United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-3717

___________

Antonina Averianova, * 

*

Petitioner, *

*

v. * 

*

Michael B. Mukasey, Attorney General *

of the United States of America, *

* 

Respondent. *

___________

Petition for Review of an Order of

No. 06-3718 the Board of Immigration Appeals.

___________

Oksana Averianova, * 

*

Petitioner, *

*

v. * 

*

Michael B. Mukasey, Attorney General *

of the United States of America, *

* 

Respondent. *

___________

Submitted: September 27, 2007

Filed: December 10, 2007 (Corrected 12/10/07)

___________
1

The IJ and BIA also rejected the Averianovas’ claim for protection under the

Convention Against Torture (“CAT”). The Averianovas have not set forth an

argument on appeal regarding the CAT ruling. Therefore, petitioners waive this

claim. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).

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Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.

___________

GRUENDER, Circuit Judge.

Antonina and Oksana Averianova, citizens of Uzbekistan, petition for review

of a Board of Immigration Appeals (“BIA”) decision affirming the immigration

judge’s (“IJ”) denial of the Averianovas’ applications for asylum and for withholding

of removal.1 For the reasons discussed below, we deny the Averianovas’ petitions.

I. BACKGROUND

Antonina and Oksana Averianova are a mother and daughter seeking asylum

in the United States because of alleged persecution on account of their Jewish

ethnicity and religious beliefs.

Antonina was born in Russia in 1951. Her family moved to Uzbekistan shortly

after her birth. She has two children, Oleg and Oksana. Antonina claims that her

father was Jewish and her mother Russian, but her mother “adopted” her father’s

ethnicity upon marriage. Antonina does not practice Judaism regularly and only

began practicing in the late 1980s. She cites various incidents of past persecution in

Uzbekistan, allegedly because of her Jewish background. She testified that she was

once attacked on a bus because she was not Muslim. On another occasion a man

yelling about Jews hit her and split her lip. Her son was beaten for not being Muslim

and having Jewish roots. She did not report any of these incidents to the police. In

1992, Antonina arrived as a non-immigrant visitor to the United States. She applied

for asylum in 1993.
2

The INS ceased to exist March 1, 2003, and its functions were transferred to

the new Department of Homeland Security (“DHS”). See Homeland Security Act of

2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). We shall continue to

refer to the DHS as the INS in this opinion.

-3-

Oksana testified to various problems she encountered in Uzbekistan because of

her alleged Jewish ethnicity. In school, she faced frequent taunting. A group of girls

once threatened her and pushed her head in a toilet. She recalled incidents of Muslim

men harassing her, slapping her in the face, calling her a Jewish whore, and

threatening to cut her legs for wearing a short skirt. She reported that her professors

at night college prevented her from participating in class and that she had difficulty

finding employment in Tashkent, the capital of Uzbekistan. Oksana did not report any

of these incidents to the police. She arrived in the United States in 1996 and applied

for asylum shortly thereafter. She does not practice Judaism in the United States. The

IJ consolidated her case with Antonina’s. 

During the asylum proceedings, the Averianovas submitted several birth

certificates to prove their Jewish ethnicity. (In the former Soviet Union, the

government considered “Jewish” an ethnicity and listed it on birth certificates as a

nationality.) None were original documents, and the Averianovas testified that any

original documents, such as original birth certificates, internal passports, travel

passports or marriage certificates, had been lost or stolen. The Immigration and

Naturalization Service (“INS”),2

 in conjunction with the American embassy in

Tashkent, investigated the birth certificates submitted by the Averianovas and

identified specific discrepancies that called into question their authenticity.

The Averianovas presented a translated copy of Oksana’s birth certificate,

notarized in Russia in 1994, which stated that Antonina was “Jewish.” In May 2002,

the INS gave the copy of Oksana’s birth certificate to American embassy personnel

in Tashkent. Embassy staff then asked the local register of Tashkent to access

Oksana’s birth record. The embassy personnel discovered that the official record of

Oksana’s birth listed Antonina’s nationality as “Russian.” Oksana contended that the
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embassy report was an unreliable, hand-written copy, and that it erroneously listed her

birth date. American embassy officials subsequently obtained two digital photographs

of her birth record. The photographs showed Antonina’s nationality as “Russian.”

The register also corrected the birth date error after embassy staff identified it. The

IJ found that the two documents were “identical . . . with one exception”—the

nationality of “Russian” in the original record had been changed to “Jewish” in

Oksana’s copy.

