[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-12708 ELEVENTH CIRCUIT
October 16, 2007
________________________
THOMAS K. KAHN
CLERK
BIA No. A97-201-911
VYACHESLAV NIFTALIEV,
LYUDMILA NIFTALIEVA,
DMITRO NIFTALIEV,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 16, 2007)
SUBSTITUTE OPINION
Before BIRCH, FAY and CUDAHY,* Circuit Judges.
FAY, Circuit Judge:
*Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
Upon sua sponte reconsideration of this appeal, we vacate our prior opinion,
published at 487 F.3d 834 (11th Cir. 2007), and substitute the following opinion in
its place.
Vyacheslav Niftaliev1 (“petitioner”), a citizen of the Ukraine, appeals the Board
of Immigration Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order denying his petition for withholding of removal under 8 U.S.C. § 1231(b)(3).
The IJ denied the petitioner’s request for withholding of removal, finding that the
petitioner did not suffer past persecution. The Board of Immigration Appeals upheld
the IJ’s findings in a short affirmance. For the reasons set out below, we reverse.
BACKGROUND
The petitioner testified as follows. He was born in 1965 in Azerbaijan, which
at that time was a part of the former Soviet Union. His father was Azerbaijani and his
mother was Ukrainian. The petitioner recognized at a young age that there was a
noticeable divide between the Azerbaijani and Ukranian people. His Azerbaijani
teachers singled him out and humiliated him because he was half Ukranian.
At age 18, the petitioner moved to the Ukraine to complete two years of
military service, as was required of young men in the Soviet Union at the time. The
1. We recognize that the petitioner’s wife and first child are also parties to this appeal.
However, the only issue on appeal is whether the petitioner suffered past persecution.
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majority of the soldiers were Ukrainian. These soldiers routinely harassed the
petitioner due to his Azerbaijani blood. The other soldiers would belittle the
petitioner, calling him names such as “filthy Azer” and “dirty Caucasian.” Some
soldiers would also regularly physically assault him. Officers would often assign the
petitioner and other minorities the “dirty work,” such as cleaning bathrooms and
digging ditches.
After completing two years of obligatory military service, the petitioner moved
to Estonia, which was also part of the Soviet Union, and started going to school.
Professors showed a distaste for people with Azerbaijani blood, as well as other non-
Estonian ethnic groups, and would verbally harass him in front of classrooms full of
students. The petitioner was eventually kicked out of school for protesting his
treatment.
In 1987, after divorcing his first wife, the petitioner moved back to the Ukraine
and remarried. In 1991, the couple had their first child in the Ukraine. Because his
last name was of Azerbaijani descent, he had trouble finding work and enrolling in
school. That same year, the Ukraine became a sovereign nation when it separated
from the Soviet Union. After the separation, there was a nationalist trend that further
isolated the petitioner and other minorities there. The petitioner testified that his
limited knowledge of the Ukrainian language became a liability as Ukranian replaced
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Russian, the previous official language. Also, to obtain employment, the petitioner
had to provide documentation such as a passport. These documents showed that he
was not of pure Ukrainian blood. As a result, the petitioner found it difficult to find
and hold down a job.
Since the new Ukranian government continued to treat other ethnic groups as
second-class citizens, the petitioner and three of his friends formed a group of
minorities (petitioner, another Azerbaijani, a Jew, and a Georgian) that protested the
government. This group organized rallies and spoke out against treating minorities
differently. For example, the petitioner testified that the government levied more
taxes against him simply because he was not a pure Ukrainian. The group also
protested against the Ukrainian National Assembly, a nationalist organization that
discriminated against non-Ukrainians. The petitioner, and his group of friends,
distributed pamphlets advocating equal rights for minorities.
In 1995, the petitioner’s group urged a boycott of the upcoming elections
because the candidates did not offer any solution to minorities’ problems. At a rally
against the candidates Ukrainian police beat up and arrested the petitioner. After the
petitioner’s first arrest, the SBU, a “higher police organization,” would randomly
interrogate him, search his home, and physically assault him.
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The petitioner was arrested at least two more times for similar activities. On the
last occasion, he was held for fifteen days without appearing before a court or
tribunal. His captors claimed that they were concerned the petitioner was plotting an
armed revolution. During these fifteen days, the petitioner was subjected to
numerous interrogations, given very little food, and beaten several times. During an
interrogation session on the fifteenth day, one of the officers put a pistol to the
petitioner’s head and threatened to kill him. It was only when the petitioner promised
to leave the country that he was released.
