[PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT  OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          APRIL 4, 2012
                                            No. 11-10559
                                      ________________________             JOHN LEY
                                                                            CLERK

                                           Agency No. A088-258-914


OLHA LYASHCHYNSKA,

llllllllllllllllllllllllllllllllllllllll                                  Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                  Respondent.
                                      ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                               (April 4, 2012)

Before DUBINA, Chief Judge, FAY, and KLEINFELD,* Circuit Judges.

FAY, Circuit Judge:


         *
        Honorable Andrew J. Kleinfeld, United States Circuit Judge, Ninth Circuit, sitting by
designation.
       Olha Lyashchynska (“Petitioner”) seeks review of a final order of removal

issued by the Board of Immigration Appeals (“BIA”) dismissing her appeal of an

Immigration Judge’s (“IJ”) ruling denying her application for asylum and

withholding of removal and protection under the Convention Against Torture and

other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”),1 based on

a finding of adverse credibility. On appeal, Petitioner alleges two bases for

reversal: (1) the BIA erred in finding that the IJ considered the totality of the

circumstances regarding the authenticity of the proffered evidence; and (2) the

BIA erred in finding that the State Department Investigator (“Investigator”) did

not violate the confidentiality requirement during the investigation of Petitioner’s

case. After review, we affirm.

                                                I.2

       Petitioner, a citizen of the Ukraine, was admitted to the United States on or

about May 23, 2006, as a J-1 exchange visitor. She changed her status to student

on December 11, 2006. On March 28, 2007, Petitioner applied for asylum,

claiming that she had been mistreated in Ukraine due to her sexual orientation.

After being interviewed by an asylum officer, she was denied asylum and her case

       1
           See 8 C.F.R. §§ 208.16(c), 1208.17 (2008).
       2
        The following facts are drawn from Petitioner’s testimony at her hearings before the IJ
on February 19, 2009; May 21, 2009; and June 30, 2009.

                                                 2
was referred to an IJ. Based on the denial and referral to an IJ, Petitioner was

issued a Notice to Appear, pursuant to section 237(a)(1)(C)(I) of the Immigration

Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(I). As an alien admitted as a non-

immigrant who failed to comply with the conditions of such status, she was

charged with removeability.

      In the ensuing proceedings before the IJ, Petitioner renewed her application

for asylum, withholding of removal, and protection pursuant to the CAT. During

the hearing on February 2009, she testified that in March 2004, she was raped by a

man she had been dating for some months (“Boyko”) who is the son of a

Ukrainian government official, and two of his friends. Boyko invited her to his

apartment under the ruse that they would be joining several of his friends. Once

there, Petitioner testified that Boyko and his friends forced her to drink an entire

bottle of vodka, beat her with towels, tore her clothes, slapped and ultimately

raped her. Petitioner testified that they told her that they were teaching her “how

to be a real woman.” After the incident, Petitioner’s mother took her to the

hospital in Ternopil where she remained over night with severe headaches

resulting from a concussion. Petitioner stated that she subsequently filed a

complaint with the police, but that the police closed the investigation due to a

purported lack of evidence.

                                          3
       Petitioner also testified that she belonged to a social club off campus where

members were of “untraditional orientation.” The social club was open to “gays.”

Petitioner testified that, in November 2004, six people came into the club and

began calling everyone “filthy gays and lesbians.” Petitioner said that she was

kicked, had her hair pulled, and suffered bruises to her legs. Her girlfriend at the

time, Yulia, was also at the club and she lost a tooth during the incident.

Petitioner identified the attackers as skinheads because of their clothing, but they

escaped arrest by fleeing when they heard the police sirens.

       Petitioner also testified that, in another incident in December 2005, she was

on her way home for the holidays and was attacked at a railway station. She stated

that a group of men “rushed” her, beat her, and urinated on her. Due to her

injuries, she required and received medical attention at the railway station, and at

the local hospital’s emergency room. Petitioner testified that she again attempted

to file a police report but, after the officers learned of her sexual orientation, they

would not accept her complaint. After that, Petitioner stated that her parents

received threatening letters from skinheads and that windows at her house were

smashed. Petitioner then decided to come to the United States.3


       3
         Four months after her arrival in the United States, Petitioner married a man, despite her
sexual orientation, because the guy “was like really nice” to her. That relationship lasted two
months. She never obtained a divorce, however, because she did not have the money and her

                                                 4
       On cross-examination, Petitioner was asked how she obtained the

documents she submitted to the Department of Homeland Security (“DHS”) in

support of her asylum application. Petitioner responded that her father had to “pay

somebody” to get a copy of the police report. As to the medical records, Petitioner

stated that her parents sent those to her from the Ukraine because her mom kept all

of her medical records. At that point in the proceedings, the DHS attorney

confronted Petitioner with evidence from the record, indicating that Petitioner’s

supporting documents were not authentic.

