NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0546n.06 No. 12-3802 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
VERONI KA NI KOL AJ UK, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM THE B OARD OF I MMI GRATI ON APPEAL S

Be fore : COL E and COOK, Circ uit J udg es; KATZ , District J udg e * COOK, Circuit J udg e. Ver onika Nikolajuk, a native and citizen of Be larus, seeks revie w of

a Boa rd of I mmigration Appea ls (“B I A”) decision aff irming the I mmigration Judge ’s (“I J ”) denial

o f h er claims for asy lum, withholding of remova l, and protec tion under the Convention Ag ains t Torture (“CAT” ). F or the following rea sons, we DEN Y the petition.

I

. Nikolajuk lawfully en t ered the United States in J une 2006 using a J 1 visa. Instead of depar ting when her visa expire d t h at September, she soug ht asylum on the ground that she feare d

The Honor able Da

vid A. Katz, United States District J udg e for the Northe rn District of * Ohio, sitti ng by

desig nation.No. 12-3802

Nikolajuk v. Holder political p er s ec u tion from Be larusian police. The Depa rtment of Homeland Security (“D HS”) char g ed her as remova

ble for overstay

ing her v i s a. See 8 U.S.C. § 1227(a) (1)( B)

. I n April 2009, Nikolajuk, throug h counsel, conce ded remova bility and soug ht asylum, withholding of remova l, and protec tion under the CAT. Nikolajuk, the sole witness at her remova l hear ing, testified as follows. As a teena g er, she

rea d some of her co u s in’s political scienc e books, which cause d her to question the Be larusian go v ernme nt’s policies. She did not, howeve r, express these political objections until enrolling at Be larusian State Un i v er s i t y . Whil e living in the school dorms, she joined a “sec ret g roup” of students who opposed the B elar usian g overnme nt. The extent of her involvement in the dissident gro up, howeve r, rema ins uncer tain, as her aff

idavit and testimony conflict on this point. I n h er asy lum aff

idavit, Nikolajuk claimed to have participa ted in a mass meeting tak i n g p l ac e near the university dorms in Marc h of 2006, but during her remova l hear ing, s h e d i s av o wed any persona l involvement in the demonstration and asser ted that it was her boy friend, S asha, who actively supported the protester s by bring ing them food. Sasha’s contribution to the protest netted him two day s in jail. Sometime afte r hi s rele ase, authorities sear ching for Sasha found hi m in Nikolajuk’s dorm room and beg an beating him. When Nikolajuk intervene d, a police office r pushed her out of the way , causing her to strike her head ag ainst the wall. I n her aff idavit, she claimed that one of the office rs told her to keep quiet about the injury , war ning that no one would believe her. She did not mention this t hreat during the re moval hear ing.

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Nikolajuk v. Holder Next, Nikolajuk attested that, in late April 2006, two men in police uniforms attacke d her during the nig ht, rapingand beating her as she walked to he r dorm room. She testified that one of h er attacke rs told her no one would believe her if she came forwa rd about the attack, b u t i n h er asy lum aff

idavit, she reported that he threatene d to kill her if she reported the rape . Additionally , althoug h her aff

idavit states that she “somehow” rea ched a hospital soon afte r the attack, she testified that she wa ited until the following day to seek tre atment. And her mother’s letter

g ave a differ ent date for t he hospi talization altog ether —sever al day s before the alleg ed attac k. Thoug h Nikolajuk submitt ed documents confirming that she was hospitaliz ed around this time, the hospital rec ords list the rea son as “a chronic disease” and kidney trauma. Fur thermore , she claimed that she visited her OB -GYN , but this visit appea rs nowher e in the rec ords. Nikolajuk n ever repor ted the rape , explaining that she fea

red police reta liation and that no one would believe her. L ast, she mentioned

some conver sations with her mother that sug g ested t he police inquired about Nikolajuk’s wher eabouts. Neve rtheless, she admitted that police never issued any war rant for her arr est, as she broke no la

