2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-19-2014

Ganna Solodovnikova v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket 13-2399

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 13-2399

______

 GANNA SOLODOVNIKOVA

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent 

______

On Appeal from the Board of Immigration Appeals

(Agency No. 088-649-621)

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 13, 2014

Before: CHAGARES, SHWARTZ, and GARTH, Circuit Judges

(Opinion filed: February 19, 2014)

______

OPINION

______

GARTH, Circuit Judge.

Petitioner, Ganna Solodovnikova, appeals from a final order of removal, 

entered on April 18, 2013 by the Board of Immigration Appeals (“BIA”)

approving an order of removability, entered by the Honorable Rosalind K. Malloy, 

U.S. Immigration Judge (“IJ”), on February 25, 2011. 
2

We have jurisdiction pursuant to 8 U.S.C. § 1252.

1

For the reasons that 

follow, we will reverse the decision of the IJ and BIA.

I

Solodovnikova, a citizen of Ukraine and native of the former Ukrainian 

Soviet Socialist Republic, entered the United States in August 2000 after being 

denied asylum in Canada. In 2008, she received a notice to appear, charging her 

as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) 2for having entered the 

United States without being admitted or paroled. Represented by counsel, she 

conceded her removability and applied for: (1) asylum; (2) withholding of 

removal; and (3) relief under the Convention Against Torture (“CAT”). In support 

of her application, she claimed that she had been persecuted in Ukraine on account 

of her Baptist faith and would be subject to further persecution if she were 

compelled to return to her native land.

On August 4, 2010, at the merits hearing before the IJ, Solodovnikova 

testified that, when she was a child in Ukraine, her peers frequently beat her 

because of her religion, and school administrators did nothing to prevent or 

remedy the violence. She further testified that, as a pregnant adult working at a

state-owned factory, she was required to do hard labor, causing her to miscarry at 

 

1 As discussed infra, however, we lack jurisdiction to consider Solodovnikova’s 

asylum claim.

2

The statute provides that “an alien present in the United States without being 

admitted or paroled, or who arrives in the United States at any time or place other 

than as designated by the Attorney General, is inadmissible.”
3

some point between 16 and 20 weeks. She claimed that, in accordance with the 

factory’s policies, pregnant women were not required to do hard labor after the 

first four months of pregnancy, but that this protection was only afforded to nonBaptist women. She also testified that, in 2009, unidentified individuals 

vandalized her mother’s home in Ukraine and defaced it with anti-Baptist graffiti. 

On February 25, 2011, the IJ denied Solodovnikova’s application.

3

 The IJ 

concluded that Solodovnikova was statutorily ineligible for asylum because she 

had not filed her application within one year of entering the United States and had 

not demonstrated either changed country conditions or extraordinary 

circumstances relating to the delay. See 8 U.S.C. §§ 1158(a)(2)(B), (D). The IJ 

also determined that Solodovnikova had failed to corroborate sufficiently the facts 

on which she based her withholding of removal claim and that she had failed to 

provide evidence that Baptists are persecuted in Ukraine. Finally, the IJ held that 

Solodovnikova was ineligible for relief under the CAT because she had not 

demonstrated that it was more likely than not that she would suffer torture if she 

returned to Ukraine. 

Solodovnikova appealed the IJ’s decision to the BIA, and, on April 18,

2013, the BIA dismissed the appeal. 

In its decision, the BIA affirmed the IJ’s holdings that Solodovnikova’s 

 

3

The IJ initially issued an oral decision soon after the removal hearing in 2010. 

However, on appeal, the BIA remanded the case for preparation of a complete 

transcript. On remand, the IJ issued her February 2011 oral decision, which 

superseded the 2010 decision.
4

asylum application was time-barred and that she had not demonstrated the 

applicability of an exception to the one-year period of limitations. Relying solely 

on the IJ’s conclusion about corroboration, the BIA also affirmed the IJ’s denial of 

Solodovnikova’s withholding of removal claim. Finally, the Board upheld the IJ’s 

denial of relief under the CAT, concluding that Solodovnikova had not established 

that it was more likely than not that she would be tortured by, or with the 

acquiescence of, the Ukrainian government. 