       The evidence submitted by the DHS resulted from an investigation by the

Fraud Detection National Security Section (“Fraud Detection Section”) and the

Department of State to verify the veracity of the various items of supporting

evidence submitted in Petitioner’s asylum application. On October 31, 2007, the

Department of State issued a report (“Report”) of its investigation. As to

Petitioner’s alleged rape, the Report revealed that the United States Embassy in

Ukraine contacted the Ternopil city hospital by telephone and that the hospital was

unable to confirm that Petitioner had been treated by the hospital. In the Report,

the head of the medical commission stated that Petitioner’s document was not

issued by the hospital because, if it had been, it would have contained the


husband’s father was in the hospital.

                                         5
signature of at least three doctors. The copy she provided had only one signature.

Furthermore, the name of the one doctor who was listed was not legible, so the

investigator was unable to verify whether the signing doctor in fact worked at the

hospital. The Report further found that the police report relating to the 2004 rape

incident was not authentic because the person signing that notice left the

department in 2003 and therefore could not have signed a document issued in

January 2004. In regard to the medical report concerning the 2005 railway

incident, the Report indicated that, in a letter faxed to the embassy, the head

physician of the Ternopil city hospital stated that it had no record of issuing

medical certificates to Petitioner, or that she had ever been a patient at the

hospital.

           Expressing his concern about the evidence presented in light of the DHS’s

Report, the IJ continued the hearing to allow Petitioner the opportunity to present

rebuttal evidence. The IJ noted that he would not tell Petitioner “what to do or

what not to do” but informed her that there were steps her counsel could take to

resolve the inconsistencies in the evidence.4 As a final matter at that hearing, the



       4
         The IJ noted that Petitioner’s counsel could obtain a waiver from his client concerning
her medical records and send letters directly to the institutions in the Ukraine asking them to send
documents directly back to the attorney verifying her claim, or that counsel could obtain local
counsel in the Ukraine to assist in the matter.

                                                 6
IJ accepted the testimony of Petitioner’s current girlfriend in the Untied States, as

set forth in a statement she provided to the court, stating she had been in a

relationship with Petitioner since April 2008.

      On May 4, 2009, Petitioner filed a motion for continuance, which was

denied for failure to demonstrate diligence. The hearing commenced again on

May 12, 2009, at which time Petitioner’s counsel indicated that he had a

polygraph and two statements to submit for consideration. The IJ expressed

hesitation in accepting those documents because they had not been provided to the

government for verification. The IJ again adjourned the hearing because

Petitioner had not yet received a response that she was expecting from the

Ternopil city hospital.

      On June 30, 2009, Petitioner appeared before the IJ for a third time but was

again unable to produce any corroborating evidence. Petitioner’s counsel argued

that Ukrainian hospitals were state-run and not private entities and therefore were

not cooperative in providing documents to Petitioner’s counsel. Counsel

submitted a letter from Petitioner’s father, stating that when he went to internal

affairs to get information about his daughter’s rape, the police threatened to arrest

and imprison him, and accused him of insulting the head of the department.

Petitioner’s counsel also submitted purported originals of the medical reports that

                                          7
had been previously submitted with her asylum application. The IJ noted that

those were the same documents that the hospital had reviewed and found

fraudulent in the Report. At that time, Petitioner’s counsel argued that the

confidentiality provisions regarding asylum applicants had been violated by the

Investigator in procuring the information listed in the Report.

      At the culmination of the third hearing on June 30, 2009, the IJ issued an

oral decision denying Petitioner’s application and ordering her removal to the

Ukraine. The IJ noted that Petitioner had not provided credible evidence to

corroborate the alleged medical treatment she received for her attacks, or the

police documents provided to the asylum officer. The IJ concluded that Petitioner

had been given ample time to clarify those inconsistencies and failed to do so or to

provide any credible explanation that would account for the inconsistencies.

      On January 11, 2011, Petitioner appealed the IJ’s findings to the BIA, which

the BIA dismissed. The BIA, like the IJ, held that based on the record evidence,

Petitioner did not demonstrate that the IJ’s adverse credibility determination was

clearly erroneous. Moreover, the BIA noted that Petitioner did not cite to any

information in the country conditions evidence that showed the medical

institutions of the Ukraine are in collusion with security forces to hide treatment of

injuries afflicted by third parties. The BIA also rejected Petitioner’s argument that

                                          8
the Investigator violated the confidentiality requirements during the investigation

of her medical and police reports by disclosing her name to Ukrainian officials.

