               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0274n.06

                                          No. 15-4168

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                        FILED
                                                                     May 20, 2016
YURI ZAVADA,                                    )                DEBORAH S. HUNT, Clerk
                                                )
        Petitioner,                             )         ON PETITION FOR REVIEW
                                                )         OF A FINAL ORDER OF THE
v.                                              )         BOARD OF IMMIGRATION
                                                )         APPEALS
LORETTA LYNCH, United States Attorney           )
General,                                        )
                                                )                  OPINION
        Respondent.                             )
                                                )


Before: MOORE, SUTTON, and DONALD, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Petitioner Yuri Zavada, a citizen of

Ukraine, petitions for review of a Board of Immigration Appeals (“BIA”) decision denying his

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

Torture (“CAT”).      Zavada contends that he was beaten in Ukraine because of his sexual

orientation, and that he fears future bodily harm if he were to return. The Immigration Judge

(“IJ”) denied Zavada’s application because it found Zavada not credible, and the BIA affirmed

this determination. Zavada now argues that the BIA failed to consider his application under the

appropriate standard and that the BIA’s credibility determination is not supported by substantial

evidence. For the reasons stated below, we DENY Zavada’s petition for review.
No. 15-4168
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                                      I. BACKGROUND

       On July 25, 2004, Zavada attempted to enter the United States through Chicago O’Hare

International Airport using a fake passport. See Administrative Record (“A.R.”) at 888–90

(Airport Interview at 1–3). An agent with the Immigration and Naturalization Service (“INS”)

interviewed Zavada at the airport. See id. Zavada told the INS agent that his passport was

fraudulent and that he entered the United States “to live here and work.” Id. at 889 (Airport

Interview at 2). Zavada indicated that he did not “have problems in” Ukraine and that he was

“not afraid” of returning, though he did not “want to go there anymore.” Id. at 891 (Jurat for

Record of Sworn Statement). Zavada was served with a Notice to Appear on August 12, 2004.

Id. at 914 (Notice to Appear). Through counsel, Zavada conceded removability to an IJ on

August 26, 2004, and indicated his intent to seek asylum. Id. at 211 (8/26/04 H’rg Tr. at 3).

       Zavada submitted an asylum application on October 21, 2004. Id. at 849 (2004 Form I-

589). In his application, Zavada explained that he is gay and that he “must go into the military

for two years.” Id. at 853 (2004 Form I-589 at 6). Because the Ukranian “military hates

homosexuals and engages in patterns of torture, beatings, humiliation, prison and death against

any known homosexual,” Zavada indicated that he was “very afraid for [his] well-being.” Id.;

see also id. at 857 (2004 Form I-589 at 11). On March 29, 2007, Zavada filed a supplement to

his original asylum application.     Id. at 688, 695 (2007 Form I-589 at 1, 8).          Zavada’s

supplemental application asserted that he “was beaten several times in Ukraine . . . because of

[his] sexual orientation which is not accepted in the Ukraine and the government views



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homosexuals as lesser persons so they won’t help us.” Id. at 692 (2007 Form I-589 at 5).

Zavada further explained that he feared “[b]eatings, even death” if he were to return to the

Ukraine. Id. at 692–93 (2007 Form I-589 at 5–6).

       On March 23, 2011, Zavada testified before the IJ at his merits hearing. See id. at 267

(03/23/11 H’rg Tr. at 52). Zavada explained that he came to the United States because his “life

was in danger in Ukraine” due to his sexual orientation. Id. at 267–68 (03/23/11 H’rg Tr. at 52–

53). According to Zavada, in 2001, two friends “started beating” him after they witnessed

Zavada kissing his partner in a park. Id. at 268–69 (03/23/11 H’rg Tr. at 53–54). Following the

attack, Zavada fled home, but his attackers followed him and “started throwing stones” at his

windows and continued to call him slurs. Id. at 269 (03/23/11 H’rg Tr. at 54). Zavada did not

report this incident to the police because he was afraid that the police were going to beat him. Id.

at 270–71 (03/23/11 H’rg Tr. at 55–56). The next day, “eight or [ten] people” were outside of

Zavada’s house; when Zavada approached, “they attacked [him] rapidly” until Zavada lost

consciousness. Id. at 271 (03/23/11 H’rg Tr. at 56). Once Zavada regained consciousness, his

attackers swore that, because of Zavada’s sexual orientation, they were “going to beat [Zavada]

up every time” that they saw him. Id. at 272 (03/23/11 H’rg Tr. at 57). Zavada also testified to

another beating that he received when he attempted to return to school; this resulted in his

mother arranging for him to take his exams separately from other students. Id. at 273–74

(03/23/11 H’rg Tr. at 58–59).




