2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2005

Andrushkevich v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3541

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 

No. 04-3541

 

ALENA VLADIMIROVNA ANDRUSHKEVICH,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,*

BOARD OF IMMIGRATION APPEALS of the Executive

Office for Immigration Review of the U.S. Department of Justice,

Respondents

 (Caption amended pursuant to Rule 43(c), Fed. R. App. P.) *

 

Petition for Review of the Order

of the Board of Immigration Appeals

(A78 110 203)

 

Submitted Under Third Circuit LAR 34.1(a)

September 12, 2005

Before: SLOVITER, BARRY and SMITH, Circuit Judges

(Filed September 14, 2005)

 

OPINION
2

SLOVITER, Circuit Judge.

Alena Andrushkevich, a native and citizen of the Republic of Belarus, petitions for

review of the final decision of the Board of Immigration Appeals (“BIA”) affirming the

order of the Immigration Judge (“IJ”) directing petitioner’s removal and denying her

claim for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). This court has jurisdiction pursuant to 8 U.S.C. § 1252(a). For the

reasons stated below, we will deny the petition for review.

I.

Because the parties are familiar with the factual and procedural background of this

case, we refer only to those facts that are pertinent to our disposition. Andrushkevich

arrived at the San Ysidro, California Port of Entry on December 6, 1999, bearing no valid

entry document. When the immigration inspector asked her to state her country of

citizenship, Andrushkevich responded that she was a United States citizen. That same

day, she was interviewed by another immigration inspector who took a sworn statement

from her with the aid of an interpreter. In the statement, Andrushkevich claimed that her

relatives would kill her if she returned to Belarus because she “left a lot of debts” by

borrowing money from relatives and friends to secure passage to the United States. Id. at

303. In response to a question, she also stated that Belarusian authorities were not after

her. When asked if she meant to tell the inspector she was a United States citizen when

she said, “U.S.,” she answered, “Yes.” Id. at 303. The statement also bears a Certificate
 Effective March 2003, the Immigration and Naturalization 1

Service (“INS”) ceased to exist as an independent agency within

the Department of Justice, and its functions were transferred to the

Bureau of Citizenship and Immigration Services within the

Department of Homeland Security. The BIA remains within the

Department of Justice. Homeland Security Act of 2002, 6 U.S.C.

§§ 271, 291.

3

of Translation, signed by the translator, attesting that it was read back to Andrushkevich

in Russian, a language she understands.

Two weeks after entry, Andrushkevich, who was then in prison, was interviewed

by another immigration officer with her lawyer present. She was released from custody

two weeks thereafter and left California for New Jersey. The INS commenced removal 1

proceedings by filing a Notice to Appear (“NTA”), charging Andrushkevich as removable

under 8 U.S.C. § 1182(a)(6)(C)(ii) for misrepresenting herself as a United States citizen

and under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for not possessing valid entry documents.

In January 2001, Andrushkevich consulted a lawyer in Philadelphia. When the IJ

asked why she let almost a year elapse before seeking a lawyer, Andrushkevich responded

that she “had to have time to get back to [her]self, regain [her] composure literally.” App.

at 155.

On July 17, 2001, Andrushkevich applied for asylum, withholding of removal and

protection under the CAT, claiming persecution on account of political opinion. At a

hearing before the IJ beginning on November 12, 2002, Andrushkevich testified that the

immigration officer who interviewed her was rude, frightened her, and told her to sign the
4

statement without reading it back to her. She also claimed that she left Belarus because

authorities persecuted her based on her membership in Young Gromada, a branch of the

Belarus People’s Front, an opposition group.

Andrushkevich testified that as a member of Young Gromada, she attended some

fifteen demonstrations, citing three in particular in support of her application. She

claimed that at each of these three demonstrations spanning from July to October of 1999,

she was arrested, interrogated, and beaten. She claims that there were 10,000 people at

one of these demonstrations. She testified that despite the threats and abuse, she never

yielded to her interrogators.

After the protest in October, she received two summons to report to an

investigator. Allegedly fearing for her life and that of her parents, Andrushkevich fled

the country.

In addition to these events, Andrushkevich claimed that “the president’s people”

visited her seven times during that summer and fall. Id. at 185. They questioned her

parents about her activities, threatened to imprison her, send her to Chernobyl, or execute

her parents if she did not support the State.

On cross examination, Andrushkevich was asked why her affidavit did not

mention that her parents’ lives were threatened or that she was threatened with forced

labor at Chernobyl; her answer was vague and unresponsive. However, she did say that

the affidavit contained her entire story, and that it was read back to her in her native
5

language.

When the IJ asked her if she claimed to be a United States citizen, Andrushkevich

admitted answering “yes” when the officer asked her if she meant she was a United States

citizen, but responded that she meant to say she was heading to the U.S., not that she was

a citizen. Asked why she did not tell the inspector about being persecuted, she claimed it

was because the officer frightened her.

The IJ also asked her why she did not file her asylum application within a year of

her entry into the United States, and Andrushkevich told him that she had to undergo a

“rehabilitation process.” Id. at 224. She then stated that she did not have enough money

to hire an attorney to file an application.