Two months passed as the petitioner recuperated in the hospital and obtained
the proper visas to leave the country. In early 1996, when the visas were in order, the
petitioner, his wife, and his child, fled from the Ukraine to Argentina. Unfortunately,
the mistreatment did not stop. While in Argentina, persons appearing to be muggers
attacked the petitioner on two separate occasions. The muggers beat up the petitioner
but did not steal anything. Not long after the muggings, an anonymous man speaking
Russian called the petitioner in Argentina and indirectly referenced the attacks saying
that his “friends in the Ukraine were giving regards to [him].” The petitioner agreed
to meet this man in a small cafeteria. When they met, the man identified himself as
a Ukrainian government official. This man asked the petitioner to provide him
information on new chemistry technologies being developed at the chemical plant
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where the petitioner worked. He further told the petitioner that the SBU still
remembered him and to not forget that his mother was still in the Ukraine. The
petitioner falsely agreed to obtain the information in order to stall for time. Shortly
thereafter, the petitioner moved his family to a different address and obtained the
necessary tourist visas to enter the United States. The petitioner and his family
entered the United States on February 13, 2001 with a six-month tourist visa. They
remained in the United States after the visa expired and gave birth to another child
during that time.
COURSE OF PROCEEDINGS
The Immigration and Naturalization Service (now part of the Department of
Homeland Security) issued a Notice to Appear before the IJ on July 17, 2003. At
that hearing the petitioner conceded that he, his wife, and his first child were subject
to removal under 8 U.S.C. § 1227(a)(1)(B), but asked that he be considered for
withholding of removal under 8 U.S.C. § 1231(b)(3).2
The hearing was continued until January 14, 2005. At that time, the petitioner
presented general evidence in the form of experts’ reports on nationalism, human
2. The petitioner also asked the IJ to consider withholding removal under the Convention
Against Torture. See 8 C.F.R. § 208.16(c). As this appeal only deals with the petitioner’s
arguments pertaining to withholding of removal under 8 U.S.C. § 1231(b)(3), we do not address
the validity of this claim.
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rights, antisemitism, and political censorship in the Ukraine. The petitioner testified
to the facts set forth above.
In considering a petitioner’s claim for withholding of removal, the IJ must
determine credibility in the same manner as in asylum cases. See 8 U.S.C. §
1231(b)(3)(C); 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii). When discussing this petitioner’s
credibility, the IJ stated “[t]he cross examination of the [petitioner] did not reveal
anything material or pertinent enough that would lead me to conclude that [he was]
an incredible witness. I do believe he was consistent with his application.” The IJ
found, however, that his testimony was not sufficiently detailed and that there was no
corroborative evidence to support the testimony. Therefore, the IJ held that the
petitioner had not established that he had been subject to past persecution. In light
of this finding, the IJ concluded that the petitioner failed to establish that it was more
likely than not that he would be subject to future persecution, based upon a protected
ground, if removed to the Ukraine. Thus, the IJ denied the petitioner’s application
for withholding of removal. On appeal, the BIA concluded there was no reversible
error in the IJ’s decision and summarily dismissed the petitioner’s case. This appeal
followed.
STANDARD OF REVIEW
There is one issue on appeal before this Court:
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I. Whether the BIA and IJ erred when they found the petitioner did not suffer past
persecution.
“When the BIA issues a decision, we review the BIA’s decision, except to the
extent that the BIA has expressly adopted the IJ’s decision.” Ruiz v. Gonzales, 479
F.3d 762, 765 (11th Cir. 2007) (citing Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). “In that instance, we review the IJ’s decision as well.” Id.
If the BIA’s decision is supported by reasonable, substantial, and probative
evidence when the record is considered as a whole, this Court must affirm. Ruiz, 479
F.3d at 765. “To conclude that the BIA’s decision should be reversed, we must find
that the record not only supports the conclusion, but compels it.” Id. (citing Fahim v.
U.S. Attorney Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)).
ANALYSIS
The petitioner argues that the IJ erred in concluding that he did not suffer past
persecution. He argues that the systematic discrimination and abuse he suffered in
the Ukraine based on his nationality, culminating with his fifteen-day detention where
he was beaten, starved and threatened for his life, amounts to past persecution.
Therefore, the petitioner asks that we remand the BIA’s decision to the IJ so that he
will have the benefit of the rebuttable presumption that his life or freedom would be
threatened upon removal to the Ukraine. See Antipova v. U.S. Attorney Gen., 392
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F.3d 1259, 1264 (11th Cir. 2004) (citing 8 C.F.R. § 208.16(b)(1)(i)). 8 U.S.C. §
1231(b)(3)(A) enumerates that an immigrant cannot be removed to a country where
his life or freedom would be threatened on account of the petitioner’s race, religion,
nationality, membership in a particular social group, or political opinion. See also
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482 (1992). The United States (“respondent”)
does not challenge that the abuse suffered by the petitioner was based upon a
protected ground, specifically nationality and/or political opinion.
The respondent does dispute the petitioner’s claim that the IJ erred when he
found that there had been no past persecution in this case. The respondent agrees
with the IJ that even though the petitioner testified credibly, the lack of corroborative
evidence was particularly damning, and justified a finding of no past persecution.
