IMG

- 034 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2546

___________ SVETLANA MIRONENKO , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________ On Petition fo r Review of an Order of the Board of Immigration Appeals (Agency No. A097

- 480

- 041 ) Immigration Judge: Honorable Charles M. Honeyman

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

February 22, 2012 Before: SLOVITER, GREENAWAY, JR., AND COWEN , Circuit Judges

(Opinion filed : February 23, 2012 )

___________ OPINION

___________ PER CURIAM Svetlana Mironenko, a citizen of Russia and a native of Ukr aine in the former Union of Soviet Socialist Republics , entered the United States using a temporary visa on March 3, 2000 , and did not leave when her visa expired. In 2003, she filed an application for asylum, withholding, and relief under the Convention Against Torture (“CAT”) based2

on her experiences as a Baptist in Russia and Ukraine. The Government charged her as removable for overstaying her visa, which she conceded. The Immigration Judge (“IJ ”) denied Mironenko’s applications for relief from

remov al

. The IJ denied the asylum and withholding application s on the basis of an adverse credibility finding and the conclusion that Mironenko had not adequately corroborated her claims. The IJ then held that Mironenko was not eligible for asylum in
any even t because the application was untimely filed (rejecting, in the process, on the basis of credibility concerns, Mironenko’s claim that, in February 2001, she met with, and paid, a person who represented that he would file an asylum application for her).
As suming the veracity of Mironenko’s claims, the IJ also held that Mironenko had not met the standard for CAT relief. Mironenko filed an appeal with the Board of Immigration Appeals (“BIA”). The BIA agreed with the IJ that Mironenko was statutorily inelig ible for asylum (and that no exceptional circumstance excused the untimely filing). The BIA also held that the adverse credibility finding, which it characterized as an alternative basis for the asylum denial and the basis for the denial of withholding, w as not clearly erroneous. The BIA further agreed with the IJ that Mironenko did not submit sufficient corroborative evidence. The BIA rejected Mironenko’s argument that the IJ did not consider the corroborative evidence that she did submit. The BIA also held that Mironenko had not shown that she was eligible for CAT relief.3

Mironenko presents a petition for review. She contends generally that she is entitled to asylum, withholding, and CAT relief . She claims that the BIA erred in affirming the IJ’s d ecision and did not provide her the individualized determination to which she was due

. Also, and m ore specifically, s he argues that the BIA erred in affirming the IJ’s negative credibility determination because the determination was not based on record ev idence and violated her right to due process. She also contends that the finding that she failed to corroborate her claims is not supported by the record and that the BIA e rred in finding that she failed to meet the extraordinary circumstance exception to the filing deadline.
T he Government opposes her petition, stating that we are without jurisdiction to review the determination that Mironenko’s failure to file a timely asylum application was not excused by extraordinary circumstances. The Government a ls o argues that no record evidence compels a conclusion different from those reached by the agency about Mironenko’s credibility. The Government contends that the agency cited specific and cogent reasons that go to the heart of her claim. The Government also states that the agency reasonably required corroboration and concluded that the failure to pr ovide corroboration undercut the claims. Further, the Government argues that the ruling on the CAT claim was correct. First, we define the scope of our jurisdiction. We have jurisdiction to review constitutional claims and questions of law but not factual or discretionary determinations concerning the timeliness of Mironenko’s asyl um application. See 8 U.S.C.4

§§ 1158(a)(3) & 1252(a)(2)(D); Sukwanpu tra v. Gonzales , 434 F.3d 627, 634

- 35 (3d Cir. 2006). In relation to the ruling that her application was not timely filed, Mironenko challenges two bases for the BIA’s r ejecti on of her claim that exceptional circumstances excused the late filing. However , these bases, an adverse credibility finding and th e conclusion that Mironenko could not corroborate that prior counsel existed or that she had any agreement with prior counsel to file an earlier asylum application , are factual determinations outside the purview of our review. Although she also protests that the BIA did not meaningfully review the entire record and ther eby deprived her of due process, we conclude that this claim is without merit based on the record before us.
We otherwise have jurisdict ion over the issues raised in Mironenko’s petition pursuant to 8 U.S.C. § 1252(a). We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales , 405 F.3d 150, 155 (3d Cir. 2005). We consider questions of law de novo