Accordingly, the BIA affirmed the IJ’s decision and dismissed Petitioner’s appeal.

This appeal followed.

                                         II.

      “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,

, 765 (11th Cir. 2007) (citing Al Najjar v. Ashcroft, 

,

1284 (11th Cir. 2001)). “In that instance, we review the IJ’s decision as well.” 

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. 

257 F.3d at 1284). “To conclude the BIA’s decision

should be reversed, ‘we must find that the record not only supports the conclusion,

but compels it.’” 

v. U.S. Att’y Gen., 

, 1218 (11th

Cir. 2002)). “Factual determinations, including credibility determinations, are

reviewed under a substantial evidence standard, which provides that the decision

can be reversed only if evidence compels a reasonable fact finder to find

otherwise.” Tang v. U.S. Att’y Gen., 

, 1276 (11th Cir. 2009)

(internal quotations omitted) (citing Sepulveda v. U.S. Att’y Gen., 

,

                                         9
1230 (11th Cir. 2005)). We must affirm the agency’s decision “if it is supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.” D-Muhumed v. U.S. Att’y Gen., 

, 818 (11th Cir. 2004)

(citations and quotations omitted).                                       III.

        There are two issues on appeal: (1) whether the IJ and the BIA weighed the

evidence of document authenticity in light of the totality of the circumstances

when making their respective credibility determinations; and (2) whether the

Investigator conducting the investigation of Petitioner’s alleged abuse in the

Ukraine failed to comply with the confidentiality requirement of 8 C.F.R. §1208.6,

which generally prohibits disclosing information submitted in an asylum

application unless the applicant gives written consent. We address each issue in

turn.

                                          A.

        “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.” Averianova v. Mukasey, 

, 897 (8th Cir.

2007) (quotations omitted) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)). An adverse

credibility determination coupled with a lack of corroborating evidence for a claim

of persecution means that the applicant’s claim fails. 

“Where there are

                                          10
two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 

, 574 (1985) (citation omitted). “If an alien’s testimony is credible, it may be

sufficient, without corroboration, to satisfy his burden of proof in establishing his

eligibility for relief from removal.” Chen v. U.S. Att’y Gen., 

, 1231

(11th Cir. 2006) (citing Forgue v. U.S. Att’y Gen., 

, 1287 (11th Cir.

2005)); see also 8 C.F.R. §§ 208.13(a), 208.16(b). A denial of relief, however, can

be supported solely by an adverse credibility determination, especially if the alien

fails to produce corroborating evidence. See Mohammed v. U.S. Att’y Gen., 

, 1347 (11th Cir. 2008) (“Th[e] language in [8 C.F.R. § 208.13] plainly

indicates that if the trier of fact either does not believe the applicant or does not

know what to believe, the applicant’s failure to corroborate his testimony can be

fatal to his asylum application.”) (alternation in original) (citing Sidhu v. INS, 

, 1090 (9th Cir. 2000)).5 The record simply fails to compel a conclusion

contrary to that reached by the IJ and the BIA.

       5
          For applications filed after the REAL ID Act’s effective date of May 11, 2005, the
statute provides that an IJ may base a credibility determination on the demeanor or
responsiveness of the applicant, the inherent implausibility of the account, consistency between
the applicant’s written and oral statements, the consistency of the applicant’s statements with
other evidence on the record, and any inaccuracies or falsehoods, all “without regard to whether
an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see REAL ID Act § 101 (h)(2) (the new asylum
provisions of the REAL ID Act to applications filed after May 11, 2005).

                                                11
      Petitioner claims that both the IJ and the BIA failed to consider the totality

of the circumstances when denying her application for relief. Record evidence,

however, shows the contrary. Substantial evidence supports the BIA’s finding that

Petitioner failed to meet her burden of proof establishing eligibility for relief and

protection from removal. The IJ and the BIA made adverse credibility findings

based on specific, cogent reasons, including a number of inconsistencies in the

record, which Petitioner was given ample opportunity to rebut. She failed to do so.

