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Averianova v. Mukasey: IMMIGRATION - credibility findings of fact OK; unsufficent evidence of past religious persecution in Uzbekistan

United States Court of Appeals
No. 06-3717
Antonina Averianova, *
Petitioner, *
v. *
Michael B. Mukasey, Attorney General *
of the United States of America, *
Respondent. *
Petition for Review of an Order of
No. 06-3718 the Board of Immigration Appeals.
Oksana Averianova, *
Petitioner, *
v. *
Michael B. Mukasey, Attorney General *
of the United States of America, *
Respondent. *
Submitted: September 27, 2007
Filed: December 10, 2007
1The IJ and BIA also rejected the Averianovas claim for protection under the
Convention Against Torture (CAT). The Averianovas have not set forth an
argument on appeal regarding the CAT ruling. Therefore, petitioners waive this
claim. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Antonina and Oksana Averianova, citizens of Uzbekistan, petition for review
of a Board of Immigration Appeals (BIA) decision affirming the immigration
judges (IJ) denial of the Averianovas applications for asylum and for withholding
of removal.1 For the reasons discussed below, we deny the Averianovas petitions.
Antonina and Oksana Averianova are a mother and daughter seeking asylum
in the United States because of alleged persecution on account of their Jewish
ethnicity and religious beliefs.
Antonina was born in Russia in 1951. Her family moved to Uzbekistan shortly
after her birth. She has two children, Oleg and Oksana. Antonina claims that her
father was Jewish and her mother Russian, but her mother adopted her fathers
ethnicity upon marriage. Antonina does not practice Judaism regularly and only
began practicing in the late 1980s. She cites various incidents of past persecution in
Uzbekistan, allegedly because of her Jewish background. She testified that she was
once attacked on a bus because she was not Muslim. On another occasion a man
yelling about Jews hit her and split her lip. Her son was beaten for not being Muslim
and having Jewish roots. She did not report any of these incidents to the police.
Antonina arrived as a non-immigrant visitor to the United States. She applied
for asylum in 1993.
2The INS ceased to exist March 1, 2003, and its functions were transferred to
the new Department of Homeland Security (DHS). See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). We shall continue to
refer to the DHS as the INS in this opinion.
Oksana testified to various problems she encountered in Uzbekistan because of
her alleged Jewish ethnicity. In school, she faced frequent taunting. A group of girls
once threatened her and pushed her head in a toilet. She recalled incidents of Muslim
men harassing her, slapping her in the face, calling her a Jewish whore, and
threatening to cut her legs for wearing a short skirt. She reported that her professors
at night college prevented her from participating in class and that she had difficulty
finding employment in Tashkent, the capital of Uzbekistan. Oksana did not report any
of these incidents to the police. She arrived in the United States in 1996 and applied
for asylum shortly thereafter. She does not practice Judaism in the United States. The
IJ consolidated her case with Antoninas.
During the asylum proceedings, the Averianovas submitted several birth
certificates to prove their Jewish ethnicity. (In the former Soviet Union, the
government considered Jewish an ethnicity and listed it on birth certificates as a
nationality.) None were original documents, and the Averianovas testified that any
original documents, such as original birth certificates, internal passports, travel
passports or marriage certificates, had been lost or stolen. The Immigration and
Naturalization Service (INS),2 in conjunction with the American embassy in
Tashkent, investigated the birth certificates submitted by the Averianovas and
identified specific discrepancies that called into question their authenticity.
The Averianovas presented a translated copy of Oksanas birth certificate,
notarized in Russia in 1994, which stated that Antonina was Jewish. In May 2002,
the INS gave the copy of Oksanas birth certificate to American embassy personnel
in Tashkent. Embassy staff then asked the local register of Tashkent to access
Oksanas birth record. The embassy personnel discovered that the official record of
Oksanas birth listed Antoninas nationality as Russian. Oksana contended that the
embassy report was an unreliable, hand-written copy, and that it erroneously listed her
birth date. American embassy officials subsequently obtained two digital photographs
of her birth record. The photographs showed Antoninas nationality as Russian.
The register also corrected the birth date error after embassy staff identified it. The
IJ found that the two documents were identical . . . with one exceptionthe
nationality of Russian in the original record had been changed to Jewish in
Oksanas copy.
After the INSs original inquiry into Oksanas birth certificate, the Averianovas
initiated a court proceeding in Tashkent on March 5, 2003, to amend Antoninas
fathers birth record to state that he was Jewish. Antoninas fathers original birth
certificate indicated that he was Russian. The court changed the record on May 21,
2003. The Averianovas submitted the amended birth certificate and the record of the
Tashkent court hearing to the IJ.
