IMG-077                                               NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                        Nos. 09-3141 & 09-3926
                             ___________

                          OLEKSIY DOROSH,
                                        Petitioner in 09-3141

                                   v.

            ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent



                        ANDRIY KUCHEROV,
                                      Petitioner in 09-3926

                                   v.

            ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
               ____________________________________

                 On Petition for Review of an Order of the
                       Board of Immigration Appeals
                     (A096-401-278 & A096-401-279)
            Immigration Judge: Honorable Charles M. Honeyman
               ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               April 1, 2011
    Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges

                      (Opinion filed: May 10, 2011)
                              ___________

                               OPINION
                              ___________
PER CURIAM.

       Petitioners, Oleksiy Dorosh and Andriy Kucherov, seek review of final orders of

removal. For the reasons that follow, we will deny their petitions for review.

                                              I.

       Petitioners are natives of the former Soviet Union and citizens of Ukraine. On

December 7, 2004, they arrived at San Francisco International Airport without valid

travel documents. They were screened at the airport and provided sworn statements to

immigration officials. On December 16, 2004, an asylum officer conducted credible fear

interviews, and the government served notices to appear the same day. In a joint

proceeding before an Immigration Judge (“IJ”) in Philadelphia, petitioners conceded their

removability as charged, and they applied for asylum, withholding of removal, and

Convention Against Torture (“CAT”) relief. Petitioners submitted documentary evidence

and testified in support of their claim that they suffered past persecution in Ukraine, and

fear future persecution in that country, as a gay couple.

       In a lengthy written decision, the IJ rejected the credibility of petitioners‟

testimony due to a “plethora” of inconsistencies, and further denied relief because

petitioners failed to corroborate their factual contentions. Assuming credibility, the IJ

also denied asylum on the merits, holding that petitioners did not suffer past harm rising

to the level of persecution inasmuch as they were the victims of a single assault resulting

in minor injuries that did not require hospitalization. On the issue of future persecution,

                                              2
the IJ was satisfied that petitioners have a subjective fear of harm, but concluded that they

failed to show as an objective matter that they might be particularly targeted due to their

sexuality, or that there is a pattern or practice of persecution of gays, in Ukraine. The IJ

also denied withholding of removal and CAT relief.

       Petitioners appealed separately to the Board of Immigration Appeals (“BIA”),

which dismissed the appeals. In Dorosh‟s case, the BIA held that the adverse credibility

determination was not clearly erroneous and was based on numerous inconsistencies. In

addition, the BIA determined that the IJ properly considered the evidence of record in

finding no well-founded fear of future persecution. In Kucherov‟s case, the BIA noted

that it had already dismissed Dorosh‟s appeal; because Kucherov raised the same

arguments as Dorosh, the BIA dismissed his appeal for the same reasons. Petitioners

timely filed separate petitions for review, which have been consolidated for briefing and

disposition.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA stated that the

IJ‟s adverse credibility determination was not clearly erroneous and essentially adopted

the IJ‟s analysis in rejecting the issues that petitioners raised on appeal, our review is of

the IJ‟s decision. Wu v. Att‟y Gen., 571 F.3d 314, 317 (3d Cir. 2009). We apply

substantial evidence review to factual findings, including an adverse credibility

determination, “departing from factual findings only where a reasonable adjudicator

would be compelled to arrive at a contrary conclusion.” Mendez-Reyes v. Att‟y Gen.,
                                               3
428 F.3d 187, 191 (3d Cir. 2005); see Gabuniya v. Att‟y Gen., 463 F.3d 316, 321 (3d Cir.

2006). We must uphold a factual determination if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole. Wu, 571 F.3d at

317. Our review of legal conclusions is de novo, subject to principles of deference. Id.

       Petitioners first challenge the adverse credibility determination. They argue that

the IJ failed to consider the totality of the circumstances, that the inconsistencies cited by

the IJ are either nonexistent or fail to provide specific and cogent reasons for the adverse

determination, and that the IJ failed to afford an adequate opportunity for petitioners to

explain the inconsistencies that do exist. Petitioners‟ Br. at 20. We discern no error.

