Yanko Lukov v. Loretta E. Lynch , 647 F. App'x 694 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 30 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANKO YOSIFOV LUKOV, No. 12-71810
Petitioner, Agency No. A078-045-981
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2016
San Francisco, California
Before: TASHIMA and W. FLETCHER, Circuit Judges and GETTLEMAN,**
Senior District Judge.
Yanko Lukov, a citizen of Bulgaria, petitions for review of the decision of
the Board of Immigration Appeals (“BIA”) denying his claims for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We deny the petition.
Substantial evidence supports the BIA’s adverse credibility determination.
Because Lukov’s application was filed before May 11, 2005, the REAL ID Act
does not apply. Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir.
2010). We agree with Lukov and the dissent that some of the purported
inconsistencies relied upon by the BIA, such as the inconsistency regarding where
he was when he woke up from his coma, do not go to the heart of his claim. See
Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir. 2005). Nonetheless,
substantial evidence supports the BIA’s decision in light of Lukov’s inconsistent
testimony regarding his absences from a military base. Originally, Lukov testified
that he had been given leave on only one occasion. After the Immigration Judge
(“IJ”) confronted Lukov with a medical record indicating that Lukov had twice
visited a hospital approximately 150 kilometers away during the time he was
supposedly at the base, Lukov for the first time testified that he had run away from
the base two times after experiencing beatings. But the medical record did not
support this new assertion either, as the document indicated that Lukov was treated
for bronchitis during one of these visits, not for injuries that would normally be
associated with a beating. Later testimony further conflicted with Lukov’s original
-2-
statement; during cross-examination, Lukov testified that he ran away five to ten
times during his military service.
These inconsistencies goes to the heart of Lukov’s claim. Lukov claimed
asylum on account of his Roma ethnicity. His claim stemmed in part from the
mistreatment and beatings he received during his conscripted military service in a
Roma-only brigade. Inconsistent testimony regarding Lukov’s experiences while
at the military base, especially as they relate to the beatings he received, thus goes
to the heart of his allegations.
Petition for review DENIED.
-3-
FILED
Lukov v. Lynch, 12-71810
MAR 30 2016
GETTLEMAN, Senior District Judge, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent, and conclude that the adverse credibility finding of the
Board of Immigration Appeals (“BIA”) is not supported by substantial evidence.
Therefore, I would grant the petition, reverse the adverse credibility finding of the
BIA, and remand for further proceedings.
The BIA identified four bases upon which the Immigration Judge (“IJ”)
found that petitioner’s claims were not credible: (1) the inconsistency between
petitioner’s written statement and testimony concerning whether he first awoke at
home or in the hospital following his alleged beating by police on New Year’s
Eve 1999; (2) the inconsistency between petitioner’s testimony that he was given
leave from the army on only one occasion and a medical document indicating that
he had visited a hospital in his hometown, 150 kilometers from where he was
stationed, on two occasions during his military service; (3) the implausibility of
petitioner’s testimony, given for the first time during the 2009 hearing, that he had
left the military base without leave on several occasions; and (4) petitioner’s
inability to explain why his birth certificate, issued in April 2000, contained his
Bulgarian name and his parents’ Roma names when he had testified that all Roma,
including his parents, were forced to change their names to Bulgarian names
in 1980.
With the exception of the inconsistency concerning petitioner’s birth
certificate, the BIA conducted its own review and analysis of each inconsistency.
The BIA found that petitioner was given the opportunity to explain each
inconsistency, but that his explanations were unpersuasive or led to additional
inconsistencies. Consequently, the BIA held that the IJ’s adverse credibility
determination was not clearly erroneous.
Because petitioner’s application was filed before May 11, 2005, the REAL
ID Act does not apply. Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir.
2010). Accordingly, the inconsistencies relied on by the BIA in finding petitioner
not credible must go to the heart of his claim. Desta v. Ashcroft, 365 F.3d 741, 745
(9th Cir. 2004). I conclude that because none of the identified discrepancies go to
the heart of petitioner’s claims, the BIA’s adverse credibility finding is not
supported by substantial evidence. See Yi Quan Chen v. INS, 266 F.3d 1094, 1098
(9th Cir. 2001) (reversed on other grounds).
The State Department’s Country Report on Bulgaria established that
mandatory military service is a common practice for all Bulgarian citizens.
