Iouri v. Ashcroft

• Decision Date: 11 September 2006
• Docket Number: Docket No. 02-4998(CON).,Docket No. 02-4992(L).,Docket No. 03-40134(CON).,Docket No. 03-40132(CON).
• Citation: 464 F.3d 172
• Parties: Vladimir IOURI and Vera Yuriy, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

464 F.3d 172

Vladimir IOURI and Vera Yuriy, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.

Docket No. 02-4992(L).

Docket No. 02-4998(CON).

Docket No. 03-40132(CON).

Docket No. 03-40134(CON).

United States Court of Appeals, Second Circuit.

Argued: March 22, 2005.

Decided: September 11, 2006.

Amended: September 13, 2006.

Irina Kogan, Brooklyn, NY, for Petitioners.

John C. Cunningham, Senior Litigation Counsel (Peter D. Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant Director, on the brief), Office of Immigration Litigation, Washington, D.C., for Respondent.

Before SOTOMAYOR, RAGGI, and HALL, Circuit Judges.

HALL, Circuit Judge.

Vladimir Iouri and Vera Yuriy ("Petitioners"), natives of the former Soviet Union and citizens of the now independent Ukraine, petition for review from a November 27, 2002 decision of the Board of Immigration Appeals ("BIA") summarily affirming an Immigration Judge's ("IJ") order finding Petitioners incredible and denying their application for asylum, withholding of return, and relief under the Convention Against Torture ("CAT"). Petitioners also seek review of a May 29, 2003 order of the BIA denying their motion to reopen immigration proceedings. The purpose of the motion to reopen was to adjust their status to that of lawful permanent residents on the basis of approved "immediate relative" petitions filed on Petitioners' behalf by their daughter, a United States citizen. The BIA denied the motion because by the time it was filed, Petitioners had remained in the United States beyond the period granted for voluntary departure and were, therefore, statutorily barred from seeking adjustment of status.

On petition for review, Petitioners raise two issues. First, whether the BIA erred by failing to take into account their advanced age in assessing their credibility. Second, whether their voluntary departure period should be deemed stayed, tolled, or otherwise extended by their having timely filed for a petition for review and moved for a stay of deportation in their underlying asylum case.

I. Background

Petitioners—husband and wife—are natives of the former Soviet Union and citizens of the now independent Ukraine. Iouri entered the United States on or about April 4, 1993 as a non-immigrant visitor. Yuriy followed on or about August 3, 1993, also as a non-immigrant visitor. Soon after his wife's arrival, Iouri sought asylum claiming that as a member of the Ukraine Orthodox Church, he was persecuted and has a well-founded fear of future persecution due to his religious beliefs and affiliation.¹

In his asylum application, Iouri claims that he has long been mistreated due to his religious beliefs. In particular, he asserts that under Communist rule, his family was unable to practice their religion openly, and as a child, he was punished in school for attending Easter services. His application also recounts alleged mistreatment while he served in the army. In Hungary, for example, Iouri asserts he refused to shoot protestors due to his moral and religious convictions, and as a result, he was mistreated and threatened with punishment. Iouri claims his commanding officer arrested him while he was praying.² Beyond that, Iouri contends he was generally mocked, threatened, and forced to serve in an "atmosphere of general hostility."

According to Petitioners, conditions did not improve with perestroika and independence. They report receiving threatening letters and phone calls; letters they sent were opened and inspected; and the Russian Orthodox and Ukranian Catholic churches, backed by the government, did "their best to declare [Petitioner's] religion out-of-law."

Iouri's asylum application, however, made no mention of any specific incidents of abuse or violence against him or his wife. Indeed, Iouri mentioned specific incidents for the first time during an asylum interview and in an addendum to his application submitted to the IJ in June 1999. In the addendum, Iouri claimed that (1) he was attacked in December of 1991 and threatened with death if he did not stop attending religious services; (2) his apartment was vandalized in March of 1992; and (3) in February of 1993, his apartment was again broken into and vandalized, and he was beaten and admitted to the hospital with a ruptured kidney.

