Yakovenko v. Gonzales

• Citation: 477 F.3d 631
• Decision Date: 23 February 2007
• Docket Number: No. 05-4123.,05-4123.
• Parties: Alla YAKOVENKO, Petitioner-Appellant, v. Alberto GONZALES, Attorney General of the United States of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

477 F.3d 631

Alla YAKOVENKO, Petitioner-Appellant, v. Alberto GONZALES, Attorney General of the United States of America, Respondent-Appellee.

No. 05-4123.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2007.

Filed: February 23, 2007.

Jerzy Guzior, Saliterman, Minneapolis, MN, for appellant.

Thankful T. Vanderstar, Washington, DC, for appellee U.S. Department of Justice.

Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Alla Yakovenko petitions for review of an order of the Board of Immigration Appeals denying her application for asylum, withholding of removal, and relief under the Convention Against Torture. We deny her petition.

The petitioner is a Ukrainian citizen whose mother is Jewish. Her claims of persecution rest upon allegations of physical abuse at the hands of a college classmate, Dmitri Kutsenko, and rape by Kutsenko and three unidentified accomplices. She claims these actions were motivated by anti-semitism. These same allegations underlie her claims of torture, but without reference to the assailants' motivation. She alleges the government is unable or unwilling to control her assailants. She also alleges Kutsenko is a member of an ultranationalist, anti-semitic political organization that the government is unable or unwilling to control.

According to the petitioner, she did not experience abuse until her final year of college because she concealed her Jewish identity until that time. Her identity was revealed when some of her classmates saw her leaving a synagogue. After this general disclosure, she began to notice that people treated her differently. With the exception of the alleged assault by Kutsenko and the rape by Kutsenko and the other assailants, however, she does not identify any adverse actions that rise to the level of persecution or torture.

Regarding Kutsenko, she alleges a first instance of abuse during which he made anti-semitic comments and hit her in the stomach, causing her to double over. He then beat and kicked her on the head with sufficient force to cause her to lose consciousness. The administrative record contains a hospital report that purports to detail her examination and treatment following this abuse. The report states she had contusions and a concussion. The petitioner alleges that an investigator questioned her about the attack and that she named Kutsenko as the attacker. The investigator subsequently told her it was necessary to close the investigation because her identification of the attacker, standing alone, was insufficient to maintain the case.

The second instance of abuse is the rape. She alleges Kutsenko and three other young men forced her into a car, drove her to a wooded area on the outskirts of her town, made anti-semitic remarks, and beat and raped her until she lost consciousness. The administrative record contains a second hospital report that she alleges relates to her medical treatment following the rape. This second report details abdominal pain, but the report makes no reference to claims of rape, abuse, or signs of physical trauma. In fact, it discusses routine rather than trauma-related medical issues. She alleges a different investigator questioned her after she reported the rape, and she again identified Kutsenko, this time from pictures provided by the investigator. According to the petitioner, the investigator subsequently told her he was closing the investigation because Kutsenko had an alibi and witnesses who placed him at another location at the time of the alleged rape.

The petitioner claims she and her family were unsatisfied with the investigations and sought further explanation from higher-ranking police officials. The administrative record contains a response letter from police which states only, "The investigation regarding [y]our case is terminated. Your case is closed due to lack of evidence." The letter does not identify the subject matter of the referenced case or any specific information about the case to indicate that it involved the alleged beating or rape.

According to the petitioner, she eventually fled the Ukraine and traveled to Mexico. She claims she decided to leave the Ukraine after she received a threatening, anti-semitic letter. She also claims, however, that she obtained a Mexican visa from the Mexican Embassy in Warsaw, Poland, one day after she reportedly received the letter.

The petitioner reports she met a woman named Maria on the plane to Mexico and lived and worked with Maria in Mexico for a period of about seven months. The petitioner does not remember Maria's last name or address or the name or address of the business where she and Maria worked. The petitioner claims she entered the United States near Tijuana by walking across the border with a group of people whom the border guards elected not to stop or question. She also claims she obtained a plane ticket and flew to the Twin Cities the following day.