After the INS’s original inquiry into Oksana’s birth certificate, the Averianovas

initiated a court proceeding in Tashkent on March 5, 2003, to amend Antonina’s

father’s birth record to state that he was Jewish. Antonina’s father’s original birth

certificate indicated that he was Russian. The court changed the record on May 21,

2003. The Averianovas submitted the amended birth certificate and the record of the

Tashkent court hearing to the IJ.

Once the INS discovered that Oksana’s birth record actually stated that

Antonina was “Russian,” not “Jewish,” the Averianovas submitted several more

copies of birth certificates to the IJ. First, a copy of Antonina’s brother Victor’s birth

certificate dated August 10, 2002 reflected that his (and Antonina’s) father was

“Jewish.” The INS obtained digital photographs of the original birth record bearing

the serial number reflected on the copy submitted by the Averianovas and determined

that the serial number reflected on the copy actually was contained on a birth

certificate issued to someone other than Victor. Second, a birth certificate submitted

for Oleg stated that his mother Antonina was “Jewish.” The INS obtained two digital

photographs of his actual birth record in Tashkent that listed Antonina’s nationality

as “Russian.” Third, Antonina submitted a copy of her birth certificate issued in 1992

that listed her father’s nationality as “Jewish.” The INS found that the serial number

on this birth certificate also was issued to someone else and obtained a copy of that

person’s birth record.

The IJ rejected the Averianovas’ asylum claims. The IJ focused on their claims

of persecution based upon their Jewish ethnicity because that was the “overwhelming
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thrust” of their claims, and they had not provided sufficient testimony regarding

claims of persecution on account of their non-Uzbek ethnicity. The IJ determined that

the photographs of Uzbek records were trustworthy and persuasive evidence. The IJ

found that the Averianovas had submitted fraudulent documents, which adversely

affected their credibility. He also found that they offered no explanation for the

discrepancies. He held that without credible proof of their Jewish ethnicity, their

asylum claims failed. The IJ refused to extend comity to the Tashkent court

proceeding of March 5, 2003. He also found a “lack of any objective corroborating

evidence” regarding the Averianovas’ alleged persecution. On account of the lack of

credible testimony and lack of corroborating evidence, the IJ also rejected their claims

for withholding of removal.

In attempting to verify the birth certificates the Averianovas submitted, the INS

sent them to the American embassy in Tashkent. Embassy staff checked records and

made inquiries to local Uzbek officials. The Averianovas contended that confidential

information had been revealed in the course of the investigation in violation of 8

C.F.R. § 208.6, which generally prohibits disclosing information submitted in an

asylum application unless the applicant gives written consent. The Averianovas

argued that the disclosures gave rise to an inference that they had applied for asylum,

which they claimed created a separate basis for asylum. The IJ found no proof that

the INS had revealed confidential information to Uzbek authorities. He determined

that the INS merely investigated a vital statistic, their ethnicity, which could relate to

any number of ordinary government investigations. Additionally, because the

Averianovas went to an Uzbek tribunal to alter family birth records regarding their

Jewish ethnicity, the IJ doubted that the Averianovas had any real concern over a

release of that information to the Uzbek government. Therefore, the IJ refused to

grant relief on this basis as well and denied their applications.

The BIA adopted and affirmed the IJ’s determination. It first agreed that the

Averianovas had offered “only conjecture” to explain why the false documents

differed from the official Uzbek records. It also determined that it would not grant
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comity to the decision of a foreign tribunal “where fraud and manipulation of the

immigration laws were present.” Additionally, the BIA held that this adverse

credibility determination tainted the overall credibility of the Averianovas, which

affected both the Jewish claims and the non-Uzbek claims. The BIA also agreed that

the INS did not breach the Averianovas’ confidentiality.

II. DISCUSSION

“When the BIA adopts the IJ’s decision, but adds reasoning of its own, we

review both decisions.” Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006). We

affirm the decisions if they are supported by substantial evidence in the record. Singh

v. Gonzales, 495 F.3d 553, 556 (8th Cir. 2007). We review questions of law de novo,

and we will reverse findings of fact only if the evidence is “so compelling that no

reasonable fact finder could fail to find in favor of the petitioner.” Turay v. Ashcroft,

