Olga Shipilova v. Eric Holder, Jr. , 401 F. App'x 39 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0671n.06
No. 09-3895
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 02, 2010
LEONARD GREEN, Clerk
OLGA SHIPILOVA, )
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General of the )
United States, )
)
Respondent. )
)
BEFORE: GILMAN and GRIFFIN, Circuit Judges; and ROSE, District Judge.*
GRIFFIN, Circuit Judge.
Olga Shipilova, a native and citizen of Russia, petitions for review of an order of the Board
of Immigration Appeals (“BIA” or “Board”) affirming an immigration judge’s (“IJ”) denial of her
application for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”).1 Shipilova argues that the BIA erred by adopting and affirming: (1) the IJ’s
finding that she was not credible; and (2) the IJ’s finding that her asylum claim was insufficiently
corroborated. Because each of these arguments lack merit, we deny the petition for review.
*
The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.
1
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. GAOR 39th Sess., Supp. No.
51 at 197, U.N. Doc. A/39/51 (1984); see also implementing regulations at 8 C.F.R. § 208.18.
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I.
Shipilova entered the United States on July 2, 2002, as an exchange visitor with authorization
to remain in the country for a temporary period not to exceed October 10, 2002. On February 24,
2003, Shipilova applied for asylum, withholding of removal, and protection under the CAT. The
government subsequently served Shipilova with a notice to appear (“NTA”), charging her with
removability under § 237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(1)(B), for remaining in the United States beyond October 10, 2002, without authorization.
In her asylum application, Shipilova asserted that she would be subject to persecution
because of her Baptist religion if she returned to Russia. She explained that, after she “started
attending [religious] services[,]” she was involved in “numerous conflicts and was beaten up a
number of times due to [her] religious [adherence]” by “Russian pro-fascists, Cossac[k]s – special
para-military group of population that persecute everyone who is not Orthodox and fanatics of the
Orthodox Christian Denomination . . . .” Moreover, Shipilova indicated that “persecutions of our
religion is traditional in Russia” and that “there is no hope that it will be stopped and the government
does nothing to stop it.”
Shipilova also included a personal statement with her asylum application further describing
her background. She explained that like “most Soviets” she was raised an atheist. However, after
her father died, she became depressed and “became close” to her paternal grandparents who
introduced her to the Baptist faith. Shipilova indicated that she formally joined the Baptist
congregation in October 2000.
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Moreover, Shipilova recounted five incidents of religious persecution that she allegedly
experienced while in Russia:
On November 5, 2001 I was attacked while professing [the] word of G-d in the
streets of Krasnodar. I was approached by Cossacks, the paramilitary mighty
organization based exactly in the area where I lived in Russia. They took all the
literature and beat me up by their traditional weapon: whips. I went to the local
police and tried to file a report but [was] rejected by the police officer who told [me]
that police could do nothing to prevent Baptists from the attacks or punish the
attackers because the Cossacks are very powerful and [the] police [have] no strength
to fight them.
On June 1, [2001] I was [on] the bus and started talking about G-d with another
woman. Skinheads who were [on] the bus . . . overheard what we were talking about.
The woman I talked to and I were beaten up and thrown outside by skinheads. We
went to the nearest police office and were told that [the] police would not [be] able
to help us.
On September 9, 2001 I was in the village where my grandparents live and went to
the church with them. We were stoned while leaving the church. The attackers were
skinheads and the other villagers were supporting them. I and [a] few other young
church attendants ran to the local police office. The officer told us that he could not
help because he is alone. My grandparents complained to the higher authorities but
were told that it was useless to complain because the religion is considered non-
traditional for Russia.
On February 12, 2002 I was beaten up while distributing literature on the bus stop.
I was approached by [a] police officer who confiscated the literature in spite [of] the
fact that our church had permission to stay at the place. When I told the officers that
I was legally distributing the literature there I was beaten up. I complained to the
pastor and he contacted authorities but the chief of police told [him] that [the]
officer[s] who are responsible for the area know better what to do and he did not care
about permits. The pastor called [a] lawyer but [the] lawyer told [him] that it was
practically impossible to bring police to [] justice.
On March 4, 2000 I was attacked in the country with [my] sister in Christ . . . . This
is the most terrifying incident I had and it is extremely difficult for me to write. . . .
Her and me were attacked by skinheads and extremely abused. We were saved by
the people who lived [] there and who took us from the trees.
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On March 20, 2003, an asylum officer interviewed Shipilova regarding her asylum claim.
