Balachova v. Mukasey

• Decision Date: 12 November 2008
• Docket Number: Docket No. 07-2278-ag (L).,Docket No. 07-2279-ag (Con).
• Citation: 547 F.3d 374
• Parties: Eiguenia BALACHOVA and Igor Krasnoperov, Petitioners, v. Michael B. MUKASEY<SMALL><SUP>*</SUP></SMALL>, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

547 F.3d 374

Eiguenia BALACHOVA and Igor Krasnoperov, Petitioners, v. Michael B. MUKASEY^*, Respondent.

Docket No. 07-2278-ag (L).

Docket No. 07-2279-ag (Con).

United States Court of Appeals, Second Circuit.

Argued: April 25, 2008.

Decided: November 12, 2008.

H. Raymond Fasano, Madeo & Fasano, New York, NY, for Petitioner.

Surell Brady, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC (Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division; Greg D. Mack, Senior Litigation Counsel; Wendy Benner-León, Trial Attorney, on the brief), for Respondent.

Before: McLAUGHLIN and POOLER, Circuit Judges, and COTE, District Judge.^**

POOLER, Circuit Judge:

Petitioners Eiguenia Balachova and Igor Krasnoperov, wife and husband and natives and citizens of Russia, seek review of an April 30, 2007, order of the Board of Immigration Appeals ("BIA") affirming the November 3, 2005, order of Immigration Judge ("IJ") Theresa Holmes-Simmons directing petitioners' removal to Russia and denying their requests for asylum, withholding of removal, and relief pursuant to the Convention Against Torture ("CAT"). In re Eiguenia Balachova, No. A75 836 651 (B.I.A. April 30, 2007), aff'g In re Eiguenia Balachova, Igor Krasnoperov, Nos. A75 836 651, A71 501 481 (Immig.Ct. N. Y. City, Nov. 3, 2005).¹ We dismiss as unexhausted Balachova's claims for asylum and withholding of removal and both parties' CAT claims, but numerous errors in assessing Krasnoperov's applications for asylum and withholding of removal require us to vacate his removal order and remand for further proceedings. In particular, we vacate the IJ's finding that Krasnoperov was barred from relief because he had furthered the persecution of others. Because Balachova may be eligible for derivative relief based on her husband's application, we vacate the order of removal with respect to her as well.

BACKGROUND

Balachova's claim for relief from removal is based on religious persecution. She alleges that she is a Baptist and was arrested for distributing religious literature in the streets.

Krasnoperov alleges that because he is Jewish, neo-fascists beat him on two occasions and during one of these beatings threw acid on him. At his hearing, Krasnoperov also testified that while he was a student at a military academy, he was sent to help reduce ethnic tensions between two neighboring populations, Armenians and Azerbaijanis, in the southwestern portion of Russia. Although the soldiers were sent as peacekeepers, the leadership "saw and felt themselves to have been given unlimited authority [and that belief] led to thievery, even to marauding." On one particular occasion in August 1989, according to Krasnoperov, his captain ordered him and others to stop in front of a house. One of the soldiers knocked at the door to ask for permission to search for arms. No-one answered, but there was movement inside. The captain then ordered his subordinates to break down the door, and one of the soldiers kicked it open. Krasnoperov, the four other soldiers, a sergeant and the captain entered the house, which contained an adult man and woman and two adolescent girls. The soldiers searched for arms and found nothing.

After the search was completed, the captain directed Krasnoperov to put the girls in the car. Krasnoperov went to the girls, told them that they had to come with him to the car, and reached out for the hand of one, but she pulled away and shrank back against the wall. The captain then commanded, "[h]it her." Krasnoperov did not follow this command because he "couldn't hit somebody for no reason at all," so the commander ordered one of the other men to take the girls to the car.

The girls' father offered the captain money, presumably for the release of the girls, but the captain took the money without releasing the girls. He also directed Krasnoperov to turn over his weapon to the sergeant. The soldiers and the girls then got into the military car.

