Borovikova v. U.S. Dept. of Justice

• Decision Date: 18 January 2006
• Docket Number: Docket No. 02-4891.
• Citation: 435 F.3d 151
• Parties: Alla BOROVIKOVA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

435 F.3d 151

Alla BOROVIKOVA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.

Docket No. 02-4891.

United States Court of Appeals, Second Circuit.

Argued: May 20, 2005.

Decided: January 18, 2006.

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Bruno Joseph Bembi, Hempstead, NY, for Petitioner.

Dione M. Enea, Special Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Varuni Nelson and Steven Kim, Assistant United States Attorneys, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Respondent.

Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG, Judge.^*

Judge OAKES dissents in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Alla Borovikova, a native of the former Union of Soviet Socialist Republics ("USSR" or "Soviet Union") and a citizen of Ukraine, petitions this Court for review of a November 21, 2002 order of the Board of Immigration Appeals ("BIA") affirming a February 8, 2000 Oral Decision of an immigration judge ("IJ") denying her application for asylum and withholding of removal. Petitioner entered the United States on or about February 17, 1995 and was admitted as a nonimmigrant visitor. After overstaying her visa, she applied for asylum largely on the basis of claims that she had been persecuted in Ukraine because she is a Jew. The IJ found petitioner's story not credible and denied her requests. Petitioner argues on appeal that the IJ lacked substantial evidence to support the adverse credibility determination and asks us to hold that any reasonable factfinder would be compelled to grant petitioner's applications for asylum and withholding of removal. See 8 U.S.C. § 1252(b)(4)(B) ("[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary[.]"). She further argues that although she did not request relief under the United Nations Convention Against Torture ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, the IJ and BIA erred in not considering her qualification for such relief sua sponte. We disagree and, accordingly, the petition for review is denied.

BACKGROUND

Borovikova was born January 12, 1941 in Russia. In her petition for asylum and withholding of removal, she alleges that she suffered anti-Semitic persecution in multiple countries from the time of her childhood until she fled to the United States in 1995. Among other things, she reported the following to the IJ:¹ that (1) as a child she was taunted by neighbors, classmates, and teachers because she was a Jew; (2) while in grade school, when she refused to join the "Komsomol,"² — a Communist youth organization — because its atheistic tenets violated her religion, she was taunted, assaulted, and beaten by classmates (including an incident in which a classmate threw a stone at her, giving her a "serious head wound") with no response from authorities; (3) when she applied to nursing school in 1958, she was refused admission because she was Jewish; (4) her family then moved to Kiev, Ukraine in hope of escaping persecution but she was again denied admission to nursing school in 1959, this time on the basis of "openly" announced anti-Semitic motives; (5) after finally being admitted to nursing school in 1960, she suffered additional harassment until her graduation in 1963, including having her arm broken by a student in retaliation for her refusal to join the Komsomol; (6) after a period of being denied nursing work, she married and found a nursing job at a hospital near her husband's military post in Taganrog, Russia but could not practice her religion openly because of its potentially negative impact on her husband's military career; (7) in 1972, petitioner's husband was transferred to East Germany, where she was subject to harassment, humiliation, and government surveillance, and her husband suffered mistreatment and denial of promotion at work because of his wife's religion; (8) in January 1992 petitioner and her family moved to Kiev after her husband's discharge from the military; (9) in March 1992 she was attacked at a store, during which two men threw her physically from the premises and she broke her "foot in the shin"; (10) in January 1994 uniformed hooligans burst into petitioner's apartment, shouted anti-Semitic slogans, and poured scalding soup on her, after which medical authorities refused to treat her; (11) in September 1994, while petitioner was visiting her parents' graves, "a crowd of 7 or 8 people ... dressed in Rukh uniforms"³ desecrated the cemetery, shouted anti-Semitic slogans at her, chased her, and beat her until she passed out, causing her to suffer a concussion and a fractured leg; (12) in November 1994, nationalists threw a smoke bomb into petitioner's apartment, set her front door on fire, and put a box of mercury under her front door, making petitioner and her daughter ill; and (13) she feared for her safety and decided to spend six months in the United States so that the "nationalists would forget about" her, but, after arriving in the United States in 1995, learned that conditions had worsened and that she "will be persecuted again" should she return to Ukraine. Petitioner now lives in Brooklyn, where she is a member of a Jewish community center and a synagogue.

DISCUSSION

I. Relevant Legal Standards

The standards for evaluating claims of asylum and requests of withholding of removal overlap considerably. Because the standard for a successful withholding of removal claim is higher than for an asylum claim — and because we find in this case that petitioner's asylum claim must be denied — we do not treat her withholding claim separately in detail. Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999).⁴

The statute governing asylum claims — the Immigration and Nationality Act of 1952, as amended — gives the Executive discretion to grant asylum to an alien who "is a refugee within the meaning of" the statute. See 8 U.S.C. § 1158(b)(1)(A) ("Eligibility");⁵ id. § 1101(a)(42) (defining "refugee").⁶ An alien seeking asylum bears the burden of proving by a preponderance of the evidence that he is a "refugee" "with a well-founded fear of persecution." See id. § 1158(b)(B); Matter of Acosta, 19 I. & N. Dec. 211, 215 (BIA 1985); see also Damko v. INS, 430 F.3d 626, 632-34 (2d Cir.2005) (according deference to the BIA's statutory interpretation in Matter of Acosta as mandated by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Because asylum determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, our review of factual determinations by an IJ is tightly circumscribed.⁷ See 8 U.S.C. § 1252(b)(4)(B) (stating that, on appeal, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) ("[W]e defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence.") In cases like this one, in which the IJ bases her denial of asylum on a finding that a petitioner's application is not credible, our review is especially limited and "highly deferential." Zhou Yi Ni v. DOJ, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. United States Attorney Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (holding that we afford "`particular deference to the credibility determinations of the IJ'") (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)); Zhou Yun Zhang, 386 F.3d at 74 ("Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.").

An adverse credibility finding, however, may not be upheld if based entirely upon "a misstatement of the facts" or "bald speculation or caprice." Zhou Yun Zhang, 386 F.3d at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (indicating that IJ's reasons for an adverse credibility finding must be "specific" and "cogent" and must bear "legitimate nexus" to petitioner's claim of persecution). In evaluating a disputed adverse credibility finding, our role does not extend to "hypothesiz[ing] excuses" for the inconsistencies in an asylum applicant's testimony. Zhou Yun Zhang, 386 F.3d at 74; see Jin Yu Lin v. DOJ, 413 F.3d 188, 191 (2d Cir.2005).

II. Petitioner's Asylum Claim

The facts stated by petitioner present a colorable asylum claim inasmuch as they allege a pattern of persecution on the basis of religion, which is a protected ground. See 8 U.S.C. § 1101(a)(42). The IJ denied petitioner's claim, however, upon finding that her story was not credible. Specifically, the IJ based her adverse credibility determination on three grounds: (1) that the birth certificate petitioner submitted was likely fraudulent; (2) that petitioner's original application for asylum and her supplemental affidavit presented contradictory stories, particularly regarding petitioner's experiences while living in East Germany; and (3) that petitioner gave inconsistent testimony at her hearing before the IJ concerning a document that purportedly supported her claim to have suffered a broken leg during an anti-Semitic attack. Upon a review of the record and the IJ's decision, we conclude that any of the three bases enumerated by the IJ, which we discuss in turn, could by itself have supported an adverse credibility finding. We therefore hold that the IJ's factual determination...