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       Following high school, Zavada moved to the city of Lutsk in order to attend university.

Id. at 274 (03/23/11 H’rg Tr. at 59). During his third year of school, two students from his home

town enrolled in the university; according to Zavada, these students beat Zavada up and revealed

his sexual orientation to others. Id. at 275–76 (03/23/11 H’rg Tr. at 60–61). Zavada “was forced

to leave the university,” prompting his mother to borrow money and obtain false documents so

that Zavada could enter the United States. Id. at 276–77 (03/23/11 H’rg Tr. at 61–62).

       On cross-examination, the government asked Zavada why he did not mention in his first

application for asylum being attacked, but only described his fear of entering the Ukranian

military.   Id. at 302–03 (03/23/11 H’rg Tr. at 87–88).        Zavada testified that he “didn’t

understand” his prior attorney and that it was this prior attorney that told Zavada “something

about army and stuff.” Id. Zavada explained that he “wouldn’t serve in the army anyway”

because his mother had paid for fake medical records to indicate that Zavada had a medical

illness. Id. at 303, 328 (03/23/11 H’rg Tr. at 88, 113).

       At the close of testimony, the IJ scheduled another hearing so that Zavada would have the

opportunity to obtain additional corroboration and testimony. The IJ indicated his concerns

about Zavada’s application, including the discrepancies between Zavada’s first application and

his supplement; the IJ stated that Zavada “may want to explain these implausible aspects and

incons[istencies] at the next hearing.” Id. at 360–63 (03/23/11 H’rg Tr. at 145–48).

       Zavada testified again on October 19, 2011. See id. at 402 (10/19/11 H’rg Tr. at 186).

Zavada explained why he first stated during his airport interview that he was not scared to return



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to Ukraine; according to Zavada, “[t]he person that helped [him] to come to the U.S. told

[Zavada]” not to be afraid because even if Zavada were sent back to Ukraine, this person would

“find a way to send [Zavada] back to the U.S. again.” Id. at 428 (10/19/11 H’rg Tr. at 212).

Zavada also testified that it was his first attorney who told him about the Ukranian military, and

that his first attorney told Zavada that “his task [was] to get [Zavada] out of prison as soon as

possible.” Id. at 434 (10/19/11 H’rg Tr. at 218). According to Zavada, his first attorney told him

that “the fact that I’m gay, it’s not enough.” Id. at 435 (10/19/11 H’rg Tr. at 219).

       The IJ asked Zavada, “I think you just told me that [your lawyer] told you that he would

put in your asylum application that you were afraid of getting tortured in the military in order to

facilitate or make it easier for you to get out of an Immigration jail.” Id. at 434 (10/19/11 H’rg

Tr. at 218). Zavada answered, “Yes. That’s all his idea. I didn’t tell him any of this.” Id.

Zavada explained that he did not speak out against his lawyer’s lie because he was “shocked”

and “in prison.” Id. Zavada insisted that he “didn’t know that [his lawyer was] going to

emphasize this army thing,” and that he himself knew that he would not enter military service.

Id. at 435 (10/19/11 H’rg Tr. at 219).

       Two additional witnesses testified at Zavada’s hearing: his friend, Steven Shaw, and his

ex-boyfriend, Steven Palmer. See id. at 340 (3/23/11 H’rg Tr. at 125); id. at 383 (10/19/11 H’rg

Tr. at 167). Both testified regarding Zavada’s sexual orientation and that Zavada had mentioned

to them that he suffered beatings while living in Ukraine. See, e.g., id. at 348 (3/23/11 H’rg Tr.

at 133); id. at 385, 391 (10/19/11 H’rg Tr. at 169, 175).



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       The IJ denied Zavada’s application on December 16, 2011. Id. at 47 (IJ Dec. at 3). The

IJ concluded that Zavada “has told so many inconsistencies and his claim has shifted so much

. . . that the Court finds that the respondent has not proffered any credible evidence to, in fact,

demonstrate that he is gay.” Id. at 113 (IJ Dec. at 69). “[E]ven if he has,” the IJ continued,

“there are so many inconsistencies with respect to the development of his story . . . that the

respondent has not demonstrated that he has ever suffered in the Ukraine because of any sexual

orientation.” Id. The IJ concluded that Zavada “made up each and every one of these beatings

out of a plot” and that he had “filed a frivolous application.” Id. at 116 (IJ Dec. at 72).