About a kilometer from the village, the car pulled over into a wooded area, and the sergeant ordered one of the soldiers to get the girls out. As Krasnoperov remained in the car, the rest of the soldiers and the officers "started raping the girls." After a while, Krasnoperov was invited "to join the orgy." He refused and was commanded to join and threatened that he would pay for his insubordination. Next, several of the soldiers dragged Krasnoperov out of the car, beat him with their feet, put handcuffs on him, and left him in the car. After about five to ten minutes, "everybody was back in the car."

The official report of the incident said that Krasnoperov had been beaten by the villagers. However, Krasnoperov himself filed an accurate report with the commander of the military academy. He was examined at the hospital and returned to his unit where he was told that he was being sent to Leningrad pending further investigation. Ultimately Krasnoperov was expelled from the military academy and sent to do his service in another area.

Krasnoperov also admitted that he had been present during incidents in which his compatriots stole things from persons they stopped at roadside checkpoints. But he denied having ever participated in any of these thefts.

In her post-hearing decision, IJ Holmes-Simmons found that both respondents were not credible witnesses. As to Krasnoperov, she explained "that the respondent's version of events do[es] not match what is in his I-589 [asylum application]."

The IJ next turned to the bar to asylum and withholding of removal imposed on those who "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C § 1158(b)(2)(A)(I) (asylum); see also 8 U.S.C. § 1231(b)(3)(B)(i) (withholding). She found that Krasnoperov "[c]learly . . . is a persecutor" because, in part, she did not credit his denial of participation in the rapes. Even if Krasnoperov had not participated in the rapes, the IJ found him to be a persecutor based on actions that he admitted.

The IJ also found that Krasnoperov had not met his burden of proof because he failed to submit certain documents and other documents were not authenticated and/or not in conformance with Russian records. Judge Holmes-Simmons also found the evidence insufficient to support Balachova's claim and noted that changes had occurred in Russia in the thirteen years since both petitioners left. Finally, she denied the petitioners' CAT claims because they "failed to establish that it's more likely than not they'd be subject to torture if returned to their native country."

Both petitioners appealed to the BIA, which summarily affirmed the results of the IJ's opinion.

DISCUSSION

I. Standard of Review

Because the BIA summarily affirmed the IJ's decision, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency determination. E.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on "specific, cogent reasons" that "bear a legitimate nexus to the finding." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted).² A determination "based on flawed reasoning . . . will not satisfy the substantial evidence standard," and the agency's use of "an inappropriately stringent standard when evaluating an applicant's testimony constitutes legal, not factual error." Id. We will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo review is required for questions of law and the application of law to undisputed fact. E.g., Secaida-Rosales, 331 F.3d at 307.

II. Balachova

The IJ found that Balachova was not credible. This finding was dispositive of all her claims; yet, Balachova did not point out any errors in the IJ's adverse credibility finding on her appeal to the BIA. Although issue exhaustion is not jurisdictional, it is mandatory. Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 121-24 (2d Cir.2007). Thus, we grant the government's request to dismiss Balachova's claims for failure to exhaust administrative remedies.

III. Krasnoperov

A. Credibility

The basis of the IJ's adverse credibility finding for Krasnoperov is very unclear. The only specific factor she cited with reference to credibility was a variance between Krasnoperov's asylum application and his testimony. While Judge Holmes-Simmons did not identify the inconsistency in her credibility analysis, she had earlier stated that Krasnoperov testified that he had never filed a false report, but that his asylum statement indicated that he had been asked to rob villagers and then file false reports.

The IJ also may have believed that two other portions of Krasnoperov's testimony undermined his credibility. She found that he had initially testified that there was no synagogue in Russia but later testified that he attended a synagogue in Leningrad. In addition, within the corroboration section of her analysis, the IJ stated that Krasnoperov testified that he was not really in the army, but that a work record book showed that he served in the military inspector of personnel department. However, the IJ did not indicate that either of the purported...