NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0546n.06
No. 12-3802
FILED
UNITED STATES COURT OF APPEALS Jun 04, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
VERONIKA NIKOLAJUK, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW FROM
) THE BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
Before: COLE and COOK, Circuit Judges; KATZ, District Judge*
COOK, Circuit Judge. Veronika Nikolajuk, a native and citizen of Belarus, seeks review of
a Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial
of her claims for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). For the following reasons, we DENY the petition.
I.
Nikolajuk lawfully entered the United States in June 2006 using a J1 visa. Instead of
departing when her visa expired that September, she sought asylum on the ground that she feared
*
The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
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Nikolajuk v. Holder
political persecution from Belarusian police. The Department of Homeland Security (“DHS”)
charged her as removable for overstaying her visa. See 8 U.S.C. § 1227(a)(1)(B). In April 2009,
Nikolajuk, through counsel, conceded removability and sought asylum, withholding of removal, and
protection under the CAT.
Nikolajuk, the sole witness at her removal hearing, testified as follows. As a teenager, she
read some of her cousin’s political science books, which caused her to question the Belarusian
government’s policies. She did not, however, express these political objections until enrolling at
Belarusian State University. While living in the school dorms, she joined a “secret group” of
students who opposed the Belarusian government. The extent of her involvement in the dissident
group, however, remains uncertain, as her affidavit and testimony conflict on this point. In her
asylum affidavit, Nikolajuk claimed to have participated in a mass meeting taking place near the
university dorms in March of 2006, but during her removal hearing, she disavowed any personal
involvement in the demonstration and asserted that it was her boyfriend, Sasha, who actively
supported the protesters by bringing them food. Sasha’s contribution to the protest netted him two
days in jail. Sometime after his release, authorities searching for Sasha found him in Nikolajuk’s
dorm room and began beating him. When Nikolajuk intervened, a police officer pushed her out of
the way, causing her to strike her head against the wall. In her affidavit, she claimed that one of the
officers told her to keep quiet about the injury, warning that no one would believe her. She did not
mention this threat during the removal hearing.
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Next, Nikolajuk attested that, in late April 2006, two men in police uniforms attacked her
during the night, raping and beating her as she walked to her dorm room. She testified that one of
her attackers told her no one would believe her if she came forward about the attack, but in her
asylum affidavit, she reported that he threatened to kill her if she reported the rape. Additionally,
although her affidavit states that she “somehow” reached a hospital soon after the attack, she testified
that she waited until the following day to seek treatment. And her mother’s letter gave a different
date for the hospitalization altogether—several days before the alleged attack. Though Nikolajuk
submitted documents confirming that she was hospitalized around this time, the hospital records list
the reason as “a chronic disease” and kidney trauma. Furthermore, she claimed that she visited her
OB-GYN, but this visit appears nowhere in the records. Nikolajuk never reported the rape,
explaining that she feared police retaliation and that no one would believe her. Last, she mentioned
some conversations with her mother that suggested the police inquired about Nikolajuk’s
whereabouts. Nevertheless, she admitted that police never issued any warrant for her arrest, as she
broke no laws prior to leaving Belarus.
The translator scheduled for Nikolajuk’s merits hearing failed to show, so a telephonic
interpreter—who struggled to keep up with Nikolajuk’s “rambling” answers—filled in. The IJ
repeatedly cautioned Nikolajuk to slow down and speak in “clear and short[] statements,” but she
failed to heed these instructions. At the close of the hearing, the IJ orally denied all of Nikolajuk’s
claims for relief, concluding that she was not credible. Alternatively, the IJ held that Nikolajuk’s
testimony, if credited, did not rise to the level of persecution on a protected ground.
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Nikolajuk appealed to the BIA, which upheld the IJ’s credibility findings and its conclusion
that she failed to present a “nexus” between her alleged harm and a statutorily protected ground. It
also rejected Nikolajuk’s claimed prejudice resulting from the telephonic interpretation. She timely
petitioned this court for review.
II.
A. Standard of Review
“Where, as here, the BIA affirms an IJ’s ruling and adds its own comments, we review both
the IJ’s decision and the BIA’s additional remarks.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir.
2012) (alteration and internal quotation marks omitted). We apply a substantial evidence standard
to the BIA’s factual findings, including its credibility assessment, reversing only if the evidence “not
only supports a contrary conclusion, but indeed compels it.” Klawitter v. INS, 970 F.2d 149, 152 (6th
Cir. 1992). In this post-REAL ID case, the IJ could take into account the totality of the
circumstances when making its credibility assessment. This includes: “the consistency between the
applicant’s . . . written and oral statements . . . and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also El-Moussa v. Holder, 569 F.3d 250, 256
(6th Cir. 2009).
B. Asylum
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To qualify for asylum, an applicant must demonstrate that she fits 8 U.S.C.
§ 1101(a)(42)(A)’s definition of a refugee: an alien who is unable or unwilling to return to their
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.
