# U ni ted Sta tes C our t of Ap pea ls

F o r t h e S e v e n t h C i r c u i t C h i c a g o , I l l i n o i s 6 0 6 0 4

A r g u e d J a n u a r y 2 0 , 2 0 1 1 D e c i d e d J u n e 6 , 2 0 1 1

B e f o r e

K E N N E T H F

. R I P P L E , C i r c u i t J u d g e

D A V I D F

. H A M I L T O N , C i r c u i t J u d g e

G

. P A T R I C K M U R P H Y , D i s t r i c t J u d g e *

N o

. 1 0

- 2 5 0 4

T A T S I A N A B O I K A a n d S E R G E Y Z H I T S , P e t i t i o n e r s ,

v

.

E R I C H

. H O L D E R , J R

. , A t t o r n e y G e n e r a l o f t h e U n i t e d S t a t e s , R e s p o n d e n t

. P e t i t i o n f o r R e v i e w o f a n O r d e r o f t h e B o a r d o f I m m i g r a t i o n A p p e a l s

.

N o s

. A 0 8 8

- 2 2 3

- 0 8 7 A 0 8 8

- 2 2 3

- 0 8 8

O R D E R

Peti ti one r T a ts i a n a B oika s ou ght asylum and wi thholdi ng of remov al based on a fear of perse cuti on upon her ret urn to Belarus. Boika’s husband, co-peti tioner Ser gey Zhi ts, jo ined Boik a ’ s a sy lum petiti on as a derivative appli cant. An i mmi gr ation judge deni ed relief based on an adver se credibi li ty deter minati on, and the B oa rd of Im m i gr a ti on Appeals affirm e d

. Boika and Zhi ts petiti oned thi s court for rev i ew. Becaus e the i mmi gr ation N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i t e d o n l y i n a c c o r d a n c e w i t h F e d

. R

. A p p

. P

. 3 2

. 1

The Honor able G. Patric k Murphy of the S o ut he r n Di stric t of Illi noi s, si tting by * desi gnation.N o

. 1 0

- 2 5 0 4 P a g e 2

judge’ s deci si on, as supp lemented by the Board, i s supp or ted by sub stanti al evidenc e and does not suffer from legal er ro r, we deny the pet i tion.
Backgro und

Boika was admi tte d to the Uni ted St ates on May 26, 2006, as a non -im mig r ant exchange vis i tor wi th authorizati on to remain in the Uni ted St ates unti l Sept ember 1, 2006. She s taye d beyond that date, however , and in October 2006, married Zhi ts, who was also li ving i n the Uni ted St ates wi th an expired non-i mmi gr ant vis a. Both Boika and Zhi ts are ci tizensof Belarus.

On May 2, 2007, Boika fi led an appli cati on for asylum, wi thholdi ng of remov al, and prot ecti on un der the Conve nti on Agains t Tort ure. Boika asserted that she i s at ris k of harm from the Belarusi an gov ernment for her partici pation in a gr oup oppose d t o the gov ernment.

The U.S. Department of H om e l a n d Se cu ri ty in i ti a te d proceedings again st her in June 2007, chargin g her wi th rem ov ab i l i ty u n d e r 8 U. S.C. § 1227(a)( 1)(B)

. An i mmi gr ation judge 1 held two evidenti ary hearin gs in whi ch Boika was the sole wi tness. In a thor ough opin i on contai ning a detailed reci tation of Boika’s testim ony, the judge deni ed Boika’s appli cati on, finding her t esti mony notcredible.

Boika appealed to the Board of Immi gr ation Appeals. S he arg ued that the i mmi gr ation judge mi scons tr ued her testim ony. She further claim e d t hat the judge was bi ased, fai led to conduc t a proper hearin g, relied upon i rr elevant consi derat i ons, and violated her due process rights. The Board di smi ssed Boika’s petiti on, conclu ding that the judge’ s detailed adver se credibi li ty determinati on was not clearly err oneous and that the

recor d di d not supportBoika’s other conte nti ons. Boi ka seeks rev i ew in thi s court.

