Averianova v. Mukasey

• Citation: 509 F.3d 890
• Decision Date: 10 December 2007
• Docket Number: No. 06-3717.,No. 06-3718.,06-3717.,06-3718.
• Parties: Antonina AVERIANOVA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America, Respondent. Oksana Averianova, Petitioner, v. Michael B. Mukasey, Attorney General of the United States of America, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

509 F.3d 890

Antonina AVERIANOVA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America, Respondent.

Oksana Averianova, Petitioner, v. Michael B. Mukasey, Attorney General of the United States of America, Respondent.

No. 06-3717.

No. 06-3718.

United States Court of Appeals, Eighth Circuit.

Submitted: September 27, 2007.

Filed: December 10, 2007.

Matthew M. Armbrecht, argued, Minneapolis, MN, for petitioners.

James E. Grimes, U.S.DOJ, OIL, argued, Washington, DC (Linda S. Wernery and Angela N. Liang, on the brief), for respondent.

Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Antonina and Oksana Averianova, citizens of Uzbekistan, petition for review of a Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") denial of the Averianovas' applications for asylum and for withholding of removal.¹ For the reasons discussed below, we deny the Averianovas' petitions.

I. BACKGROUND

Antonina and Oksana Averianova are a mother and daughter seeking asylum in the United States because of alleged persecution on account of their Jewish ethnicity and religious beliefs.

Antonina was born in Russia in 1951. Her family moved to Uzbekistan shortly after her birth. She has two children, Oleg and Oksana. Antonina claims that her father was Jewish and her mother Russian, but her mother "adopted" her father's ethnicity upon marriage. Antonina does not practice Judaism regularly and only began practicing in the late 1980s. She cites various incidents of past persecution in Uzbekistan, allegedly because of her Jewish background. She testified that she was once attacked on a bus because she was not Muslim. On another occasion a man yelling about Jews hit her and split her lip. Her son was beaten for not being Muslim and having Jewish roots. She did not report any of these incidents to the police. In 1992, Antonina arrived as a non-immigrant visitor to the United States. She applied for asylum in 1993.

Oksana testified to various problems she encountered in Uzbekistan because of her alleged Jewish ethnicity. In school, she faced frequent taunting. A group of girls once threatened her and pushed her head in a toilet. She recalled incidents of Muslim men harassing her, slapping her in the face, calling her a Jewish whore, and threatening to cut her legs for wearing a short skirt. She reported that her professors at night college prevented her from participating in class and that she had difficulty finding employment in Tashkent, the capital of Uzbekistan. Oksana did not report any of these incidents to the police. She arrived in the United States in 1996 and applied for asylum shortly thereafter. She does not practice Judaism in the United States. The IJ consolidated her case with Antonina's.

During the asylum proceedings, the Averianovas submitted several birth certificates to prove their Jewish ethnicity. (In the former Soviet Union, the government considered "Jewish" an ethnicity and listed it on birth certificates as a nationality.) None were original documents, and the Averianovas testified that any original documents, such as original birth certificates, internal passports, travel passports or marriage certificates, had been lost or stolen. The Immigration and Naturalization Service ("INS"),² in conjunction with the American embassy in Tashkent, investigated the birth certificates submitted by the Averianovas and identified specific discrepancies that called into question their authenticity.

The Averianovas presented a translated copy of Oksana's birth certificate, notarized in Russia in 1994, which stated that Antonina was "Jewish." In May 2002, the INS gave the copy of Oksana's birth certificate to American embassy personnel in Tashkent. Embassy staff then asked the local register of Tashkent to access Oksana's birth record. The embassy personnel discovered that the official record of Oksana's birth listed Antonina's nationality as "Russian." Oksana contended that the embassy report was an unreliable, hand-written copy, and that it erroneously listed her birth date. American embassy officials subsequently obtained two digital photographs of her birth record. The photographs showed Antonina's nationality as "Russian." The register also corrected the birth date error after embassy staff identified it. The IJ found that the two documents were "identical . . . with one exception" — the nationality of "Russian" in the original record had been changed to "Jewish" in Oksana's copy.