. See Gerbier v. Holmes , 280 F.3d 297, 302 n.2 (3d Cir. 2002). We review factual findings, like an adverse credibility determinat ion, for substantial evidence. See Butt v. Gonzales , 429 F.3d 430, 433 (3d Cir. 2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony . . . in view of the background evidence of country conditions.” Chen v. Ashcroft , 376 F.3d 215, 223 (3d Cir. 2004). We afford an adverse credibility5

finding substantial deference, so long as the finding is supported by sufficient, cogent

reasons. See Butt , 429 F.3d at 434. After reviewing the matter, we cannot say that the record compels a conclusion different from the one reached by the agency in regards to the credibility determination. In her affidavit, Mironenko related an account of nine attacks betw een 1982 and 1999. The first occurred when she, at 15 years of age , was returning from worship. Describing it in her affidavit, she stated that she and unidentified others were attacked by a group

. 1 She suffered a blow to the back of her head, which res ulted in a concussion and hospitalization. In her testimony, however , she added information to her account, stating that the attackers made several statements during the attacks, including, “Why are you singing those songs? Why are you wearing those hank erchiefs? You have to change your religion .” R. 250. The IJ reasoned that this inconsistency goes to the heart of Mironenko’s claim 2 because the added statements were an attempt to establish a nexus between the attack and a protected ground. The second attack reported by Mironenko occurred on the day of her baptism. In her affidavit, she described screaming and cursing from the riverbank of the river where

1 In her affidavit, she originally described these persons as a group of nationalists wearing khakis and armbands, but later filed a correction to specify that the group consisted of persons who harassed Bapt ists and Evangelical Christians. (She explained that someone who helped her with her affidavit had urged her to exaggerate.)

2 2 In a pre

- REAL

- ID Act case, which this is, the discrepancies identified by the agency must go to the heart of the claim to sup port the adverse credibility determination. See Gao v. Ashcroft , 299 F. 3d 266, 272 ( 3d Cir. 2002).6

the ceremony was taking place, followed by an attack that led to the death of three
persons also being christened (she reported that the river ran red with blood). Also, in her affidavit, she reported the date as June 30, 1985. When she testified, she first descr ibed the baptism as occurring in June 1989 (later, she changed her te stimony to st ate that it was July 13 , then June 13, then June 30, 1985). Also, although she mostly described the baptism as occurring in Shostka, Ukraine, she responded to a question asking whether she knew the persons killed with the response, “Not very well. You se e in the city of Murmansk [interruption for the spelling of Murmansk] you [sic] talking about a city. Murmansk [in Russia] is a city. It’s a big place.” R. 2 53

- 54. After her counsel prompted her that the baptism was in Shostka, the IJ asked where the e vent occurred, to which Mironenko responded “Shostka. Shostka. You see Sh oska also has prayer houses.” Id. at 254. Also relating to her baptism, she did not state, in her affidavit, that she was hit or hurt by the assailants . However, on direct examinat ion at her hearing, directly after testifying that young men came into the water with batons , she stated that she was hit (although she also said that she did not sustain an injury). On cross

- examination, she clarified that she was hit with a hand but “su stained no injuries whatsoever.” R. 316. The IJ also pointed to inconsistencies in Mironenko’s account s of two other attack s . On direct examination, Mironenko stated that , in 1995, she and her husband were walking home from a prayer house when the y were attacked by four or five individuals wielding sticks and batons

. She testified that “[s]imply, [the attackers] did not say anything. All they did [was] use their batons or sticks.” R. 264. However, on7

cross - examination she said that the assailan ts said something to them during the incident (and that she did not recall testifying to the contrary )

. R. 359. In relation to an attack on New Year’s Eve in 1996, Mironenko testified that assailants who broke into her home where she was celebrating with friends told her and her friends to change their religion, and said “ [u] p to a point that you change your religion, we will be after you, we will be literally persecuting you.” R. 94. However, in her affidavit, Mironenko did not include information abou t any statements made by the intruders, which, as the IJ noted, relate to the heart of Mironenko’s claim because they provide a nexus between the attack and the protected ground. Also, d espite saying that she had told the IJ everything, R. 379, Mironenk o omitted two incidents from her testimony that she had included in her affidavit. The IJ noted that the incidents omitted were not insignificant parts of her claim of persecution, as one incident resulted in fractured ribs and a month’s absence from work and the other resulted in her being hospitalized for a week. Furthermore, Mironenko offered a shifting story about why it took her longer than her husband to leave Russia, first stating that it was a visa problem, then claiming it was a passport issue, and then finally explaining that it took time to reach an agreement with her first husband about the care of their children. Also, as the IJ detailed, Mironenko also presented different accounts of how she completed the asylum application she filed in
20 03.8