Once the INS discovered that Oksanas birth record actually stated that
Antonina was Russian, not Jewish, the Averianovas submitted several more
copies of birth certificates to the IJ. First, a copy of Antoninas brother Victors birth
certificate dated August 10, 2002 reflected that his (and Antoninas) father was
Jewish. The INS obtained digital photographs of the original birth record bearing
the serial number reflected on the copy submitted by the Averianovas and determined
that the serial number reflected on the copy actually was contained on a birth
certificate issued to someone other than Victor. Second, a birth certificate submitted
for Oleg stated that his mother Antonina was Jewish. The INS obtained two digital
photographs of his actual birth record in Tashkent that listed Antoninas nationality
as Russian. Third, Antonina submitted a copy of her birth certificate issued in 1992
that listed her fathers nationality as Jewish. The INS found that the serial number
on this birth certificate also was issued to someone else and obtained a copy of that
persons birth record.
The IJ rejected the Averianovas asylum claims. The IJ focused on their claims
of persecution based upon their Jewish ethnicity because that was the overwhelming
thrust of their claims, and they had not provided sufficient testimony regarding
claims of persecution on account of their non-Uzbek ethnicity. The IJ determined that
the photographs of Uzbek records were trustworthy and persuasive evidence. The IJ
found that the Averianovas had submitted fraudulent documents, which adversely
affected their credibility. He also found that they offered no explanation for the
discrepancies. He held that without credible proof of their Jewish ethnicity, their
asylum claims failed. The IJ refused to extend comity to the Tashkent court
proceeding of March 5, 2003. He also found a lack of any objective corroborating
evidence regarding the Averianovas alleged persecution. On account of the lack of
credible testimony and lack of corroborating evidence, the IJ also rejected their claims
for withholding of removal.
In attempting to verify the birth certificates the Averianovas submitted, the INS
sent them to the American embassy in Tashkent. Embassy staff checked records and
made inquiries to local Uzbek officials. The Averianovas contended that confidential
information had been revealed in the course of the investigation in violation of
. The Averianovas
argued that the disclosures gave rise to an inference that they had applied for asylum,
which they claimed created a separate basis for asylum. The IJ found no proof that
the INS had revealed confidential information to Uzbek authorities. He determined
that the INS merely investigated a vital statistic, their ethnicity, which could relate to
any number of ordinary government investigations. Additionally, because the
Averianovas went to an Uzbek tribunal to alter family birth records regarding their
Jewish ethnicity, the IJ doubted that the Averianovas had any real concern over a
release of that information to the Uzbek government. Therefore, the IJ refused to
grant relief on this basis as well and denied their applications.
The BIA adopted and affirmed the IJs determination. It first agreed that the
Averianovas had offered only conjecture to explain why the false documents
differed from the official Uzbek records. It also determined that it would not grant
comity to the decision of a foreign tribunal where fraud and manipulation of the
immigration laws were present. Additionally, the BIA held that this adverse
credibility determination tainted the overall credibility of the Averianovas, which
affected both the Jewish claims and the non-Uzbek claims. The BIA also agreed that
the INS did not breach the Averianovas confidentiality.
When the BIA adopts the IJs decision, but adds reasoning of its own, we
review both decisions. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006). We
affirm the decisions if they are supported by substantial evidence in the record. Singh
v. Gonzales, 495 F.3d 553, 556 (8th Cir. 2007). We review questions of law de novo,
and we will reverse findings of fact only if the evidence is so compelling that no
reasonable fact finder could fail to find in favor of the petitioner. Turay v. Ashcroft,
405 F.3d 663, 66667 (8th Cir. 2005).
A. Asylum
The Attorney General has discretion to grant asylum to a refugee, defined as
an alien who is unable or unwilling to return to her home country because of past
persecution or a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. Onsongo
v. Gonzales, 457 F.3d 849, 852 (8th Cir. 2006); see 8 U.S.C. 1101(a)(42)(A),
1158(b)(1); 8 C.F.R. 208.13. The applicant must establish that one of the five
protected grounds was or will be at least one central reason for persecuting the
applicant. 8 U.S.C. 1158(b)(1)(B)(I). An applicant can establish a well-founded
fear of future persecution by showing that she has a subjective fear of persecution and
that credible, direct, and specific evidence establishes that a reasonable person in
the applicants situation would fear persecution. Mamana v. Gonzales, 436 F.3d 966,
968 (8th Cir. 2006).