      For instance, the IJ continued Petitioner’s hearing on two separate occasions

to give Petitioner the opportunity to corroborate her testimony with credible

evidence. At the first hearing, the IJ told Petitioner exactly what his issues with

the evidence presented were and gave Petitioner time to address them. The IJ

went as far as suggesting several avenues Petitioner’s counsel could take in doing

so. Nonetheless, Petitioner presented insubstantial evidence at the second and

third hearings. Petitioner introduced the “originals” of the same documents that

were submitted along with her application for asylum (and found to be fraudulent

by the Report) and a polygraph report, which was afforded less weight because

Petitioner did not establish either the expertise or competence of the individual

administering the test, or the circumstances under which the test was administered.

Given three occasions to provide credible evidence, Petitioner could not satisfy the

                                          12
threshold required by the IJ. However, Petitioner maintains that the credibility

determination reached by the IJ and the BIA was nonetheless based on speculation

and conjecture.

       In support, Petitioner relies on Tang, 578 F.3d at 1270,6 where, similar to

the facts before us, we reviewed a BIA decision dismissing an appeal of an IJ’s

denial of an application for asylum and withholding of removal. 

In

Tang, however, the inconsistencies we found were in the grounds on which the IJ

based its credibility determination, 

none of which are present here.

The inconsistencies on these facts lie in Petitioner’s own testimony and evidence.

Moreover, the petitioner in Tang was able to provide credible medical records

confirming the injuries she suffered in China due to the religious persecution she

faced there. 

Here, Petitioner could not provide accurate and credible

medical records to rebut the State Department’s Report showing that her

documents were fraudulent.

       Petitioner’s next contention is that the agency did not consider the 2009

Department of State report on human rights practices in the Ukraine, which was


       6
          Petitioner also cites Farquharson v. U.S. Att’y Gen., 

(11th Cir.
2001) for the premise that the Board’s decision demonstrates a completely inaccurate perception
of the record, which compels reversal. Farquharson is inapposite; it is a criminal case that
involved an illegal entry without inspection and conviction for a controlled substance violation.

It is of no consequence to the discussion before this Court.

                                               13
submitted to show corruption in the Ukrainian government. Petitioner’s argument

that, if considered, it would have explained her failure to provide corroborating

evidence is unavailing. First, Petitioner fell short of providing any credible

evidence, from an independent source, that would compel a reversal on that

ground. Cf. Kaczmarczyk v. INS, 

, 595 (7th Cir. 1991) (“We note

that agency action is entitled to a presumption of regularity, and thus the burden is

on the petitioners to convince us that the BIA gave short shrift to the evidence

they presented.”) (internal citations omitted). Additionally, the record does not

support Petitioner’s contention that the proffered country conditions evidence was

ignored. Petitioner acknowledges that the IJ addressed her theory that the

Ukraine’s public healthcare system explained her sparse medical records and the

United States Embassy’s inability to confirm her treatment at the Ternopil city

hospital. The IJ and the BIA found that, even assuming the police might wish to

cover up its failure to investigate Petitioner’s rape, nothing in the country

conditions evidence suggested that medical institutions in the Ukraine are in

collusion with the government. They found that, while it might be reasonable that

a corrupt police agency would not verify its own misdeeds, Petitioner’s allegation

of a cover-up by the medical institution was mere speculation. Thus, Petitioner’s

claim that the BIA ignored her country conditions evidence is unfounded.

                                          14
      Petitioner’s country conditions argument is also unavailing because, while

she urges the Court to accept the contention that corruption in the Ukraine is too

rampant to secure any credible information from them, she urges that we accept

the uncorroborated evidence she secured through her own sources. There is either

too much corruption to secure any documents or they are available through

diligent research. Based on the totality of the circumstances, both the IJ and the

BIA weighed the evidence of authenticity and determined that the State

Department’s Report was more credible than Petitioner’s testimony and the claims

of her family. Their determinations were not based on any single source or

inconsistency, but on substantial record evidence. We find no reason to disturb

these rulings. We therefore affirm the denial of relief as to this issue.

                                          B.

      Next, Petitioner argues that the Investigator disclosed her name to Ukrainian

officials during the course of his investigation, violating the confidentiality

provision pertaining to asylum applicants, 8 C.F.R. §1208.6(a). In its review of

the case, the BIA noted that the Investigator stated that he was aware of the

confidentiality requirement and complied with it. Upon consideration, the BIA

determined that the investigation was conducted appropriately. Specifically, the

BIA found that the objective of verifying police and medical records was satisfied,

                                          15
and that the methods used in conducting the investigation, contacting Ukrainian

officials, and circumstances surrounding the request for information were also

proper.

