Lyashchynska v. U.S. Attorney Gen., 11–10559.

• Decision Date: 04 April 2012
• Docket Number: No. 11–10559.,11–10559.
• Parties: Olha LYASHCHYNSKA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 882

676 F.3d 962

Olha LYASHCHYNSKA, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–10559.

United States Court of Appeals, Eleventh Circuit.

April 4, 2012.

David S. Berger, Bernstein & Berger, PA, Miami, FL, for Petitioner.

Kathryn M. McKinney, David V. Bernal, Ali Manuchehry, Krystal Samuels, OIL, U.S. Dept. of Justice, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.Before DUBINA, Chief Judge, and FAY and KLEINFELD,^* Circuit Judges.FAY, Circuit Judge:

Olha Lyashchynska (“Petitioner”) seeks review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) dismissing her appeal of an Immigration Judge's (“IJ”) ruling denying her application for asylum and withholding of removal and protection under the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), ¹ based on a finding of adverse credibility. On appeal, Petitioner alleges two bases for reversal: (1) the BIA erred in finding that the IJ considered the totality of the circumstances regarding the authenticity of the proffered evidence; and (2) the BIA erred in finding that the State Department Investigator (“Investigator”) did not violate the confidentiality requirement during the investigation of Petitioner's case. After review, we affirm.

I.²

Petitioner, a citizen of the Ukraine, was admitted to the United States on or about May 23, 2006, as a J–1 exchange visitor. She changed her status to student on December 11, 2006. On March 28, 2007, Petitioner applied for asylum, claiming that she had been mistreated in Ukraine due to her sexual orientation. After being interviewed by an asylum officer, she was denied asylum and her case was referred to an IJ. Based on the denial and referral to an IJ, Petitioner was issued a Notice to Appear, pursuant to section 237(a)(1)(C)(I) of the Immigration Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(I). As an alien admitted as a non-immigrant who failed to comply with the conditions of such status, she was charged with removeability.

In the ensuing proceedings before the IJ, Petitioner renewed her application for asylum, withholding of removal, and protection pursuant to the CAT. During the hearing on February 2009, she testified that in March 2004, she was raped by a man she had been dating for some months (“Boyko”) who is the son of a Ukrainian government official, and two of his friends. Boyko invited her to his apartment under the ruse that they would be joining several of his friends. Once there, Petitioner testified that Boyko and his friends forced her to drink an entire bottle of vodka, beat her with towels, tore her clothes, slapped and ultimately raped her. Petitioner testified that they told her that they were teaching her “how to be a real woman.” After the incident, Petitioner's mother took her to the hospital in Ternopil where she remained over night with severe headaches resulting from a concussion. Petitioner stated that she subsequently filed a complaint with the police, but that the police closed the investigation due to a purported lack of evidence.

Petitioner also testified that she belonged to a social club off campus where members were of “untraditional orientation.” The social club was open to “gays.” Petitioner testified that, in November 2004, six people came into the club and began calling everyone “filthy gays and lesbians.” Petitioner said that she was kicked, had her hair pulled, and suffered bruises to her legs. Her girlfriend at the time, Yulia, was also at the club and she lost a tooth during the incident. Petitioner identified the attackers as skinheads because of their clothing, but they escaped arrest by fleeing when they heard the police sirens.

Petitioner also testified that, in another incident in December 2005, she was on her way home for the holidays and was attacked at a railway station. She stated that a group of men “rushed” her, beat her, and urinated on her. Due to her injuries, she required and received medical attention at the railway station, and at the local hospital's emergency room. Petitioner testified that she again attempted to file a police report but, after the officers learned of her sexual orientation, they would not accept her complaint. After that, Petitioner stated that her parents received threatening letters from skinheads and that windows at her house were smashed. Petitioner then decided to come to the United States.³

On cross-examination, Petitioner was asked how she obtained the documents she submitted to the Department of Homeland Security (“DHS”) in support of her asylum application. Petitioner responded that her father had to “pay somebody” to get a copy of the police report. As to the medical records, Petitioner stated that her parents sent those to her from the Ukraine because her mom kept all of her medical records. At that point in the proceedings, the DHS attorney confronted Petitioner with evidence from the record, indicating that Petitioner's supporting documents were not authentic.

