Khrystotodorov v. Mukasey

• Decision Date: 29 December 2008
• Docket Number: No. 08-1012.,08-1012.
• Citation: 551 F.3d 775
• Parties: Mykola Mykolayevich KHRYSTOTODOROV; Oksana Khrystotodorova; Viktoriya Khrystotodorova, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

551 F.3d 775

Mykola Mykolayevich KHRYSTOTODOROV; Oksana Khrystotodorova; Viktoriya Khrystotodorova, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 08-1012.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2008.

Filed: December 29, 2008.

Dyan Williams, argued, Minneapolis, MN (Herbert A. Igbanugo, on the brief), for petitioners.

Drew Brinkman, argued, Washington, DC (W. Daniel Shieh, on the brief), for Respondent.

Before RILEY, HANSEN, and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Mykola Mykolayevich Khrystotodorov ("Mykola"), his wife Oksana, and his daughter Viktoriya (collectively, "the Petitioners") are citizens of the Ukraine who sought asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), based on persecution on account of their Baptist religion. The Immigration Judge (IJ) denied their applications and refused to reopen the proceedings for the submission of additional evidence. The Board of Immigration Appeals (BIA) dismissed their appeal, and the Petitioners seek judicial review. We granted a temporary stay of removal and of voluntary departure, and now, having fully considered the claims, we deny the petition for review and dissolve the temporary stay order.

I.

Mykola and his family entered the United States in early December 1999 as nonimmigrant visitors with permission to remain in this country until January 9, 2000. They remained longer than authorized, and removal proceedings commenced on June 14, 2001. They admitted the allegations, conceded removability, and filed an application for asylum, withholding of relief, and relief under the CAT, asserting that they had suffered persecution in the Ukraine on the basis of their Baptist religion and that they have a well-founded fear of persecution on this basis if they are returned to the Ukraine. At a hearing before the IJ on October 30, 2002, Mykola testified that he and his family are citizens of the Ukraine and lived in the city of Izmayil. They became Baptists in 1996, and he asserted that as a result of their faith, they suffered persecution by members of the Ukranian National Assembly-Ukranian National Self Defence (UNA-UNSO), whom he described as hit-men for the ruling National Democratic Party. Mykola recounted four principal incidents.

First, in August 1998, his sister was attacked on account of her faith by classmates who were members of UNA-UNSO. Mykola was a crew member on a ship and away at sea at the time. Although the incident was reported to police, they took no action. Second, in September 1998, Mykola was walking in the market with his wife, sister, and brother-in-law when they were attacked by four members of UNA-UNSO, one of whom had attacked his sister the previous month. They punched Mykola in the face, and he spent the night and the next day in bed, but the injury did not require significant medical treatment. Because the police had not responded to his sister's complaint the previous month, Mykola complained to the mayor about the incident. Mykola wrote two letters to the mayor with no meaningful response.

Third, Mykola described an incident at a rally on October 8, 1998. He and some other individuals who had been beaten by UNA-UNSO members decided to organize a rally to protest this abuse. They garnered support from local churches and other religious minorities, including Baptists, Jews, and Pentacostals, and a group of 150 to 200 people gathered across the street from the mayor's office in protest. Mykola said that they were interrupted when attacked by UNA-UNSO hit-men who arrived in a bus carrying batons and yelling, "Beat the Baptists!" (Petitioners' Add. at 7.) Mykola testified that he was hit in the face, kicked to the ground, and knocked unconscious, and that his injuries required him to stay at the local hospital, the Danube Basin Hospital, for nine days. He alleged that he suffered a concussion, a broken nose, and cuts that required stitches near his mouth and ear. He filed a report with the police and in turn was questioned by them about who had sponsored the demonstration and whether he was receiving help from the United States. No one was arrested in regard to this incident.

The fourth incident occurred on November 20, 1998. He returned home to find red paint on his gate warning him to get out of the Ukraine, and the family dog had been beaten to death. Mykola referenced other threats as well and some vandalism to his home. He and his wife and child left the Ukraine for the United States in December 1999. His parents still live in Izmayil. Mykola said his parents have had some windows broken in their house and that his mother had been fired from her job.

