Filed: Oct. 03, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-3-2005 Dolab v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4031 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Dolab v. Atty Gen USA" (2005). 2005 Decisions. Paper 457. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/457 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-3-2005 Dolab v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4031 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Dolab v. Atty Gen USA" (2005). 2005 Decisions. Paper 457. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/457 This decision is brought to you for free and open access by the Opinions of th..
More
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-3-2005
Dolab v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4031
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Dolab v. Atty Gen USA" (2005). 2005 Decisions. Paper 457.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/457
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-4031
__________
ZHANNA DOLAB,
Petitioner,
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________
On Petition for Review of an Order of Removal
from the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A78-308-433)
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2005
___________
Before: RENDELL, FUENTES, and GARTH, Circuit Judges
(Opinion Filed: October 3, 2005)
__________
OPINION
__________
Garth, Circuit Judge:
Zhanna Dolab (“Ms. Dolab”), a native and citizen of Belarus, petitions this Court
to review an order of the Board of Immigration Appeals (“BIA”) summarily affirming the
denial of her application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied Ms. Dolab’s
application solely because he determined that she was not credible. The IJ made several
factual findings on which he based this determination. Some of these findings have no
basis in the record, while others do find support in the record. Though this is a close case,
we find that there is substantial evidentiary support for the IJ’s denial of Ms. Dolab’s
application. We will deny the Petition for Review.
BACKGROUND
I.
On September 16, 2001 Ms. Dolab entered the United States unlawfully from
Mexico by crossing the Rio Grande River into Texas. The Immigration and
Naturalization Service (“INS”)1 found Ms. Dolab removable pursuant to 8 U.S.C.
§1182(a)(6)(A)(i) because she was an alien present in the United States without being
admitted or paroled, and who arrived in the United States at a time and place other than
1
As of March 2003, “the INS ceased to exist as an independent agency within the United
States Department of Justice [‘DOJ’] and its functions were transferred to the newly formed
United States Department of Homeland Security.” Leia v. Ashcroft, 393 F.3d 427, 430 n.4 (3d
Cir. 2005). The BIA remains within the DOJ. Knapik v. Ashcroft,
384 F.3d 84, 86 n.2 (3d Cir.
2004) (citing Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat.
2135 (2002)).
-2-
that designated by the Attorney General. Venue was transferred from El Paso to
Philadelphia.
At an initial hearing on December 13, 2001, Ms. Dolab conceded removability, but
stated her intention to apply for asylum, withholding of removal and protection under the
CAT, claiming she had been persecuted in Belarus on the basis of her political opinion.
Soon thereafter, she submitted her application. On May 9, 2002, the IJ continued the
hearing on the merits of that application for slightly more than a year. Ms. Dolab
indicated that she would be submitting evidence to support her application over the
course of that year. (108).2
II.
At a merits hearing on May 19, 2003 and in the affidavit she submitted with her
application, Ms. Dolab testified to the following:
She was a member of the pro-democracy United Civil Party (“UCP”), which
opposes the authoritarian regime of Belarus’s President Alexander Lukashenko. Ms.
Dolab was inspired to join the party in 2000 when she returned to Belarus after spending
two years in the United States. She stated in her affidavit:
Having visited the US for the first time my life views have
changed[.] I realized I changed and started to look at things
differently. Even before this trip I realized that regime of our
President Lukashenko was unfair and that there was no
democracy in our country, and that people suffer indignity
2
The government represents that the “IJ continued the hearing on the merits for over one
year to enable the Petitioner to file additional supporting evidence.”
-3-
throughout their lives. After a visit to the United States my
country of Belarus and life under regime of Lukashenko just
seemed to me a horrifying place to live. I realized this was all
the fault of our government and its policy . . . I could not put
up with such a government and decided I had to struggle for
democracy together with the party of “UCP.”
(268).
Ms. Dolab’s primary role in the party was to create and distribute party leaflets and
flyers. On several occasions she suffered abuse at the hands of state agents due to her
membership in and activities on behalf of the UCP.
On October 8, 2000, she attended a rally opposing certain government officials in
her city, Grodno. Police arrested and beat many people during the rally, but Ms. Dolab
was not among them. Soon thereafter, however, her mother was approached by
unidentified people who asked questions about Ms. Dolab. Ms. Dolab drew from this the
conclusion that she was under government surveillance.
In the middle of February, 2001, on her way home from an evening spent passing
out UCP leaflets on a suburban train, Ms. Dolab was approached by police who asked her
to follow them to police headquarters. At headquarters, the police refused to allow Ms.
Dolab to call home to let her family know she was alright. They asked her whether she
was a member of the UCP and what she did for the party. They also asked her for
information about her friends within the party. Ms. Dolab told the police about her own
involvement in the UCP, but refused to “inform on [her] friends.” (122). In response, the
-4-
police told her she was naive, yelled at her, and threatened her. They then forcibly poured
vodka down her throat, gave her a blood-alcohol test to determine that she was
intoxicated, and then fined her for drunk and disorderly conduct in a public place. Ms.
