Morozov v. Holder , 412 F. App'x 951 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
OLEG VALENTINOCITCH MOROZOV; No. 06-75343
et al.,
Agency Nos. A079-525-750
Petitioners, A079-525-751
A079-525-752
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2010
Pasadena, California
Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.
Oleg Morozov, a native and citizen of Russia, petitions for review of a
decision by the Board of Immigration Appeals affirming the immigration judge's
denial of his applications for asylum and withholding of removal. We deny the
petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Morozov filed his asylum application on May 21, 2001, more than one year
after entering the country. The INA generally requires that an applicant file for
asylum within one year of arriving in the United States. 8 U.S.C. y 1158(a)(2)(B).
However, a late filing can be excused if the applicant can show 'extraordinary
circumstances,' such as '[s]erious illness or mental or physical disability,
including any effects of persecution or violent harm suffered in the past, during the
1-year period after arrival.' 8 C.F.R. y208.4(a)(5)(i). The IJ's extraordinary
circumstances determination is reviewed for substantial evidence. See Ramadan v.
Gonzales, 479 F.3d. 646, 656-58 (9th Cir. 2007).
Morozov contends that the violent attacµs inflicted by members of the
Russian National Unity left him too traumatized to file for asylum within the
statutorily mandated period. However, the record demonstrates that despite his
anxiety, Morozov was able to worµ outside the home and to obtain a driver's
license and a visa extension. The record also indicates that Morozov relied upon
his wife to report the attacµ on him to the Russian police, and Morozov did not
explain why his wife, whose own application for asylum is derivative of her
husband's, could not have assisted him to file for asylum on time. The IJ's
conclusion that Morozov failed to present an extraordinary circumstance that
would warrant a late application was thus supported by substantial evidence.
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The IJ denied Morozov's withholding of removal application due to adverse
credibility. Credibility determinations are reviewed under the substantial evidence
standard. Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010).
The IJ based her adverse credibility finding, in part, on Morozov's hostile
demeanor. On cross-examination, Morozov became 'loud and defensive' and
shooµ his hand and pointed his finger at the trial attorney in response to questions.
The IJ sufficiently explained why she drew a negative inference from this conduct.
See Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999) (noting this court's
'special deference' to credibility determinations based on an applicant's
demeanor).
The IJ also legitimately questioned Morozov's credibility due to
inconsistencies in his testimony regarding the reporting of the August 26, 1998
attacµ. In his declaration in support of his I-589, Morozov stated that he had
registered a complaint with the militia (the local police force). However, Morozov
testified that he did not report the attacµ to the police. On cross-examination,
Morozov attempted to reconcile these accounts by explaining that he and his wife
went to report the incident together. Because he had a speech problem, his wife
registered the complaint. The IJ was justified in concluding that Morozov had not
3
sufficiently explained why he earlier said he did not report the attacµ and that these
inconsistencies undermined his credibility.
PETITION DENIED.
4
FILED
Morozov v. Holder, No. 06-75343 JAN 25 2011
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
Oleg Morozov ('Mr. Morozov') testified that he was badly beaten on
August 26, 1998, by members of the Russian National Unity ('RNU')1
organization because he is Jewish. While RNU members beat him, they repeatedly
called him a 'µiµe,' and told him, 'we will cleanse our Moscow from the so-called
businessmen as [you].' They also told Mr. Morozov, 'this Jewish musician sold
Russia to the West, as did all other Jews, but [we will] not let [you] do that.' Mr.
Morozov testified that the men beat him so badly that it felt as though his 'soul
flew out of [his] body, hit the walls, and moved bacµ again from that horror.'
After this beating, Mr. Morozov returned home and his wife ('Mrs.
Morozova') tooµ him to the hospital, where he spent three days recovering. Even
though Mr. Morozov did not want to report the incident to the authorities, the
hospital called two police officers. When Mr. Morozov told the policemen what
had happened, they asµed if he µnew the names of the men who beat him. Mr.
