Kartasheva v. Holder
| Decision Date | 11 September 2009 |
| Docket Number | No. 08-2243.,08-2243. |
| Citation | 582 F.3d 96 |
| Parties | Evgeniya KARTASHEVA, Petitioner, v. Eric H. HOLDER,<SMALL><SUP>*</SUP></SMALL> Jr., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Gary J. Yerman for petitioner.
Tracie N. Jones, with Michael F. Hertz, Acting Assistant Attorney General, and Michelle Gorden Latour, Assistant Director, for respondent.
Before BOUDIN, SELYA, and STAHL, Circuit Judges.
Petitioner Evgeniya Kartasheva, a native of the Soviet Union and citizen of Uzbekistan, seeks review of a Board of Immigration Appeals ("Board") order denying her asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Board adopted and affirmed the decision of an Immigration Judge ("IJ") who found that Kartasheva was not credible and that she had failed to establish eligibility for relief. Kartasheva's principal argument is that the Board, in adopting the IJ's conclusions, reached inappropriate conclusions about the credibility of her testimony. After careful consideration of the decision and the record below, we vacate and remand for additional proceedings.
The petitioner entered the United States on January 11, 2004, as a nonimmigrant B-2 visitor for pleasure with authorization to remain in the country for a temporary period not to exceed July 10, 2004. On August 5, 2004, well within the one-year filing deadline, she applied for asylum, withholding of removal, and CAT protection with the Department of Homeland Security ("DHS"). DHS then filed a Notice to Appear, claiming that Kartasheva was subject to removal as an nonimmigrant who had remained in the United States for a period longer than permitted. See 8 U.S.C. §§ 1101(a)(15), 1227(a)(1)(B). We recount the evidence as Kartasheva presented it in her documentation and during her removal proceedings. We next discuss the IJ's and Board's evaluation of that evidence.
Kartasheva testified that her family moved to Uzbekistan from Russia in 1963 when she was nine years old. She suffered a childhood of taunting and teasing. Problems for the petitioner intensified in 1991, when Uzbekistan declared its independence. In 1998, the petitioner was attacked near her home by several Uzbek men who pushed and inappropriately touched her and made lewd sexual comments, calling her, for example, a "Russian whore" and stating, "I'm going to show you some Uzbek love, you Russian bitch."1
At the time of the attack, Kartasheva worked for a government adult education center, teaching a home economics course. After 21 years of employment, during which she was denied promotions and given limited hours, Kartasheva was terminated in 2000 because, she speculated, her position was filled by an Uzbek woman. Thereafter, she supported herself and her two daughters as a dressmaker working from home for private clients.
In June 2003, two days after Kartasheva's return from a trip to the United States, a police inspector visited her home and questioned her about her reasons for the trip. When the petitioner explained that she had traveled for vacation, the inspector became irritated, slapped her in the face, and stated that she really traveled abroad "to be infected by democracy." He warned her that the Uzbek police would be watching her and all other Russians residing in Uzbekistan. Kartasheva went to the local protection committee to register a complaint but was met with indifference.
Depressed after this encounter, Kartasheva visited a friend in Russia. Although she intended to stay for a month, the Russian police would grant only a residency permit good for not more than ten days because she was traveling from the "Republic of the Monkeys." When the petitioner protested that she was ethnically Russian, the official replied, "You're all the same — apes." Kartasheva later paid a police officer roughly ninety dollars in order to remain an additional three days.
On August 18, 2003, as she left her church, the petitioner witnessed three Uzbek men harassing a Russian woman. Kartasheva attempted to intervene and was assaulted, pushed to the ground, and kicked. Police officers arrived, and when pressed, Kartasheva gave them her contact information. But when the officers summoned her to the station a few days later, they told her that she was becoming a nuisance and fined her roughly sixty dollars for disturbing the peace. After the attack, the petitioner sought medical care at a local clinic for injuries to her face and knee. She testified that she received various forms of physical therapy for these injuries.
