2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
7-13-2004 

# C r i vo sei a v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-2119

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it a t ion

" C r ivos ei a v

. Att y Ge n U SA" (2004). 2004 D e cisio n s . P ape r 504. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/504NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-2119

ANDREI CRI VOSEI A; NATALI A BONDARENC O; ANDREI BONDARENC O, Petitioners

v. JOHN ASHCROFT, Attorney General of the United States, Respondent

On Petiti on for Review of an Order of t he Immigrat ion and Natura lization Service Bo ard o f Imm igration Ap peals (BIA Nos. A75-090-604, A75-090-605, and A75-090-606) Argued April 13, 2004 Be for e: R EN DE LL , CO W EN and LA Y* , Circu it Judges
.

(Fil ed: Jul y 13, 2004)

____________________ 

### * Hon. Donald P. Lay , Senior Judge of the United State s Court of Appeals for the Eighth Cir cuit, sitting by designation.2

Tatiana S. Aristova [ARGUE D] Law Offices of John J. Gal lagher 1760 Market Stree t, Sui te 1100 Philadelphia, PA 19103 Counsel for Petitioners Mich elle R. Thres her [ARGUE D] U.S. Department

of Justi ce Office of Immigrat

ion Litigati on 13 31 Pe nn sy l va ni a A ve nu e, N. W. Washington, DC 20530 Linda S. Wendtl and Dou glas E. G insburg John M . McA dams, Jr. U.S. Department

of Justi ce Office of Immigrat

ion Litigati on P.O. Box 878 Ben Franklin St ation Washington, DC 20044 Counsel for

Respondent

OPINI ON OF THE COURT

RE ND EL L, Circuit

Judge
. Andrei Crivos eia, his wife Nata lia Bondar enco, and her son Andrei Bondarenco seek revi ew of the finalorder of t he Board of Immigration Appeals ( “BIA”) denyi ng them asylum, withho lding of rem oval, and relief u nder the C onven tion Ag ainst Torture (“CA T”). P etitioner s con tend th at the IJ in correc tly denied asylum b ased upo n their fail ure to fi le withi n one year of admiss ion to t he United States and t

hat the IJ’s denial of bot h w ithh old ing of r em ova l and CA T re lief w as u nsu ppo rted by sub stan tial ev iden ce.3

We have juris dicti on pursuant to 8 U.S.C. § 1252(b). We will deny the petiti on for

re vi ew. I. We write for the parti es, who are already famili ar with t he facts of this case. Theref ore, we lim it our discussion to tho se facts essen tial to our decision. Petitioners are citi zens of Moldova who entered t he United States wit

hout ins pecti on in January of 1997 by cr ossing t

he Mexican border i nto the United State s. Theywere spott ed by a bor der patrolhelic opter and t

hereaft er given a

notice to appear

for a heari ng at an Immigr ation Co urt in Ch icag o; in stea d, th ey trav eled to C ana da a nd a ppl ied f or a sylum ther e. Wh en their application f or asylum in C anada w as denied, pe titioners were removed from Canada to t he United States i n March 1999. They were t hen charged by the Immigr ation a nd Naturali zati on Service wit h removeabil ity

under section 212(a)( 6)(A)(i ) of the I mmigrati on and Natural ization Act as al iens pr esent wit hout having been admit

ted or par oled. At their hearing, the petiti oners concede d removeabil ity , but applied f or asy lum, withholding of removal, and pr otection under t he CAT. At their

hearing, the petiti oners t esti fied t o sufferi ng persecution on the ba sis of their Jewish heri tage. They re counted seve ral ant i-se miti c att acks, i ncluding a n atta ck on Natali a Bondarenco and her s on at the ir home in 1995 and the robbery of Andrei Criv oseia’ s mu sic store in 19 97. A fter a h earing and s evera l contin uanc es to en able4