Presently before us is Solodovnikova’s timely filed petition for review of 

the BIA’s decision.4

II

We review questions of law de novo, Caroleo v. Gonzales, 476 F.3d 158, 

162 (3d Cir. 2007), but we “will not disturb the IJ’s credibility determination and 

findings of fact if they are supported by reasonable, substantial and probative 

evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 

180, 184 (3d Cir. 2003) (internal quotation marks omitted). We “appl[y] 

substantial evidence review to agency findings of fact, departing from factual 

findings only where a reasonable adjudicator would be compelled to arrive at a 

contrary conclusion.” Mendez-Reyes v. Att’y Gen. of the U.S., 428 F.3d 187, 191 

(3d Cir. 2005). Finally, “[w]here the BIA issues a decision on the merits, we 

review only the BIA’s decision. However, we will look to the IJ’s analysis to the 

extent that the BIA deferred to or adopted it.” Calla-Collado v. Attorney Gen. of 

 

4

Solodovnikova’s removal has been stayed pending the resolution of her petition.
5

U.S., 663 F.3d 680, 683 (3d Cir. 2011) (citing Chavarria v. Gonzalez, 446 F.3d 

508, 515 (3d Cir. 2006)).

III

On appeal, Solodovnikova contests the BIA’s rulings on each of her three 

claims: (1) that she is entitled to asylum; (2) that she is entitled to CAT relief; and 

(3) that she is entitled to withholding of removal.

A

To apply for asylum, an alien must “demonstrate[] by clear and convincing 

evidence that the application has been filed within 1 year after the date of the 

alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). 

A tardy application may be considered if the alien demonstrates to the 

satisfaction of the Attorney General the existence of either of the following 

circumstances: “changed circumstances which materially affect the 

applicant’s eligibility for asylum or extraordinary circumstances relating to 

the delay in filing an application within the period specified in 

subparagraph (B).” 

Sukwanputra v. Gonzales, 434 F.3d 627, 631 n. 2 (3d Cir. 2006) (quoting 8 U.S.C. 

§ 1158(a)(2)(D)).

We generally lack jurisdiction to review the BIA’s determination that an 

alien’s asylum application is untimely and that she has failed to establish 

extraordinary circumstances excusing the late filing. See 8 U.S.C. § 1158(a)(3); 

Sukwanputra, 434 F.3d at 634-35. Therefore, our jurisdiction to review the BIA’s 

denial of Solodovnikova’s asylum claim is “narrowly circumscribed in that it is 

limited to colorable claims or questions of law.” Pareja v. Attorney Gen. of U.S., 
6

615 F.3d 180, 186 (3d Cir. 2010) (internal quotation marks omitted). A claim is 

not colorable if “it is immaterial and made solely for the purpose of obtaining 

jurisdiction or is wholly insubstantial and frivolous.” Arbaugh v. Y & H Corp., 

546 U.S. 500, 513 n. 10 (2006) (internal quotation marks and citations omitted). 

To that end, 

[a] petition for review that fails to present . . . a colorable claim is nothing 

more than an argument that the IJ abused his discretion in determining that 

the petitioner did not meet the requirement of exceptional and extremely 

unusual hardship, which is a matter over which we have no jurisdiction.

Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (internal quotation 

marks and citation omitted), quoted in Pareja, 615 F.3d at 187. “If a claim is 

frivolous . . . we lack jurisdiction to review it, no matter its label.” Pareja, 615 

F.3d. at 187 (citing Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 189 (3d Cir.

2007)). 