       Because petitioners filed their asylum applications after May 11, 2005, the IJ

applied the credibility standard of the REAL ID Act of 2005.1 See Caushi v. Att‟y Gen.,

436 F.3d 220, 229 n.5 (3d Cir. 2006). Under the REAL ID Act, an IJ may base an

adverse credibility determination on inconsistencies, inherent implausibilities,

inaccuracies, and other factors, “without regard to whether an inconsistency, inaccuracy,

or falsehood goes to the heart of the applicant‟s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).

       According to petitioners‟ own tally, the IJ identified at least sixteen separate

   1
     Petitioners suggest that the REAL ID Act‟s credibility standard should not apply to
   them because they were given a credible fear interview on December 16, 2004, and,
   they argue, that interview can be considered an affirmative application for asylum
   made prior to the REAL ID Act‟s effective date. Petitioners‟ Br. at 18 n.2. We reject
   this argument as waived because petitioners merely raise it in a footnote and do not
   develop it at all in their brief. See John Wyeth & Brother Ltd. v. Cigna Int‟l Corp.,
   119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in passing (such as, in a
   footnote), but not squarely argued, are considered waived.”); see also Odd v. Malone,
   538 F.3d 202, 207 n.2 (3d Cir. 2008) (same).
                                              4
inconsistencies or falsehoods in their testimony. Petitioners‟ Br. at 20-32. The IJ found

that petitioners contradicted themselves and each other through statements made in their

various applications and interviews with immigration authorities, as well as in their court

testimony. The IJ cited inconsistencies covering numerous issues, including information

about petitioners‟ prior marriages in Ukraine, details about their relationship with each

other, specifics about threats that they allegedly received (or did not receive) prior to

being assaulted on October 28, 2004, and the nature of the injuries that they allegedly

suffered in the assault. As the BIA observed on appeal, the many inconsistencies

“covered most aspects of” petitioners‟ case. A.R. at 3.

       Petitioners seek to characterize much of the inconsistent testimony as “minor” and

“largely innocent mistakes.” Petitioners‟ Br. at 34. We agree that certain of the

inconsistencies, such as the slight discrepancy in the dates on which petitioners met and

moved in together, could be viewed as inconsequential, and likely would not alone

support an adverse credibility finding in this case. But some of the inconsistencies

cannot be portrayed as irrelevant to petitioners‟ claims for relief, such their conflicting

statements about whether, if it all, they received threats prior to being assaulted, and

about the injuries they allegedly suffered. In addition, petitioners concede the existence

of two obvious falsehoods in their dealings with immigration officials: (i) Dorosh lied

about whether he has children (he has two, a fact that he acknowledged before the IJ but

had denied in earlier sworn statements); and (ii) Kucherov falsely stated during his

credible fear interview that he has no relatives in the United States (his mother was
                                              5
present when petitioners arrived and is a lawful permanent resident).

       Considering the record as a whole, we cannot conclude that a reasonable factfinder

would be compelled to determine that petitioners provided credible testimony. The IJ‟s

adverse finding is rooted in the evidence of record, and the “plethora” of inconsistencies

identified provides a reasonable basis upon which to reject petitioners‟ credibility. While

petitioners complain that they were not provided an opportunity to explain their

inconsistencies and falsehoods, petitioners make no showing that they were afforded

anything but a full and fair hearing, and it is clear from the IJ‟s detailed written decision

that he looked to the totality of circumstances before rendering the adverse credibility

determination.2

       Petitioners next challenge the IJ‟s alternative finding that they failed to

demonstrate past persecution even assuming the credibility of their testimony. To

establish eligibility for asylum, petitioners had to show either past persecution or a well-

founded fear of future persecution on account of, inter alia, membership in a particular

