Dorosh v. INS ( 2004 )

NOT FOR FULL-TEXT PUBLICATION
File Name: 04a0181n.06
Filed: December 20, 2004
NO. 03-3246
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GANNA ROMANIVNA DOROSH,
Petitioner,
ON APPEAL FROM THE
v. IMMIGRATION AND
NATURALIZATION SERVICE
JOHN ASHCROFT, Attorney General;
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondents.
_______________________________________/
BEFORE: SUHRHEINRICH and BATCHELDER, Circuit Judges; and McKEAGUE,
District Judge.*
Petitioner Ganna Romanivna Dorosh (“Petitioner”) appeals from the decision of the Board
of Immigration Appeals (“BIA”) denying her applications for asylum and withholding of removal.
For the reasons that follow, we AFFIRM the decision of the BIA.
I.
Petitioner grew up in West Ukraine with her Jewish mother and her Catholic father. In 1980,
her father was murdered by his co-workers, presumably because he married a Jewish woman. In
1982, her mother was allegedly imprisoned for speaking out about anti-Semitism. Petitioner lived
temporarily at an orphanage, where she claims she was humiliated and punished for being Jewish.
Petitioner describes other incidents of anti-Semitism. She claims she was arrested and
*
The Honorable David W. McKeague, United States District Judge for the Western District
of Michigan, sitting by designation.
detained for a week in 1995 because her mother had participated in a Jewish-rights’ demonstration.
Police allegedly brutalized her and tried to force her to sign a document denouncing her mother’s
activities in fighting anti-Semitism. Shortly thereafter, the apartment where she and her mother had
been living was ransacked. Also in 1995, a speeding car tried to run her down.
On April 4, 1996, Petitioner entered the United States as a non-immigrant for pleasure,
remaining beyond the time permitted by the Immigration and Naturalization Service (“INS”). On
May 3, 1997, the INS commenced removal proceedings against her.
Petitioner applied for asylum pursuant to 8 U.S.C. § 1158(a), testifying that she feared she
would suffer persecution and torture if she returned to the Ukraine. Since her application for asylum
was made after the institution of removal proceedings, it was also considered a request for
withholding of removal under §241(b)(3) of the Immigration and Naturalization Act (“INA”). At
her hearing with the Immigration Judge (“IJ”), Petitioner requested that the court consider her
application for withholding of removal pursuant to the Convention against Torture. In the
alternative, she also applied for the privilege of voluntary departure from the United States in lieu
of deportation.
On March 24, 1999, the IJ denied Petitioner’s applications for asylum, withholding of
removal, and relief under the Convention Against Torture, finding she was not credible and did not
meet her burden of proving eligibility for any form of relief. The IJ’s credibility determination was
based on Petitioner’s demeanor, implausible accounts, internal inconsistencies, and inconsistencies
between her application and her testimony. Petitioner appealed the decision to the BIA.
On April 21, 1999, the BIA reversed the IJ’s adverse credibility finding, determining that
Petitioner’s testimony was adequately consistent both internally and with her written application.
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The BIA agreed with the IJ, however, that Petitioner had not met her burden of proving eligibility
for relief because she did not provide sufficient corroboration of her claims. On March 27, 2003,
this Court granted Petitioner’s motion to stay the order of removal pending disposition of this
appeal.
II.
In order to reverse the BIA’s factual determination, this Court must find that “the evidence
not only supports a contrary conclusion, but indeed compels it.” Klawitter v. INS, 970 F.2d 149, 152
(6th Cir. 1992) (quoting Elias-Zacarias, 502 U.S. at 481, n.1 (1992)) (emphasis in the original). By
contrast, when this Court reviews the BIA’s “application of legal principles to undisputed facts,
rather than its underlying determination of those facts or its interpretation of its governing statutes,
the review of both the BIA’s asylum and withholding of deportation determinations is de novo.”
Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).
Petitioner’s arguments on appeal are three-fold. First, she claims that the BIA’s reversal of
the IJ’s adverse credibility ruling is, in itself, a ruling that she is credible. Second, she argues that
since she was credible, the BIA judge erred in requiring corroboration. Third, she claims that even
if the BIA can require corroboration, she met her burden of proof by producing some evidence and
an adequate explanation for not producing further evidence.
According to INS regulations “[t]he testimony of the applicant, if credible, may be sufficient
to sustain the burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a), 208.16(b). The BIA
has interpreted this permissive language to mean that “where an alien’s testimony is the only
evidence available, it can suffice where [it] is believable, consistent, and sufficiently detailed to
provide a plausible and coherent account of the basis of the alien’s alleged fear.” In re M-D-, 21 I.
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& N. Dec. 1180, 1182 (BIA 1998) (citing Matter of Dass, 20 I. & N. Dec. 120, 124 (BIA 1989)).
However, the BIA has also stated that “where it is reasonable to expect corroborating evidence for
certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be
provided . . . . The absence of such corroborating evidence can lead to a finding that an applicant
has failed to meet her burden of proof.” In re S-M-J-, 21 I. & N. Dec. 722, 724-26 (BIA 1997).
As explained below, we need only decide Petitioner’s second and third arguments to dispose
of this matter. However, a brief comment about Petitioner’s first argument is helpful. Petitioner
argues that the BIA found her credible. However, the BIA merely stated that there were no
inconsistencies between her oral testimony and her written statement. It did not indicate whether
Petitioner was believable or whether her story provided adequate detail to support her application.