      On appeal, Petitioner does not point to any compelling evidence that would

lead this Court to disturb the BIA’s determination. Under the confidentiality

requirement of 8 C.F.R § 1208.6(a),

      Information contained in or pertaining to any asylum application,
      records pertaining to any credible fear determination conducted pursuant
      to § 1208.30, and records pertaining to any reasonable fear
      determination conducted pursuant to § 1208.31, shall not be disclosed
      without the written consent of the applicant, except as permitted by this
      section or at the discretion of the Attorney General.

8 C.F.R § 1208.6(a). Courts generally accord government records and official

conduct a presumption of legitimacy. See 

(citing

U.S. Dep’t of State v. Ray, 

, 179 (1991)). Courts also give

substantial deference to the BIA’s interpretation of its statutes and regulations.

See Bowles v. Seminole Rock & Sand Co., 

, 414 (1945).

      Although this is an issue of first impression for this Circuit, there are a few

decisions from sister Circuits that provide some instruction. See e.g., 

(finding that disclosure of applicants names and dates of birth did

not give rise to such an inference); Lin v. U.S. Dep’t of Justice, 

, 270



                                          16
(2d Cir. 2006) (“Many documents, such as birth certificates, marriage licenses, or

even some court records, do not necessarily imply that a foreign national is

seeking asylum.”); Che v. Mukasey, 

(8th Cir. 2008) (finding that the

agency’s conclusion that confidentiality regulations were not breached should not

be disturbed because the applicants name could be linked to many documents and

did not necessarily imply that the applicant was seeking asylum).

       In Averianova, the petitioners’ claims for breach of confidentiality failed

because the record did not show that the INS had disclosed any information

contained in or pertaining to an asylum application. 

Therefore, the

Eight Circuit held that the disclosure of the applicants’ names and dates of birth

could not establish a breach. In its decision, the Eight Circuit relied on an INS

memorandum interpreting its own regulation (“Cooper Memo”), which lists

specific scenarios when disclosure of an applicant’s information does rise to the

level of a breach.7 According to the Cooper Memo, a breach occurs when

information is disclosed to a third party and the disclosure is significant enough

that it allows the third party to connect the identity of the applicant to: (1) the fact



       7
          See Memorandum from Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS
Director of Int’l Affairs, Confidentiality of Asylum Applications and Overseas Verification of
Documents and Applications Information (June 21, 2011), available at
http://judiciary.house.gov/legacy/82238.pdf at 39-45.

                                               17
that the applicant is seeking asylum; (2) specific facts or allegations pertaining to

the individual asylum claim in the application; or (3) facts or allegations that are

sufficient to give rise to a reasonable inference that the person is seeking asylum.

(citing 

).

      Here, at most, the disclosure of Petitioner’s name was made to a hospital

administrator (to determine if she had ever been treated at that facility) but not to

police officials or other government actors. Petitioner would have this Court

equate disclosure to a hospital administrator with disclosure to a government

official and presume a violation. Such an argument is a non-starter, particularly

under the facts at issue here. Petitioner did not present any evidence showing that

hospitals are in the business of covering up government actions. On these facts,

even if this was a disclosure, it does not give rise to the inference that Petitioner

applied for asylum. Disclosure of a person’s name is not sufficient for a breach of

confidentiality; indeed without disclosure of a name, investigating these claims

would be impossible. There might be many other reasons to request such medical

information, such as an investigation relating to adoption or guardianship of a

child, and asylum is not among the more obvious. See 

(requesting copies of birth records does not give rise to a reasonable inference

of an asylum application because the documents “could relate to any number of

                                           18
ordinary government investigations”). Regardless, Petitioner contends that,

because she lives in a small town in the Ukraine, everyone would necessarily

know that the Investigator was seeking information in connection with her

application for asylum. In order to succeed on her claim, Petitioner needed to

demonstrate that the disclosure in question gave rise to a reasonable inference that

the person in question applied for asylum, and she failed to do so.

      Similarly, Petitioner’s claim is distinguishable from the Second Circuit’s

decision in Lin. There, the court found that Lin’s confidences were violated

because the INS provided the Chinese government with a document that is

typically associated with asylum claims. 

. Here, however, the

record does not reflect that the Investigator provided any documents to any

government officials in connection with his investigation. Nor did the

Investigator’s inquiries disclose any facts that would lead one to conclude that

Petitioner was applying for asylum.

      Accordingly, we find that Petitioner did not overcome the presumption of

regularity afforded to government investigations. Therefore, we affirm the BIA’s

finding that Petitioner’s right to confidentiality in the asylum application process

was not breached.

                                         IV.

                                          19
In conclusion, we affirm the findings of the IJ and the BIA denying relief.

AFFIRMED.




                                  20