The statute prov i des that any ali en present in the Uni ted St ates i s deport able i f her 1 vis a or other documentati on authorizing admi ssi on into the Uni ted St ates a s a noni mmi gr ant has been rev oke d, or i f she i s in the Uni ted States in violati on of any U.S. law. See 8 U .S.C. § 1227(a)(1)( B).N o

. 1 0

- 2 5 0 4 P a g e 3

Discu ssion

We rev i ew the i mmi gr ation judge’ s deci si on as supp lemented by the Board’ s analysi s. See Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010). We as sess whether the judge’ s deter minati on was based on reasonable, sub stanti al, and probat i ve evidenc e i n the recor d consi dered as a whole, and we wi ll gr ant the petiti on only i f the evidenc e compels a contrar y conclu si on. See Sur ganova v. Holder

, 612 F.3d 901, 903-04 (7th Ci r. 2010), quoting Sin a v. Go nzales , 476 F.3d 459, 461 (7th Cir. 2007). It does not in thi s cas e.

I

. Asylum and Withholding of Rem oval

To establi sh eli gib i li ty for as ylum, Boika mus t prove that s he i s a “refugee” wi thi n t he meaning of the Immi gr ation and Nationali ty Act. As a derivative appli cant un d e r 8 U.S.C. § 1158(b) (3)( A), Zhi ts can be gr anted relief only i f Boika’s appli cati on i s gr anted. Thus, we review only the ci rcums tances up on whi ch Boi ka bases her clai m.

Boika mus t show that she i s unabl e or unw i lling to ret urn to her country “becau se of p e r se cu t ion or a well-founded fear of persecuti on on accoun t of race, religi on, nati onali ty, membershi p i n a partic ul a r soci al gr oup, or poli tic al opin i on.” 8 U.S.C. § 1101(a)( 42)(A). If an applica nt e st a bl i shes that she suffered past persecuti on, she i s entitled to a re buttable presumpti on of having a well-founded fear of persecuti on on the same ground i f sh e i s remove d. See 8 C.F .R. § 1208.13(b)( 1).

To supp or t wi thholdi ng of remov al, Boika mus t demonstrate a “clear probabi li ty” that she wi ll face persecuti on in Belarus. See Rapheal v. Mukasey, 533 F.3d 521, 525 (7th Ci r. 2008), quoting Firm ansjah v. Gonza les , 424 F.3d 598, 605 (7th Ci r. 2005). The clear probabi li ty standard requires her to show that she i s “more li kely than not” to be subject to persecuti on i f ret urned to he r na t iv e co untry – a hi gher standard than that required to establi sh eli gib i li ty fo r asylum. Id.

An a ppli cant may establi sh that she quali fi es as a refugee based on only her own test i mony i f the judge finds i t to be credible. See 8 U.S.C. § 1158(b) (1)( B)(i i ). Becaus e an appli cant’s credibi li ty i s paramount in asylum proceedings, though, an adver se credibi li ty finding w i ll li kely doom the appli cant’s clai med eli gib i li ty. See Hassan v. Holder, 571 F.3d 631, 637 (7th Ci r. 200 9 ). E v e n i f an i mmi gr ation judge finds an appli cant to be credible,

corr obor atin g evidenc e may be required under the REAL ID Act of 2005, Pub

. L. No. 109- 13. Rapheal , 533 F.3d at 527 (7th Ci r. 2008), ci tin g 8 U.S.C. § 1158(b) (1)( B)(i i ). The REAL ID Act prov i des: “Where the tr i er of fact deter mines that the appli cant should p r o videN o

. 1 0

- 2 5 0 4 P a g e 4

evidenc e that corr obor ates other wi se credible testim ony, such evidenc e mus t be prov i ded unles s the appli cant d o e s no t have the evidenc e and cannot reasonably obtain the evidenc e.” 8 U.S.C. § 1158(b) (1)( B)(i i ). Here, the judge based her deci si o n on i nconsi stenci es in Boika’s testim o ny a nd a l ack of corr obor ative evidenc e to supp or t her

accoun t. We t ake up each determin ation in turn.

