Marynenka v. Holder

• Decision Date: 25 January 2010
• Docket Number: No. 07-1792.,07-1792.
• Citation: 592 F.3d 594
• Parties: Hanna MARYNENKA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

592 F.3d 594

Hanna MARYNENKA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07-1792.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2009.

Decided: January 25, 2010.

ARGUED: Joshua Adam Berman, Blaine L. Gilbert & Associates, PA, Baltimore, Maryland, for Petitioner. Lauren Fascett, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Blaine L. Gilbert, Blaine L. Gilbert & Associates, PA, Baltimore, Maryland, for Petitioner. Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before MICHAEL and GREGORY, Circuit Judges, and BENSON E. LEGG, United States District Judge for the District of Maryland, sitting by designation.

Petition for review granted; vacated and remanded with instructions by published opinion. Judge MICHAEL wrote the opinion, in which Judge GREGORY and Judge LEGG joined.

OPINION

MICHAEL, Circuit Judge:

Hanna Marynenka, a citizen of Belarus, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying her application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). The BIA adopted and affirmed the determination of the immigration judge (IJ) that Marynenka had failed to meet her burden of establishing past persecution or a well-founded fear of future persecution. Because the IJ committed substantial legal error in rejecting certain of Marynenka's corroborating evidence, we grant her petition for review, vacate the BIA decision, and remand to allow the IJ to reconsider Marynenka's application in light of this opinion.

I.

A.

Marynenka entered the United States on May 29, 2003, traveling under a J-1 exchange visitor visa that expired on October 1, 2003. She overstayed her visa and, on March 2, 2004, the Department of Homeland Security served her with a notice to appear charging her with removability. Marynenka conceded removability, and in the meantime, in December 2003, filed an application for asylum under 8 U.S.C. § 1158(a)(1), withholding of removal under 8 U.S.C. § 1231(b)(3), and CAT relief, see 8 C.F.R. § 208.16(c). The following facts are drawn from Marynenka's statement in support of her application and her testimony and documentary evidence presented at the hearing before the IJ on May 22, 2006.

Marynenka is a member of Zubr, a Belarusian youth organization that opposes the government and works to promote democracy and freedom in Belarus. Marynenka joined Zubr in November of 2001 with her close friend, Hanna Chuyashkova, while both were attending a university in Gomel, Belarus. Chuyashkova, who currently lives with Marynenka in the United States, has also applied for asylum.

Marynenka and Chuyashkova attended their first Zubr demonstration on December 27, 2001, in Minsk, Belarus. The demonstration took place in front of the Committee for State Security (BKGB) building to commemorate the death of Zubr member Andrei Zaytsev. Zaytsev had committed suicide, allegedly in reaction to pressure from the BKGB. No arrests were made at this demonstration. On January 28, 2002, Marynenka and Chuyashkova participated in a second demonstration commemorating Zaytsev's death, this time at their university in Gomel. The police arrested Marynenka at this event and held her for interrogation. When Marynenka did not respond to police questions about her involvement in Zubr, she was beaten. She was detained for three days and, once released, spent five days in bed due to her injuries. Chuyashkova was also arrested, interrogated, and beaten as a result of her participation in the same demonstration.

On July 27, 2002, Marynenka and Chuyashkova joined other Zubr members in a demonstration in Minsk to mark the anniversary of Belarus's independence from the Soviet Union. Marynenka testified that she was arrested for carrying an outlawed red and white flag. She was taken to the BKGB building where she was again interrogated and beaten. She was detained for five days and thereafter spent five days in a hospital because of two cracked ribs and a ruptured left kidney. Marynenka testified on cross-examination that Chuyashkova had suffered essentially the same injuries after her own arrest at the same event: two broken ribs and a damaged left kidney.

After Marynenka's release from the hospital, her parents received anonymous phone calls warning them that Marynenka should end her participation in Zubr. On September 16, 2002, three internal affairs agents searched the home of Marynenka's parents. According to Marynenka, these agents told her parents "that their daughter would get imprisoned for her actions as a member of Zubr." J.A. 68.

Marynenka and Chuyashkova were called to the dean's office at their university on October 13, 2002. The dean asked them if they were members of Zubr. A BKGB agent who was present accused the two women of participating in Zubr activities, slapped Marynenka on the face, knocked her to the floor, and then kicked her in the stomach.