ws prior to leaving B elar

us.
The tran s l at o r s cheduled for Nikolajuk’s merits hear ing failed to show, so a telephonic interpre ter— wh o s t ru g g led to keep up with Nikolajuk’s “ra mbling” answe rs—filled in. The I J repe atedly cautioned Nikolajuk to slow down and spe ak in “clear and short[ ] statements,” but she failed to heed these instructions. At the close of the hear ing, the I J orally denied all of Nikolajuk’s claims for relief, concluding that she wa s n ot cre dible. Alterna tively , the I J held t hat Nikol ajuk’s testimony , if cre dited, did not rise to the level of pe rsec ution on a protec ted g round.
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Nikolajuk v. Holder Nikolajuk appea led to the BIA, which upheld the I J ’s cre dibilit y finding s and its conclusion that she failed to prese nt a “nexus” betwee n her alleg ed harm and a statutorily protec ted g round. I t also reje cted Nikolajuk’s claimed prejudice resulting from the telephonic interpre tation. She timely petitioned this court for r eview.

I I

. A. Standard of

Review
“Where , as here , the BIA aff irms an I J ’s ruling and adds its own comments, we revie w both the I J ’s dec ision and the BI A’s additional rema

rks.” Lateef v. Holder , 683 F.3d 275, 279 (6th Cir. 2012) (alter ation and internal quotation marks omitted). We apply a substantial evidenc e standard to the BIA’s fac tual finding s, including its cre dibilit y assessment, reve rsing only if the evidenc e “not only supports a contra

ry conclusion, but indeed compe ls it.” Klawi tter v. INS , 970 F.2d 149, 152 (6th Cir. 1992). I n this post-REAL I D case , the I J could take into acc ount the totality of the circ umstances when making its cre dibilit y assessment. This includes: “the consistency betwee n the applicant’ s . . . written and oral statements
. . . and any inacc urac ies or falsehoods in such statements, without reg ard to whether an inconsistency , inacc urac y , or falsehood g oes to the h ea rt o f t h e applicant’ s claim.” 8 U.S.C. § 1158(b)( 1)(B )(iii); see also El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009).
B. A sy lum

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Nikolajuk v. Holder To qualify for asy

lum, an applicant must demonstrate that s h e fi ts 8 U.S.C. § 110 1 (a )( 4 2)(A) ’s definition of a ref ug ee: an alien who is unable or unwilling to return to their home country beca

use of perse cution or a well-founde d fear of perse cution on acc ount of rac e, relig ion, nationality , membership in a particula r social g roup, or political opinio n. 8 U.S.C. § 1158(b)( 1)(A)

. Proof of pa st persec ution raises a r ebuttable pr esumption of a well-founde d fea r of future perse cution. 8 C.F.R. § 208.13(b)( 1). First, we consider Nikolajuk’s challeng e to the BIA’s and I J ’s adver se cre dibilit y finding s. R ev i ew ing Nikolajuk’s application and testimony , the BIA noted numerous inconsistencies t h at diminis hed her cre dibilit y . For example, she testified that afte r the sexual assault, one police office r
war ned that no one would believe her if she repor ted the rape . Yet in her written aff idavit, she claimed that the office r threa tened to kill her if s h e t o l d any one about the assault. The BIA also noted that Nikolajuk g ave differ ent dates for when the police came to her room sear ching for Sasha and when she went to the hospital. Fur thermore , the BIA—thoug h g iving Nikolajuk the benef it of the doubt reg arding why she never repor ted the rape —explained that her claimed OB -GYN v isit “ra is[ ed] the question why the medical document [was] limit ed solely to [Nikol ajuk’s] kidney injury .” Nikolajuk argues that these inconsistencies resulted from translation err ors, but her hear ing testimony undermines this claim. S he answere d “no” to the questi on “ar e y ou having a hard time understanding the translator[? ]” and she fails to specify how t h e t ra n s lator misint erpr eted her testimony