At the close of the October 30, 2002, hearing, the IJ indicated that further documentation was needed and continued the hearing, giving the parties an opportunity to obtain documentation of the October 1998 rally at Izmayil and Mykola's injuries. (See R. at 633.) On November 14, 2003, the IJ heard further evidence and again continued the hearing, noting that the medical records were in conflict (id. at 722) and that there was no documentation to support a conclusion that the UNA-UNSO was tied to the government (id. at 719-20). The IJ continued the hearing yet again, pointedly informing Mykola that he was being given another "opportunity to dig around some more" to find documents to help his case. (Id. at 724.)

Following the final hearing in March 2004, after nearly 18 months of continued hearings and ample opportunity to submit exhibits, the IJ expressed unresolved credibility concerns with the case and concluded that the claims lacked adequate corroboration. The background country information submitted was plentiful, but it made no mention of the October 1998 rally or of any serious incident of this sort, although more minor isolated incidents involving some discrimination, loss of jobs, and verbal harassment were reported. The IJ stated he was "at a loss to try to understand why the respondent has no corroborating evidence of such a major incident." (Petitioners' Add. at 22.) The IJ also noted that while a great deal of country background information was presented, it showed a lack of serious abuses of similarly situated people in general in the Ukraine, and the country background documents did not support Mykola's claim that the UNA-UNSO fighters were hitmen for the government.

Mykola offered some evidence of receiving medical treatment after the October 1998 incident to corroborate his claim. A note from the Danube Basin Hospital dated January 29, 2000, and signed by two doctors, certified that Mykola had been a patient at the hospital from October 8, 1998, to October 17, 1998, but the State Department's initial inquiry had found no records of his treatment at the Danube Basin Hospital. Also, the credibility of the hospital note was challenged with a letter from the director of the hospital, stating that Mykola did not apply for medical assistance at the hospital and that the signatures on the certificate he offered were not genuine. No other medical records verified his hospitalization, and he said that his family was recently told his records had been lost. One document indicates that Mykola received outpatient stitches at a dental clinic for a cut wound on his lower lip in October 1998.

The IJ lamented the lack of corroboration, noting that if there had been undisputed medical evidence of a nine-day hospital stay clearly showing he was the victim of a mob attack by political extremists, "that would go a long way to support the respondent's claim. Unfortunately, the records don't go that far." (Id. at 23.) The IJ also noted that if there had been "satisfactory background documentation coupled with individualized information from the respondent that would corroborate that he actually was targeted by extremist groups in Izmayil, the Court would grant the case." (Id. at 24.) Because the IJ found a "significant variance" between Mykola's testimony and the information contained in the country background reports (id. at 25), and because of the lack of evidence corroborating Mykola's testimony, the IJ denied the applications for asylum, withholding of removal, and CAT relief and granted voluntary departure.

Approximately two weeks after the denial, the petitioners filed a motion to reopen the proceedings, offering evidence of a local news article reporting the October 8, 1998, rally incident. The article reported that members of UNA-UNSO had appeared on the scene and "trampled the peacefully [ ] gathered Christians who were carrying signs praising God." (Petitioners' App. at 42.) The article reported that the police were "[l]ate as usual," that they had not acted to avoid such conflicts, and that all of the seriously injured people were treated at municipal hospitals. (Id.) Mykola explained that his father had recently obtained the article from a fellow church member, and that he had not known earlier of this article's existence. The IJ denied the motion to reopen, concluding that the article was discoverable earlier and was therefore not "new evidence." The IJ also noted that it was not sufficient corroborating evidence to justify reopening the case.

Before the BIA, the Petitioners argued it was unfair for the IJ to indicate he would have granted the application if they had presented corroborating evidence of the 1998 demonstration and then to refuse to reopen the proceedings when presented with the evidence. The BIA stated that the Petitioners had not accurately characterized the IJ's decision and dismissed the appeal for essentially the same reasons as the IJ, concluding that there was "no clear error in the [IJ's] determination that the evidence was inconclusive due to conflicting documents." (Petitioners' Add. at 35.) The Petitioners now seek judicial review, challenging the IJ's credibility determination, the IJ's requirement of...