The evidence submitted by the DHS resulted from an investigation by the Fraud Detection National Security Section (“Fraud Detection Section”) and the Department of State to verify the veracity of the various items of supporting evidence submitted in Petitioner's asylum application. On October 31, 2007, the Department of State issued a report (“Report”) of its investigation. As to Petitioner's alleged rape, the Report revealed that the United States Embassy in Ukraine contacted the Ternopil city hospital by telephone and that the hospital was unable to confirm that Petitioner had been treated by the hospital. In the Report, the head of the medical commission stated that Petitioner's document was not issued by the hospital because, if it had been, it would have contained the signature of at least three doctors. The copy she provided had only one signature. Furthermore, the name of the one doctor who was listed was not legible, so the investigator was unable to verify whether the signing doctor in fact worked at the hospital. The Report further found that the police report relating to the 2004 rape incident was not authentic because the person signing that notice left the department in 2003 and therefore could not have signed a document issued in January 2004. In regard to the medical report concerning the 2005 railway incident, the Report indicated that, in a letter faxed to the embassy, the head physician of the Ternopil city hospital stated that it had no record of issuing medical certificates to Petitioner, or that she had ever been a patient at the hospital.

Expressing his concern about the evidence presented in light of the DHS's Report, the IJ continued the hearing to allow Petitioner the opportunity to present rebuttal evidence. The IJ noted that he would not tell Petitioner “what to do or what not to do” but informed her that there were steps her counsel could take to resolve the inconsistencies in the evidence.⁴ As a final matter at that hearing, the IJ accepted the testimony of Petitioner's current girlfriend in the Untied States, as set forth in a statement she provided to the court, stating she had been in a relationship with Petitioner since April 2008.

On May 4, 2009, Petitioner filed a motion for continuance, which was denied for failure to demonstrate diligence. The hearing commenced again on May 12, 2009, at which time Petitioner's counsel indicated that he had a polygraph and two statements to submit for consideration. The IJ expressed hesitation in accepting those documents because they had not been provided to the government for verification. The IJ again adjourned the hearing because Petitioner had not yet received a response that she was expecting from the Ternopil city hospital.

On June 30, 2009, Petitioner appeared before the IJ for a third time but was again unable to produce any corroborating evidence. Petitioner's counsel argued that Ukrainian hospitals were state-run and not private entities and therefore were not cooperative in providing documents to Petitioner's counsel. Counsel submitted a letter from Petitioner's father, stating that when he went to internal affairs to get information about his daughter's rape, the police threatened to arrest and imprison him, and accused him of insulting the head of the department. Petitioner's counsel also submitted purported originals of the medical reports that had been previously submitted with her asylum application. The IJ noted that those were the same documents that the hospital had reviewed and found fraudulent in the Report. At that time, Petitioner's counsel argued that the confidentiality provisions regarding asylum applicants had been violated by the Investigator in procuring the information listed in the Report.

At the culmination of the third hearing on June 30, 2009, the IJ issued an oral decision denying Petitioner's application and ordering her removal to the Ukraine. The IJ noted that Petitioner had not provided credible evidence to corroborate the alleged medical treatment she received for her attacks, or the police documents provided to the asylum officer. The IJ concluded that Petitioner had been given ample time to clarify those inconsistencies and failed to do so or to provide any credible explanation that would account for the inconsistencies.

On January 11, 2011, Petitioner appealed the IJ's findings to the BIA, which the BIA dismissed. The BIA, like the IJ, held that based on the record evidence, Petitioner did not demonstrate that the IJ's adverse credibility determination was clearly erroneous. Moreover, the BIA noted that Petitioner did not cite to any information in the country conditions evidence that showed the medical institutions of the Ukraine are in collusion with security forces to hide treatment of injuries afflicted by third parties. The...