A. Lack of Credibility

The Immi gr ation and Nationali ty Act as amended by the REAL ID Act instructs an i mmi gr ation judge to consi der “the tot ali ty of the ci rcums tances, and all relev ant factors” i n evaluating the credibi li ty of an appli cant. 8 U.S.C. § 1158(b) (1)( B)(i i i ). Our rev i ew of the judge’ s deter minati on i s deferential. See Hassan , 571 F.3d at 636-37. We di sturb a credibi li ty asses sment only i n ext r a o r d inary ci rcums tances, such as where the judge’ s conclu si ons lack speci fi c, cogent reas o ns or are based on incomplete or insu ffi ci ent evidenc e. See Musollari v. Mu ka s e y, 5 4 5 F.3d 505, 508 (7th Ci r. 2008), quoting Gjerazi v. Gonza les , 435 F.3d 800, 807 (7th Cir. 2006).

The i mmi gr ation judge conclu ded that B o ik a ’s testim ony was “riddl ed wi th i nconsi stenci es,” t he mo st si gni fi cant of whi ch was a di screpanc y between Boika’s testim ony and the documentary evidenc e reg a r ding whi ch univer si ty she atte nded. Throughout her testim ony and i n her appli cati on, Boika clai med that she atte nded Min sk St ate Lingui sti c Uni ver si ty. She testifi ed that she becam e involv ed in a p o li tic al

or gani zation at the uni ver si ty known as Maladaya Hramada. In Boika’s words, Maladaya Hramada opposed the poli ci es of the Belarusi an gov ernment and tr i ed “to inform people about the si tuation in the coun tr y.” Boika testifi ed that she was an acti ve member o f t he gr oup, creating, edi tin g, and di strib uti ng politi cal leafl ets.

B o ik a stated that i n August 2005, she was detain ed by poli ce offi cers and be a t e n whi le in detention for partici patin g in a sch eme to prin t and di strib ute Maladaya Hramada leaflet s. I n M a r ch 2006, she was arr ested whi le partici patin g in a prot est in Min sk and served twenty-thr ee days i n jail. Upon her ret urn to Min sk St ate following her release, Boika learned she had been expelled. She left Min sk to li ve wi th her paren ts in Brest, nearly 400 kilometers away, though she conti nued to be engaged in poli tic al acti viti es. She

was again detain ed and i nterr ogat ed in April 2006. Wi th charges sti ll pending again st her, Boika left Belarus the following month for t he U nit e d St ates, where she had tr aveled i n 2004.N o

. 1 0

- 2 5 0 4 P a g e 5

The judge di d not find Boika’s testim ony credible. Almost all of Boika’s accoun t of her past persecuti on too k place i n connecti on wi th her studi es at Min sk St ate Lingui sti c Uni ver si ty and her poli tic al acti viti es there , lead ing the judge to conclu de that her atte ndanc e at Min sk St ate was “at the ver y heart of her clai m.” But Boika’s 2004 and 2006 U.S. vis a appli cati ons both stated that she atte nded Brest St a te Uni ver si ty. In the comments secti on of her 2006 vis a appli cati on, a consu lar offi cer wrot e, “4th year bres t st a te” and “gov t pays for educati on.”

The judge gav e Boika ample oppor tuni ty to explain the di screpanc y in uni ver si ties and found that Boika was unabl e to prov i de a plaus ible explanation. Most tr oubling to the judge was Boika’s inconsi ste nt testim ony reg ardin g the process thro ugh whi ch she obtained her vis as. Boika fi rst testifi ed that she had personally co mplet ed the vis a appli cati ons and that the information they contained was corr ect. Later she c lai med that

a tr avel agency had completed the vis a appli cati ons on her behalf and that any err or s were carried ov er thro ugh no fault of her own. The judge rej ected the possi bi li ty that the name of the uni ver si ty li sted on her vis a appli cati ons was a mi stake made by a staff person at the tr avel agency or by a co ns ular offi cer. The judge also noted that Boika si gned both appli cati ons, attesting to t hei r t ruthfulness