1. Adverse Credibility Finding
An applicant bears the burden of satisfying the IJ that her testimony is
credible, is persuasive, and refers to specific facts sufficient to demonstrate that the
applicant is a refugee. 8 U.S.C. 1158(b)(1)(B)(ii). A credibility determination is
a finding of fact, and 1252(b)(4)(B) provides that it should be accepted unless any
reasonable adjudicator would be compelled to conclude to the contrary. Singh, 495
F.3d at 556 (quoting 8 U.S.C. 1252(b)(4)(B)). The combination of an adverse
credibility finding and a lack of corroborating evidence for the claim of persecution
means that the applicants claim fails, regardless of the reason for the alleged
persecution. Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir. 2004). In this
case, we find that the record does not compel a conclusion contrary to that reached by
the IJ and BIA because the Averianovas submitted fraudulent documents, could not
explain the numerous discrepancies, and failed to provide evidence otherwise
corroborating their claim of persecution on the basis of their Jewish ethnicity.
The IJ found that the Averianovas lacked credibility because they submitted
fraudulent documents. The INSs investigation provided strong evidence that the
Averianovas actual birth records consistently contradicted the nationality listed in the
birth certificates that they submitted. The Averianovas supplied additional false birth
certificates after the birth certificate presented by Oksana had been proven false by
photographic evidence. The birth certificates purporting to be Oksanas and Olegs
indicated Antoninas nationality as Jewish, but the INS presented photographs
showing that the actual birth certificates stated Antoninas nationality as Russian.
Antoninas Jewish birth certificate was generated in 1992, around the time the
Averianovas intended to enter the United States. The birth certificates purporting to
be Antoninas and her brothers contained serial numbers of birth certificates issued
to other individuals, not the Averianovas. While minor inconsistencies and
omissions will not support an adverse credibility determination, inconsistencies or
omissions that relate to the basis of persecution are not minor but are at the heart of
the asylum claim. Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir. 2004)
(internal quotation omitted).
The Averianovas on appeal claim that they had no knowledge that the
documents were fraudulent, and, therefore, they should not be subject to an adverse
credibility determination. They rely on Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir.
2004), which requires the IJ to find that the applicant knew or had reason to know
about the fraudulent nature of submitted documents. Id. at 103940. In Kourski, the
applicant claimed that he received the documents from his mother and that the forgery
was subtle, which undermined the notion that the applicant knew or had reason to
know about the fraud. Id. We have held that [a]n IJ may base an adverse credibility
determination upon submission of fraudulent documents if the petitioner fails to offer
a legitimate explanation for the suspected fraud. Onsongo, 457 F.3d at 854. In
Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir. 2005), for example, we reviewed an
IJs determination that the applicant submitted a frivolous asylum claim, in part
because she submitted a fraudulent document. We distinguished Kourski because the
IJ explicitly found that the document submitted by Ignatova was fraudulent, and the
applicant never provided any explanation about the discrepancy. Id. at 1214. In
this case, the IJ explicitly made both findings, and he did so regarding not just one, but
four documents.
The Averianovas attempt to explain the discrepancies between the submitted
documents and the official records by attacking the INSs investigation. They argue
that the IJ should not have trusted the INSs investigation because Uzbek officials may
have altered or provided incorrect documents and because the Averianovas expert
witnesses identified possible record-keeping errors systemic to the former Soviet
Union. The IJ weighed this evidence and determined that the INSs investigation was
trustworthy, particularly because of photographic proof submitted by the INS.
Therefore, the IJ found that these circumstances resulted in an adverse credibility
finding. We are not convinced that a reasonable adjudicator would be compelled to
find the contrary.
3Comity is the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens, or of other
persons who are under the protection of its laws. Hilton v. Guyot, 159 U.S. 113,
16364 (1895).
In light of the adverse credibility finding, the Averianovas attempted to present
evidence corroborating their Jewish ethnicity and of their past persecution or wellfounded
fear of future persecution on account of it. The only corroborating evidence
the Averianovas offer in regard to their Jewish ethnicity was the Tashkent tribunal
decision amending their fathers ethnicity from Russian to Jewish on a birth
certificate issued in Chelyabinsk, Russia, which they urge deserves comity.3 It is
questionable whether comity should be extended to an ex parte, quasi-administrative
proceeding initiated ten years after filing the original asylum claim in the United
States. The proceeding began only after the Averianovas received word from the INS
that their original documentation was false, calling into question their claims
regarding their ethnicity. The BIA pointed out that retroactive foreign judgments
regarding marital status are not granted comity where fraud, misrepresentation, or
manipulation of the immigration law are present. Matter of Magana, 17 I. & N. Dec.