405 F.3d 663, 666–67 (8th Cir. 2005).

A. Asylum

“The Attorney General has discretion to grant asylum to a refugee, defined as

an alien who is unable or unwilling to return to her home country because of past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” Onsongo

v. Gonzales, 457 F.3d 849, 852 (8th Cir. 2006); see 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1); 8 C.F.R. § 208.13. The applicant must establish that one of the five

protected grounds “was or will be at least one central reason for persecuting the

applicant.” 8 U.S.C. § 1158(b)(1)(B)(I). An applicant can establish a well-founded

fear of future persecution by showing that she has a subjective fear of persecution and

that “credible, direct, and specific evidence” establishes that a reasonable person in

the applicant’s situation would fear persecution. Mamana v. Gonzales, 436 F.3d 966,

968 (8th Cir. 2006).
-7-

1. Adverse Credibility Finding

An applicant bears the burden of satisfying the IJ that her “testimony is

credible, is persuasive, and refers to specific facts sufficient to demonstrate that the

applicant is a refugee.” 8 U.S.C. §1158(b)(1)(B)(ii). “A credibility determination is

a finding of fact, and § 1252(b)(4)(B) provides that it should be accepted ‘unless any

reasonable adjudicator would be compelled to conclude to the contrary.’” Singh, 495

F.3d at 556 (quoting 8 U.S.C. § 1252(b)(4)(B)). The combination of an adverse

credibility finding and a lack of corroborating evidence for the claim of persecution

means that the applicant’s claim fails, “regardless of the reason for the alleged

persecution.” Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir. 2004). In this

case, we find that the record does not compel a conclusion contrary to that reached by

the IJ and BIA because the Averianovas submitted fraudulent documents, could not

explain the numerous discrepancies, and failed to provide evidence otherwise

corroborating their claim of persecution on the basis of their Jewish ethnicity.

The IJ found that the Averianovas lacked credibility because they submitted

fraudulent documents. The INS’s investigation provided strong evidence that the

Averianovas’ actual birth records consistently contradicted the nationality listed in the

birth certificates that they submitted. The Averianovas supplied additional false birth

certificates after the birth certificate presented by Oksana had been proven false by

photographic evidence. The birth certificates purporting to be Oksana’s and Oleg’s

indicated Antonina’s nationality as “Jewish,” but the INS presented photographs

showing that the actual birth certificates stated Antonina’s nationality as “Russian.”

Antonina’s “Jewish” birth certificate was generated in 1992, around the time the

Averianovas intended to enter the United States. The birth certificates purporting to

be Antonina’s and her brother’s contained serial numbers of birth certificates issued

to other individuals, not the Averianovas. “While minor inconsistencies and

omissions will not support an adverse credibility determination, inconsistencies or

omissions that relate to the basis of persecution are not minor but are at the heart of
-8-

the asylum claim.” Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir. 2004)

(internal quotation omitted).

The Averianovas on appeal claim that they had no knowledge that the

documents were fraudulent, and, therefore, they should not be subject to an adverse

credibility determination. They rely on Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir.

2004), which requires the IJ to find that the applicant knew or had reason to know

about the fraudulent nature of submitted documents. Id. at 1039–40. In Kourski, the

applicant claimed that he received the documents from his mother and that the forgery

was subtle, which undermined the notion that the applicant knew or had reason to

know about the fraud. Id. We have held that “[a]n IJ may base an adverse credibility

determination upon submission of fraudulent documents if the petitioner fails to offer

a legitimate explanation for the suspected fraud.” Onsongo, 457 F.3d at 854. In

Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir. 2005), for example, we reviewed an

IJ’s determination that the applicant submitted a frivolous asylum claim, in part

because she submitted a fraudulent document. We distinguished Kourski because “the

IJ explicitly found that the document submitted by Ignatova was fraudulent,” and the

applicant “never provided any explanation about the discrepancy.” Id. at 1214. In

this case, the IJ explicitly made both findings, and he did so regarding not just one, but

four documents.

The Averianovas attempt to explain the discrepancies between the submitted

documents and the official records by attacking the INS’s investigation. They argue

that the IJ should not have trusted the INS’s investigation because Uzbek officials may

have altered or provided incorrect documents and because the Averianovas’ expert

witnesses identified possible record-keeping errors systemic to the former Soviet

Union. The IJ weighed this evidence and determined that the INS’s investigation was

trustworthy, particularly because of photographic proof submitted by the INS.

Therefore, the IJ found that these circumstances resulted in an adverse credibility

finding. We are not convinced that a reasonable adjudicator would be compelled to

find the contrary.
3

Comity “is the recognition which one nation allows within its territory to the

legislative, executive or judicial acts of another nation, having due regard both to

international duty and convenience, and to the rights of its own citizens, or of other

persons who are under the protection of its laws.” Hilton v. Guyot, 159 U.S. 113,

163–64 (1895).