       Zavada appealed to the BIA and, on September 26, 2014, the BIA affirmed the IJ’s denial

of Zavada’s application but reversed the IJ’s finding of frivolousness. Id. at 24–25 (9/26/14 BIA

Op. at 1–2).    The BIA found “no clear error in the Immigration Judge’s finding that the

respondent was not credible,” citing evidence that Zavada “embellished his claim at several

important stages in his removal proceedings.” Id. at 24 (9/26/14 BIA Op. at 1). Specifically, the

BIA cited the inconsistencies between Zavada’s statement during his airport interview that he

was “not afraid” of returning to Ukraine, his first asylum application which provided “for the

first time that [Zavada] feared compulsory military service,” and his later supplemental

application—submitted “approximately two and [a] half years later”—which described Zavada’s

experience being beaten. Id. at 24–25 (9/26/14 BIA Op. at 1–2). The BIA reversed the IJ’s

frivolousness finding, however, rejecting the IJ’s wholly unfounded skepticism towards Zavada’s

“status as a homosexual.” Id. at 25 (9/26/14 BIA Op. at 2).



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       Zavada petitioned our court for review in 2014, and the Attorney General moved to

remand to the BIA “for the BIA to clarify whether it evaluated the IJ’s credibility finding under

the proper standard.” Id. at 17 (5/14/15 Sixth Cir. Order at 2). We granted the unopposed

motion to remand on May 14, 2015. Id. On remand, the BIA clarified that, because Zavada

submitted his initial application on October 21, 2004, the more stringent credibility standards of

the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, did not apply. Id. at 3 (10/13/15

BIA Op. at 1). The BIA then evaluated Zavada’s application under pre-REAL ID Act standards

and dismissed Zavada’s appeal. Id. The BIA again discussed the inconsistencies between

Zavada’s initial application and his later supplement and concluded that the IJ’s credibility

determination was not clearly erroneous. Id. at 4 (10/13/15 BIA Op. at 2). The BIA denied each

of Zavada’s claims, see id., and Zavada now petitions for review.

                                        II. ANALYSIS

A. Standard of Review

       Where, as here, “the BIA reviews the immigration judge’s decision and issues a separate

opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s

decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.

2009). We review the IJ’s decision “[t]o the extent the BIA adopted the immigration judge’s

reasoning.” Id. Findings of fact are reviewed under the substantial-evidence standard. Mostafa

v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005). Under this standard, “findings of fact are

‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’”



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Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).

“Questions of law are reviewed de novo.” Khalili, 557 F.3d at 435.

B. Asylum Claim

       Zavada first argues that the BIA erred in denying his claim for asylum. Under the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(b)(1), the Attorney General may

“grant asylum to those applicants who qualify as ‘refugees.’” Mapouya v. Gonzales, 487 F.3d

396, 406 (6th Cir. 2007). The INA defines a “refugee” as an individual “who is unable or

unwilling to return to” his or her home country “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.” 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of establishing his

or her status as a refugee. § 1158(b)(1)(B)(i). “The testimony of the applicant, if credible, may

be sufficient to sustain the burden of proof without corroboration,” and “[a]ccordingly, a

credibility determination forms the initial consideration in an IJ’s asylum claims analysis.”

Mapouya, 487 F.3d at 406.

       The BIA held that the record supported the IJ’s credibility determination. See A.R. at 3

(10/13/15 BIA Op. at 1). “[A]n adverse credibility determination is treated as a finding or

conclusion of fact,” and thus we review it under the substantial-evidence standard. Mapouya,

487 F.3d at 406. Because Zavada submitted his application for asylum on October 21, 2004, see

A.R. at 849 (2004 Form I-589), his application is not subject to the provisions of the REAL ID

Act of 2005. See Abdurakhmanov v. Holder, 735 F.3d 341, 345 n.3 (6th Cir. 2012). Under pre-



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REAL ID Act credibility standards, “[a]n immigration judge’s conclusion must be supported by

specific reasons and must be based upon issues that go to the heart of the applicant’s claim. In

other words, if discrepancies cannot be viewed as attempts by the applicant to enhance his claims

of persecution, they have no bearing on credibility.” Id. at 345–46 (internal quotation marks

omitted).