petit ioners to obtai n certi fied documentary evidence, the Immigr ation J udge (“IJ ”) is sued an oral de cisi on denyi ng their clai m for asy lum based upon petiti oners’ f ailure to fi le for

as y lu m wit

hi n on e y ear

of e ntryin to th e Uni te d St at es . F ur th er , t he I J de ni ed t

hei r c la ims for withhol ding of removal and protec tion under CAT based upon his view that the petit ion ers la cke d cr edib ility and had faile d to ade qua tely co rrob ora te the ir cla ims
. Moreover, the IJ found that petiti oners had fi led a frivolous applic ation f or asy lum. The BIA, on appeal, affirmed the IJ’s decision, except for t he finding that the peti tioners’ application was frivolous. II. The Atto rney G enera l may gra nt asylum to any alien wh o is un able o r unw illing to return to his or her home count ry “because of per secuti on or a well- founded fear of persecution on account

of race, reli gion, na tional ity , membershi p in a part icular soci al group, or political opinion .
. . . ” 8 U.S.C. § 1101( a)(42) (A). The burden to prove a well-founde d fear of per secuti on lies with the applica nt, who must es tabli sh a genuine fear of per secuti on, and demonstrate t hat a re asonable pe rson in t he same cir cumstances

wo uld sim ilarly fear pe rsecu tion. T he ap plican t’s ow n testim ony m ay be su fficien t to esta blish eligi bility fo r asylu m, a s lon g as the te stim ony is cred ible. See 8 C .F.R . § 208.13(a ). Our review is limi ted to e nsuring t hat anyfindings are supported by substant ial evid enc e. Dia v. Ashcroft , 353 F.3d 228, 247 (3d Cir. 2003) (en banc). We m ay reverse5

the IJ’s d ecision s only if “a ny reaso nable adjud icator [ wo uld] b e com pelled to con clude to the c ont rary.” 8 U.S .C. § 125 2(b )(4)( B). III. A. The IJ rul ed that

the petiti oners’ a syl um application was unti mely. Pursuant to 8 U.S.C. § 1158(a )(2)( B), an al ien must pr ove by cl ear and convi ncing evi dence that he file d his asy lum appli cati on within one y ear of arr ival i n the Unite d States . The IJ may

excuse u ntimeliness and consider an application if an a lien demo nstrates that there w ere extraor dinarycircumst ances rel ating to the del ay i n fili ng. 8 U.S.C. § 1158(a)( 2)(D). The petition ers co nced e that th ey arrived in the U nited S tates in 1 997 but o nly filed the ir applic ation f

or asy lum in Februar

y of 2000; yet

despit e this apparent

untimel iness, the petitioners argue tha t their application qualified u nder the ex ception fo r extraordinary circum stance s. Ho we ver, w e con clude that w e lack jurisdictio n to rev iew th is determi nation, based upon the l anguage of 8 U.S.C. § 1158( a)(3) , which di vests c ourts of the power to review the Att orney General’s decisi on regardi ng the ti meliness of an asylum app licatio n or wh ethe r the extr aor din ary circ um stan ce e xce ptio n is a ppl icab le. See Tarrawall y v. Ashcroft , 338 F.3d 180, 185 (3d Cir. 2003) (j oining s everal other s ist er courts of appeals in holdi ng that “ the la nguage of 8 U.S.C. § 1158( a)(3) clear ly deprives us of jurisdi ction to review an IJ ’s det ermination that an asy lum peti tion was not file d within t he one ye ar li mitations period, a nd that s uch period was not toll ed by1 The IJ st ated that even i f thei r appli cati on was not ti me-barred, he would have rej ected