-9-

In light of the adverse credibility finding, the Averianovas attempted to present

evidence corroborating their Jewish ethnicity and of their past persecution or wellfounded fear of future persecution on account of it. The only corroborating evidence

the Averianovas offer in regard to their Jewish ethnicity was the Tashkent tribunal

decision amending their father’s ethnicity from “Russian” to “Jewish” on a birth

certificate issued in Chelyabinsk, Russia, which they urge deserves comity.3

 It is

questionable whether comity should be extended to an ex parte, quasi-administrative

proceeding initiated ten years after filing the original asylum claim in the United

States. The proceeding began only after the Averianovas received word from the INS

that their original documentation was false, calling into question their claims

regarding their ethnicity. The BIA pointed out that retroactive foreign judgments

regarding marital status are not granted comity where “fraud, misrepresentation, or

manipulation of the immigration law” are present. Matter of Magana, 17 I. & N. Dec.

111, 113 (B.I.A. 1979). The BIA concluded that, similarly, comity would not be

extended to the decision of the Uzbek court in a proceeding regarding birth certificate

information initiated after asylum proceedings began because of the presence of

“fraud and manipulation.” Under the circumstances of this case, where an applicant

initiates a foreign court proceeding after an asylum case has begun and in light of the

evidence of fraud and manipulation, we agree and refuse to find that the Tashkent

court’s actions constitute sufficient corroborating evidence such that a reasonable

adjudicator would be compelled to find the Averianovas’ testimony credible.

Even assuming arguendo that the Tashkent court order provides sufficient

corroborating evidence that the Averianovas are Jewish, the Averianovas still do not

offer sufficient corroborating evidence that they suffered past persecution or that they
4

The Averianovas insist that the IJ failed to consider their non-Jewish claims,

such as fear of returning to Uzbekistan because they are non-Uzbeks or fear of

returning because they have lived in the United States for several years. Because of

the adverse credibility finding, the Averianovas must have offered sufficient

corroborating evidence regarding persecution against them on non-Jewish grounds,

which they failed to do. They presented one statement from one expert’s testimony

that marginally supported their claim. This scant evidence cannot make up for the

lack of credible testimony. See Sivakaran, 368 F.3d at 1029 (holding that an asylum

claim fails when there is an adverse credibility finding and a lack of corroborating

evidence). Additionally, they did not testify that they feared persecution from Uzbek

officials, and they failed to offer evidence that they would be persecuted by

individuals the government is unable or unwilling to control. Nabuwala v. Gonzales,

481 F.3d 1115, 1118 (8th Cir. 2007).

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have a well-founded fear of future persecution. They reported no incidents of abuse

to the police. Their only corroborating evidence comes in the form of expert witness

testimony regarding conditions in Uzbekistan. Those experts could not testify to the

Averianovas’ past persecution. The experts could only attest to the country conditions

regarding the reasonableness of their well-founded fear of future persecution. On the

other hand, the IJ cited the INS’s country condition reports regarding civil liberties

and human rights in Uzbekistan, which indicated that Jews enjoy religious freedom

and that no pattern of discrimination against Jews exists. These country condition

reports constitute substantial evidence supporting the IJ’s and BIA’s decisions. See

Kondakova, 383 F.3d at 796–97 (finding that reliance upon country condition reports

constitutes substantial evidence to support a determination that petitioner failed to

provide corroborating evidence to overcome an adverse credibility finding).4

2. Confidentiality

The Averianovas also claim that the INS breached their confidentiality in its

investigation of the authenticity of the birth certificates they submitted and that this

breach provides them a new and independent basis for an asylum claim. Courts
5

The Averianovas each orally consented to an investigation on the record and

in the presence of counsel, but they did not provide “written consent.” See 8 C.F.R.

§ 208.6(a). Although an investigation undoubtedly requires a minimal amount of

disclosure, such as revealing an applicant’s name and date of birth, we do not reach

the issue of whether the Averianovas’s oral consent to the investigation was sufficient.

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“generally accord Government records and official conduct a presumption of

legitimacy.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991); accord Lin v. U.S.