.
We see no gr ound on whi ch to upset t he judge’ s credi bi li ty deter minati on. An i mmi gr ation judge may proper ly base a credibi li ty deter minati on on t he consi stency between the appli cant’s wri tte n and or al statements and the internal consi stency of each. 8 U.S.C. § 1158(b) (1)( B)(i i i ). Unexplain ed material inconsi stenci es are a suffi ci ent basi s for

a judge to find an appli cant not credib le. See Aung v. Gonza les , 495 F.3d 742, 746 (7th Ci r. 2007) (uph oldi ng judge’ s adver se credibi li ty deter minati on where petiti oner was unabl e to explain i nconsi st e nc ie s and sub stanti al evidenc e supp or ted the deter minati on). The judge was not compelled to accept the e x p l anati on that the consu lar offi cer mus t have mi sheard or copi ed the name from another document that an intermediary had prepar ed. Boika ackno wledg ed that she had rev i ewed both appli cati ons before si gni ng them, and upon si gni ng them, she was swearing to the tr uthfuln ess of their contents. Mor eov er, her cl a im t ha t an agent prepar ed her vis a materials surfac ed for the fi rst tim e duri ng her testim ony. Contr ary to Boika’s contention on appeal, when asked duri ng the evidenti ary hearin g whether sh e fi lled out her vis a appli cati on in 2006, she replied affi rmatively. We find no err or i n t he judge’ s conclusi on that Boika fail ed to offer an adequate explanation reg ardin g this i nconsi stency, whi ch w as cen tr al to her entire appli cati on.

The judge’ s adver se credibi li ty deter minati on rested on other inconsi stenci e s, as well. Boika testifi ed that she could not locate he r fri end, Laris a Fomina, who was jailedN o

. 1 0

- 2 5 0 4 P a g e 6

wi th her i n August 2005, and that she di d not know anythin g about what happened to her after Boika left Belarus. The recor d contai ns a lette r from Laris a Fomina addressed to Boika at her former address i n Illi noi s. The judge conclu ded that thi s document “rais es more questi ons about the central elements of [Boi ka’s] clai m.” Boika also testifi ed that when she

came to the Uni ted St ates i n 2006, she pass ed thro ugh Pari s. A copy of Boika’s pass port i n the record indi cated that Boi ka in fact pass ed thro ugh Warsaw, Poland, on May 26, 2006, the day she was admi tte d to the Uni ted St ates. The judge was further tr oubled by a strange motion fi led by an atto rney acti ng on Boika’s behalf indi cati ng that the co-peti tioners were d ivo rc e d an d requestin g a change of venue. The judge found that Boika never sati sfac tor i ly explain ed the motion, whi ch w as later r epudi ated by Boika’s and Zhi ts’s new attor ney. 2

The changes made by the REAL ID Act permi t a judge to consi der “inaccuraci es or falseh oods that do not go to the heart of the asy l um a p p li cant’s clai m,

. . . as part of hi s consi derat i on of the ‘to tality of the ci rcums tances, and all relev ant factors.’” Kadia v. Gonza les , 501 F.3d 817, 822 (7th Ci r. 2007). Here, the judge had a su bs t a nt i al basi s for doubti ng Boika’s credibi li ty. At no tim e di d Boika adequately explain the inconsi stenci es i n her appli cati on. The i mmi gr ation judge acted well wi thi n her di screti on in conclu ding from these di spari ties, as well as from her evaluation of Boika’s demeanor at the hearin gs, that Bo i ka was not credib le. We see no basi s for rej ecti ng the j udge’s ass essm ent.

