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


7-13-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2119




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 03-2119


                                ANDREI CRIVOSEIA;
                              NATALIA BONDARENCO;
                              ANDREI BONDARENCO,
                                          Petitioners

                                                v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,
                                                  Respondent


                       On Petition for Review of an Order of the
                        Immigration and Naturalization Service
                           Board of Immigration Appeals
                               (BIA Nos. A75-090-604,
                          A75-090-605, and A75-090-606)


                                 Argued April 13, 2004

               Before: RENDELL, COWEN and LAY*, Circuit Judges.

                                 (Filed:   July 13, 2004)


____________________

   * Hon. Donald P. Lay, Senior Judge of the United States Court of Appeals for the
      Eighth Circuit, sitting by designation.
Tatiana S. Aristova    [ARGUED]
Law Offices of John J. Gallagher
1760 Market Street, Suite 1100
Philadelphia, PA 19103
  Counsel for Petitioners

Michelle R. Thresher    [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
1331 Pennsylvania Avenue, N.W.
Washington, DC 20530

Linda S. Wendtland
Douglas E. Ginsburg
John M . McAdams, Jr.
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
  Counsel for Respondent




                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Andrei Crivoseia, his wife Natalia Bondarenco, and her son Andrei Bondarenco

seek review of the final order of the Board of Immigration Appeals (“BIA”) denying them

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). Petitioners contend that the IJ incorrectly denied asylum based upon their

failure to file within one year of admission to the United States and that the IJ’s denial of

both withholding of removal and CAT relief was unsupported by substantial evidence.

                                              2
We have jurisdiction pursuant to 8 U.S.C. § 1252(b). We will deny the petition for

review.

                                              I.

       We write for the parties, who are already familiar with the facts of this case.

Therefore, we limit our discussion to those facts essential to our decision. Petitioners are

citizens of Moldova who entered the United States without inspection in January of 1997

by crossing the Mexican border into the United States. They were spotted by a border

patrol helicopter and thereafter given a notice to appear for a hearing at an Immigration

Court in Chicago; instead, they traveled to Canada and applied for asylum there.

       When their application for asylum in Canada was denied, petitioners were

removed from Canada to the United States in March 1999. They were then charged by

the Immigration and Naturalization Service with removeability under section

212(a)(6)(A)(i) of the Immigration and Naturalization Act as aliens present without

having been admitted or paroled. At their hearing, the petitioners conceded

removeability, but applied for asylum, withholding of removal, and protection under the

CAT.

       At their hearing, the petitioners testified to suffering persecution on the basis of

their Jewish heritage. They recounted several anti-semitic attacks, including an attack on

Natalia Bondarenco and her son at their home in 1995 and the robbery of Andrei

Crivoseia’s music store in 1997. After a hearing and several continuances to enable



                                              3
petitioners to obtain certified documentary evidence, the Immigration Judge (“IJ”) issued

an oral decision denying their claim for asylum based upon petitioners’ failure to file for

asylum within one year of entry into the United States. Further, the IJ denied their claims

for withholding of removal and protection under CAT based upon his view that the

petitioners lacked credibility and had failed to adequately corroborate their claims.

Moreover, the IJ found that petitioners had filed a frivolous application for asylum. The

BIA, on appeal, affirmed the IJ’s decision, except for the finding that the petitioners’

application was frivolous.

                                             II.

       The Attorney General may grant asylum to any alien 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 burden to prove a

well-founded fear of persecution lies with the applicant, who must establish a genuine

fear of persecution, and demonstrate that a reasonable person in the same circumstances

would similarly fear persecution. The applicant’s own testimony may be sufficient to

establish eligibility for asylum, as long as the testimony is credible. See 8 C.F.R. §

208.13(a).

       Our review is limited to ensuring that any findings are supported by substantial

evidence. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc). We may reverse



                                              4
the IJ’s decisions only if “any reasonable adjudicator [would] be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                             III.

                                             A.

       The IJ ruled that the petitioners’ asylum application was untimely. Pursuant to 8

U.S.C. § 1158(a)(2)(B), an alien must prove by clear and convincing evidence that he

filed his asylum application within one year of arrival in the United States. The IJ may

excuse untimeliness and consider an application if an alien demonstrates that there were

extraordinary circumstances relating to the delay in filing. 8 U.S.C. § 1158(a)(2)(D). The

petitioners concede that they arrived in the United States in 1997 but only filed their

application for asylum in February of 2000; yet despite this apparent untimeliness, the

petitioners argue that their application qualified under the exception for extraordinary

circumstances. However, we conclude that we lack jurisdiction to review this

determination, based upon the language of 8 U.S.C. § 1158(a)(3), which divests courts of

the power to review the Attorney General’s decision regarding the timeliness of an

asylum application or whether the extraordinary circumstance exception is applicable.

See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (joining several other sister

courts of appeals in holding that “the language of 8 U.S.C. § 1158(a)(3) clearly deprives

us of jurisdiction to review an IJ’s determination that an asylum petition was not filed

within the one year limitations period, and that such period was not tolled by



                                              5
extraordinary circumstances.”). Accordingly, we may not entertain the petitioners’

challenge to the IJ’s determination that the petitioners’ application for asylum was

untimely. 1 However, their claims for withholding of removal and protection under the

CAT are not subject to this jurisdictional bar, and we consider their arguments with

respect to those claims next.

                                             B.