In her application for asylum, she claimed she entered the United States on June 24, 2001. She later claimed this date was a typo and she actually entered the United States on July 24, 2001. This distinction is important because she filed her application for asylum on July 10, 2002, making her application timely if she entered the United States on July 24, 2001, but untimely if she entered on June 24, 2001.

When her case ultimately came before an Immigration Judge ("IJ") for a hearing on the merits, she submitted documentary evidence, including the documents described above, which provided some support for her allegations of persecution. The IJ found she entered the United States on June 24, 2001 and her application for asylum was untimely. As to her claims for withholding of removal and relief under the Convention Against Torture, it was established at the hearing that her only allegations of past persecution or fears of future abuse were at the hands of Kutsenko and the other men who allegedly raped her. The IJ found she had not sufficiently demonstrated that these alleged criminal acts were sanctioned or condoned by the government. The IJ found the alleged initiation and abandonment of investigations by police did not demonstrate governmental unwillingness or inability to stop abuse or torture. Rather, the termination of the alleged investigations for lack of evidence was reasonable and showed at most poor policework.

The IJ also found a lack of evidence to corroborate the petitioner's position that anti-semitism was generally sanctioned, supported, or tolerated by the Ukrainian government. Country reports and other evidence of nationwide conditions indicated governmental disapproval of anti-semitic activities and also described the growth of open and visible Jewish institutions in the country. These same reports acknowledged the presence of anti-semitism and ultranationalist groups in the country, but stated that adverse actions by these groups were on the decline and were not supported by the government. Finally, the IJ noted that the petitioner's Jewish mother and half-Jewish sister still lived in the same home in the same town where the petitioner had lived, the petitioner's mother worked as a laboratory doctor in the hospital where the petitioner had been treated, and neither of these women had suffered any harm or torture.

The IJ ultimately determined the petitioner was not credible based on the omissions in her recollection of her time in Mexico, the unbelievability of the timing between her decision to leave the Ukraine and her receipt of a Mexican visa, the failure of the medical report to substantiate her claim of rape, the absence of information in the police letter to tie the letter to her claims of abuse, and the incredible nature of her story of entry into the United States. The IJ found in the alternative that, because the petitioner's claimed fear related to the actions of an isolated group of men, because her family remained in the Ukraine unharmed, and because the official stance in the Ukraine was not shown to be one of support for the persecution of Jewish people, the petitioner had failed to show a risk of harm that extended to other parts of the Ukraine and prevented relocation within the Ukraine.

The Board affirmed on the same grounds set forth by the IJ.

II. Discussion

A. Asylum

On appeal, the petitioner challenges all of the Board's rulings. The government asks that we affirm for the reasons set forth by the IJ and the Board and argues we lack jurisdiction to review the finding that the application for asylum was untimely.

We agree that we lack jurisdiction to address the petitioner's asylum claim. Absent changed or extraordinary circumstances, asylum relief is unavailable to a petitioner who fails to file her application for asylum within one year of entry into the United States. 8 U.S.C. § 1158(a)(2)(B) and (D). Our review is precluded generally by § 1158(a)(3), which provides, "No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)." Although the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005), codified in relevant part at 8 U.S.C. § 1252(a)(2)(B) and (D), expressly grants us limited jurisdiction to review decisions under § 1158(a)(2), that jurisdiction only extends to the review of alleged constitutional violations or errors of law.¹ See, e.g., Munoz-Yepez v. Gonzales, 465 F.3d 347, 351 (8th Cir.2006) (finding jurisdiction under the REAL ID Act to review questions of law and constitutional claims). The REAL ID Act does not grant us jurisdiction to review discretionary decisions or factual determinations under § 1158(2). Ignatova v. Gonzales, 430 F.3d 1209, 1213-14 (8th Cir.2005) (finding that jurisdiction did not exist under the REAL ID Act to review either a discretionary determination...