   2
     Petitioners also challenge the IJ‟s additional finding that they failed to provide
   sufficient corroborating evidence to prove the relevant facts surrounding their claims.
   The IJ explained that, notwithstanding their lack of credibility, petitioners could have
   rehabilitated themselves through sufficient documentation, but that petitioners failed
   to provide persuasive substantive evidence that they were attacked in Ukraine due to
   their sexual orientation, or that they suffered enduring injuries. Petitioners argue
   before this Court that the IJ erred in expecting them to submit additional
   corroborating evidence. Petitioners‟ Br. at 34-38. Petitioners failed, however, to raise
   and exhaust before the BIA any challenge to the IJ‟s finding regarding the need for
   additional corroboration, and the BIA did not address the issue on its own initiative.
   In light of the failure to exhaust administrative remedies, we have no jurisdiction to
   address this additional finding by the IJ. See 8 U.S.C. § 1252(d)(1); Lin v. Att‟y
   Gen., 543 F.3d 114, 122 (3d Cir. 2008).
                                              6
social group. See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005). The IJ accepted

that petitioners are members of a particular social group based on their sexual orientation,

and that they were attacked, at least in part, on that basis, but the IJ observed that,

              [b]ased upon [petitioners‟] testimony, they were attacked by
              approximately six men, struck on their heads with batons, and
              briefly rendered unconscious. Thereafter, [petitioners] did
              not seek medical attention, and returned to their apartment.
              The following day, [] Dorosh drove them to the police station,
              after which they still did not seek medical attention. In fact,
              [petitioners] never sought medical attention in the Ukraine,
              and did not complain of any physical ailments when
              questioned during their airport and credible fear interviews.

A.R. at 50. The IJ found that this incident did not rise to the level of persecution.

       This Court has explained that persecution “„does not include every sort of

treatment our society regards as offensive.‟” Jarbough v. Att‟y Gen., 483 F.3d 184, 191

(3d Cir. 2007) (quoting Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993)). “Abusive

treatment and harassment, while always deplorable, may not rise to the level of

persecution.” Id. Rather, “persecution connotes extreme behavior, including „threats to

life, confinement, torture, and economic restrictions so severe that they constitute a threat

to life or freedom.‟” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting

Fatin, 12 F.3d at 1240).

       The record here does not compel a finding that petitioners‟ experiences in Ukraine

(assuming their credibility) rose to the level of persecution, as the IJ‟s determination “was

based on a reasonable interpretation of the definition of persecution under the INA.” Id.;

see Kibinda v. Att‟y Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (a single detention and
                                               7
beating requiring stitches and leaving a scar were not “severe enough to constitute

persecution under our stringent standard”). “While this Court has not yet drawn a precise

line concerning where a simple beating ends and persecution begins, our cases suggest

that isolated incidents that do not result in serious injury do not rise to the level of

persecution.” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005).

       Petitioners argue that the IJ erred in failing to credit medical reports that they

submitted to show that they suffered permanent injuries in the attack. Petitioners

submitted three letters from doctors who evaluated them after their arrival in the United

States, and they contend that those doctors “confirm[ed] the link between the October

2004 attack and their current symptoms - Petitioner Dorosh continues to suffer hearing

loss and Petitioner Kucherov continues to suffer excruciating headaches as a result of the

attack.” Petitioners‟ Br. at 42. The IJ found that, “while the medical reports … do

corroborate those complaints, those reports do not explain the correlation between those

injuries and the alleged attack, or explain why there would be a delay in the onset of

symptoms.” A.R. at 50. Noting that it lacked the medical expertise to make such

determinations itself, the IJ refused to credit the medical evidence as sufficient to

establish lasting injuries, and thus found that “it can only conclude that [petitioners]

suffered a single assault, which resulted in minor injuries that did not require

hospitalization and that healed within a few days.” Id.

