure to
corroborate is not sufficient in and of itself to trigger removal. We have clearly
articulated the protocol to be used in such cases. We require the IJ’s and BIA’s
“faithful adherence to the three-prong [Abdulai] test.” Dong, 638 F.3d at 230. As
such adherence is lacking here, we must remand this matter so that the three-step
Abdulai approach may be applied properly.
Not only did the IJ raise concerns about Solodovnikova’s failure to provide
corroborating evidence about the particular facts of her claim for the first time at
the removal hearing, but the IJ also did not provide Solodovnikova with an
opportunity either to submit the required corroborating evidence or to explain her
failure to submit that evidence. The IJ and the BIA therefore failed to “faithful[ly]
adher[e]” to the procedure articulated in Abdulai and denied Solodovnikova the
requisite notice and opportunity to be heard.8 See Toure, 443 F.3d at 323-24
(vacating the BIA’s corroboration finding where the IJ did not raise issue of
8
Although the Government contends that Solodovnikova should have
corroborated her claims when the BIA remanded the case to the IJ, that remand
was for the limited ministerial purpose of having the IJ prepare a complete
transcript of the proceedings.
13
corroboration until her oral decision and never gave petitioner an opportunity to
explain the absence of corroborating evidence).
The judgment of the BIA will therefore be vacated, Solodovnikova’s
petition for review will be granted in part, dismissed in part, and denied in part,
and this matter will be remanded to the BIA for further proceedings consistent
with this opinion, including a remand to the IJ.
14