On appeal, Solodovnikova has attempted to raise both a constitutional and a 

legal challenge to the BIA’s denial of her asylum claim. First, she argues that the 

BIA erred in failing to consider her argument that the initial denial of her asylum 

application in Canada discouraged her from timely filing for asylum once she 

entered the United States. She also asserts that the agency applied an incorrect 

legal standard in assessing whether extraordinary circumstances existed.

Consistent with the law of our sister Circuits, however, we have held that 

“despite the changes of the REAL ID Act, 8 U.S.C. § 1158(a)(3) continues to 

divest the court of appeals of jurisdiction to review a decision regarding whether 
7

an alien established changed or extraordinary circumstances that would excuse his 

untimely filing.” Sukwanputra, 434 F.3d at 635. Accordingly, bound by this 

precedent, we conclude that the vague assertions and references to “due process” 

that comprise Solodovnikova’s argument fail to rise to the level of a “colorable 

claim.” Therefore, we lack jurisdiction to review the BIA’s determination that 

Solodovnikova’s asylum claim is time-barred.

However, we retain jurisdiction over the other issues raised in 

Solodovnikova’s petition pursuant to 8 U.S.C. § 1252(a)(1). 

B

We turn, therefore, to the BIA’s denial of relief to Solodovnikova under the 

CAT. 

“An applicant for relief on the merits under [Article III] of the Convention 

Against Torture bears the burden of establishing ‘that it is more likely than not that 

he or she would be tortured if removed to the proposed country of removal.’” 

Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002) (quoting 8 C.F.R. § 

208.16(c)(2)). “Torture is an extreme form of cruel and inhuman treatment and 

does not include lesser forms of cruel, inhuman or degrading treatment or 

punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Therefore, 

“even cruel and inhuman behavior by government officials may not implicate the 

torture regulations.” Sevoian, 290 F.3d at 175. 

“[T]orture covers intentional governmental acts, not negligent acts or acts 

by private individuals not acting on behalf of the government.” In re J–E–, 23 I. & 
8

N. Dec. 291, 299 (BIA 2002). Therefore, “‘[v]iolence committed by individuals 

over whom the government has no reasonable control does not implicate’ relief 

under the CAT.” Valdiviezo-Galdamez v. Attorney Gen. of U.S., 663 F.3d 582, 

592 (3d Cir. 2011) (quoting In re Y–L–, A–G–, R–S–R–, 23 I. & N. Dec. 270, 280 

(BIA 2002). Similarly,

the existence of a consistent pattern of gross, flagrant, or mass violations of 

human rights in a particular country does not, as such, constitute a 

sufficient ground for determining that a particular person would be in 

danger of being subjected to torture upon his or her return to that country. 

Specific grounds must exist that indicate that the individual would be 

personally at risk.

In re S–V–, 22 I. & N. Dec. 1306, 1313 (BIA 2000), quoted in ValdiviezoGaldamez, 663 F.3d at 592.

Here, the agency’s decision denying CAT relief is supported by substantial 

evidence. Solodovnikova contends that she may be subject to arbitrary arrests, 

beatings, and “other forms of physical attacks and mistreatment” based on antiBaptist sentiments. In support of these claims, she relies primarily on past 

anecdotal evidence (e.g., the vandalism, violence encountered as a child, etc.). In 

opposition, the Government proffered country reports and testimony asserting that 

the Ukranian Baptist population was on the rise and that while human rights 

abuses might exist in Ukraine, Solodovnikova had produced insufficient evidence 

to demonstrate either that: (1) she had been tortured in the past, under the relevant 
9

statutory definition;5or (2) it was more likely than not that she would be tortured 

in the future. 

Based on the record before us, we conclude that a reasonable factfinder 

would not be compelled to find that it is more likely than not that Solodovnikova 

would be tortured upon her return to Ukraine. See Mendez-Reyes, 428 F.3d at 

191. Accordingly, we affirm the decision of the BIA denying Solodovnikova 

relief under the CAT. 