§ 1158(b)(1)(A). Proof of past persecution raises a rebuttable presumption of a well-founded fear
of future persecution. 8 C.F.R. § 208.13(b)(1).
First, we consider Nikolajuk’s challenge to the BIA’s and IJ’s adverse credibility findings.
Reviewing Nikolajuk’s application and testimony, the BIA noted numerous inconsistencies that
diminished her credibility. For example, she testified that after the sexual assault, one police officer
warned that no one would believe her if she reported the rape. Yet in her written affidavit, she
claimed that the officer threatened to kill her if she told anyone about the assault. The BIA also
noted that Nikolajuk gave different dates for when the police came to her room searching for Sasha
and when she went to the hospital. Furthermore, the BIA—though giving Nikolajuk the benefit of
the doubt regarding why she never reported the rape—explained that her claimed OB-GYN visit
“rais[ed] the question why the medical document [was] limited solely to [Nikolajuk’s] kidney
injury.” Nikolajuk argues that these inconsistencies resulted from translation errors, but her hearing
testimony undermines this claim. She answered “no” to the question “are you having a hard time
understanding the translator[?]” and she fails to specify how the translator misinterpreted her
testimony. In any event, an allegedly faulty translation leaves unanswered the BIA’s question
regarding Nikolajuk’s undocumented OB-GYN visit. Moreover, the IJ did not have to credit her
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explanation over a reasonable alternative. Singh v. Ashcroft, 398 F.3d 396, 402 (6th Cir. 2005).
Therefore, because substantial evidence supported the BIA’s credibility assessment, we see no reason
to disturb its findings.
Even accepting her testimony as true, Nikolajuk’s story lacks a “nexus” between her alleged
persecution and any of the statutorily protected grounds. She correctly points out that one such
ground is an “imputed political belief,” but nevertheless fails to show that this applies to her case.
Though emphasizing that Belarusian authorities regularly persecute students who oppose the
government, she admits that authorities never arrested or abused her because of her personal
involvement in such political matters. Thus, her claims fall short of establishing persecution because
of her own political leanings, imputed or otherwise. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.
1997) (finding that asylum applicants cannot “establish that their persecution was ‘on account of’
political opinion by inference, unless the inference is one that is clearly to be drawn from facts in
evidence”). The incident in the dorm room bears even less of a relationship to a protected ground,
given that the police injured Nikolajuk because she interfered with her boyfriend’s arrest. Thus,
Nikolajuk’s “imputed political opinion” argument is not well-taken, as she presents no evidence
“from which it is reasonable to believe that the harm was . . . motivated in part by an actual or
imputed protected ground.” See Lleshi v. Holder, 460 F. App’x 520, 525 (6th Cir. 2012) (finding no
nexus between rape and protected ground, where petitioner’s attacker was the son of a local
communist leader, and petitioner belonged to a group disfavored by that party) (citing Matter of J-B-
N & S-M-, 24 I. & N. Dec. 208, 211 (BIA 2007)); see also Sokoli v. Holder, 458 F. App’x 493 (6th
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Cir. 2012) (same, where asylum was based on alleged kidnapping and attempted rape which
petitioner attributed to her father’s political activity).
Next, Nikolajuk argues that the law does not require her to show she would be “singled out
individually,” provided she can demonstrate “a pattern or practice . . . of persecution” over a “group
of persons similarly situated to the applicant.” Fair enough. Yet her membership in such a group
remains unverified and, even if credited, she alleges no facts suggesting Belarusian police know
about this affiliation. Although she does claim that her former boyfriend was an active participant
in a student group challenging the Belarusian government, she expressly disavowed any personal
participation in the group’s activities. (AR 259 (“I had nothing to do directly with this meeting
[supporting the opposition’s candidate].”).) These facts, providing sufficient evidence for the BIA’s
conclusions, do not compel reversal.
C. Withholding of Removal and CAT Relief
Nikolajuk submits that the BIA’s denial of her applications for withholding of removal and
CAT relief lacked evidentiary support, compelling reversal. Like the IJ, the BIA hinged its decision
on Nikolajuk’s failure to present credible testimony or corroborating evidence regarding her alleged
abuse. See 8 C.F.R. § 1208.16(b) (“The burden of proof is on the applicant for withholding of
removal under [the INA] to establish that his or her life or freedom would be threatened in the
proposed country of removal on account of . . . political opinion.”); id. § 1208.16(c)(2) (“The burden
of proof is on the applicant for withholding of removal under [the CAT] to establish that it is more
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likely than not that he or she would be tortured if removed to the proposed country of removal.”).
To merit withholding or removal, an alien must demonstrate a “clear probability” of persecution,
which is a stricter standard than the “well-founded fear” standard applicable to asylum applications.
Ceraj v. Mukasey, 511 F.3d 583, 594 (6th Cir. 2007). Unable to carry the less demanding burden,
Nikolajuk’s withholding of removal and CAT-claims—based on the same facts and argument—also
falter. Id.
III.
For the foregoing reasons, we DENY Nikolajuk’s petition for review.
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