After the INS's original inquiry into Oksana's birth certificate, the Averianovas initiated a court proceeding in Tashkent on March 5, 2003, to amend Antonina's father's birth record to state that he was Jewish. Antonina's father's original birth certificate indicated that he was Russian. The court changed the record on May 21, 2003. The Averianovas submitted the amended birth certificate and the record of the Tashkent court hearing to the IJ.

Once the INS discovered that Oksana's birth record actually stated that Antonina was "Russian," not "Jewish," the Averianovas submitted several more copies of birth certificates to the IJ. First, a copy of Antonina's brother Victor's birth certificate dated August 10, 2002 reflected that his (and Antonina's) father was "Jewish." The INS obtained digital photographs of the original birth record bearing the serial number reflected on the copy submitted by the Averianovas and determined that the serial number reflected on the copy actually was contained on a birth certificate issued to someone other than Victor. Second, a birth certificate submitted for Oleg stated that his mother Antonina was "Jewish." The INS obtained two digital photographs of his actual birth record in Tashkent that listed Antonina's nationality as "Russian." Third, Antonina submitted a copy of her birth certificate issued in 1992 that listed her father's nationality as "Jewish." The INS found that the serial number on this birth certificate also was issued to someone else and obtained a copy of that person's birth record.

The IJ rejected the Averianovas' asylum claims. The IJ focused on their claims of persecution based upon their Jewish ethnicity because that was the "overwhelming thrust" of their claims, and they had not provided sufficient testimony regarding claims of persecution on account of their non-Uzbek ethnicity. The IJ determined that the photographs of Uzbek records were trustworthy and persuasive evidence. The IJ found that the Averianovas had submitted fraudulent documents, which adversely affected their credibility. He also found that they offered no explanation for the discrepancies. He held that without credible proof of their Jewish ethnicity, their asylum claims failed. The IJ refused to extend comity to the Tashkent court proceeding of March 5, 2003. He also found a "lack of any objective corroborating evidence" regarding the Averianovas' alleged persecution. On account of the lack of credible testimony and lack of corroborating evidence, the IJ also rejected their claims for withholding of removal.

In attempting to verify the birth certificates the Averianovas submitted, the INS sent them to the American embassy in Tashkent. Embassy staff checked records and made inquiries to local Uzbek officials. The Averianovas contended that confidential information had been revealed in the course of the investigation in violation of 8 C.F.R. § 208.6, which generally prohibits disclosing information submitted in an asylum application unless the applicant gives written consent. The Averianovas argued that the disclosures gave rise to an inference that they had applied for asylum, which they claimed created a separate basis for asylum. The IJ found no proof that the INS had revealed confidential information to Uzbek authorities. He determined that the INS merely investigated a vital statistic, their ethnicity, which could relate to any number of ordinary government investigations. Additionally, because the Averianovas went to an Uzbek tribunal to alter family birth records regarding their Jewish ethnicity, the IJ doubted that the Averianovas had any real concern over a release of that information to the Uzbek government. Therefore, the IJ refused to grant relief on this basis as well and denied their applications.

The BIA adopted and affirmed the IJ's determination. It first agreed that the Averianovas had offered "only conjecture" to explain why the false documents differed from the official Uzbek records. It also determined that it would not grant comity to the decision of a foreign tribunal "where fraud and manipulation of the immigration laws were present." Additionally, the BIA held that this adverse credibility determination tainted the overall credibility of the Averianovas, which affected both the Jewish claims and the non-Uzbek claims. The BIA also agreed that the INS did not breach the Averianovas' confidentiality.

II. DISCUSSION

"When the BIA adopts the IJ's decision, but adds reasoning of its own, we review both decisions." Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). We affirm the decisions if they are supported by substantial evidence in the record. Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007). We review questions of law de novo, and we will reverse findings of fact only if the evidence is "so compelling that no reasonable fact finder could fail to find in favor of the petitioner." Turay v. Ashcroft, 405 F.3d 663, 666-67 (8th Cir.2005).

A. Asylum

"The Attorney General has discretion to grant asylum to a refugee, defined as an alien who is unable or unwilling to return to her home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Onsongo v. Gonzales, 457 F.3d 849, 852 (8th Cir.2006); see 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1); 8 C.F.R. § 208.13. The applicant...