the petiti oners’ a sylum claims on adver se credi bili ty grounds. Indeed, t he IJ went further and dete rmin ed th at the petit ion ers h ad f iled a friv olo us a ppl icatio n fo r asylu m. See 8 C.F.R. § 208. 20. The BIA on review set aside t he frivol ous appli cati on determi nation, while upholdi ng the remai nder of the IJ’s decisi on. On appeal, the petiti oners cont end that ha ving found that their appli cati on was not fri volous, the BIA was compelled t o find that t heir as yl um application was actua lly credibl e. However, the peti tioner s conflate the high stand ard fo r a frivo lous a pplica tion de termin ation, w hich in volv es the d elibera te fabric ation of

a materi al el ement of an asy lum peti tion, with the l esser s tandard f or an adverse credibil ity

determi nation. Applications that are deemed to be act ually frivol ous are v ery rar e. See, e. g. , Farah v. Ashcr oft , 348 F.3d 1153, 1154 (9th Cir . 2003) ( “Our resear ch dis closes no ca se in w hich w e hav e uph eld su ch a b ar.”). W e hav e no r easo n to questi on the BIA’s fi nding that the petiti oners di d not fil e a fri volous appl ication at t he sam e tim e tha t it ad opt ed th e IJ’s dete rmin ation that t hey w ere n ot cr edib le. 6 extraordinarycircumstances.”). Accordingly, we may not entert ain the petitioners’ chall enge to the IJ’s determi nation t hat the petit

ioners ’ appli cati on for asy lum was

un tim ely. 1 However, thei r clai ms for withhol ding of removaland protec tion under the CA T are not su bject to this jurisd ictiona l bar, an d w e con sider th eir argu men ts with respe ct to tho se claim s nex t. B. Having dismis sed the pet iti oners’ a syl um application as untimely , the IJ consi dered their claims for w ithholding of remov al. The stand ard for w ithholding of remov al is more stri ngent tha n that f

or asy lum. “I n order t o qualif y for withholdi ng of removal, an applic ant must s how a ‘clear probabil ity ’ that

his or he r li fe or free dom would be threatened if s/

he is deported. ” Mulanga v. Ashcroft , 349 F.3d 123, 132 (3d Cir. 2003) (quoti ng Li n v. INS , 238 F.3d 239, 244 (3d Cir. 2001)). Doubting the c redibi lit y of t he7

petit ioners ’ speci fic account s of past persecution and the ir gener al ass erti ons concerni ng anti-sem itism in M oldo va, the IJ con clude d that th e petition ers fa iled to m eet this w eighty bur den
. Petitioners argue that the I J unreasonably rejec ted the ir t esti mony, whic h they claim wa s con sistent thr oug hou t the pro ceed ings. W hile w e are tro ubled by certain porti ons of the I J’s r easoning r egarding t heir credibil ity , we have li ttl e troubl e concludi ng that sub stantial e viden ce su ppo rted the IJ’s ultim ate de termin ation a dver se to the ir cred ibility. The problemati c aspect s of the I J’s opi nion invol ved cert ain part s of the petit ioners ’ stories t

hat the IJ found t o involve s trange or abnormal behavi or. For inst ance, t

he IJ found i t curi ous that the petiti oners di d not report their perse cution, which include d being beat en on severaloccasions , to t he polic e. Natal ia Bondarenco had testifie d that, in 1995, s he and her son were at tacked i n their

apartment

by fi ve men, one of whom w as dress ed in a pol ice offi cer’s uniform, who tied up Bondarenco and he r son, insulted them and va ndalized the w alls by spray-painting anti-semitic epithets. Petitioners did not notify the poli ce, fear ing that the poli ce had been invol ved. The IJ f ound that their fail ure to cont act the polic e “absolutely makes no sense at all. ” Further , the IJ found it was bey ond belie f that , aft er such an i ncident , Bondarenco negl ected t o take photographs of the damage for s ubsequent pr esentat ion to t he polic e. But we wonder whether res idents of a rel ative ly poor country l ike Moldova should be expected t o have a2 Like wise , the IJ fa ulted C rivose ia for n ot con tacting the po lice afte r being attack ed in