C

For the reasons that follow, however, we reach a different result with 

respect to Solodovnikova’s withholding of removal claim. Because the BIA erred 

in rejecting Solodovnikova’s withholding of removal claim based on her alleged 

failure to corroborate, we remand this matter for further proceedings in light of our 

precedent governing aliens’ burden of providing corroborating evidence.

6

An IJ may reasonably conclude that an applicant will corroborate facts that 

are central to her claim and easily subject to verification. Abdulai v. Ashcroft, 239 

F.3d 542, 554 (3d Cir. 2001). “Where the trier of fact determines that the 

applicant should provide evidence that corroborates otherwise credible testimony, 

 

5

See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman 

treatment and does not include lesser forms of cruel, inhuman or degrading 

treatment or punishment that do not amount to torture.”).

6

The Government challenges our jurisdiction to review the BIA’s corroboration 

determination, arguing that Solodovnikova failed to raise it in her appeal to the 

Board. Because the BIA sua sponte reviewed the IJ’s corroboration finding, we 

retain jurisdiction to consider the issue. See Lin v. Att’y Gen. of the U.S., 543 

F.3d 114, 126 (3d Cir. 2008). 
10

such evidence must be provided unless the applicant does not have the evidence 

and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). 

Further, we will not reverse a fact-finder’s determination on the availability of 

corroborating evidence unless we conclude “that a reasonable trier of fact is 

compelled to conclude that such corroborating evidence is unavailable,” 8 U.S.C. 

§ 1252(b)(4)(D); Chen v. Gonzalez, 434 F.3d 212, 218 (3d Cir. 2005). 

In order to dismiss a claim based on a lack of sufficient corroboration, an IJ 

or the BIA must perform the following three-step inquiry that we articulated in 

Abdulai:

(1) an identification of the facts for which it is reasonable to expect 

corroboration; (2) an inquiry as to whether the applicant has provided 

information corroborating the relevant facts; and, if he or she has not, (3) an 

analysis of whether the applicant has adequately explained his or her failure 

to do so. 

Quao Lin Dong v. Att’y Gen. of U.S., 638 F.3d 223, 229-30 (3d Cir. 2011) 

(quoting Abdulai, 239 F.3d at 554). “We have required faithful adherence to the 

three-prong test,” id. at 230, and “only upon such inquiry and analysis can the BIA 

hold the lack of corroboration against an applicant.” Chukwu v. Att’y Gen. of the 

U.S., 484 F.3d 185, 192 (3d Cir. 2007). 

Focusing on the critical need to provide an applicant with notice as well as 

importance of preserving a record for appellate review, “[w]e have repeatedly held 

that the BIA’s . . . failure to engage in the three-part inquiry described above 

requires that the BIA’s findings regarding corroboration be vacated and 

remanded.” Toure v. Att’y Gen. of U.S., 443 F.3d 310, 323 (3d Cir. 2006) (citing
11

Voci v. Gonzales, 409 F.3d 607, 617 (3d Cir. 2005); Mulanga v. Ashcroft, 349 

F.3d 123, 136 (3d Cir. 2003); Abdulai, 239 F.3d at 555); see also Chukwu, 484 

F.3d at 191-92 (noting that the IJ must provide the applicant with “notice” of what 

corroboration will be expected).

On appeal, Solodovnikova argues that: (1) the IJ did not identify in advance

of her oral decision which facts required corroboration; and (2) the IJ did not 

provide Solodovnikova with an opportunity to submit the required corroborating 

evidence. The Government counters that the IJ alerted Solodovnikova to the need 

to submit corroborating evidence at various points leading up to and during the 

removal hearing. 