       The record supports the IJ‟s determination. While the doctors‟ letters describe

petitioners‟ present symptoms, they do not clearly link any injuries to the assault or
                                               8
explain why the symptoms, at least in Dorosh‟s case, had a delayed onset.3 Petitioners

argue that they were not required to prove to a certainty that the attack resulted in lasting

injuries or injuries with a delayed onset. Petitioners‟ Br. at 42. Their medical evidence,

however, does not support a finding that there was a reasonable likelihood that they

suffered past persecution based on the single assault.4

       Petitioners next challenge the IJ‟s finding that they failed to establish a well-

founded fear of future persecution if returned to Ukraine.5 They claim that “if they are


   3
     The doctor who examined Dorosh in December 2007 arguably implied a link to the
   assault, stating, “My feeling is that [Dorosh] has sustained significant head and facial
   injuries three years ago which results in significant hearing loss on the right side and
   nasal injury resulting in difficulty breathing through the left side due to deviated
   septum.” A.R. at 186. However, the IJ was not without reason in choosing to
   discredit this doctor‟s vague “feeling,” particularly in light of Dorosh‟s testimony that
   he had a delayed onset of symptoms -- a fact that the doctor never mentions. Further,
   as the IJ observed, the medical reports “were perfunctory and conclusory, providing
   … an inadequate basis to determine whether [petitioners‟] injuries could have
   originated in the manner alleged, or how those medical professionals could make such
   conclusions.” A.R. at 48. Petitioners did not call any of the doctors to testify before
   the IJ, and they relied solely upon the inadequate medical reports to corroborate their
   claimed injuries.
   4
     Petitioners also contend that the IJ failed to consider that they received threats prior
   to the assault, that the police refused to investigate when petitioners reported the
   assault, and that petitioners testified that their gay neighbors were murdered shortly
   after petitioners were attacked. Petitioners‟ Br. at 43-44. We are not persuaded that
   the IJ failed to consider this evidence. The record reflects that the IJ expressly noted
   both the failure to investigate and the prior threats when assessing petitioners‟ claim.
   See A.R. at 49. In any event, petitioners have not shown that these additional factors
   compel the conclusion that they suffered past harm rising to the level of persecution.
   5
    Because petitioners did not establish past persecution on the basis of their
   membership in a particular social group, they were not entitled to a presumption of a
   well-founded fear of future persecution on that ground. See 8 C.F.R. § 1208.13(b)(1).
                                              9
returned … they will be persecuted by skinheads and other hate groups because of their

openly homosexual orientation and relationship.” Petitioners‟ Br. at 46.

       The well-founded fear standard has both a subjective and objective component.

“First, an applicant must show that his or her subjective fear is genuine and second that a

reasonable person in the alien‟s circumstances would fear persecution if returned to the

country in question.” Wong v. Att‟y Gen., 539 F.3d 225, 232 (3d Cir. 2008) (citation and

quotation marks omitted). “The objective component of the analysis requires the alien to

show that a reasonable person in his position would fear persecution, either because he

would be individually singled out for persecution or because there is a pattern or practice

in his home country of persecution against a group of which he is a member.” Huang v.

Att‟y Gen., 620 F.3d 372, 381 (3d Cir. 2010) (quotation marks omitted).

       Despite rendering the adverse credibility determination, the IJ credited as genuine

petitioners‟ subjective fear of future harm in Ukraine, but concluded that their fear of

returning lacks an objective basis. The IJ supported this determination with numerous

findings based on the evidence of record, including the following: petitioners “have only

elucidated a generalized fear of harm in the Ukraine, making occasional references to

skinheads, but providing this Court with no concrete factual basis to believe that anti-gay

groups would seek to harm them in particular”; “there is no indication that [petitioners‟]

alleged attackers knew who they were, beyond the fact that they were the new gay couple

in the neighborhood”; the 2006 and 2007 State Department Reports do not reveal

“evidence of widespread violence towards gays, whether by the populace in general, or
                                             10
by militant groups or gangs in particular”; “homosexuality is not illegal in the Ukraine,

… and the main conflicts involving sexual orientation in the Ukraine appear to be

political in nature, concerning the extent to which gay individuals and groups should be

granted certain rights”; “the gay population of the Ukraine does not appear to be

repressed or politically powerless”; and “this Court can only point to one example in the

whole record of an individual who was killed in the Ukraine due to his sexuality, and

who was not a gay rights leader.” A.R. at 51-52. The IJ concluded that “whatever

violence does exist against gays in the Ukraine, it is neither systemic, nor pervasive, nor

organized, and thus does not constitute a pattern or practice of persecution against that

population.” Id. at 52.