his musi c stor e in November of 1996. But whil e Crivosei a did not c ontact the poli ce, as the IJ himself noted, their nei ghbors did. We fail to s ee why Crivos eia shoul d have call ed the poli ce a second time. I n any eve nt, Cri voseia testi fied that the police appeared disinterested in the crim e and instead asked h im w hich com pact discs w ere popu lar. 8 camera avai lable in their homes. Further, perhaps i t would have made li ttl e sense for the petit ioners to have produc ed photographi c evidence of a crime t o the poli ce, when they had r easo n to b elieve the po lice w ere inv olved in the in ciden t. 2 Despite the foregoing problems with certain aspects of the IJ’ s credibili ty anal ysi s, we find that

the IJ ’s adver se credi bili ty determi nation was neve rthel ess supported by substant ial e vidence. Of partic ular s ignifi cance to t he IJ was the lack of evi dence that the petit ioners were persecuted on the basi s of thei r Jewish heritage . The IJ r eject ed the petiti oners’ contention that t hey were being persecuted on account of their Jewish ethnic ity, becaus e they fa iled— notw ithstand ing h is hav ing g iven th em a mp le time— to produce documentar

y evi dence to show “why any one in Moldova would consi der the [ the petit ioners ] to be J ews.” The IJ noted that the petiti oners di d not pract ice their r eligi on and that t hey d o no t hav e Je wis h na me s. More importantly , the IJ concl uded that their clai ms were belie d by the general countryconditi ons in Moldova, whic h do not indi cate pervasive ant i-se miti sm in that country. Indeed, the IJ ob served that no t only was the State D epartmen t Coun try Report comp letely sil ent on the issue of an an ti-semitism problem in M oldova, bu t the very report that t he p etitio ner s rely o n to cor rob ora te su ch a nti-s em itism und ercu t thei r arg um ent.3 The IJ found that the pe titioners were inel igibl e for CAT relief be cause the y had “not

shown that t

hey are more li kely than not to be tort ured if t hey r eturn t o Moldova.” We reject the petitioners’ conten tion that the IJ erred by failing to co nsider the do cume ntary evidence i n the rec ord. As not ed above, t he IJ not only analy zed the St ate Department report but cited to the very report on which peti tioner s’ rel ied. Accordingly , we find no fault with the I J’s deni al of CAT relie f. 9 That report, authored bythe Council s for Sovie t Jews on Anti- Semiti sm, chroni cled Jewish life in M oldova. W hile expressing doubts o ver the repo rt’s objectivity, t he IJ noted that it

contai ned severalrelat ively sanguine ac counts of J ewish li fe in Moldova, includ ing state men ts by a Jew ish lead er in M oldo va, w ho b elieve d that th ere w as little anti- semiti sm in Moldova. The repor t als o stat es that

Hebrew and Yiddish are s upported

as m inority lang uage s and that the gov ernm ent ha d pled ged to acco mm odate ethnic minorities, includi ng Jews and all owed the Jewish pr ess to publ ish with relat ive indep ende nce. A lthoug h the re port als o con tained acco unts o f sev eral an ti-semitic incide nts fr om the lat e 1980s thr ough the mid-1990s , the IJ’s optimi sti c inte rpret ation of the r epo rt w as n ot u nre aso nab le. 

### See Kayemb e v. As hcrof t , 334 F.3d 231, 236–37 (3d Cir. 2003) ( “Just because t he State Departm ent repor t cuts bot h way s, however , does not mean that it does no t constitute sub stantial evidence.” ). Thus, we conclude t hat the re was substant ial e vidence t o support t he IJ’s adverse credibil ity determi nation a nd his deni al of the pet ition ers ’ cl ai ms for withhol din g of r emova l a nd und er t he CAT. 3 III. Accordingly , we conclude t hat the BIA opinion and det ermination were supported10

by su bs ta nt ia l e vi de nc e, an d we wil l DE NY t he pe ti ti on f orre vi ew.