Dep’t of Justice, 459 F.3d 255, 265 (2d Cir. 2006) (adopting language of Ray in

breach of confidentiality analysis). We give substantial deference to the BIA’s

interpretation of its statutes and regulations. Varela v. Ashcroft, 368 F.3d 864, 866

(8th Cir. 2004); Lin, 459 F.3d at 262. We look to the INS’s interpretation of its own

regulation, but only “if the meaning of the words used is in doubt.” Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see Hailemichael v. Gonzales,

454 F.3d 878, 883 (8th Cir. 2006) (citing Seminole Rock).

Section 208.6 requires that “[i]nformation contained in or pertaining to any

asylum application . . . shall not be disclosed without the written consent of the

applicant.” 8 C.F.R. § 208.6(a).5

 The regulation provides for certain exceptions to the

general prohibition, and the INS argues that, pursuant to an exception, it may reveal

information to government officials who need to examine an asylum application. See

id. § 208.6(c)(1). The Averianovas, however, do not contest the INS revealing

information to American embassy personnel in Tashkent. Instead, they claim that

revealing information to Uzbek officials violated their confidentiality. Therefore, that

exception to the regulation does not apply.

The Averianovas’ breach of confidentiality claim fails because the record

reveals no evidence that the INS “disclosed” any “information contained in or

pertaining to any asylum application” to Uzbek officials when examining the

Averianovas’ official birth records. The INS gave the birth certificate copies

submitted by the Averianovas to American embassy staff to determine their

authenticity. The record does not reveal, nor do the Averianovas argue, that the INS
-12-

or American embassy personnel presented those documents to Uzbek officials. At

best, the record reflects that the INS and embassy staff had possession of the birth

certificates and that the INS and embassy staff obtained copies of Uzbek birth records

by requesting Uzbek officials for access to them.

In the Second Circuit’s Lin decision, the INS provided the applicant’s criminal

“Certificate of Release,” a document commonly related to asylum claims, to the

Chinese government. Lin, 459 F.3d at 265. In this case, however, the record does not

reflect that the INS gave such a document to Uzbek officials. The INS requested

copies of birth records, which is not a disclosure of information contained in an

asylum application. Embassy staff asked what forms Uzbek officials used when

producing birth certificates, obtained digital photographs of the Averianovas’ birth

records, and asked local police contacts about specific information found in Uzbek

birth records. These inquiries did not disclose any information contained in or

pertaining to an asylum application to Uzbek officials. The record only reflects

inquiries regarding information contained in Uzbek records. We find that the

Averianovas have not overcome the presumption of regularity in the INS’s

investigation. The IJ did not err in finding that these inquiries did not constitute a

disclosure prohibited by the regulation.

The Averianovas also claim that the INS revealed their names and Oksana’s

date of birth to Uzbek officials. Additionally, the Averianovas assert that making

specific inquiries of Uzbek officials regarding their ethnicity rose to the level of a

disclosure of information pertaining to their asylum applications. Even if we assumed

that these inquiries constituted disclosures under the regulation, that alone does not

necessarily entitle them to asylum relief.

Because the regulation itself provides no remedy at all, we look to the INS’s

interpretation of its own regulation, which is “controlling unless plainly erroneous or

inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal

quotation omitted); see Lin, 459 F.3d at 262. The INS has interpreted § 208.6 in a

memorandum known as the “Cooper Memo” and in a guide to confidentiality known
6

The Averianovas rely upon the Cooper Memo and the Fact Sheet in their brief

and do not contest the INS’s interpretation of its regulation. See Memorandum from

Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS Director of Int’l Affairs,

Confidentiality of Asylum Applications and Overseas Verification of Documents and

Application Information (June 21, 2001) (“Cooper Memo”), available at http://

judiciary.house.gov/legacy/82238.pdf at 39–45; U.S. Citizenship and Immigration

Services, Fact Sheet: Federal Regulations Protecting the Confidentiality of Asylum

Applicants (June 3, 2005) (“Fact Sheet”), available at http://www.uscis.gov/files/

pressrelease/FctSheetConf061505.pdf.

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as the “Fact Sheet.”6 The Cooper Memo describes three types of disclosures that

could result in a breach of confidentiality.

Generally, confidentiality of an asylum application is breached when

information contained therein or pertaining thereto is disclosed to a third

party, and the disclosure is of a nature that allows the third party to link

the identity of the applicant to: (1) the fact that the applicant has applied

for asylum; (2) specific facts or allegations pertaining to the individual

asylum claim contained in an asylum application; or (3) facts or

allegations that are sufficient to give rise to a reasonable inference that

the applicant has applied for asylum.

Cooper Memo at 3–4; see Lin, 459 F.3d at 263.