On November 2, 2002, Marynenka and Chuyashkova took part in a government-sanctioned march in Minsk. When they returned to Gomel the following day, November 3, they were met at Chuyashkova's residence by policemen who forced them into a car and drove them to a forest. Both women were then raped by four policemen. Marynenka submitted a medical record showing that the next morning, on November 4, 2002, she was treated at a clinic for sexual assault. The medical record characterized Marynenka as a "victim" and reported that during her examination "the following was determined: there are numerous abrasions and bruises in the groin area, the entire body reveals multiple lacerations, bruises and scratches, inside the vagina there are numerous ruptures. All of the findings indicate a recent sexual act." J.A. 136.

In further support of her application, Marynenka introduced statements from her mother Nadezhda Marynenka, Hanna Chuyashkova, Zubr member Kiryl Zhurau, and Anzhalika Shuppo. She also submitted documentary evidence establishing that country conditions in Belarus were consistent with her testimony. The regime was undemocratic, brutally oppressive, and engaged in human rights violations to stifle dissent. Rape and sexual abuse of women was widespread.

Marynenka's mother's statement supports Marynenka's activity with Zubr, her allegations of the beatings she received in January and July of 2002, the harassing phone calls and police search, and the November 3, 2002, rape. Chuyashkova's statement confirms both her and Marynenka's association with Zubr. Chuyashkova "personally witnessed what [Marynenka] went through," and Chuyashkova mentions the "anonymous phone calls which [the two] received periodically, warnings from the rector, house searches, threats," and "detentions and beatings." J.A. 143. Chuyashkova's statement focuses on and describes the rapes of both women by four police officers on November 3, 2002. At Marynenka's removal hearing on May 22, 2006, a question was raised as to why Marynenka's friend and roommate, Chuyashkova, did not appear and testify. On cross-examination Marynenka acknowledged that Chuyashkova had personal knowledge of the events described above. When asked why Chuyashkova did not appear as a witness, Marynenka answered that Chuyashkova "had a brain concussion and because of that ... she is getting treatment and being advised not to be exposed to anything that make[s] her upset." J.A. 43.

Zhurau's statement confirms Marynenka's membership in Zubr. He confirms her attendance at the December 27, 2001, and July 27, 2002, demonstrations, and he saw Marynenka being arrested by police officers during the July 27, 2002, event. Shuppo's statement does not mention the basis for her knowledge, but she says that Marynenka was a member of Zubr and that Marynenka participated in the December 27, 2001, and November 2, 2002, demonstrations.

B.

The IJ denied Marynenka's application in an oral statement at the conclusion of the May 22, 2006, hearing. The IJ "recognize[d] that country conditions in Belarus have gone from bad to worse." J.A. 167. Although the IJ questioned some aspects of Marynenka's testimony, the IJ did not make an explicit adverse credibility determination with respect to her testimony. The IJ found, however, that Marynenka "failed to meet her burden in establishing past persecution and that she has a well-founded fear of future persecution should she return to Belarus." Id. Specifically, according to the IJ, Marynenka "[did] not submit [ ] persuasive corroborating evidence that she was a Zubr member, that she was politically active, that she was arrested, that she was harmed and that she fled Belarus in fear for her life." J.A. 170.

The IJ expressed concern "that [Marynenka] appears to have filed virtually an identical asylum application to that of her friend, Hanna Chuyashkova." J.A. 167. Nevertheless, the IJ recognized that "[i]t would indeed not be unusual for friends and fellow activists to be involved in similar activities, to be arrested at similar times and to be harmed." Id. While accepting that "all of these similarities could happen," the IJ was troubled "that Hanna Chuyashkova [wa]s not present to testify on behalf of [Marynenka]." J.A. 168. The IJ noted that Marynenka and Chuyashkova, who were roommates, "could have traveled to Court together today." Id. The IJ then expressed skepticism about Marynenka's explanation for Chuyashkova's absence. The IJ observed that Chuyashkova's "alleged brain concussion" occurred in 1999 and that she thereafter "joined Zubr, then participated in numerous demonstrations and was arrested and harmed on several occasions," despite the "requirement that she avoid stress." Id. Although Chuyashkova's statement...