At that interview, she was accompanied by an interpreter that she found through a friend. The
interview was not recorded or transcribed, but the asylum officer prepared a summary of the
meeting.2 In his summary, the asylum officer stated that he had “serious doubts” as to Shipilova’s
credibility. Specifically, he noted that:
The applicant could not provide consistent, detailed information about [her] overall
claim. She was internally inconsistent and inconsistent with her affidavit in that she
testified that it was her father’s death in 1999 that prompted her to join the Baptist
Church upon her return from her grandparent’s home in October 1999. She,
however, also testified that it was in October 2000 when she joined the church.
When asked to clarify the inconsistency, she indicated that it could have merely been
a mistake. Her response is not seen as reasonable in that she clearly indicated that
it was her father’s death in 1999 that so affected her and caused her to join the church
immediately following her return from her grandparents. However, she clearly
indicates in her affidavit that she joined the church in 2000. This inconsistency is
seen as material as it sets the tone for her overall claim of being a Baptist and thus
suffering harm because of her religion.
In addition, the asylum officer found that Shipilova’s testimony regarding her five incidents
of alleged religious persecution was not detailed and instead seemed “rushed.” When asked to
clarify or add detail, Shipilova “would repeatedly say, ‘all Baptists are treated with such contempt.’”
Indeed, when asked to provide even basic details, like the name of her church, the asylum officer
noted that Shipilova “struggled” and that her responses were “again . . . lacking in consistent detail
to be deemed credible.”
2
The record also contains the asylum officer’s handwritten notes of that meeting.
Importantly, those notes indicate that Shipilova stated that her father died in 1999 and that the
incident in which she was tied to a tree occurred in March 2002.
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The asylum officer further found Shipilova’s “testimony about her time with the church” to
be “not credible in that she did not provide logical, consistent, and detailed testimony.” He thought
it “logically inconsistent” that Shipilova, “as a newcomer to the faith, would be tasked with
‘recruiting’ people only weeks after [she was] baptized” and noted that Shipilova was unable to
explain how this was possible. Due to his credibility findings, the asylum officer concluded that
Shipilova had failed to meet her burden of establishing eligibility for asylum.
On February 27, 2007, Shipilova submitted an updated, unsigned personal statement, which
largely recapped the incidents in her first statement, while adding new details, but omitting dates
concerning those incidents. In her updated statement, she indicated that she joined the Baptist
congregation in October 2001, rather than in October 2000, as indicated in her original personal
statement. Shipilova also recounted a time when the dean of her university called her to his office
to reprimand her for talking about God, and then deprived her of her monthly allowance as
punishment. Furthermore, Shipilova indicated that a girl who used to be her friend refused to talk
to her because she was a Baptist and spit in her face.
At her removal hearing, Shipilova testified that she came to the United States because she
wanted to express her belief in her faith. Shipilova indicated that she joined the Russian Baptist
church in October 2001 when she was twenty-two. She first stated that she was baptized in “2002,”
and then said, “I apologize I was baptized in May 11, 2003[.]” When asked again on what date she
was baptized, Shipilova responded that she was baptized on “May 11, 2001[,]” and then confirmed
it actually occurred on “May 11, 2002[.]”
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The government’s attorney asked Shipilova several questions, beginning with what year her
father died. Shipilova responded that he died on August 18, 1998, when she would have been
eighteen years old.3 When asked why she told the asylum officer that her father died in August of
1999, Shipilova stated that she did not have a professional interpreter at the time of the interview,
but instead brought an interpreter based on a friend’s recommendation and that she was not confident
in his translation abilities. Next, Shipilova reconfirmed that she joined the Baptist church in October
2001. She said that her original personal statement indicated she joined in October 2000 because
she was thinking of joining then and attended church “sometimes.”
Shipilova was unable to provide dates or supporting documents for the majority of the
incidents of harassment she reported in her asylum application. When asked to recount the first
incident that happened to her, Shipilova stated that “I’m not very confident about dates because it
was a long time ago . . . .” Shipilova was also asked to provide the date of the incident in which she
claims she was harassed by a police officer at a bus stop, to which she replied, “[i]t’s been so many
times because it’s not only one day.” When asked if she remembered what year the incident
occurred, she stated that she was “not confident [of] the dates because I have a lot of examples and
cases and it’s very harmful and very stressful . . . .” With regard to the incident where Shipilova was
tied to a tree, Shipilova indicated that it happened in April or May of 2000, which would have been
before she joined the church in October of 2001 or even thought of joining the church in October of
3
Shipilova was born on September 17, 1979.