B. Lack of Corrob orat ion

The i mmi gr ation judge held a second hearin g at whi ch Boika ha d a further oppor tuni ty t o p r ov i de corr obor atin g evidenc e that she atte nded Min sk St ate Lingui sti c Uni ver si ty. Boika fai led to prov i de any corr obor ation. She testifi ed that her parents were
uns ucc essf

ul in obtaining recor ds from the uni ver si ty. Accordi ng to Boika, a lette r in wh i ch her mother explain ed these ci rcums tances had not arr i ved in tim e for the second hearin g. The judge di d not find Boika’s e x p l a na t io n t o be reasonable. She conclu ded that Boika

The gov ernment and the petiti oners agr ee that one inconsi stency ci ted by the judge 2

was n ot support ed by the r ecord. The judge fo und that Boika fi rst testi fi ed that she pai d her o wn t uit io n when she lost her uni ver si ty sch olarshi p but then later testifi ed that her parents pai d. Read i n context, however, Boika’s t e st imo ny was consi stent thro ughout, statin g that she and her fami ly pai d. Never theless, in li ght of the recor d in i ts entirety, one
area of consi stency ami d thi s “multi tude” of inconsi stenci es i denti fi ed by the judge would not hav e alter ed the fi nal determin ation.N o

. 1 0

- 2 5 0 4 P a g e 7

should have been able to prov i de some corr obor ation of her clai m that she atte nded Min sk St ate.

The REAL ID Act requires that an appli cant prov i de corr obor atin g evidenc e when

or dered by the tr i er of fact, unles s the appli cant does not have and cannot reasonably obtain the evidenc e. See 8 U.S.C. § 1158(b) (1)( B)(i i ). An i mmi gr ation judge has “sub stanti al leeway to demand c or ro borat i on of an asylum appl i cant’s allegations whether or n ot the judge fin ds the appli cant credible.” Raghunathan , 604 F.3d at 379, quot ing Krishn apillai v. Holder, 563 F.3d 606, 618 (7th Ci r. 2009). We find no err or in t he judge’ s ex pectation t hat Boika sh ould have been able to pr oduce addi tional evi dence to corro borat e her account. Boika pr ov i ded no documentati on duri ng the ini tial p ro ceedings o r in her appli cati on to confi rm that she atte nded Min sk St ate. Under these ci rcums tances, and given that the burden of proo f was on Boika, i t was reasonable for the judge to expect her to sub mi t some other documentati on to sub stanti ate her enrollment.

Boika faces a stringent standard of rev i ew for the judge’ s conclu si on reg ardin g the availab i li ty of corr obor atin g evidenc e. We do not rev erse such a deter minati on unles s we find t hat a reasonable t r ie r o f fa ct would be compelled t o conclu de that such e videnc e i s unavai lable. See 8 U.S.C. § 1252(b) (4). The recor d here does not compel that conc lusi on. Boika prov i ded nothin g to supp or t her asserti on that her parents were unabl e to obtain univ e r si ty recor ds, nor di d she atte mpt to prov i de any sub sti tute documentati on. The j ud g e d id no t err by conclu ding that Boika needed to prov i de more than bare asserti ons that cor ro borat i on was not availab le.

II

. Due Process

Boika also challen ges the Board’ s deter minati on that she was afforded a full and fai r hearin g. Du e p ro cess requires that an asylum appli cant “be afforded a meaningful

o p port uni ty to present a clai m.” Lin v. Holder, 630 F.3d 536, 544 (7th Ci r. 2010); se e a l so Mala ve v. Holder, 610 F.3d 483, 487 (7th Ci r. 2010) (recognizing that an ali en i s guarante ed “notic e a nd a n oppor tuni ty for a fai r hearin g” by statute and reg ulati on). We analyze whether, i n li ght of the tot ali ty of the ci rcums tances, Boika had a full and fai r oppor tuni ty to put on her case. See Barrada s v. Holder, 582 F.3d 754, 767 (7th Ci r. 2009). We conclu de that she di d.