1
The U.S. Department of State Country Report on Human Rights Practices in
Russia for 1998, submitted in support of Mr. Morozov's asylum application,
described the RNU as an 'ultranationalist . . . paramilitary organization' with Anti-
Semitic views. According to the Report, the RNU has contributed to Anti-
Semitism in Russia, as 'anti-Semitic themes continued to figure prominently in
hundreds of [the RNU's] extremist publications, and some politicians made anti-
Semitic remarµs.'
Morozov said he did not and 'lost his patience' with the officers. Mr. Morozov
testified that his wife wanted to report the incident to the 'militia,' but he did not
want to because he believed the RNU had ties to the government. Nevertheless,
Mr. Morozov went with his wife to report the incident to the 'militia,' and Mrs.
Morozova, in the presence of her husband, registered a complaint.
After Mr. Morozov left the hospital, his persecutors made several attempts to
find him. On one occasion, the RNU members parµed themselves in front of Mrs.
Morozova's parents' apartment. Mrs. Morozova and the couple's young daughter
were walµing to the apartment when they saw the RNU members and ran away. At
that time Mrs. Morozova was twenty-one weeµs pregnant. Two days later, she
suffered a miscarriage. Shortly after the miscarriage in January 1999, Mr. and
Mrs. Morozova and their daughter fled to the United States with nonimmigrant
visas.
Mrs. Morozova testified that her husband suffered severe trauma and mental
anguish as a result of his persecution by the RNU. In his declaration, Mr. Morozov
stated that his '[f]ears and memories of past events were overwhelming. [He] felt
even more fear that [he] would suffocate and [his] family would remain
unprotected.' Mrs. Morozova testified that each time they attempted to fill out the
asylum application, her husband 'became short of breath . . . turn[ed] very pale,
2
began coughing[,] . . . lost the ability to talµ and he looµ[ed] very sicµ as a person
unable to provide information.'
a. The Timeliness of Mr. Morozov's Asylum Application
The majority concluded that the Immigration Judge ('IJ') correctly
determined that Mr. Morozov failed to present an extraordinary circumstance that
would warrant a late asylum application. I disagree.
On the contrary, Mr. Morozov presented substantial evidence that during the
one-year period after the Morozovs arrived in the United States, Mr. Morozov
suffered from extreme depression and serious mental illness because of the
'persecution [and] violent harm [he] suffered in the past.' 8 C.F.R. y
208.4(a)(5)(I).
The record indicates that Mr. Morozov was barely able to hold a job as a
dishwasher, and was fired from this job because of his inability to perform his
duties. Contrary to the IJ's incorrect finding, there is no evidence in the record that
Mr. Morozov ever said he held a job cleaning houses. Furthermore, the IJ's
conclusion that Mr. Morozov's serious mental illness did not preclude him from
filing an asylum application within one year of his arrival in the United States was
contrary to the evidence. The IJ based this incorrect conclusion on her finding that
Mr. Morozov was still able to perform certain mundane tasµs. This conclusion
3
reflects a specious understanding of the effects of the post-traumatic stress disorder
that afflicted Mr. Morozov. While he may have been able to obtain a driver's
license and visa extension, the IJ failed to recognize that Mr. Morozov's severe
anxiety and depression were triggered when the asylum application required him to
recount his past persecution at the hands of the Anti-Semitic RNU. The IJ's
conclusion that there were no extraordinary circumstances that excused Mr.
Morozov's late filing is contrary to the language of 8 C.F.R. y 208.4(a)(5)(I)
(listing '[s]erious illness or mental or physical disability, including any effects of
persecution or violent harm suffered in the past, during the 1-year period after
arrival' as an 'extraordinary circumstance' that excuses a late asylum application).
Thus, the IJ's conclusion is not supported by substantial evidence.
b. Adverse Credibility
I also disagree with the majority's conclusion that substantial evidence
supports the IJ's adverse credibility finding.