The following month, on September 1, 2003, a friend and activist in the Human Rights Society of Uzbekistan ("HRSU") invited Kartasheva to attend a demonstration. Kartasheva agreed and decided to join the participants upon observing the peaceful protest calling for free elections and personal freedoms. When police arrived, she was beaten and taken to the police station, where she was locked in a cell for approximately eight hours and then fined one hundred and twenty dollars.2 After her release, the petitioner went to a clinic for treatment of her back and arm.
On October 14, 2003, and again on November 15, 2003, the petitioner was attacked physically by some of her Uzbek neighbors in the courtyard and foyer of her building. After the first incident, Kartasheva visited the clinic for treatment and medication to reduce facial swelling and bruises. She testified that she also contacted the HRSU and decided to assist the organization by passing out leaflets on several occasions. That same month, she received a phone call from an individual named Malzakhanov who identified himself as a lieutenant of the security forces; he spoke disapprovingly of her involvement with the HRSU.3
On December 14, 2003, four agents of the National Security Service ("SNB"), including Lieutenant Malzakhanov, arrived at the petitioner's home. After searching her apartment and finding several HRSU brochures and leaflets, they arrested Kartasheva. The commotion woke her daughters who pleaded with the agents not to arrest their mother. One of the SNB agents slapped Kartasheva's eldest daughter and pushed both of the daughters into another room.4 The petitioner then was handcuffed and taken to SNB headquarters where she was detained for three days. During her detention, she was interrogated and beaten until she agreed to sign a confession.5 Kartasheva was warned that if she were caught again, she would be killed. After her release, she received treatment for injuries to her skull, ear, neck, and arms at a clinic. The petitioner then decided to leave Uzbekistan for the United States.
On August 30, 2004, an asylum officer interviewed Kartasheva about the claims in her asylum application. Kartasheva appeared without counsel. The asylum officer denied Kartasheva relief, finding her incredible and determining that statements made during her interview were inconsistent with statements on her written application. Specifically, the officer noted that the petitioner did not mention the November 2003 phone call, the two fines from the Uzbek police, and particular aspects of her December 2003 arrest. See supra notes 2-3, 5. The officer concluded that the omissions were "material inconsistencies on the issue of persecution" and referred the case to an immigration judge for further consideration.
After a master calendar hearing in May 2005, Kartasheva appeared for merits hearings on August 4, 2005, and September 18, 2006, before the IJ and testified to the above-recounted events. When asked how many times she had traveled to the United States, the petitioner first replied that she had visited five times, although in her asylum application, she listed only three visits prior to her last entry on January 11, 2004. Upon further questioning, Kartesheva acknowledged that she had traveled to the United States six times. She submitted that she could afford her trips, generally lasting several months, because
Kartasheva additionally testified that her two daughters currently reside in Tashkent, Uzbekistan. Her younger daughter attends college and receives a merit-based government scholarship to cover her tuition. Her brother is a citizen and resident of Russia. Kartesheva claimed that, as an Uzbek citizen, she is ineligible for citizenship in Russia but admitted that she had never attempted to apply for Russian citizenship.
To support her claims, Kartasheva provided relevant excerpts from her medical history as prepared by the Tashkent Caterpillar Factory Polyclinic, obtained by Kartasheva's eldest daughter after her mother left the country; signed statements from her daughters and several friends; and country conditions evidence. The medical report, signed by both the clinic's head physician and a surgeon, provided synopses of treatments for trauma including bruising, hemorrhages, and contusions on dates corresponding with those of the attacks. Meanwhile, two friends provided statements confirming that Kartasheva sympathized with the HRSU and was arrested during the September 1, 2003, demonstration, and a third indicated that the petitioner was imprisoned and fined after the September 2003 demonstration, and in October 2003, began attending HRSU meetings and disseminating materials. Finally, the record contains two letters from Kartasheva's daughters — one merely indicating that they love and miss their mother and the other recounting the December 14, 2003, search of their apartment.6
On November 22, 2006, the IJ found Kartasheva removable as charged and denied her application for asylum, withholding of removal, and protection under the CAT. Specifically, the IJ held that Kartasheva failed to meet her burden of proof because her testimony was not credible: "[Kartasheva]...
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