       Zavada argues that the BIA erred in its credibility determination because, on remand, the

BIA failed to evaluate appropriately Zavada’s credibility under the pre-REAL ID Act standards.

Pet’r Br. at 8. We disagree. The BIA addressed the pre-REAL ID Act standard applicable to

Zavada’s claim and noted that it was “[r]econsidering only the material discrepancies in

[Zavada’s] testimony.” A.R. at 3 (10/13/15 BIA Op. at 1). Specifically, the BIA addressed

Zavada’s “attempt to embellish his claim” by claiming a fear of compulsory military service in

his first application; the BIA also discussed the fact that Zavada included the beatings that he

experienced only in his supplemental application, filed over two years later.        See id. at 4

(10/13/15 BIA Op. at 2). Zavada argues that this does not go to the “crux” of his asylum claim,

see Pet’r Br. at 10, but this is incorrect. The differences between Zavada’s first application and

his later supplemental application and testimony “can[] be viewed as attempts by [Zavada] to

enhance his claims” that he was persecuted on the basis of his sexual orientation, and these

inconsistencies are thus relevant to Zavada’s credibility. See Abdurakhmanov, 735 F.3d at 345–

46 (internal quotation marks omitted). Indeed, Zavada admitted during his merits hearing that he

“wouldn’t serve in the army” because of the false medical records that his mother obtained. A.R.



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at 303, 328 (03/23/11 H’rg Tr. at 88, 113). Zavada testified that his first attorney included this

information in his asylum application because it was “not enough” for Zavada to state only that

he is gay. Id. at 435 (10/19/11 H’rg Tr. at 219). Although it is regrettable that Zavada’s first

attorney may have given him this advice, Zavada did not disavow any statements made in his

initial application when he submitted his supplemental application over two years later with the

assistance of new counsel. Further, Zavada reviewed his asylum application at his merits hearing

and swore that it was correct.       See id. at 265–66 (03/23/11 H’rg Tr. at 50–51).           The

inconsistencies between his two applications “go to the heart of” Zavada’s claim of persecution,

Abdurakhmanov, 735 F.3d at 345, and under our deferential standard of review, we cannot say

that the BIA erred in relying on these differences to determine that the record as a whole

supported an adverse credibility determination.

       Finally, because we uphold the BIA’s credibility determination under the substantial-

evidence standard, we must disagree with Zavada’s argument that he has established eligibility

for asylum “by way of his credible testimony.” Pet’r Br. at 15. Accordingly, the BIA did not err

in denying Zavada’s asylum claim.

C. Withholding of Removal and Protection under CAT

       Zavada also contends that he is entitled to withholding of removal and protection under

CAT. Pet’r Br. at 16. In order to be entitled to withholding of removal under the INA, 8 U.S.C.

§ 1231(b)(3), an applicant “must show that it is ‘more likely than not’ that he would be subject to

persecution” on the basis of a protected ground. Shkulaku-Purballori v. Mukasey, 514 F.3d 499,



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503 (6th Cir. 2007) (quoting 8 C.F.R. § 1208.16(b)(2)). “An applicant seeking withholding of

removal faces a more stringent burden than what is required on a claim for asylum.” Pilica v.

Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). “Because substantial evidence supports the Board’s

determination that [Zavada] is ineligible for asylum, it therefore follows that [Zavada] cannot

satisfy the more stringent standard for withholding of [removal].” Koliada v. INS, 259 F.3d 482,

489 (6th Cir. 2001).

       Lastly, to establish withholding of removal under CAT, the applicant must establish that

“‘it is more likely than not that he or she would be tortured if removed to the proposed country of

removal.’” Shkulaku-Purballori, 514 F.3d at 503 (quoting 8 C.F.R. § 1208.16(c)(2)). Because

Zavada’s testimony was not found credible, and because Zavada has failed to present additional

evidence that establishes that “it is more likely than not that [Zavada] would be tortured if

removed” to the Ukraine, 8 C.F.R. § 1208.16(c)(2), Zavada has failed to satisfy his burden under

CAT. See El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009). The BIA accordingly did

not err in denying Zavada’s claims.

                                      III. CONCLUSION

       For the foregoing reasons, we DENY Zavada’s petition for review.




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