       Petitioners contend that they provided evidence that they would be singled out for

persecution, citing the fact that their gay neighbors were murdered because of their sexual

orientation shortly after petitioners were assaulted in 2004. Petitioners‟ Br. at 47-48.

Substantial evidence, however, supports the IJ‟s finding that petitioners articulated

nothing stronger than a generalized fear of “skinheads.” It is undisputed that the

attackers who assaulted petitioners did not know who they were, and there is no evidence

that any group would seek to harm petitioners in particular. Petitioners have not shown

that they face an individualized risk that is any more severe than that faced by other

homosexuals in Ukraine. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).

       Petitioners alternatively claim that they established the existence of a pattern or

practice of persecution against homosexuals with government complicity. They point in
                                             11
particular to the “Other Societal Abuses” section of the 2007 State Department Report on

Ukraine as revealing that violence against homosexuals is not limited to individuals held

in police custody, and that political opposition to homosexuality goes well beyond issues

surrounding gay rights. Petitioners‟ Br. at 48-49. Petitioners contend that the IJ

mischaracterized the 2007 Report and ignored this crucial information. The record

reflects, however, that the IJ relied upon more evidence than just the 2007 Report in

rejecting the pattern or practice claim, and petitioners have made no showing that the IJ‟s

numerous findings of fact concerning the treatment of gays in Ukraine lack support in the

administrative record. Moreover, other than relying upon portions of the 2007 Report,

petitioners do not point to evidence in this record that would compel a reasonable

factfinder to conclude that any persecution of homosexuals in Ukraine is “systemic,

pervasive, or organized.” Lie, 396 F.3d at 537 (quotation marks omitted).

       Petitioners ask this Court to take judicial notice of the 2009 State Department

Report on Ukraine, which is not part of the administrative record. They contend that this

more recent report reflects a “dramatic rise in violence towards homosexuals in the

Ukraine … as well as the government and security forces complicity in the violence.”

Petitioners‟ Br. at 49. It is settled that “courts reviewing the determination of an

administrative agency must approve or reject the agency‟s action purely on the basis of

the reasons offered by, and the record compiled before, the agency itself.” Berishaj v.

Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004). Petitioners do not state that they have filed a

motion to reopen with the BIA based on changed country conditions in Ukraine. Further,
                                             12
they have not sought a remand of this matter on the ground that the agency record before

this Court is now stale, nor has the government expressed the view that the record is stale.

Under the circumstances, petitioners have not shown that taking judicial notice of the

2009 Report would be appropriate. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 94 (3d

Cir. 2004) (declining to take judicial notice of subsequent State Department Reports

under similar circumstances); see also Wong, 539 F.3d at 234 n.4 (“Although other courts

of appeals have taken judicial notice of new country reports released after a final agency

determination, we have declined to do so.”) (citation omitted).

       In sum, the IJ properly concluded that petitioners failed to establish their eligibility

for asylum, either based on a showing of past persecution or a well-founded fear of future

persecution. It follows that petitioners cannot satisfy the more demanding standard of

proof that governs claims for withholding of removal. See Yu v. Att‟y Gen., 513 F.3d

346, 349 (3d Cir. 2008). Finally, because petitioners did not exhaust a challenge to the

IJ‟s denial of CAT relief before the BIA, this Court lacks jurisdiction to review their CAT

claims. See 8 U.S.C. § 1252(d)(1); Lin v. Att‟y Gen., 543 F.3d 114, 122 (3d Cir. 2008).

                                             III.

       We have considered petitioners‟ remaining arguments but find them unpersuasive.

For the foregoing reasons, we will deny the petitions for review.




                                              13