The Government first points to an exchange that took place between the IJ 

and Solodovnikova approximately eighteen months before the final removal 

hearing. On January 27, 2009, the IJ asked Solodovnikova what documents she 

intended to submit as evidence at the evidentiary hearing and suggested that 

Solodovnikova submit country reports from the Department of State and the 

World Council of Churches. While Solodovnikova did not submit this evidence, 

the IJ ultimately did not deny Solodovnikova’s withholding of removal claim on 

the basis of a failure to corroborate her allegations regarding country conditions; 

instead, the IJ faulted Solodovnikova for her failure to corroborate particular facts 

about her past persecution. Therefore, the IJ’s comments on January 27, 2009 do

not satisfy the first step of the Abdulai test. 
12

The Government also contends that a colloquy at the removal hearing 

satisfied the Abdulai requirements. During the hearing, the Government asked 

Solodovnikova: (1) whether she had attempted to get a letter from her mother or 

sister regarding conditions in Ukraine; (2) why she had not submitted proof of the 

factory’s policies regarding accommodations for pregnant workers; (3) and 

whether the photographs of the alleged vandalism at her family’s home had been 

authenticated. Solodovnikova replied that she did not seek a letter from her 

mother or sister and that the factory’s policy was no longer available. 

However, neither the Government nor the IJ asked Solodovnikova why she 

had not sought a letter or why she did not provide more evidence about the 

vandalism at her family’s home, thus failing to satisfy the third prong of the 

Abdulai test. Further, we conclude that it would be unreasonable to expect 

Solodovnikova to obtain a copy of the factory’s policy, given that the state-owned 

factory operated under a Communist regime in Ukraine more than 20 years ago.7

Nonetheless, following the hearing, the IJ ruled against Solodovnikova on 

corroboration grounds because of her failure to provide: (1) evidence from her 

mother, sister, or “anyone else who would be aware of the treatment she received 

 

7 We note that the change in regime that would render obtaining the employment 

policies impracticable might also weaken Solodovnikova’s claims that her 

treatment at the factory provided evidence that she would suffer persecution in the 

future. However, such an inquiry is largely tangential to the issue of corroboration 

presently before us and does not alter our analysis here.
13

as a child in school;” (2) evidence of the factory’s policy; and (3) evidence 

regarding the identity and motives of the vandals who target her family’s home. 

We are mindful that Solodovnikova had numerous opportunities over the 

course of her immigration proceedings to bolster her case by providing 

corroborating evidence (e.g., prior to her removal hearing; at the hearing itself; on 

appeal to the BIA) but that she failed to do so. Nevertheless, her failure to 

corroborate is not sufficient in and of itself to trigger removal. We have clearly 

articulated the protocol to be used in such cases. We require the IJ’s and BIA’s 

“faithful adherence to the three-prong [Abdulai] test.” Dong, 638 F.3d at 230. As 

such adherence is lacking here, we must remand this matter so that the three-step 

Abdulai approach may be applied properly.

Not only did the IJ raise concerns about Solodovnikova’s failure to provide 

corroborating evidence about the particular facts of her claim for the first time at 

the removal hearing, but the IJ also did not provide Solodovnikova with an 

opportunity either to submit the required corroborating evidence or to explain her 

failure to submit that evidence. The IJ and the BIA therefore failed to “faithful[ly] 

adher[e]” to the procedure articulated in Abdulai and denied Solodovnikova the 

requisite notice and opportunity to be heard.8 See Toure, 443 F.3d at 323-24 

(vacating the BIA’s corroboration finding where the IJ did not raise issue of 

 

8 Although the Government contends that Solodovnikova should have 

corroborated her claims when the BIA remanded the case to the IJ, that remand 

was for the limited ministerial purpose of having the IJ prepare a complete 

transcript of the proceedings.
14

corroboration until her oral decision and never gave petitioner an opportunity to 

explain the absence of corroborating evidence).

The judgment of the BIA will therefore be vacated, Solodovnikova’s 

petition for review will be granted in part, dismissed in part, and denied in part,

and this matter will be remanded to the BIA for further proceedings consistent 

with this opinion, including a remand to the IJ.