                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3144




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                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                             No. 04-3144




                      LARYSA HAVRYLENKO,
                                     Petitioner
                               v.

         ATTORNEY GENERAL OF THE UNITED STATES,*
                                             Respondent


    *
        (Caption amended pursuant to Rule 43(c), Fed. R. App. P.)



                    Petition for Review of the Order
                  of the Board of Immigration Appeals
                             (A95-476-705)


              Submitted Under Third Circuit LAR 34.1(a)
                         September 12, 2005

        Before: SLOVITER, BARRY and SMITH, Circuit Judges

                      (Filed September 13, 2005)




                              OPINION
SLOVITER, Circuit Judge.

      Petitioner Larysa Havrylenko (hereinafter “Havrylenko” or “Petitioner”) seeks

review of a final order of removal issued by the Board of Immigration Appeals (“BIA”)

summarily affirming the decision of the immigration judge (“IJ”) denying asylum,

withholding of removal, and protection from removal under Article 3 of the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT”). This court has jurisdiction to review the final agency order

under 8 U.S.C. § 1252. For the reasons stated below, we will deny Havrylenko’s petition

for review.

                                               I.

      Havrylenko, who is of Russian ancestry, was born “Larysa Rozova” in Kazakhstan

in 1946. In 1966, Havrylenko married Murado Shavkatovich. They had two children but

divorced in 1980.

      Several years later, Havrylenko married Alexander Havrylenko (“Alexander”)1

with whom she had two children. Sometime in the late 1980s, the Havrylenkos moved

from Kazakhstan to Ukraine, where Petitioner obtained work as a bookkeeper and

accountant in a government factory.




                     1
                       In her declaration in support of her application for asylum,
              Havrylenko averred that she married Alexander in 1987. During
              her testimony before the IJ, however, Havrylenko contended that
              she married Alexander in 1984. The discrepancy is irrelevant.

                                               2
       According to Havrylenko, at some point in 1990 a senior engineer at her

workplace approached her to solicit her participation and assistance in a fraudulent

scheme being planned by her co-workers to embezzle government equipment and

supplies and sell such items outside of the normal channels of distribution, thereby

reaping personal profit.

       Havrylenko contends that she refused to join in or assist the conspiracy; she

testified before the IJ that she reported the plot first to her superior at the plant, then to the

overall chairman of the factory system in Kiev, and finally, having received no assistance

from these lower-level officials, eventually went in 1992 to the state prosecutor’s office.

Havrylenko states that upon being so notified, these officials uniformly told her to mind

her own business and, in some instances, threatened her with retaliation if she persisted in

her attempts to expose the scheme. Moreover, Havrylenko contends that following her

“whistle-blowing” endeavors her husband and son received beatings from unknown

assailants and the windows on the family’s home were cracked.

       Despite these threats, Havrylenko was apparently able to maintain her job at the

plant throughout this time. Moreover, in 1992, Havrylenko and Alexander had their

second child; Havrylenko testified that the factory administrators allowed her to take a

paid ten-month maternity leave from her work.

       Havrylenko further testified that, in June 1993, she was arrested, taken into

custody, and interrogated. She stated that the Ukranian authorities neither formally



                                                3
charged her with any crime nor provided her with any procedural safeguards (such as an

independent judicial review of her detention) despite the fact that the authorities

imprisoned her in a cell for almost six months. It is Havrylenko’s asserted belief that her

“whistle-blowing” activities, combined with her Russian ethnicity, were the motivating

factors behind her purportedly illegal imprisonment.

       Havrylenko testified that, while she was in custody, one of her sons died in a

suspicious fashion; indeed, the import of her testimony was that her son was murdered.

According to Havrylenko, she initially obtained a document stating that the cause of her

son’s death was unknown; she further testified that, at some later point, she obtained a

document indicating that her son had died of a drug overdose.2 In any event, after being

released from custody, Havrylenko stayed in the Ukraine until 1996 attempting to uncover

what had happened to her son and to “get . . . justice.” A.R. 118. She states that her

efforts were met with apathy or outright hostility by the governmental officials from

whom she sought assistance.

       Havrylenko contends that the governmental threats eventually became too much

for her to bear. Therefore, in 1996 Havrylenko and her youngest daughter moved to

Russia, where she remained for approximately two-and-a-half years. Although

Havrylenko is of Russian ancestry, she does not have Russian citizenship and thus was




                    2
                     Havrylenko did not produce the latter document in the
            proceedings before the IJ.

                                              4
unable to secure work in that country. This inability to find work, coupled with the

declining health of her husband,3 compelled Havrylenko to return to Ukraine in 1999.