First, although the IJ stated that Mr. Morozov was hostile on cross-
examination, the IJ did not indicate that she relied on this observation when she
made her adverse credibility finding. See Arulampalam v. Ashcroft, 353 F.3d 679,
686 (9th Cir. 2003); see also Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996)
('[The IJ] must have a legitimate articulable basis to question the petitioner's
4
credibility, and must offer a specific, cogent reason for any stated disbelief.')
(internal quotation marµs omitted). The IJ talµed about Mr. Morozov's demeanor
in a section entitled 'Demeanor,' a section separate from her 'Credibility'
discussion. Nowhere in her written decision did the IJ state that Mr. Morozov's
demeanor led her to believe he was not credible. The IJ's observations indicate
that Mr. Morozov appeared upset with the questions put to him on cross-
examination. Although we give 'special deference' to the IJ's credibility
determinations based on an applicant's demeanor, Singh-Kaur v. INS, 183 F.3d
1147, 1151 (9th Cir. 1999), the IJ's demeanor-credibility finding must be
'substantial and bear a legitimate nexus to the [adverse credibility] finding.'
Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000) (internal quotation marµs
omitted). Because the IJ did not linµ her observations about Mr. Morozov's
behavior on cross examination to a conclusion that Mr. Morozov was not credible,
I cannot conclude that there is substantial evidence to support an adverse
credibility finding on this basis.
Second, the IJ did not give a specific and cogent reason for rejecting Mr.
Morozov's reasonable explanation for a perceived discrepancy about whether he
reported the August 26, 1998, attacµ. See Soto-Olarte v. Holder, 555 F.3d 1089,
1091 (9th Cir. 2009) ('An adverse credibility finding is improper when an IJ fails
5
to address a petitioner's explanation for a discrepancy or inconsistency.') (internal
citation omitted). The IJ stated only that Mr. Morozov was 'not able to explain
why he had testified earlier that he did not report [the incident to the militia].'
However, as discussed below, Mr. Morozov did provide a reasonable explanation
for the perceived discrepancy.
'This court has recognized that asylum applications are frequently filled out
by poor, illiterate people who do not speaµ English and are unable to retain
counsel, and who may seeµ the assistance of preparers.' Alvarez-Santos v. I.N.S.,
332 F.3d 1245, 1254 (9th Cir. 2003) (internal citations and quotation marµs
omitted). Additionally, 'asylum forms filled out by . . . people who . . . are unable
to retain counsel should be read charitably . . . .' Smolniaµova v. Gonzales, 422
F.3d 1037, 1045 (9th Cir. 2005) (internal quotation marµs omitted).
Here, Mr. Morozov did not have the benefit of counsel, nor could he read,
write, or speaµ English. Mr. Morozov was only able to sign and submit an asylum
application after a Russian-speaµing friend filled out the application for him in
English. In this application, the friend wrote that Mr. Morozov reported the
August 26, 1998, attacµ to the 'militia.' At the hearing before the IJ, where there
was an interpreter, Mr. Morozov provided details that clarified this statement in the
application. In response to a question by his counsel, Mr. Morozov explained that
6
he did not 'consider' reporting the beating to the Russian authorities because he
did not believe that they would do anything to help. But Mrs. Morozova insisted
they report the incident to the 'militia.' Thus, it was Mrs. Morozova who actually
reported the incident, while Mr. Morozov sat there silently. The statements in Mr.
Morozov's asylum application are therefore not inconsistent with his later, more
detailed explanation. Moreover, the IJ did not address or explain why she rejected
Mr. Morozov's reasonable explanation for the perceived discrepancy, and thus her
adverse credibility finding on this basis is improper. See Soto-Olarte, 555 at 1091.
Because I do not believe that the IJ's adverse credibility finding is supported
by substantial evidence, I would grant Mr. Morozov's petition for review and
remand to the BIA for further proceedings to determine whether, accepting Mr.
Morozov's testimony as credible, he is eligible for relief. See Singh v. Gonzales,
439 F.3d 1100, 1113 (9th Cir. 2006). Accordingly, I dissent.
7