Given the inconsistencies and omissions the IJ found, there is a basis in the record for the adverse credibility determination. The BIA did not err in affirming the finding. Despite her claim to the contrary, n either the IJ’s no r the BIA’s considera tion of the matter violated Mironenko’s right to due process. The BIA also affirmed the IJ’s determination that Mironenko had not submitted sufficient corroborative evidence. In considering whether corroboration was properly required, we consider wheth er the agency has (1) identified facts for which it is reasonable to expect corroboration; (2) inquired as to whether the applicant has provided information or corroboration in the record; and (3) analyzed whether the applicant has adequately explained his or her failure to do so. See Abdulai v. Ashcroft , 239 F.3d 542, 554 (3d Cir. 2001). The agency chose facts for which corroboration was reasonably expected. The IJ looked for affidavits from individuals with knowledge of the attacks Mironenko described. In doing so, it may have been unreasonable to look for an affidavit from one of Mironenko’s sons, who was only about 8 to 13 at the relevant times, although Mironenko did testify that he r son was aware of at least one hospitalization and that she keeps i n regular contact with him . However, the general analysis, including the conclusion that Mironenko did not provide sufficient corroborating evidence to overcome the adverse credibility finding, is supported by the record

. Although the IJ accepted Mirone nko’s statement that some of the attacks occurred too long ago to find witnesses, the IJ expected Mironenko to submit evidence from her parents about the attacks. In doing so, the IJ did not ignore the affidavit from her mother9

that Mironenko produced, as Mironenko argues. The IJ (and the BIA) noted it, but found it too general and lacking cor ro boration of specific attacks. Indeed, t he affidavit is very general (stating merely that Mironenko is a Baptist who was “water

- baptized” and that her family has “ constantly been persecuted”). R. 499. Mironenko did not provide an affidavit from her father, whom she had identified as reporting an early attack to the police. The agency considered, but rejected Mironenko’s e xplanation, which essentially

was that she did not know to procure that information and that her parents live together, so she did not know she would need statements from both. As the BIA noted, her claim that she did not know that she needed to procure corroborating evidence is undermined by the facts that she did ask her mother for an affidavit and that the IJ had discussed the need for corroboration at an earlier hearing, R. 209

- 12. Mironenko contends that the agency did not properly credit her husband’s affidavit, which included similar acco unts of three attacks. She contends that the treatment of the affidavit was akin to the impermissible use of the “missing witness rule” that informed an a dverse credibility determination in Tabaku v. Gonzales , 425 F.3d 417,
421

- 22 (7th Cir. 2005)

. Howeve r, in this case, unlike in Tabaku , the IJ did not base the adverse credibility determination in part on her husband’s failur e to testify. As the BIA explained, the IJ merely gave limited weight to the document. The IJ also looked for medical evidenc e that would verify Mironenko’s claims , as Mironenko stated that she had gone to the hospital several times for treatment after attacks . Mironenko stated t hat her mother failed to get any hospital record s, and her son10

refused to try to obtain them. The I J noted that the mother’s affidavit included no description of any efforts to get the records. After considering why Mironenko did not try to obtain them herself, the IJ rejected Mironenko’ s statement that she did not because it is “impossible” to get the truth “over there

. ” The IJ noted that Mironenko could not really believe that if her other assertion, that she requested family membe rs to get the records, was true

. Mironenko claims that the medical evidence that she provided was not properly evaluated

. However, it was considered; it was given limited weight because it was not contemporaneous with her injuries and it did not describe all the injuries she purported to have suffered (although the IJ and BIA noted that it confirmed one injury, a broken ar m). The IJ also considered that Mironenko had not produced any police records. Asked about their absence, Mir onenko offered that she had no records because she did not know she needed them and that she and her husband “were running.” However, as noted a bove, there is evidence she was apprised of the need for corroboration. Also, there was a gap of years between the last incident in Russia and her departure for the United States. In short, the three part analysis required by Abdulai was pr operly performed. Furthermore, as noted above , the adverse credibility determination finds suppo rt in the record. Accordingly, the BIA did not err in denying Mironenko’s withholding claim based on the adverse credibility finding and the lack of corrobora tion. Also, we conclude that the BIA did not err in concluding that Mironenko did not meet the standard for CAT relief. Mironenko did not establish that it is more likely than not that she will be tortured11

upon her return to Russia. For these reasons, w e will deny Mironenko’s petition for review.