Although she was unable to find work upon her return to Ukraine, Havrylenko remained

there until 2001, at which time she entered the United States via Mexico.

       Within “a reasonable period of time” following her entry into this country,

Havrylenko filed an application for asylum. App. at 59. On August 26, 2002, the former

Immigration and Naturalization Service (“INS”),4 served Havrylenko with a notice to

appear charging her with removability. On November 19, 2002, Havrylenko appeared

before an IJ sitting in Newark, New Jersey. At this hearing, Havrylenko conceded

removability but sought asylum, withholding of removal, and relief under the CAT.5

       By way of an Oral Decision dated March 17, 2003, the IJ denied Havrylenko’s

application for asylum, withholding of removal, and relief under the CAT and therefore

ordered her to depart voluntarily. Notably, in so doing, the IJ made an adverse credibility


                   3
                    Apparently, Alexander died of cancer sometime prior to
            Havrylenko’s entry into the United States.
                   4
                       As of “March 2003, the INS ceased to exist as an
            independent agency within the United States Department of Justice,
            and its functions were transferred to the newly formed United
            States Department of Homeland Security.” Leia v. Ashcroft, 393
            F.3d 427, 430 n.4 (3d Cir. 2005). “The BIA, however, remains
            within the Department of Justice.” Id. (citing, inter alia, Homeland
            Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
            Stat. 2135 (2002)).
                   5
                      Havrylenko herself was the only witness who testified at
            this hearing.

                                             5
determination. See App. at 61 (“I am making my finding on my belief that she is not

credible, that she has not told a consistent story. She . . . [has] told a completely

implausible story, and I don’t believe it.”). On June 28, 2004, the BIA issued a “without

opinion” affirmance of the IJ’s decision. App. at 71.

       This timely petition for review followed. Havrylenko argues before this court that

the IJ erred in making his adverse credibility determination, denied her due process

because he failed to analyze the totality of the circumstances in assessing her application,

and erred in denying her application for lack of corroborating documentary evidence. She

argues that the BIA violated her due process rights in affirming the IJ’s decision without

opinion.

                                              II.

       Whether an applicant qualifies for asylum, withholding of removal, or relief under

the CAT is generally a factual determination, which this court will review under the

substantial evidence standard.6 Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004);

Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this standard, the IJ’s

finding must be upheld unless “the evidence not only supports” a contrary conclusion,

“but compels it.” Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478,



                    6
                      When, as in the case at bar, the BIA does not render its
             own opinion but rather defers to or adopts the opinion of an IJ, this
             court must review the decision of the IJ as the “final” agency
             decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004); Dia
             v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc).

                                               6
481 n.1 (1992); see also Chang v. Immigration & Naturalization Serv., 119 F.3d 1055,

1060 (3d Cir. 1997).

       To qualify as a “refugee” who may receive asylum, an alien must establish that she

is unable or unwilling to return to 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.” Elias-Zacarias, 502 U.S. at 481 (internal

quotations and citations omitted). The concept of “persecution” requires government

involvement or the involvement of individuals the government is either “unable or

unwilling” to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (internal

citation and quotations omitted).

       To establish “past persecution” and entitlement to asylum, an applicant must show:

(1) an incident, or incidents, that constituted persecution; (2) that occurred on account of

one of the statutorily-protected grounds; and (3) were committed by the government or

forces the government is either unable or unwilling to control. Berishaj v. Ashcroft, 378

F.3d 314, 323 (3d Cir. 2004). An asylum “applicant can demonstrate that she has a well-

founded fear of future persecution by showing that she has a genuine fear, and that a

reasonable person in her circumstances would fear persecution if returned to her native

country.” Gao, 299 F.3d at 272. The threshold for establishing eligibility for withholding

of removal is even higher than that for establishing entitlement to asylum and requires the

petitioner to demonstrate a “clear probability” that, upon deportation to the country of



                                              7
origin, “her life or freedom would be threatened on account of one of the statutorily

enumerated factors.” Senathirajah v. Immigration & Naturalization Serv., 157 F.3d 210,

215 (3d Cir. 1998). Given this higher standard, an applicant who does not qualify for

asylum necessarily does not qualify for withholding of removal. Guo v. Ashcroft, 386

F.3d 556, 561 n.4 (3d Cir. 2004).

       The BIA and this court have defined persecution “to include threats to life,

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

life or freedom.” Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d

Cir. 1993); see also Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). Thus,

“persecution does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240.

       Finally, to qualify for relief under the CAT, an applicant for relief bears the burden

of proving through objective evidence that “‘it is more likely than not’” that she would be

“tortured” in the country to which the applicant would be removed. Wang v. Ashcroft,

368 F.3d 347, 348 (3d Cir. 2004) (quoting 8 C.F.R. § 1208.16(c)(2)).7

                                            III.