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2000. Finally, Shipilova testified that she went to the doctor “after each incident” but that they did
not give her medical reports that she could provide to the court.4
On March 28, 2007, the IJ denied Shipilova’s request for asylum, withholding of removal,
and protection under the CAT. The IJ found that Shipilova was not credible due to her “inconsistent
and vague” testimony regarding the date her father died, the date she became a Baptist, and several
of the incidents in which she was allegedly persecuted for her Baptist beliefs. The IJ also opined that
Shipilova’s demeanor was unconvincing in light of her “non-responsive” testimony, which revealed
evidentiary gaps further undermining her credibility. In addition, the IJ found that Shipilova lacked
corroboration for her claims. On July 2, 2009, the Board affirmed the IJ’s denial of Shipilova’s
request for relief.5
Shipilova timely petitions for review.
4
However, Shipilova also testified that she did not receive medical treatment for her back
injury after the church stoning incident. It is possible that she sought treatment, but did not receive
treatment.
5
The Board also noted that, on appeal, Shipilova submitted several new documents, including
an extract of her medical records from a hospital in Russia, letters from her pastor and fellow church
members in this country, a psychological report, and country conditions for Russia. The Board
explained that it considered the additional evidence submitted on appeal only as a possible basis for
remand because the Board is an appellate body whose function is to review, not to create, a record.
It then concluded that the evidence was not sufficient to show that Shipilova had made a prima facie
case for the relief requested. In so doing, the Board noted that Shipilova failed to explain why her
recently submitted evidence could not have been produced at the time of her hearing before the IJ.
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II.
“When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as
supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th
Cir. 2009). We “directly review[] the decision of the IJ while considering the additional comment
made by the BIA.” Id. (internal quotation marks and citation omitted).
We review questions of law de novo and factual findings under the substantial evidence
standard. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “Factual findings are reviewed under
a substantial evidence standard in which we uphold a BIA determination as long as it is supported
by reasonable, substantial, and probative evidence on the record considered as a whole” and are
“conclusive” unless “any reasonable adjudicator would be compelled to conclude to the contrary[.]”
Zhao, 569 F.3d at 247 (internal quotation marks and citation omitted).
Asylum may be granted to an alien who qualifies as a “refugee,” a term defined as one “who
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[.]” 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). An applicant for asylum bears
the burden of demonstrating that “persecution is a reasonable possibility” if she returned to her
country of origin. Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (internal quotation marks and
citation omitted). An applicant is not required to demonstrate that she will probably be persecuted
if returned because “[o]ne can certainly have a well-founded fear of an event happening when there
is less than a 50% chance of the occurrence taking place.” INS v. Cardoza-Fonseca, 480 U.S. 421,
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431 (1987). The applicant’s testimony, if deemed credible, may be sufficient to sustain her burden
of proof without corroboration. 8 C.F.R. § 1208.13(a).
Even if not entitled to asylum, an alien may secure withholding of removal if she can show
that her “life or freedom would be threatened in that country [to which she would be sent] because
of the alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A); accord 8 C.F.R. § 208.16(b). The petitioner must establish a
“clear probability of persecution[.]” INS v. Stevic, 467 U.S. 407, 413 (1984). To meet this standard,
the applicant must demonstrate that “it is more likely than not” she will be persecuted upon her
return. 8 C.F.R. § 1208.16(b)(2).
Unlike an application for asylum, however, a grant of an alien’s application for
withholding is not a basis for adjustment to legal permanent resident status, family
members are not granted derivative status, and it only prohibits removal of the
petitioner to the country of risk, but does not prohibit removal to a non-risk country.
Furthermore, a greater quantum of proof is required as to the likelihood of
persecution in the country of risk in order to establish eligibility for withholding. In
other words, the courts consider the same factors to determine eligibility for both
asylum and withholding, but in the case of withholding, a higher probability of
persecution is required.
Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003).
To be eligible for CAT protection, the applicant must “establish that it is more likely than
not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §
1208.16(c)(2); see Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2001) (defining and discussing “torture”).
We will uphold the BIA’s decision concerning CAT protection unless it is “manifestly contrary to
the law[.]” Ali, 237 F.3d at 596 (internal quotation marks and citation omitted). “Thus, the BIA’s
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determination should be upheld unless evidence not only supports a contrary conclusion, but indeed
compels it.” Zhao, 569 F.3d at 247 (internal quotation marks and citation omitted).