Boika sub mi ts that the i mmi gr ation judge err ed by taking offi ci al notic e of a repo rt from the U.S. Gover nm e nt A ccountabi li ty Offi ce. The repo rt described an increase i n fraudulent petiti ons from Russ i an, Belarusi an, Armenian , a nd Ukr aini an J-1 (non-N o

. 1 0

- 2 5 0 4 P a g e 8

i mm ig r ant cultural ex change) v i sa holder s clai ming to have suffered persecuti on. Boika maintai ns fi rs t that the repo rt i s contradic ted by the country condi tions repo rt from the U.S. Department of St ate already in the recor d that di scu ssed an increase in persecuti on by the Belarusi an gov ernment agains t members of the politi cal opposi tion, esp eci ally students. Second, she contends that t he judge should have allowed her an oppor tuni ty to respond to the content of the GAO repo rt

. Fin ally, Boika arg ues that t he judge inappropr i ately relied on the judge’ s own beli efs, specu lation, and conjecture in deci ding whether B o ik a
was c redib le.

Boika relies on our co nc l usi on in Kaczmarczyk v. INS , 933 F.2d 588, 596 (7th Ci r. 1991), that “the due process claus e of t he fif th amendmen t requires that petiti oners be allowed an oppor tuni ty to rebut offi ci ally notic ed facts, particu larly when, as in thi s case, those facts are cruci al to – i ndeed di sposi tive of – the outcome of the admini strat i ve proceeding.” In response, the gov ernment arg ues that i f the i mmi gr ation judge’ s notic e of the GAO repo rt was err or , the err or was harmless at best. We agr ee wi th the gov ernment that the judge’ s refer ence to the GAO repo rt i s not a suffi ci ent justifi cati on for rev ersing her deci si on, whi ch had a much broader foundati on.

To prev ai l on a due process clai m, an appli cant mus t show prej udi ce, Roman v. INS , 233 F.3d 1027, 1033 (7th C ir

. 2 0 00), whi ch requires that a due process violati on probably affec ted the results o f t he proceedings. See Capric v. Ashcroft, 355 F.3d 1075, 1087-88 (7th Ci r. 2004), ci tin g Rusu v. INS , 296 F.3d 316, 320-21 (4th Ci r. 2002). Reading the i mmi gr ation judge’ s deci si on as a whole, i t i s clear that the GAO repo rt was not deci si ve, so we find no prej udi ce here even i f t here was an err or

. The j udge relied on the GAO re portprim arily for i ts unc ontr ov ersi al explanation that J-1 vis a holders are “students in goo d standing” at t he i r uni ver si ties – a phrase the judge emphas i zed in her opin i on. Fr om th is

unc ontr ov ersi al prem ise , t he judge reasoned i t was i mplaus ible that Boika could have received t wo J- 1 v isas wi thout documenting her goo d standing at her uni ver si ty, whi ch

was li sted on her appli cati ons as Brest St ate. I t wa s reasonable to conclu de that Boika would have needed to prov i de cons u l a r offi c i a l s w i th u n ive rs i ty recor ds demonstrating her goo d standing to obtain the vis a. Mor eov er, the judge was clear that she reached her credibi li ty and cor ro borat i on deter minati ons independent of the GAO r epor t.

As for Boika’s clai m that the judge was bi ased and relied on specu lation, we cannot agr ee. First , Boika makes no credible clai m reg ardin g bi as on the part of the judge. She does not i denti fy any pass age i n the deci si on or the admini strat i ve tr ansc ript that suggests bi as, nor do we find any i ndi cati on of bi as upon our review. Second, the judge’ s detailed opin i on subs tantiates eachof her conclus i ons wi th refer ences to the recor d. The adv erseN o

. 1 0

- 2 5 0 4 P a g e 9

credibi li ty deter minati on i s not “rife” wi th pers on a l b e l i e fs a n d c onjectures as Boika clai ms. We agr ee wi th the Board that Boi ka has fai led to show that sh e was deprived of her ri ght to due pr ocess of law

.
Conclu sion

Boika’s credibi li ty was key to the su cc e ss of her petiti on. In the absenc e of compelling evidenc e that the judge err ed in her adver se credibi li ty deter minati on, Boika’s asy l um cl ai m fai ls, and wi th i t her husband’s clai m. Becaus e a clai m for wi thholdi ng of

remov al i s subject to a hi gher burden of proo f, i t follows that Boika’s request for that relief fai ls as well. Acc or dingly, we DENY the petiti on for r eview.