The petitioner raises an issue that this Court recently discussed in Ruiz v.
Gonzalez, 479 F.3d 762 (11th Cir. 2007). In Ruiz, the petitioner was a Colombian
immigrant seeking withholding of removal due to persecution by the Revolutionary
Armed Forces of Colombia (“FARC”). Id. at 763. Ruiz had been very active in an
opposing political party. Id. There were several incidents with the FARC, including
ones where Ruiz was beaten, received threatening phone calls, had his bus pulled
over and burned by the FARC, and finally when he and a friend were kidnaped and
held against their will. Id. at 763-64. Ruiz was beaten and taunted for eighteen days,
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until he was able to escape while the FARC skirmished with the Colombian army.
Id. at 764. This Court held that the cumulative effect of the beatings, the threatening
phone calls, the rape of his friend’s wife, the kidnaping and resulting beatings and the
killing of his friend amounted to past persecution. Id. at 766.
The respondent attempts to distinguish this case from Ruiz. The argument is
that Ruiz had various pieces of corroborative evidence, including a police report from
one of the assaults involving the FARC, a statement from the wife of his friend who
was kidnaped with him and ultimately killed, and a medical report documenting
treatment for scratches and wounds received while held captive in the jungle. Id. In
this case, the only evidence dealing with his personal treatment is the petitioner’s
testimony. He does not present any police reports, hospital records, or other evidence
to corroborate his testimony. The respondent argues that therefore 8 U.S.C §
1252(b)(4) prevents this Court from reversing the IJ’s determination.3 The
respondent further argues that the petitioner’s testimony is too vague to warrant a
finding of past persecution.
These arguments simply have no merit. First, while the IJ did not explicitly
state that the petitioner was credible, he did state that the petitioner was not
3. “No court shall reverse a determination made by a trier of fact with respect to the
availability of corroborating evidence... unless the court finds... that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
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incredible, and that his testimony was consistent with his application. As even the
respondent recognizes on appeal, this language is equivalent to finding the petitioner
credible and consequently his testimony must be accepted. In spite of the ruling on
credibility, the IJ found, and the respondent now argues, that the petitioner’s
testimony is not sufficiently detailed to warrant relief.
However, the petitioner testified extensively and with sufficient detail about
protests, beatings, arrests, searches, interrogations, being imprisoned for fifteen days,
being held with little food or water, being threatened with being shot and even
continued harassment when he moved to Argentina. The respondent had the
opportunity to cross-examine the petitioner and did not expose any inconsistencies
in his testimony, nor did the respondent seek more detailed explanations of events
referred to in the testimony, but rather focused on the lack of corroborating evidence.
Accepting the facts as outlined in detail by the petitioner, it is clear to us that he has
suffered past persecution. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1202 (11th
Cir. 2005) (noting the applicant “must, with specific and credible evidence, establish
past persecution”) (emphasis added); In re S-M-J, 21 I.&N. Dec. 722 (BIA 1997)
(stating an alien’s own testimony “can suffice where the testimony is believable,
consistent, and sufficiently detailed.”).
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With respect to the respondent’s 8 U.S.C. § 1252(b)(4) argument, this appeal
does not concern whether corroborative evidence was available. This appeal
concerns whether or not the petitioner’s credible testimony, in and of itself,
establishes his past persecution. 8 C.F.R. § 208.16(b) provides that “[t]he testimony
of the applicant, if credible, may be sufficient to sustain the burden of proof [in a
withholding of removal case] without corroboration.” We are satisfied that such is
the situation here.
The facts in this case are akin to Ruiz and in our opinion this record compels
a finding of past persecution based upon the cumulative effect of (1) the
discrimination the petitioner suffered in the Ukraine due to his mixed ethnicity, (2)
the numerous beatings, arrests, searches, and interrogations he endured after speaking
out against the Ukrainian government, (3) the fifteen-day period he spent in detention,
deprived of food, beaten, and threatened at gunpoint, and (4) the beatings and threats
he received from Ukrainian officials after he fled to Argentina. Therefore, we find
that the petitioner should benefit from the rebuttable presumption that his life or
freedom would be threatened if returned to the Ukraine.
We hold that the IJ erred when he found that the petitioner failed to establish
past persecution. The BIA made the same mistake. The facts of this case compel
such a finding. We are also troubled by the notion of condemning the petitioner for
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failing to obtain some sort of documentation from the same government that
persecuted and imprisoned him, concerning incidents that occurred approximately ten
years ago.
CONCLUSION
Because this record compels a finding that the petitioner suffered from past
persecution, he is entitled to the benefit of the rebuttable presumption described in 8
C.F.R. § 208.16(b)(1)(i). We grant the petition, reverse the rulings of the BIA and
IJ and remand to the BIA to remand to the IJ for proceedings consistent with this
opinion.
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