III.
Shipilova argues that none of the alleged inconsistencies relied on by the BIA and IJ could
be viewed as attempts to enhance her claims of persecution and many should be seen merely as
difficulties in remembering the exact dates of events that occurred years ago. Moreover, Shipilova
contends that the BIA and IJ erred in relying on the unverified notes of the asylum officer in
assessing her credibility.6 Finally, Shipilova argues that the BIA and IJ erred in finding that her
6
As an initial matter, the BIA did not err in affirming the IJ’s adverse credibility
determination, which was based in part on the record of the asylum interview. The Second Circuit
accurately described the BIA’s standards in this regard when it stated:
While the record of an asylum interview is more reliable when it describes the
specific questions asked or records the interview verbatim, an interview record even
without such assurances of reliability nevertheless meets the minimum standard, and
it may be relied on as a basis for an adverse credibility determination as long as it
contains a “meaningful, clear, and reliable summary of the statements made by [the
applicant] at the interview.” See Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,
631-33 (2d Cir. 2006) (quoting Matter of S-S-, 21 I. & N. Dec. 121 (BIA 1995))
(internal quotations omitted).
Kangyi Wen v. Holder, 343 F. App’x 650, 651 (2d Cir. 2009) (unpublished).
We have reviewed the asylum officer’s assessment and the handwritten notes appended to
it. The assessment memorandum is typed and summarizes the interview and the asylum officer’s
findings, including his conclusion that Shipilova was not credible. The handwritten notes appear to
track a question and answer format. Thus, it was not error for the IJ to consider these notes and
determine that Shipilova was not credible because her personal statements and subsequent testimony
were inconsistent with her interview with the asylum officer.
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asylum claim was insufficiently corroborated. We disagree and affirm the BIA’s denial of
Shipilova’s application for asylum, withholding of removal, and protection under the CAT.
“[T]he IJ’s determination of [Shipilova’s] credibility is reviewed under the highly deferential
substantial evidence standard, and is reversed only if any reasonable adjudicator would be compelled
to conclude to the contrary.” Bah v. Gonzales, 462 F.3d 637, 640 (6th Cir. 2006) (citation and
internal quotation marks omitted). Because Shipilova’s asylum application preceded the enactment
of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, the IJ’s adverse credibility
determination “‘must be supported by specific reasons [and] . . . must be based on issues that go to
the heart of the applicant’s claim.’”7 Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005) (quoting
Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)). Discrepancies have no bearing on an applicant’s
credibility unless they serve to enhance the applicant’s claim of persecution. Sylla, 388 F.3d at 926.
Speculation and conjecture provide inadequate bases for an adverse credibility determination, which
must instead be supported by substantial evidence. Liti, 411 F.3d at 637.
In the present case, both the IJ and BIA chronicled numerous discrepancies in the evidence.
Specifically, they noted that Shipilova was inconsistent as to: (1) when her father died; (2) when she
subsequently joined a Baptist church in Russia; (3) when her literature was taken, and she was beaten
and cursed at while professing the word of God in the streets; (4) when her first encounter with
Cossacks occurred; (5) when skinheads assaulted her on a bus for discussing her religion with a
7
The REAL ID Act modified the standard governing credibility determinations and now
provides that such findings should be “based on the ‘totality of the circumstances’ and take into
account ‘all relevant factors.’” El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009) (quoting 8
U.S.C. § 1158(b)(1)(B)(iii)).
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fellow passenger and pushed them out of the bus resulting in bruises all over her body; (6) when and
how many times a police officer confiscated the religious materials that she was distributing at a bus
stop and beat her; (7) when she and her grandparents were stoned by skinheads as they were leaving
church; (8) whether she sought any medical treatment for her injured back; and (9) when she was tied
to a tree.
These several examples go to the heart of Shipilova’s claim and demonstrate the numerous
inconsistencies between Shipilova’s testimony, asylum interview, and written statements. See Singh
v. Ashcroft, 398 F.3d 396, 402-03 (6th Cir. 2005) (concluding that adverse credibility finding was
supported by key inconsistencies between an asylum application and alien’s testimony where IJ
rejected alien’s explanation for inconsistencies); Kaba v. Mukasey, 546 F.3d 741, 749-50 (6th Cir.