Under BIA rulings, credibility encompasses not just consistency but also plausibility and sufficient
detail. See, e.g., In re M-D-, 21 I. & N. Dec. 1180, 1182 (BIA 1998). The BIA required more than
just consistency between her oral testimony and her written application. It required corroborative
evidence for virtually every significant instance of persecution to which Petitioner testified. We now
turn to her second argument regarding the BIA corroboration rule. If we agree with the BIA, we
do not need to reach the first issue; we need only determine whether the BIA’s corroboration
requirement is correct.
Petitioner asks this Court to adopt the Ninth Circuit’s view on corroboration, which expressly
rejects the BIA corroboration rule in cases in which testimony of an applicant is credible although
it would permit the application of the rule where the applicant’s credibility is questioned or
adversely determined. See Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000) (holding that “an alien’s
testimony, if unrefuted and credible, direct, and specific, is sufficient to establish the facts testified
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without the need for any corroboration”).
We are not persuaded by the Ninth Circuit view. We decide instead to join the Second and
Third Circuits in expressly approving the BIA’s corroboration rule. See Guan Shan Liao v. U.S.
Dep’t. of Justice, 293 F.3d 61, 71 (2d Cir. 2002) (citing Diallo at 232 F.3d at 285); Kayembe v.
Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (citing Abdulai, 239 F.3d at 554); see also Capric, 355
F.3d 1075,1086 n.4 (7th Cir. 2004) (noting the rule and the Ninth Circuit’s disapproval of it but
neither accepting nor rejecting it). Indeed, this Court has repeatedly emphasized the importance
of corroborating evidence. See, e.g., Micakovic v. Ashcroft, No. 02-4201, 2003 WL 23156635, at
*2 (6th Cir. Dec. 16, 2003) (holding that even if he was credible, the applicant could be reasonably
expected to corroborate his claim that government officials in Kosovo attempted to force him into
military service). We therefore conclude that the BIA corroboration rule does not contradict the
language of 8 C.F.R. §§ 208.13(a) and 208.16(b). Neither does it place unreasonable demands on
an applicant since supporting documentation must be provided only if it “is of the type that would
normally be created or available in the particular country and is accessible to the alien, such as
through friends, relatives, or co-workers.” See Perkovic v. INS, 33 F.3d 615, 726 (6th Cir. 1994).
Applying the BIA rule, we address Petitioner’s third argument. Petitioner claims she offered
an adequate explanation for the proof she lacked in that her letters did not reach her mother, her
mother had no telephone and had to go the post office to call her, and any attempts to talk about
Petitioner’s asylum case or obtain affidavits from others would have jeopardized her mother’s
safety. Similarly, she indicates that contacting girlfriends could put them in danger. Petitioner also
notes that although she provided both the 1996 Country Reports on Human Rights Practice and the
June 1997 Profile of Asylum Claims and Country Conditions, the BIA did not address them.
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We agree with the BIA that corroborative evidence of Petitioner’s past persecution and the
fear of future persecution could be “reasonably expected” and that Petitioner’s explanation for its
absence was inadequate. Petitioner was in contact with her mother in the Ukraine, yet, as the BIA
noted, she produced no affidavit from her mother corroborating the ill treatment of her daughter.
While contact may not have been convenient, regular, or private, it was sufficient to have allowed
Petitioner to obtain a previous letter from her mother in which her mother documented her own
mistreatment. Petitioner could have requested a letter in a manner that minimized any risk of
sensitive statements being overheard. The BIA also noted that Petitioner did not retain letters from
her girlfriends in the Ukraine documenting the danger Petitioner would face if she returned. It was
reasonable for the BIA to expect Petitioner to have retained these letters, especially since she
offered no special circumstances to explain their absence. Finally, we note that Petitioner had ample
time between her notice of removal and her hearing in which to have obtained documentation.
As to the BIA’s failure to address the country reports, our review of these reports confirms
that the BIA could reasonably expect Petitioner to provide the requested letter from her mother
because discrimination against Jews is not widespread. The Ukraine governments have condemned
anti-Semitism and there has been a resurgence of Jewish religious and cultural institutions.
Petitioner has not proved past persecution or a well-founded fear of persecution. An asylum
applicant must first prove statutory eligibility by “establishing a well-founded fear of persecution”
and then show that the IJ should exercise discretion to grant asylum. Klawitter, 970 F.2d at 151
(citing Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir. 1988)). An application for asylum
is also considered a request for withholding of deportation, id, adjudicated under a “clear probability
of persecution” standard. INS v. Stevic, 467 U.S. 407, 430 (1984).
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We conclude that there is ample evidence to support the BIA’s decision BIA’s decision to
deny Petitioner’s claims. The test is not whether this Court might have decided differently but
whether this Court is compelled to conclude that the BIA erred. The record does not compel such
a conclusion. Petitioner did not meet her burden of proof necessary for a granting of asylum because
she neither corroborated her testimony with reasonably expected documentation nor provided an
explanation for its absence. Since she did not meet the burden of proof for asylum, she cannot meet
the clear probability standard necessary for a granting of withholding of removal.
III.
For the reasons mentioned above, we AFFIRM the BIA’s denial of Petitioner’s application
for asylum and withholding of deportation.
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