                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4232




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4232


                  TATYANA PARFENOVA; LIYA AKHMADOVA,
                                        Petitioners

                                            v.

                             ATTORNEY GENERAL USA,
                                           Respondent


                    PETITION FOR REVIEW OF A DECISION OF
                     THE BOARD OF IMMIGRATION APPEALS
                             Agency No. A77-844-520
                          Immigration Judge: R. K. Malloy


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 8, 2008


         Before: BARRY, STAPLETON, Circuit Judges, and RESTANI,* Judge

                              (Opinion Filed: June 6, 2008)


                                       OPINION




   *
      Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
BARRY, Circuit Judge

       Petitioner Tatyana Parfenova is an ethnic Russian and a native of Azerbaijan; she

is also a member of the Russian Orthodox Christian church. Parfenova sought asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”) on her

own behalf and on behalf of her daughter on the grounds that they were persecuted in

Azerbaijan because of Parfenova’s Russian ethnicity, her practice of Christianity, her

marriage to a Muslim man, and her involvement with a humanitarian group that spoke out

against ethnic strife between Azerbaijanis and Russians. Parfenova petitions for review

of an order of the Board of Immigration Appeals (“BIA”) that affirmed a decision of an

immigration judge (“IJ”) denying her claims for relief. For the following reasons, we will

deny the petition.1

                                             I.

       We have jurisdiction to review a final order of removal under 8 U.S.C. §

1252(a)(1). Where, as here, the BIA affirms the IJ’s holding without opinion, we review

the opinion of the IJ. Szehinskyj v. Atty. Gen., 432 F.3d 253, 254-55 (3d Cir. 2005). We

review an adverse credibility determination for substantial evidence. Under this standard,

an adverse credibility finding “‘can only be reversed if the evidence is such that a

reasonable factfinder would be compelled to conclude otherwise.’” Myat Thu v. Atty.

Gen., 510 F.3d 405, 412 (3d Cir. 2007) (quoting Chavarria v. Gonzalez, 446 F.3d 508,

   1
     Because we write solely for the parties, we discuss only those facts relevant to our
analysis.

                                             2
515 (3d Cir. 2006)).

                                             II.

       The Attorney General may grant asylum to an alien who demonstrates that he or

she is a “refugee,” see 8 U.S.C. § 1158(b), that is, an alien unable to return to his or her

country of nationality “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion,” id. § 1101(a)(42)(A); Myat Thu, 510 F.3d at 412-13. An alien seeking relief in

the form of withholding of removal bears the burden of demonstrating that it is more

likely than not that his or her life or freedom would be threatened upon return to his or her

home country on account of race, religion, nationality, membership in a particular social

group, or political opinion. Kaita v. Atty. Gen., 522 F.3d 288, 296 (3d Cir. 2008). An

alien’s demonstration of past persecution on account of one of the five statutorily-

protected grounds creates a rebuttable presumption of future persecution. 8 C.F.R. §

1208.16(b)(1)(i).2

                                             III.

       In her asylum application, Parfenova sought relief based on persecution because of

her ethnicity, her religion, and her marriage to a Muslim. She reaffirmed these bases for

relief during her “Assessment to Refer” before an immigration officer. About two weeks



   2
     Parfenova does not argue on appeal that the IJ erred in denying her CAT claim. That
claim, consequently, has been waived. Abdul-Akbar v. McKelvie, 239 F.3d 307, 316 n.2
(3d Cir. 2001) (en banc).

                                              3
prior to her hearing before the IJ, however, Parfenova submitted, among other things, an

affidavit in which she (1) detailed additional acts of persecution that she had not

previously mentioned and (2) explained that she was also persecuted by Azerbaijani

authorities on account of her membership in a political organization that sought to quell

the conflict between Russians and Azerbaijanis.

       At the hearing, Parfenova testified that her later affidavit accurately and

completely told her entire story. To that end, she sought to explain why she failed to raise

all of her arguments from the start. She testified that the Armenian friend who had

prepared her I-589 for her advised her not to claim that she had been ever arrested

because “they don’t like it when you’re being apprehended by police” and that she did not

need to explain her participation in a political group because she was not “officially

registered” in any such group. (J.A. 110.) Parfenova did not, however, offer her friend as

a witness, nor did she offer any other evidence that substantiated her claim that the friend

had advised her not to include these claims in her application.

       The IJ denied Parfenova relief primarily because she believed that Parfenova’s

last-minute claims undercut the reliability of her testimony and her application generally.

The IJ’s decision is supported by substantial evidence. The differences between the

claims Parfenova made in her original application and those she made in her later

affidavit, differences that were material, served as a reasonable basis for the IJ to doubt

the veracity of those claims and Parfenova’s credibility generally. Indeed, we have



                                              4
recognized that it is reasonable for an IJ to make an adverse credibility determination

where a petitioner, at some later stage of the proceedings, alters the claims he or she

originally made in an asylum application and then attempts to explain the earlier

omissions by resting responsibility for the contents of the application on the person who

prepared it. Xie v. Ashcroft, 359 F.3d 239, 245 (3d Cir. 2004) (denying petition where

substantial evidence supported IJ’s determination that he would “not buy into an

individual trying to put blame on either an attorney or a travel agency or anyone else in

the completion of the I-589 as a scapegoat to avoid being found incredible because of

contradictions and a conflict between the testimony given and the documentary evidence

presented”). In sum, this is not a case in which a reasonable factfinder would be

compelled to conclude that Parfenova’s claims were credible and that relief should have

been granted. See Myat Thu, 510 F.3d at 412.

                                            IV.

       We will deny the petition for review.
