                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2004

Lialko v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3041




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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 03-3041


                        GALINA LIALKO

                                     Petitioner

                                v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES

                                     Respondent




                Petition for Review of an Order of
                the Board of Immigration Appeals
                    (Agency No. A70 901 676)




           Submitted Under Third Circuit L.A.R. 34.1(a)
                      September 24, 2004

      Before: McKee , Aldisert and Greenberg, Circuit Judges.

                     (Filed: October 7, 2004)




                   OPINION OF THE COURT




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ALDISERT, Circuit Judge.

       Petitioner Galina Lialko, a citizen of the Ukraine, seeks review of an order of the

Board of Immigration Appeals (“BIA”) which affirmed the Immigration Judge’s (“IJ’s”)

denial of her request for asylum and withholding of deportation. We must determine

whether substantial evidence supports the BIA’s determination. The BIA relied on the

IJ’s finding that Lialko was not credible and the IJ’s identification of significant

omissions, contradictions and implausibilities in Lialko’s testimony and between her

testimony and her asylum application.

       If we find that the credibility determination was not supported by substantial

evidence we are required to remand the proceedings to the BIA for further consideration

of her eligibility for asylum and withholding of deportation. INS v. Ventura, 537 U.S. 12

(2002).

       Lialko entered the United States on April 7, 1990, as a visitor for pleasure with

authorization to remain until May 7, 1992. She overstayed her authorization and on

November 20, 1996 the former INS issued an order to show cause, charging her with

being subject to deportation. The IJ denied her application for asylum and withholding,

as well as her request for voluntary departure and ordered her deported to the Ukraine.

       Because we write only for the parties who are familiar with the facts and the entire

administrative proceedings, we will discuss only the legal issue presented.




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                                             I.

       Adverse credibility findings are reviewed under the highly deferential substantial

evidence standard. Mulanga v. Ashcroft 349 F.3d 123, 131 (3d Cir. 2003). Substantial

evidence is lacking only in those cases where the asylum applicant can establish that

evidence of record was “so compelling that no reasonable fact finder could [have] fail[ed]

to find” in her favor. INS v. Elias Zacarias, 502 U.S. 478, 481 n.1 (1992).

       An asylum applicant bears the burden of proving eligibility for asylum. 8 C.F.R. §

1208.13(a) (2003); see also Gao, 299 F.3d at 272. In order for an asylum applicant to

demonstrate that she is a refugee, the applicant must present specific facts demonstrating

that she suffered past persecution or has a well-founded fear of future persecution

because of one of the categories protected by the statute. 8 U.S.C. § 1101(a)(42)(a); see

also Elias Zacarias, 502 U.S. at 482-483.

       To determine whether an applicant is eligible for asylum, the IJ must consider the

applicant’s subjective mental state along with the background of circumstances prevailing

in the applicant’s home country. Generally, extrinsic evidence of the conditions in the

applicant’s country is presented. This evidence can be used to assess the objective

reasonableness of the applicant’s subjective fears and to determine whether the

applicant’s testimony is reliable.

       Here, there was substantial evidence to support the BIA’s determination. The BIA

affirmed the IJ’s denial of Lialko’s request for asylum and withholding of deportation.



                                             3
The IJ determined that Lialko’s entire testimony, particularly the rape, was “totally

incredible, totally irrational, and totally implausible.” (R. at 141.) Alternatively, the IJ

found that Lialko had failed to establish that she had suffered from past persecution or

that there was any likelihood that she would suffer future persecution.

       The IJ primarily found Lialko’s testimony “incredible, irrational and implausible”

because of her failure to mention an alleged rape that formed the heart of her 1999

application for asylum. Lialko completed an application for asylum in 1993,

accompanied by an affidavit that did not mention an alleged rape in 1989. Instead, Lialko

testified that she was beaten severely by three members of the Rukh, an anti-Semitic

organization, and was bedridden for more than a week. She identified her nemesis as a

“guy” who was a member of the Rukh organization. Before the IJ she prepared another

affidavit that disclosed that one of the alleged rapists was her boss, Sasha. She stated that

she had not mentioned the alleged rape earlier because she was emotionally scarred. This

contradicts Lialko’s earlier testimony that she had not mentioned the rape because of

alleged threats from Sasha.

       The IJ concluded that the belated revelation of this important, and if true

memorable, information, casts fatal doubts on her testimony. These allegations

comprised the “heart” of Lialko’s asylum claim. Moreover, the IJ noted that Lialko’s

purported corroborating evidence, the hospital report, contained no report of a rape, and

instead stated that Lialko was beaten up near her apartment. Similarly, the police report



                                               4
filed after the assault did not mention a rape.

       The IJ also found that Lialko had failed to establish that she had suffered from past

persecution or that there was any likelihood that she would suffer future persecution.

Lialko asserted that she had been and will be persecuted in the Ukraine on the basis of her

Jewish background. She stated that she was identified as Jewish on her internal passport,

but was unable to produce the passport as it had allegedly been taken away from her. She

presented a birth certificate that set forth nationalities of her mother (Jewish) and father

(Ukranian) but did not identify Lialko’s own nationality.

       Lialko testified that she had been persecuted for her Jewish background both at

school and at work. She stated that she got lower grades in school because she was

Jewish, although she provided no evidence to support this. Lialko studied at the technical

facility for four years, received a degree as a radio engineer and was thereafter assigned to

a government owned plant that made parts for bombs and tanks.

       Lialko testified that on her first day at work she was approached by her boss,

Sasha, who told her he would like her to register with the union, which he said was

mandatory for all employees, and that he was a member of the Rukh. Lialko testified that

she told Sasha “I am half Jew” and have “no desire to participate in any organization.”

The IJ questioned her credibility, stating that “[i]t is implausible to the Court that the

respondent would offer the information that she was a Jew to an individual, who, first of

all, was her boss, and second of all, identified himself as a member of the Rukh, this anti-



                                               5
Semite organization.” (R. at 149.) Lialko testified that after she identified herself as

Jewish, people began to mistreat her and called her anti-Semitic names.

       Lialko further testified that Sasha invited her to a Rukh meeting which Lialko

attended. The IJ found it implausible that “Sasha, an anti-Jew, obviously, by his

membership in the Rukh, would want the respondent, a Jew, to join the group and join the

meeting, and that the respondent, knowing what the Rukh was all about, would go there

in the first place.” (R. at 151.)

       The above inconsistencies, inter alia, led the IJ to seriously question Lialko’s

credibility. The IJ believed Lialko “intentionally tried to deceive the Court.” (Id. at 159.)

There is substantial evidence to support the IJ’s determination and the BIA’s affirmation

of the IJ’s determination.

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the petition for review of an order of the

BIA will be denied.




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