. I n an y event, an alleg edly faulty translation leave s unanswe red the BIA’s question rega rd i n g Ni kolajuk’s undocumented OB -GYN visit. Moreove r, the I J did not have to cre dit her
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Nikolajuk v. Holder explanation over a rea sonable alternative. Singh v. Ashcroft , 3 9 8 F.3d 396, 402 (6th Cir. 2005). T h e ref ore, beca use substantial evidenc e supported the BIA’s cre dibil it y a s s e s s me n t, w e s e e n o r e a s o n to disturb its finding s.
Even acc epting her testimony as true, Nikolajuk’s story lacks a “nexus” betwee n her alleg ed perse cution and any of the statutorily protec ted g rounds. She corr ectly p o i n t s o u t t h at one such g round is a

n “imputed political belief,” but never theless fails to show that this a pplies to he r case . Thoug h emphasizing that Be larusian authorities regularly perse cute students who oppose the go v er nment, she admits that authorities never arr ested or abused her beca use of her person al involvement in such political matters. Thus, her claims fall short of establishing perse cution beca use of her own political leaning s, imputed or otherwise. Sangha v. INS , 103 F.3d 1482, 1487 (9th Cir. 1997) (finding that asy lum applicants cannot “esta blish that their persecution was ‘on account of’ po l i t i ca l o p i n ion by infere nce, unless the i nfer ence is one that is clea rly to be drawn from fac ts in evidenc e”)

. The incident in the dorm room bear s even less of a rela tionship to a protec ted g round, g iven that the police injured Nikolajuk beca use she interfe red wi t h h er boy friend’ s arr est. Thus, Nikolajuk’s “imput ed political opinion” argument is not well-take n, as she prese nts no evidenc e “fr om which it is rea sonable to believe that the har m wa s . . . motivated in part by an actua l or imputed protec ted g round.” See Lleshi v. Holder , 460 F. App’x 520, 525 (6th Cir. 2012) (finding no
nexus betwee n rape and protec t ed g round, wher e petitioner’s attacke r was the son of a local communist leade r, and petitioner belong ed to a g roup disfavore d by that party ) (citing Matter of

J-BN & S-M- , 24 I

. & N. Dec

. 208, 211 (B I A 2007)); see also Sokoli v. Holder , 458 F. App’x 493 (6th
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Nikolajuk v. Holder Cir. 2012) (same, wher e asy lum was based on alleg ed kidnapping and at tempted rape which petitioner attributed to her fathe r’s political ac tivity ). Next, Nikolajuk arg

ues that the law does not require her to show she would be “sing led out individually ,” provided she can demonstrate “a pattern or prac tice

. . . of perse cution” over a “g roup of per sons simi larly

situated to the applica

nt.” Fa ir enoug h. Yet her membership in s uch a g roup
rema ins unverifie d and, even if cre dited, she all ege s no fac ts sug g esting Be larusian police know about this aff

iliation. Although she does claim that her former boy friend was an active participa nt in a student g roup ch all eng ing the Be larusian g overnme nt, she expressly disavowed any persona l participa ti o n i n the g roup’s activities. (AR 259 (“I had nothing to do direc tly with this meeting [supporti ng the opposition’s candida te].”).) These fac ts, providing sufficie nt evidenc e for the BIA’s conclusions, do not compel re versa l.
C. W ithholding of Removal a nd CAT Relief Nikolajuk submits that the BIA’s denial of her applications for withholding of remova l and CAT relief lacke d evidentiar y support, compelling reve rsal. L ike the I J , the BI A hinge d its decision

on Nikolajuk’s failure to prese nt cre dible testimony or corr oborating evidenc e reg arding her alleg ed abuse. See 8 C.F.R. § 1208.16(b) (“The burden of proof is on the applican t fo r wi t h h o l d ing of

remova l under [t he I

NA] to establish that his or her life or fr ee d o m would be threa tened in the proposed country of remova l on acc ount of

. . . political opinion.”); id. § 1208.16(c) (2) (“The burden of proof is on the applicant for withholding of remova l under [t he CAT] to establish that it is more
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Nikolajuk v. Holder likely than not that he or she would be tortured if remove d to the proposed c ountry of removal.”). To merit withholding or remova l, an alien m u s t d em o nstrate a “cle ar probability ” of perse cution, which is a stricter standard than the “we ll-founded fea r” standard applicable to asylum applications. Ceraj v

. Mukase

y , 511 F.3d 583, 594 ( 6th Cir. 2007). Unable to c arr y the less demanding burden, Nikolajuk’s withholding of remova l and CAT-cla ims—based on the same fac ts and argument—also falter

. Id.

I I I

. For the fore g oing r easons, we DENY N ikolajuk’s petition for re view.

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