Andrushkevich also provided an expert, Dr. Zaprudnik, to testify in support of her

application. He told the IJ about the harsh conditions in Belarus for people who oppose

the government. Dr. Zaprudnik did not know Andrushkevich, but stated that he believed

the government would keep a file on her based on what he read in her affidavit and that

he feared she would be arrested if she were returned.

Following the hearing, the IJ denied all claims for relief and found Andrushkevich

incredible and her application frivolous. On appeal, the BIA held that the IJ had erred in

finding that Andrushkevich filed a frivolous asylum application, but agreed with the IJ’s

other determinations. The BIA issued a final order denying petitioner’s claim for asylum,

withholding of removal and protection under the CAT.
6

II.

When the BIA conducts an independent analysis of the record, we review only the

BIA decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). Factual

determinations, such as an adverse finding of credibility or a determination that

Andrushkevich misrepresented herself as a United States citizen, are reviewed under the

substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)

(standard of review for determinations of asylum eligibility); Ateka v. Ashcroft, 384 F.3d

954, 957 (8th Cir. 2004) (according substantial evidence review to IJ determination that

Ateka made a false claim to U.S. citizenship). We can reverse only if a “reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

However, a court “reviews de novo the issue of whether [it has] jurisdiction to determine

what constitutes extraordinary circumstances for a late filed asylum petition.” Tarrawally

v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).

III.

The Immigration and Nationality Act (“INA”) provides that “[a]ny alien who

falsely represents, or has falsely represented, himself or herself to be a citizen of the

United States for any purpose or benefit” under any federal or state law is inadmissible. 8

U.S.C. § 1182(a)(6)(C)(ii).

At her entry interview, Andrushkevich admitted that she claimed to be a United

States citizen. At the hearing, she did not deny the statement, but then explained that she
7

actually meant she wanted to go to the United States, not that she was a citizen of the

United States. We need not dwell on this ground for removability because, as the

Government noted, Andrushkevich has conceded that she was removable under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), entry without possession of valid entry document, an issue she did

not challenge on appeal to the BIA or to this court.

IV.

We have generally counseled against putting too much weight on information

obtained from an interview conducted upon entry. See, e.g., Senathirajah v. INS, 157

F.3d 210, 217-18 (3d Cir. 1998). However, if the discrepancies between such an

interview and later testimony go to the heart of the claim, they can support an adverse

credibility finding. Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004).

Here, the discrepancies go to the heart of the matter: whether or not

Andrushkevich was persecuted by the Belarusian government. In her entry interview,

Andrushkevich not only failed even to mention that she was seeking political asylum, she

specifically said that the Belarusian authorities were not after her. At the hearing, she

claimed that the Belarusian government was after her and that she was persecuted for her

involvement in Young Gromada.

 Furthermore, unlike previous cases where this court refused to consider entry

interviews, Andrushkevich had the help of a translator, who signed a certificate saying he

read the document back to her. The BIA rejected Andrushkevich’s testimony that she 
8

was so frightened of the immigration officer that she could not even mention that she was

persecuted even though the officer specifically told her that she might not get another

chance to tell her story.

Because the discrepancies between the entry interview and her subsequent

testimony go to the heart of Andrushkevich’s claim and the BIA’s findings are supported

by specific cogent reasons, we conclude that the BIA’s adverse finding of credibility is

supported by substantial evidence.

V.

The BIA rejected petitioner’s application for asylum because it was not filed

within the required one-year period from arrival in this country. 8 U.S.C. §

1158(a)(2)(B). The one-year time limit to file asylum applications can be waived if the

Attorney General determines that an applicant has demonstrated changed circumstances,

or extraordinary circumstances relating to the delay in filing. 8 U.S.C. 1158(a)(2)(D). 

Significantly, Congress has expressly rejected judicial review of such determinations. 

See id. at § 1158(a)(3) (“No court shall have jurisdiction to review any determination of

the Attorney General under paragraph (2).”). Thus, in Tarrawally, we joined the Eighth,

Ninth, Tenth and Eleventh Circuits in holding that we lacked jurisdiction over

determinations made by the Attorney General under § 1158(a)(2). The “language of 8

U.S.C. § 1158(a)(3) clearly deprives us of jurisdiction to review an IJ’s determination that

an asylum petition was not filed within the one year limitations period, and that such
9

period was not tolled by extraordinary circumstances.” 338 F.3d at 185. Accordingly, we

lack jurisdiction to review the BIA’s denial of Andrushkevich’s asylum application. 

However, her claims for withholding of removal and protection under the CAT are not

subject to this jurisdictional bar, and we consider those claims next.

VI.

Andrushkevich would be entitled to withholding of removal only if she

demonstrated a clear probability of persecution if she were removed. Zubeda v. Ashcroft,

333 F.3d 463, 469 (3d Cir. 2003). Protection under the CAT requires an even greater

showing of proof. Tarrawally, 338 F.3d at 187. In light of the Board’s adverse credibility

finding, Andrushkevich has failed to provide substantial evidence to support her claims. 

Country reports alone will not make up for incredible testimony. See Tarrawally, 338

F.3d at 188 (rejecting petition even though state department reports described torture

practices because testimony was incredible, and Tarrawally did not offer evidence of his

involvement with opposition groups). We thus conclude that the BIA properly denied

withholding of removal and protection under the CAT.

VII.

For the above reasons, we will deny Andrushkevich’s petition for review.