111, 113 (B.I.A. 1979). The BIA concluded that, similarly, comity would not be
extended to the decision of the Uzbek court in a proceeding regarding birth certificate
information initiated after asylum proceedings began because of the presence of
fraud and manipulation. Under the circumstances of this case, where an applicant
initiates a foreign court proceeding after an asylum case has begun and in light of the
evidence of fraud and manipulation, we agree and refuse to find that the Tashkent
courts actions constitute sufficient corroborating evidence such that a reasonable
adjudicator would be compelled to find the Averianovas testimony credible.
Even assuming arguendo that the Tashkent court order provides sufficient
corroborating evidence that the Averianovas are Jewish, the Averianovas still do not
offer sufficient corroborating evidence that they suffered past persecution or that they
4The Averianovas insist that the IJ failed to consider their non-Jewish claims,
such as fear of returning to Uzbekistan because they are non-Uzbeks or fear of
returning because they have lived in the United States for several years
have a well-founded fear of future persecution. They reported no incidents of abuse
to the police. Their only corroborating evidence comes in the form of expert witness
testimony regarding conditions in Uzbekistan. Those experts could not testify to the
Averianovas past persecution. The experts could only attest to the country conditions
regarding the reasonableness of their well-founded fear of future persecution. On the
other hand, the IJ cited the INSs country condition reports regarding civil liberties
and human rights in Uzbekistan, which indicated that Jews enjoy religious freedom
and that no pattern of discrimination against Jews exists. These country condition
reports constitute substantial evidence supporting the IJs and BIAs decisions.
2. Confidentiality
The Averianovas also claim that the INS breached their confidentiality in its
investigation of the authenticity of the birth certificates they submitted and that this
breach provides them a new and independent basis for an asylum claim. Courts
5The Averianovas each orally consented to an investigation on the record and
in the presence of counsel, but they did not provide written consent. See 8 C.F.R.
generally accord Government records and official conduct a presumption of
legitimacy. U.S. Dept of State v. Ray, 502 U.S. 164, 179 (1991); accord Lin v. U.S.
Dept of Justice, 459 F.3d 255, 265 (2d Cir. 2006) (adopting language of Ray in
breach of confidentiality analysis). We give substantial deference to the BIAs
interpretation of its statutes and regulations. Varela v. Ashcroft, 368 F.3d 864, 866
(8th Cir. 2004); Lin, 459 F.3d at 262. We look to the INSs interpretation of its own
regulation, but only if the meaning of the words used is in doubt. Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see Hailemichael v. Gonzales,
454 F.3d 878, 883 (8th Cir. 2006) (citing Seminole Rock).
Section 208.6 requires that [i]nformation contained in or pertaining to any
asylum application . . . shall not be disclosed without the written consent of the
applicant. 8 C.F.R. 208.6(a).5 The regulation provides for certain exceptions to the
general prohibition, and the INS argues that, pursuant to an exception, it may reveal
information to government officials who need to examine an asylum application. See
id. 208.6(c)(1). The Averianovas, however, do not contest the INS revealing
information to American embassy personnel in Tashkent. Instead, they claim that
revealing information to Uzbek officials violated their confidentiality. Therefore, that
exception to the regulation does not apply.
The Averianovas breach of confidentiality claim fails because the record
reveals no evidence that the INS disclosed any information contained in or
pertaining to any asylum application to Uzbek officials when examining the
Averianovas official birth records. The INS gave the birth certificate copies
submitted by the Averianovas to American embassy staff to determine their
best, the record reflects that the INS and embassy staff had possession of the birth
certificates and that the INS and embassy staff obtained copies of Uzbek birth records
by requesting Uzbek officials for access to them.
In the Second Circuits Lin decision, the INS provided the applicants criminal
Certificate of Release, a document commonly related to asylum claims, to the
Chinese government. Lin, 459 F.3d at 265. In this case, however, the record does not
reflect that the INS gave such a document to Uzbek officials. The INS requested
copies of birth records, which is not a disclosure of information contained in an
asylum application. Embassy staff asked what forms Uzbek officials used when
producing birth certificates, obtained digital photographs of the Averianovas birth
records, and asked local police contacts about specific information found in Uzbek
birth records. These inquiries did not disclose any information contained in or
pertaining to an asylum application to Uzbek officials. The record only reflects
inquiries regarding information contained in Uzbek records. We find that the
Averianovas have not overcome the presumption of regularity in the INSs
The Averianovas also claim that the INS revealed their names and Oksanas
date of birth to Uzbek officials. Additionally, the Averianovas assert that making
specific inquiries of Uzbek officials regarding their ethnicity rose to the level of a
disclosure of information pertaining to their asylum applications. Even if we assumed
that these inquiries constituted disclosures under the regulation, that alone does not
necessarily entitle them to asylum relief.
