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


7-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3769




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-3769
                                     ___________

                             TSOGZOLMAA DENSMAA,
                                               Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                      Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A98-769-659 )
                    Immigration Judge: Honorable Miriam K. Mills
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 12, 2008
                Before: MCKEE, NYGAARD and ROTH, Circuit Judges

                              (Opinion filed: July 2, 2008)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Tsogzolmaa Densmaa petitions for review of an order by the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of her applications for

asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”). For the following reasons, the petition for review will be denied.

                                            I.

       Densmaa is 28 years old and is a citizen of Mongolia. Densmaa came to the

United States as a non-immigrant visitor in July 2004, and has remained in the country

ever since. On February 1, 2005, Densmaa applied for asylum, withholding of removal

and relief under the CAT on the ground that she had been persecuted in Mongolia for

being a lesbian. The government later instituted removal proceedings against her,

charging her as removable for having overstayed her visa.

       In her I-589 application, Densmaa alleged that several months before she left

Mongolia, she and her partner, Chimgee, were arrested and imprisoned because they are

lesbians. According to Densmaa, the police falsely charged them with prostitution as a

pretense for the arrest. During their detention, the women were raped and beaten.

Chimgee died as a result of the beatings. Densmaa stated in her application that if she

were forced to return to Mongolia, the police would immediately arrest her and place her

in prison where she would be beaten to death.

       Following a hearing on May 30, 2006, IJ Miriam K. Mills found Densmaa’s

testimony incredible and denied relief. IJ Mills stated that Densmaa’s story was

untenable due to numerous inconsistencies between her testimony and the original

application. IJ Mills further found that Densmaa’s claims had not been adequately

corroborated. By order entered August 21, 2007, the BIA adopted and affirmed IJ Mills’s



                                             2
decision. Densmaa now petitions for review of the BIA’s decision.

                                             II.

       We have jurisdiction to review the BIA’s order of removal under 8 U.S.C. §

1252(a)(1). When, as in this case, the BIA adopts the reasoning of the IJ, we review the

IJ’s decision directly. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). We

review the IJ’s factual findings, including her credibility determinations, under a

substantial evidence standard.1 See Cao v. Att'y Gen., 407 F.3d 146, 152 (3d Cir. 2005).

An adverse credibility finding must be afforded substantial deference, so long as the

finding is supported by sufficient, cogent reasons. See Butt v. Gonzales, 429 F.3d 430,

434 (3d Cir. 2005). The Court must evaluate whether the credibility determination was

“appropriately based on inconsistent statements, contradictory evidences, and inherently

improbable testimony . . . in view of the background evidence on country conditions.”

Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004).

       Upon review, we are satisfied that the IJ’s adverse credibility determination is

supported by substantial evidence. First, as the IJ explained, Densmaa’s entire story is

somewhat suspect given that she claimed that she was arrested for prostitution despite the

fact that the Country Report she submitted indicates that prostitution is legal in




       1
        The provisions of the Real ID Act concerning the Court’s review of an adverse
credibility finding do not apply because Densmaa applied for relief before the Act’s
effective date. See Chukwu v. Att'y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

                                              3
Mongolia.2 When IJ Mills and the government asked Densmaa how the police could

charge her with prostitution when prostitution was not illegal, she was unable to provide a

plausible explanation. Nor was she able to explain why the arrest papers stated that she

was detained for “risk of recidivism and fugitive evasion,” not prostitution. Moreover,

there were several inconsistencies between Densmaa’s testimony at the hearing and the

affidavit she had previously submitted in support of her application. Most significantly,

Densmaa testified at the hearing that the police raped her on the night of her arrest,

whereas she stated in her affidavit that she was raped on the fourth day of her detention.

Similarly, although Densmaa testified that the police never questioned her about her

sexual orientation, her affidavit specifically recounted that during her interrogation, the

inspector accused her of being a “lesbian pervert,” and told her that she would be released

to a psychiatric hospital if she admitted it. In light of these significant inconsistencies, we

cannot conclude that “any reasonable adjudicator would be compelled” to disagree with

the IJ’s adverse credibility determination. 8 U.S.C. § 1252(b)(4)(B).

       We also agree with the IJ’s determination that, in light of the implausibility of

Densmaa’s story and the contradictions in her testimony, it would not be unreasonable to

expect some evidence to corroborate her account. See Zheng v. Gonzales, 417 F.3d 379,



       2
         The 2005 United States Department of State Country Reports on Human Rights
Practices issued by the State Department for Mongolia states that prostitution is legal, but
notes that “public solicitation for prostitution and organizing prostitution remains illegal.”
(A.R. at 000283.) Densmaa, however, did not allege that she was accused of any public
solicitation.

                                               4
382-83 (3d Cir. 2005) (upholding IJ’s adverse credibility determination as to applicant

who presented an inherently implausible story and a suspicious lack of credible

corroboration). As the IJ explained, Densmaa failed to do so. In support of her

application, Densmaa presented an obituary for Chimgee,3 a police report stating that she

was arrested for “risk of recidivism and fugitive evasion,” medical records from May and

June 2004, unauthenticated letters from relatives and a friend, school reports, and a

newspaper article. None of these documents, however, supports Densmaa’s claim that

she and Chimgee were arrested and brutalized for being lesbians—although they may

show that Densmaa was arrested for some type of offense, that she was treated for injuries

in April and May 2004, and that Chimgee died, they do not sufficiently corroborate the

material aspects of her story.

       Furthermore, to the extent that Densmaa sought to base her application for asylum

on a well-founded fear of persecution, she failed to make a sufficient showing. See 8

C.F.R. § 208.13(b)(2); Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir. 2005). As the IJ

explained, Densmaa failed to provide any evidence of a pattern or practice of persecution

against homosexuals in Mongolia. Although, as noted above, she did submit a newspaper

article that reflects some amount of societal discrimination against lesbians, this article

does not establish a pattern or practice of persecution. See Lie, 396 F.3d at 537



       3
        At the hearing, the IJ observed that the obituary was printed in a lighter font than
the other newspaper articles on the same page and appeared to have been copied onto the
original newspaper.

                                              5
(explaining that petitioner seeking asylum due to pattern or practice of persecution must

establish “systemic, pervasive, or organized” violence “committed by the government or

forces the government is either unable or unwilling to control”) (internal quotations

omitted).

       Accordingly, we conclude that the IJ’s decision denying Densmaa’s application for

asylum is supported by substantial evidence. Given that Densmaa’s claims for

withholding of removal and relief under the CAT are based on the same evidence as her

asylum claim, we conclude that substantial evidence supports the IJ’s denial of these

claims as well.

       For the reasons set forth above, we will deny the petition for review.




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