       Having dismissed the petitioners’ asylum application as untimely, the IJ considered

their claims for withholding of removal. The standard for withholding of removal is more

stringent than that for asylum. “In order to qualify for withholding of removal, an

applicant must show a ‘clear probability’ that his or her life or freedom would be

threatened if s/he is deported.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003)

(quoting Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001)). Doubting the credibility of the




  1
    The IJ stated that even if their application was not time-barred, he would have rejected
the petitioners’ asylum claims on adverse credibility grounds. Indeed, the IJ went further
and determined that the petitioners had filed a frivolous application for asylum. See 8
C.F.R. § 208.20. The BIA on review set aside the frivolous application determination,
while upholding the remainder of the IJ’s decision. On appeal, the petitioners contend
that having found that their application was not frivolous, the BIA was compelled to find
that their asylum application was actually credible. However, the petitioners conflate the
high standard for a frivolous application determination, which involves the deliberate
fabrication of a material element of an asylum petition, with the lesser standard for an
adverse credibility determination. Applications that are deemed to be actually frivolous
are very rare. See, e.g., Farah v. Ashcroft, 348 F.3d 1153, 1154 (9th Cir. 2003) (“Our
research discloses no case in which we have upheld such a bar.”). We have no reason to
question the BIA’s finding that the petitioners did not file a frivolous application at the
same time that it adopted the IJ’s determination that they were not credible.

                                             6
petitioners’ specific accounts of past persecution and their general assertions concerning

anti-semitism in M oldova, the IJ concluded that the petitioners failed to meet this weighty

burden.

       Petitioners argue that the IJ unreasonably rejected their testimony, which they

claim was consistent throughout the proceedings. While we are troubled by certain

portions of the IJ’s reasoning regarding their credibility, we have little trouble concluding

that substantial evidence supported the IJ’s ultimate determination adverse to their

credibility.

       The problematic aspects of the IJ’s opinion involved certain parts of the

petitioners’ stories that the IJ found to involve strange or abnormal behavior. For

instance, the IJ found it curious that the petitioners did not report their persecution, which

included being beaten on several occasions, to the police. Natalia Bondarenco had

testified that, in 1995, she and her son were attacked in their apartment by five men, one

of whom was dressed in a police officer’s uniform, who tied up Bondarenco and her son,

insulted them and vandalized the walls by spray-painting anti-semitic epithets. Petitioners

did not notify the police, fearing that the police had been involved. The IJ found that

their failure to contact the police “absolutely makes no sense at all.” Further, the IJ found

it was beyond belief that, after such an incident, Bondarenco neglected to take

photographs of the damage for subsequent presentation to the police. But we wonder

whether residents of a relatively poor country like Moldova should be expected to have a



                                              7
camera available in their homes. Further, perhaps it would have made little sense for the

petitioners to have produced photographic evidence of a crime to the police, when they

had reason to believe the police were involved in the incident.2

       Despite the foregoing problems with certain aspects of the IJ’s credibility analysis,

we find that the IJ’s adverse credibility determination was nevertheless supported by

substantial evidence. Of particular significance to the IJ was the lack of evidence that the

petitioners were persecuted on the basis of their Jewish heritage. The IJ rejected the

petitioners’ contention that they were being persecuted on account of their Jewish

ethnicity, because they failed—notwithstanding his having given them ample time— to

produce documentary evidence to show “why anyone in Moldova would consider the [the

petitioners] to be Jews.” The IJ noted that the petitioners did not practice their religion

and that they do not have Jewish names.

       More importantly, the IJ concluded that their claims were belied by the general

country conditions in Moldova, which do not indicate pervasive anti-semitism in that

country. Indeed, the IJ observed that not only was the State Department Country Report

completely silent on the issue of an anti-semitism problem in Moldova, but the very report

that the petitioners rely on to corroborate such anti-semitism undercut their argument.


  2
    Likewise, the IJ faulted Crivoseia for not contacting the police after being attacked in
his music store in November of 1996. But while Crivoseia did not contact the police, as
the IJ himself noted, their neighbors did. We fail to see why Crivoseia should have called
the police a second time. In any event, Crivoseia testified that the police appeared
disinterested in the crime and instead asked him which compact discs were popular.

                                              8
That report, authored by the Councils for Soviet Jews on Anti-Semitism, chronicled

Jewish life in M oldova. While expressing doubts over the report’s objectivity, the IJ

noted that it contained several relatively sanguine accounts of Jewish life in Moldova,

including statements by a Jewish leader in Moldova, who believed that there was little

anti-semitism in Moldova. The report also states that Hebrew and Yiddish are supported

as minority languages and that the government had pledged to accommodate ethnic

minorities, including Jews and allowed the Jewish press to publish with relative

independence. Although the report also contained accounts of several anti-semitic

incidents from the late 1980s through the mid-1990s, the IJ’s optimistic interpretation of

the report was not unreasonable. See Kayembe v. Ashcroft, 334 F.3d 231, 236–37 (3d

Cir. 2003) (“Just because the State Department report cuts both ways, however, does not

mean that it does not constitute substantial evidence.”). Thus, we conclude that there was

substantial evidence to support the IJ’s adverse credibility determination and his denial of

the petitioners’ claims for withholding of removal and under the CAT.3

                                            III.

       Accordingly, we conclude that the BIA opinion and determination were supported




  3
    The IJ found that the petitioners were ineligible for CAT relief because they had “not
shown that they are more likely than not to be tortured if they return to Moldova.” We
reject the petitioners’ contention that the IJ erred by failing to consider the documentary
evidence in the record. As noted above, the IJ not only analyzed the State Department
report but cited to the very report on which petitioners’ relied. Accordingly, we find no
fault with the IJ’s denial of CAT relief.

                                             9
by substantial evidence, and we will DENY the petition for review.




                                           10