The INS has also suggested that if a disclosure gives rise to a reasonable

inference that an applicant has applied for asylum, an applicant may have a new and

independent basis for an asylum claim. The Fact Sheet states, “[P]ublic disclosure

might, albeit in rare circumstances, give rise to a plausible protection claim where one

would not otherwise exist by bringing an otherwise ineligible claimant to the attention

of the government authority or non-state actor against which the claimant has made

allegations of mistreatment.” Fact Sheet at 2; see Lin, 459 F.3d at 263.

Pursuant to the INS’s interpretation of § 208.6, a disclosure that does not give

rise to a reasonable inference that the applicant has applied for asylum “does not

necessarily require the vacatur of an order of removal.” Lin, 459 F.3d at 267. Instead,
7

We assume without deciding that a person seeking asylum qualifies as a person

who is a member of a “particular social group” pursuant to 8 U.S.C. § 1101(a)(42)(A).

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an applicant may establish a new and independent basis for asylum by showing that

the disclosure gives rise to a reasonable inference that the applicant has applied for

asylum.7 See Lin, 459 F.3d at 266–68 (finding the INS interpretation not plainly

erroneous and reaching a similar conclusion); see also Abdel-Rahman v. Gonzales,

493 F.3d 444, 454 (4th Cir. 2007) (accepting the Lin court’s reasoning and adopting

the INS interpretation).

The Cooper Memo distinguishes between inquiries that breach confidentiality

and inquiries that do not. For instance, submitting a document known to form the

basis of an asylum claim could give rise to a reasonable inference that a person has

made an asylum claim. Cooper Memo at 4; see Lin, 459 F.3d at 265 (finding a

“Certificate of Release,” commonly related to asylum claims of former Chinese

prisoners, sufficient to give rise to a reasonable inference that the petitioner had an

asylum claim). In contrast, the INS does not breach confidentiality if the “inquiry is

routinely conducted for reasons unrelated to an asylum application, such as for an

employment application or a visa application.” Cooper Memo at 5.

At most, the INS provided the Averianovas’ names and Oksana’s date of birth

to Uzbek officials when requesting copies of their birth records. We find that even if

these are disclosures, they do not give rise to a reasonable inference that the

Averianovas had applied for asylum. Additionally, inquiring into their ethnicity, a

vital statistic commonly found in birth records, also does not give rise to such an

inference. Indeed, the Second Circuit concluded, “Many documents, such as birth

certificates, marriage licenses, or even some court records, do not necessarily imply

that a foreign national is seeking asylum.” Lin, 459 F.3d at 270. The Averianovas

have noted that “Jewish” refers to nationality in Uzbekistan and appears in Uzbek

birth records. The IJ correctly found that the investigation of the contents of a birth

certificate, including nationality or ethnicity, could relate to an adjustment application,
-15-

a marriage investigation, visa petitions, or other benefits applications. Therefore, we

agree with the BIA’s conclusion that these inquiries did not give rise to a reasonable

inference that they applied for asylum.

Moreover, even if the INS made disclosures that were covered by the regulation

that were sufficient to give rise to a reasonable basis for a new and independent claim

for asylum, we would still deny their petition. The BIA also found that the

Averianovas did not present sufficient evidence that they would be subject to

persecution as asylum applicants. The Averianovas did not testify that they feared

persecution from Uzbek officials as asylum applicants, and they failed to offer any

other evidence that they, as asylum applicants, would be persecuted by individuals the

government is unable or unwilling to control. See Nabuwala v. Gonzales, 481 F.3d

1115, 1118 (8th Cir. 2007) (“Persecution may be a harm to be inflicted either by the

government of a country or by persons or an organization that the government was

unable or unwilling to control.”) (internal quotation omitted). Thus, the BIA’s finding

that the Averianovas had not established a well-founded fear of future persecution

based on having applied for asylum is supported by substantial evidence.

The BIA did not err in concluding that the Averianovas are not entitled to

asylum based on their claim that the INS breached their confidentiality.

B. Withholding of Removal

To establish a claim for withholding of removal under 8 U.S.C. § 1231(b)(3),

an applicant must demonstrate a clear probability of persecution, which is a more

difficult standard to meet than demonstrating a well-founded fear of future

persecution. Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005). Because the

Averianovas have not met the burden of proof for their asylum claims, they also fail

to meet the higher burden of proof required for obtaining withholding of removal. See

Ibrahim v. Gonzales, 434 F.3d 1074, 1079 (8th Cir. 2006).
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III. CONCLUSION

For the foregoing reasons, we deny the Averianovas’ petitions for review.

______________________________