2008) (stating that the complete lack of specificity in an application justifies the IJ’s skepticism
about the validity of those claims). “Undoubtedly, these are the kinds of traumatic events that an
individual may forget the exact details of; at the same time, however, these are significant and likely
memorable events. Such a wide discrepancy in testimony . . . demonstrates that there was substantial
evidence supporting the IJ’s adverse credibility finding.”8 Berri v. Gonzales, 468 F.3d 390, 395 (6th
Cir. 2006). Because the IJ was not unreasonable in finding that Shipilova failed to explain
adequately the apparent inconsistencies in her testimony regarding events central to her claim of past
8
Moreover, the IJ properly found that Shipilova’s demeanor was not convincing. Here,
contrary to Shipilova’s assertions, the IJ specifically explained that Shipilova’s testimony was at
times non-responsive to the question asked and that she occasionally had great difficulty answering.
“The IJ is in the best position to determine credibility based on the demeanor of the witness and the
presentation of testimony.” See Diallo v. Holder, 312 F. App’x 790, 801 (6th Cir. 2009)
(unpublished).
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persecution, we cannot say that, based on the record before us, any reasonable adjudicator would be
required to find her credible.
Given the IJ’s finding that Shipilova was not credible, he properly determined that Shipilova
was obligated to prove her claims with objective corroboration. See In re Dass, 20 I. & N. Dec. 120,
125-26 (BIA 1989). “Where the alien’s testimony could be viewed as incredible, inconsistent, or
incoherent, a fact-finder may reasonably conclude, absent corroboration, that the testimony is
insufficient to meet the standard of proof required.” Sako v. Gonzales, 434 F.3d 857, 862 (6th Cir.
2006) (citation omitted). Indeed, we have held that, even if an applicant’s credibility is not in
question, the failure to provide reasonably available corroborating evidence “can lead to a finding
that an applicant has failed to meet her burden of proof.”9 Dorosh v. Ashcroft, 398 F.3d 379, 382
(6th Cir. 2004) (internal quotation marks and citation omitted); see also Shkabari v. Gonzales, 427
F.3d 324, 331 (6th Cir. 2005) (holding that applicant failed to meet refugee burden where record
included evidence that she could have obtained documents confirming her hospital visit after
allegedly being beaten by police, or other medical evidence, but failed to do so).
Here, the IJ was correct to find that the absence of an affidavit or certificate of membership
from any congregant of the Baptist church in Russia or from the church itself further undermined
Shipilova’s credibility. Her church membership goes to the heart of her claim for asylum based on
9
Shipilova argues that the BIA erred because it “never stated why Ms. Shipilova’s
explanations for her lack of corroboration from her acquaintances and grandmother were
insufficient.” We have not “adopt[ed] a requirement that the Immigration Judge [or BIA]
specifically address on the record why an applicant’s explanation is insufficient, and [Shipilova]
points this court to no published Sixth Circuit case law that does.” Fisenko v. Holder, 336 F. App’x
504, 511 (6th Cir. 2009) (unpublished).
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a fear of religious persecution. Moreover, the IJ properly found it significant that Shipilova failed
to provide: (1) any corroboration from the attorney her pastor in Russia allegedly called for advice;
(2) a police report or other evidence of her complaints; (3) any medical corroboration for her alleged
injuries; (4) a letter from her paternal grandmother who taught her about the Baptist religion; (5) a
letter from her brother, or mother, with whom she had spoken two weeks prior to her hearing; (6)
copies of any religious literature she disseminated in Russia; or (7) a friend from her church in the
United States as a witness at her hearing.
In sum, Shipilova’s testimony was inconsistent regarding several significant matters that go
to the heart of her claim, which would tend to enhance her claims of persecution. Furthermore,
Shipilova proffered insufficient corroboration to demonstrate persecution given that her testimony
was not credible. Therefore, “[b]ased on the administrative record, a reasonable adjudicator would
not be compelled to find [Shipilova] credible.” Pilica v. Ashcroft, 388 F.3d 941, 952 (6th Cir. 2004).
Accordingly, Shipilova did not sustain her burden of proving she is entitled to asylum.
“Because an alien must meet a higher burden in establishing a right to withholding of
removal than in demonstrating asylum eligibility, an alien who fails to qualify for asylum necessarily
does not qualify for withholding of removal.” Singh, 398 F.3d at 401. Shipilova’s application for
withholding of removal is accordingly foreclosed, as is her request for protection under the CAT.
See Hamida v. Gonzales, 478 F.3d 734, 741-42 (6th Cir. 2007).
IV.
For these reasons, we deny the petition for review.
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