       First, Havrylenko contends that the IJ erred in making an adverse credibility




                    7
                     The definition of “torture” under the CAT is set forth at
            8 C.F.R. § 208.18(a)(1) and need not be repeated here. See also
            Ogbudimkpa v. Ashcroft, 342 F.3d 207, 211-13 (3d Cir. 2003);
            Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003).

                                             8
determination. Because they constitute factual determinations, “[a]dverse credibility

determinations are reviewed under the substantial evidence standard . . . [and] must be

upheld on review unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Fiadjoe v. Attorney Gen. of the United States, 411 F.3d 135, 153 (3d Cir.

2005).

         Here, the IJ found that Havrylenko’s April 25, 2002 declaration in support of her

asylum application varied materially from her testimony at the November 19, 2002

hearing. Apart from these internal inconsistencies, he found that Havrylenko’s

recounting of the facts was “completely implausible.” App. at 61. For instance, he found

implausible Havrylenko’s contention that, while the government ostensibly was

persecuting her for her “whistle-blowing,” it continued to employ her at the factory and

indeed allowed her to take a lengthy paid maternity leave. It cannot be said that the

record before us compels a conclusion contrary to that of the IJ; thus, we decline to

disturb the IJ’s adverse credibility finding.

         We further reject Havrylenko’s argument that the factors giving rise to the IJ’s

adverse credibility determination were minor and did not go to the heart of her claim.

Rather, the inconsistencies outlined by the IJ by-and-large pertained to the treatment

Havrylenko received at the hands of the state and thus were quite material to her claims of




                                                9
persecution and torture.8

       We likewise reject Havrylenko’s argument that the IJ failed to analyze the totality

of the circumstances in assessing her application and in so doing denied her due process

of law. Rather, the IJ’s Oral Decision evinces a thorough and constitutionally sufficient

analysis and application of the proffered facts and applicable law.

       Havrylenko next argues that an absence of corroborating documentary evidence

cannot be a ground for denying an asylum claim and that the IJ erred in admonishing her

for failing to provide corroborating documentary evidence. Although this court has

recognized “that it is escape and flight, not litigation and corroboration, that is foremost

in the mind of an alien,” Senathirajah v. Immigration & Naturalization Serv., 157 F.3d

210, 216 (3d Cir.1998), we have also noted that “applicants may be required, under

certain circumstances, to provide corroborating evidence in order to meet their burden of

proof.” Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir. 2003). We have thus cautioned

that “[a]n applicant for asylum must provide corroborating evidence only when it would

be reasonably expected.” Mulanga, 349 F.3d at 138.




                    8
                        We further note that pursuant to 8 U.S.C. §
             1158(b)(1)(B)(iii) of the REAL ID Act of 2005, Pub. Law No. 109-
             13 (May 11, 2005), inconsistencies, inaccuracies, or falsehoods
             identified by an IJ giving rise to an adverse credibility
             determination may now be made “without regard” to whether they
             “go[ ] to the heart of the applicant’s claim.” That provision applies
             only to petitions filed after May 11, 2005 and hence is not
             applicable here. Id. at § 101(h)(2).

                                              10
       Here, the IJ chastised Havrylenko for failing to provide her work records or the

document, which Havrylenko purportedly did possess at some point, that indicated that

her son had died of a drug overdose.9 We conclude that these documents are of the type

that an asylum applicant would be “reasonably expected” to have, Mulanga, 349 F.3d at

138; therefore, we find no error in the IJ’s decision regarding corroboration.

       Finally, Havrylenko argues that the BIA violated her due process rights in

summarily affirming the IJ’s opinion. In making this argument, Havrylenko cites to a

single opinion from another circuit, Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003). Of

course, whatever Haoud may stand for (and we find the facts presented in Haoud to be

distinguishable from those presented by the case at bar), it is not the law of this circuit.

Rather, this court squarely has held that the BIA’s practice (supported by duly

promulgated regulations) of summarily affirming immigration judges’ decisions “without

opinion” does not violate due process. Dia v. Ashcroft, 353 F.3d 228, 242 (3d Cir. 2003)

(en banc). We will thus reject Petitioner’s argument that the BIA denied her due process.

                                             IV.

       For the above reasons, we will deny Havrylenko’s petition for review.




                    9
                       On a related note, the IJ further took Havrylenko to task
             for failing to explain one of the few pieces of documentary
             evidence that she did provide: the 1993 arrest record. See App.
             at 63 (“I have [before me] . . . an arrest record. I don’t even know
             what it means.”).

                                              11