Because the regulation itself provides no remedy at all, we look to the INSs
interpretation of its own regulation, which is controlling unless plainly erroneous or
inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal
quotation omitted); see Lin, 459 F.3d at 262. The INS has interpreted 208.6 in a
memorandum known as the Cooper Memo and in a guide to confidentiality known
as the Fact Sheet.6 The Cooper Memo describes three types of disclosures that
could result in a breach of confidentiality.
Generally, confidentiality of an asylum application is breached when
information contained therein or pertaining thereto is disclosed to a third
party, and the disclosure is of a nature that allows the third party to link
the identity of the applicant to: (1) the fact that the applicant has applied
for asylum; (2) specific facts or allegations pertaining to the individual
asylum claim contained in an asylum application; or (3) facts or
allegations that are sufficient to give rise to a reasonable inference that
the applicant has applied for asylum.
Cooper Memo at 34; see Lin, 459 F.3d at 263.
The INS has also suggested that if a disclosure gives rise to a reasonable
inference that an applicant has applied for asylum, an applicant may have a new and
independent basis for an asylum claim. The Fact Sheet states, [P]ublic disclosure
might, albeit in rare circumstances, give rise to a plausible protection claim where one
would not otherwise exist by bringing an otherwise ineligible claimant to the attention
of the government authority or non-state actor against which the claimant has made
allegations of mistreatment. Fact Sheet at 2; see Lin, 459 F.3d at 263.
Pursuant to the INSs interpretation of 208.6, a disclosure that does not give
rise to a reasonable inference that the applicant has applied for asylum does not
necessarily require the vacatur of an order of removal. Lin, 459 F.3d at 267.
7We assume without deciding that a person seeking asylum qualifies as a person
who is a member of a particular social group pursuant to 8 U.S.C. 1101(a)(42)(A).
See Lin, 459 F.3d at 26668 (finding the INS interpretation not plainly
erroneous and reaching a similar conclusion); see also Abdel-Rahman v. Gonzales,
493 F.3d 444, 454 (4th Cir. 2007) (accepting the Lin courts reasoning and adopting
the INS interpretation).
The Cooper Memo distinguishes between inquiries that breach confidentiality
and inquiries that do not. For instance, submitting a document known to form the
basis of an asylum claim could give rise to a reasonable inference that a person has
made an asylum claim. Cooper Memo at 4; see Lin, 459 F.3d at 265 (finding a
Certificate of Release, commonly related to asylum claims of former Chinese
prisoners, sufficient to give rise to a reasonable inference that the petitioner had an
asylum claim). In contrast, the INS does not breach confidentiality if the inquiry is
routinely conducted for reasons unrelated to an asylum application, such as for an
employment application or a visa application. Cooper Memo at 5.
At most, the INS provided the Averianovas names and Oksanas date of birth
to Uzbek officials when requesting copies of their birth records. We find that even if
these are disclosures, they do not give rise to a reasonable inference that the
Averianovas had applied for asylum. Additionally, inquiring into their ethnicity, a
vital statistic commonly found in birth records, also does not give rise to such an
inference. Indeed, the Second Circuit concluded, Many documents, such as birth
certificates, marriage licenses, or even some court records, do not necessarily imply
that a foreign national is seeking asylum. Lin, 459 F.3d at 270. The Averianovas
have noted that Jewish refers to nationality in Uzbekistan and appears in Uzbek
birth records. The IJ correctly found that the investigation of the contents of a birth
certificate, including nationality or ethnicity, could relate to an adjustment application,
a marriage investigation, visa petitions, or other benefits applications.
, and they failed to offer any
other evidence that they, as asylum applicants, would be persecuted by individuals the
government is unable or unwilling to control. See Nabuwala v. Gonzales, 481 F.3d
1115, 1118 (8th Cir. 2007) (Persecution may be a harm to be inflicted either by the
government of a country or by persons or an organization that the government was
unable or unwilling to control.) (internal quotation omitted).
B. Withholding of Removal
To establish a claim for withholding of removal under 8 U.S.C. 1231(b)(3),
an applicant must demonstrate a clear probability of persecution, which is a more
difficult standard to meet than demonstrating a well-founded fear of future
persecution. Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005). Because the
Averianovas have not met the burden of proof for their asylum claims, they also fail
to meet the higher burden of proof required for obtaining withholding of removal. See
Ibrahim v. Gonzales, 434 F.3d 1074, 1079 (8th Cir. 2006).
For the foregoing reasons, we deny the Averianovas petitions for review.


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