Consequently, petitioner’s claims do not stem in part from the fact that he was
forced to serve in the military, because such service was required regardless of
ethnicity. Instead, petitioner’s claims stem from the repeated physical abuse that
2
he suffered while living in Bulgaria, only some of which he alleges he received
while serving in the military. Petitioner has consistently testified that because of
his Roma ethnicity1 he was assigned to a labor battalion and often beaten during
his military service. Far from diminishing these allegations of abuse, petitioner’s
medical records from the Rakovski hospital corroborate his claim that he was in
fact beaten on at least one occasion while in the military. Any inconsistency
concerning the amount of leave time petitioner was allowed to take during his
military service has no bearing on petitioner’s claims of physical abuse, and
therefore does not go to the heart of petitioner’s claims. See Kaur v. Ashcroft, 379
F.3d 876, 884 (9th Cir. 2004) (superseded by statute on other grounds) (“Minor
inconsistencies that reveal nothing about an asylum applicant’s fear for [her] safety
are not an adequate basis for an adverse credibility finding.” (internal quotations
omitted)) .
Moreover, petitioner’s account of his 1999 New Year’s Eve police beating
(the event that caused petitioner to flee Bulgaria), a narrative that is corroborated
by medical records,2 is sufficient, standing-alone, to support his claims for relief.
1
The State Department’s Country Report also confirmed that minorities are regularly
assigned to labor battalions during their mandatory military service.
2
Petitioner’s hospital records from January 1, 2000, indicate that he “suffered a beating
by known individuals; Cannot recollect the incident; Complains of severe headache, nausea,
vomiting, vertigo; Obj. Swelling on the head, heamatomas [sic] on the entire body; Not
(continued...)
3
Petitioner’s written statement alleged that while at a Free Bulgaria party on New
Year’s Eve in 1999, police raided the party and assaulted the attendees. According
to petitioner’s statement, the police began hitting everyone with their batons, and
the next thing he remembered was “waking up at the hospital,” at which time he
was told that he had been in a coma for 11 hours. Following this incident,
petitioner immediately fled Bulgaria. Although petitioner testified on a single
occasion that he first woke up at home following the alleged beating, as the
majority has held, where petitioner woke up from his coma does not go to the heart
of his claims. Because this event is sufficient on its own to support petitioner’s
claims, it is not necessary to consider his experiences while in the military more
than a decade before the persecution that precipitated his fleeing Bulgaria.
Finally, although it is not clear whether the BIA relied on the perceived
inconsistency concerning petitioner’s birth certificate, this reason, like the others,
is not a sufficient basis upon which to find petitioner not credible. The IJ3 held that
the inconsistency goes to the heart of petitioner’s case because it concerns his
2
(...continued)
cognizant of time and place; . . . Direction to neurosurgeon.”
3
As noted above, the BIA identified this inconsistency as one of the bases upon which
the IJ found petitioner not credible, but did not engage in its own analysis concerning the
inconsistency. I will assume that the BIA adopted and affirmed the IJ’s reasoning with respect
to this inconsistency. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995) (holding that
where the BIA adopts and affirms the findings and reasoning of the IJ, the court reviews the IJ’s
opinion as if it were the opinion of the BIA).
4
claimed Roma ethnicity. However, by identifying his parents by their Roma
names, the birth certificate also identifies petitioner as Roma, regardless of whether
his Roma or Bulgarian name was used. Petitioner, in fact, explained this concept
during direct examination when he testified that someone looking at the document
would know his ethnic origins because his parents’ Roma names were used on the
form. As such, contrary to the IJ’s reasoning, the birth certificate supports
petitioner’s claim that he is Roma.
Moreover, whether petitioner was in fact ordered to change his Roma name
to a Bulgarian name does not go to the heart of his claims. In light of the fact that
the alleged name change occurred in 1980 and petitioner did not flee Bulgaria until
2000, the information was not a basis for his claimed persecution. Instead, it was
merely background information concerning discrimination against Roma in
Bulgaria.
Because the grounds upon which the BIA based its conclusion fail to
persuade me of the reasonableness of the adverse credibility finding, I find
petitioner’s testimony credible and conclude that the record compels reversal. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (For the court “[t]o reverse the
BIA finding we must find that the evidence not only supports [reversal], but
5
compels it.” (emphasis in original)). For these reasons, I would grant the petition,
reverse the BIA’s finding, and remand for further proceedings.
6