A hearing was held on July 6, 2000 at which both Petitioners testified. With regard to the 1991 incident, Iouri claimed for the first time that he was knocked unconscious, suffered injuries to his head and chest, and was hospitalized for seven days. As to the 1992 vandalism incident, he testified that graffiti with death threats was painted on the wall, and when he attempted to report the incident, police informed him the case was closed and advised him to stop practicing his religion. When Yuriy testified, she could not remember the date of the third incident, stating that it occurred either in December of 1992 or February of 1993. She also testified that her husband was attacked on the street, not in the apartment. When brought to her attention that submitted documents indicated the attack occurred in her home, she changed her testimony and stated that a fourth incident in which her husband was beaten occurred sometime in December of 1992. Her husband, however, did not testify to that effect, and there is no mention in any of the documents of a December 1992 attack.

The IJ denied Petitioners' application finding that Iouri's testimony was not credible. Specifically, the IJ found his testimony to be "generally halting and vague with regards to some significant events." As to the 1991 incident, the IJ noted that this had not been mentioned anywhere else and there were no documents corroborating that he had been hospitalized. The IJ also noted inconsistencies in the testimony between Iouri and his wife—i.e., she claimed he was attacked in 1993 on the street, not in the apartment, and she testified to a fourth incident never once mentioned by Iouri. Finally, the IJ explained that Iouri was vague in describing the tenets of his faith.³

Although the IJ denied Petitioners' application for asylum, he granted their request to voluntarily depart pursuant to former Immigration and Nationality Act ("INA") § 244(e)(1), 8 U.S.C. § 1254(e) (repealed 1996). Petitioners were warned that if they failed to depart voluntarily, the order granting voluntary departure would be withdrawn and they would be ordered deported to the Ukraine. They were also warned, by written order, of the statutory consequences of failing to depart; specifically, they would be ineligible for certain immigration relief, including adjustment of status, for a term of five years. Id. §§ 1252b(e)(2) & (5). Petitioners filed a timely appeal which tolled the first thirty days of their voluntary departure period. On November 27, 2002, the BIA summarily affirmed the IJ's decision and granted Petitioners a new period of voluntary departure lasting until December 27, 2002.

Petitioners filed their petitions for review with this court on December 26, 2002 and December 27, 2002. Along with the petitions for review, Petitioners also requested that we grant them a stay of deportation. They did not, however, specifically request a stay of their voluntary departure period or seek an extension of the departure period from the Immigration and Naturalization Service's ("INS") District Director. Nor did they depart. Instead, they filed a motion before the BIA to reopen proceedings in order to apply for adjustment of status on the basis of approved "immediate relative" petitions filed on their behalf by their daughter, now a United States citizen. The BIA denied their motion because they had overstayed their departure period and were, therefore, statutorily barred from applying for adjustment of status. This appeal followed.

II. Discussion

A. Asylum Application

Because the BIA summarily affirmed the IJ's decision to deny Petitioner's application for asylum, we review the IJ's decision directly. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). In turn, our scope of review is "exceedingly narrow." Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (internal quotation marks omitted). In reviewing a denial of an application for asylum, we "defer to the immigration court's factual findings as long as they are supported by `substantial evidence,'" and "we will not disturb a factual finding if it is supported by `reasonable, substantial and probative' evidence in the record when considered as a whole." Id. (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). Factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

When it comes to credibility determinations, we afford "particular deference" to the IJ in applying the substantial evidence test. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). Thus, we look to see whether the IJ has provided "specific, cogent" reasons for her finding and whether those findings bear a "legitimate nexus" to the credibility determinations. Id. at 74 (internal quotation marks omitted). Where a credibility determination is based on specific examples of "inconsistent statements" or "contradictory evidence," a "reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Id. (internal quotation marks omitted).

Here, the IJ clearly set forth specific and cogent reasons for his adverse credibility finding, stating:

Again, for all the reasons: the internal discrepancies, the external inconsistencies with information on documents and the addendum to the I-589 request for asylum, the general vagueness of the testimony, the lack of key details and specifics with regard to the most critical portions of the claim, and the significant discrepancies between the testimony of the two respondents; for all these...