Dolab paid the fine, and was allowed to leave after about 8 hours, but the police told her
to cease her activities with the UCP, or else that would not be the last meeting between
her and them.
The police later told Ms. Dolab’s employer that she had been fined for public
drunkenness. She explained to her employer what had actually happened – that the arrest
had been politically motivated. As a private enterprise employer already disfavored by
the anti-privatization government, however, he was reluctant to attract attention, and thus
fired Ms. Dolab anyway.
After this incident, Ms. Dolab took a brief trip to Poland, which she testified was
17 kilometers from her home, to buy food and medicine. (157-58).
On March 25, 2001, Ms. Dolab attended a demonstration in a central square in
Minsk. Military soldiers descended on the square and beat and arrested several
participants, including Ms. Dolab. The soldiers took Ms. Dolab into custody and then
turned her over to police officers from Grodno. The police isolated Ms. Dolab for 24
hours and then ordered her to plead guilty to their accusations. Ms. Dolab did not know
what those accusations were and accordingly refused to plead guilty. The police then
interrogated her and called her “bad names.” They kicked her and beat her with batons in
-5-
her stomach until her uterus began to bleed. This was especially painful for Ms. Dolab
because she suffers from fibroma. Realizing how badly she was hurt, the police delivered
her to the hospital, where she stayed for three days.
After she was released from the hospital, she went to Moscow to stay with her aunt
and recover. Following a period of recuperation, however, Ms. Dolab needed to earn
some money. At the end of April she thus found a job as a “bus stewardess” in Belarus,
and returned to live and work there.
On April 30, 2001, in her capacity as a bus stewardess, Ms. Dolab escorted a
busload of tourists to the Czech Republic. She returned to Belarus on May 17, 2001.
On July 3, 2001, Ms. Dolab attended a celebration in Grodno commemorating
Belarus’s liberation from fascism during the Second World War. As she was returning
home late that night, she heard footsteps behind her. Frightened, she ran into the lobby of
her building and pushed the button for the elevator. The elevator did not come in time;
Ms. Dolab’s pursuers caught up with her and hit her over the head with a bottle. Before
Ms. Dolab lost consciousness, she recognized the men who had hit her as the police who
had interrogated and beaten her on March 25, 2001. When she regained consciousness,
she realized she had been raped.
After this incident, Ms. Dolab “could not get back to [her]self for a long time.”
(134). She began to receive phone calls in which the caller threatened that if she
complained to anyone about what had happened, the police would put her in prison or
-6-
make her “disappear” as other pro-democracy activists in Belarus had. Terrified, Ms.
Dolab fled with her friend Timofey Ivanov (“Ivanov”)3 to Mexico on September 5, 2001.
Before she left, however, Ms. Dolab took several brief trips to Poland and a trip to
Moscow. Some of these trips apparently had some connection with Ms. Dolab’s attempts
to secure a ticket to Mexico. (161-63).
III.
In support of her application Ms. Dolab submitted country conditions reports from
the U.S. State Department and several non-governmental organizations, as well as several
newspaper articles about political protests and police misconduct in Belarus. These
materials confirmed generally that the Lukashenko regime committed abuses against
those who opposed it. For example, the introduction to the State Department Report
alone contains this corroborating information:
the Presidential Guard – which was created initially to protect
senior officials – continued to act against the political enemies
of the Lukashenko regime with no judicial or legislative
oversight. Members of the security forces committed
numerous serious human rights abuses . . . At least one
suspicious death of a political activist was reported. The
authorities did not undertake serious efforts to account for the
disappearances of well-known opposition political figures in
previous years and discounted credible reports during this
year regarding the regime’s role in those disappearances . . .
Security forces arbitrarily arrested and detained citizens, and
the number of apparently politically motivated detentions
greatly increased, although many of those detained were held
for brief periods. The security services continued to infringe
3
Ivanov is currently in California. (142).
-7-
on privacy rights and freedom of movement by closely
monitoring the activities of opposition politicians, human
rights organizations, and other segments of the population . . .
Opposition political parties and movements were subjected to
increased pressure through both judicial and extra-judicial
measures, including physical abuse of political opponents.
(169).
Aside from the country conditions reports and newspaper articles, Ms. Dolab did
not submit any other documentary evidence with her application. When asked why she
did not submit letters from her family members corroborating her story, she said: “I don’t
correspond with them. I just simply telephone them.” (163). When asked why Ivanov
did not attend her hearing to give testimony in support of her application, she stated: “I
don’t understand the question. I have no idea why he’s not here today. This is my court
hearing, not his.” (142).
Ms. Dolab left papers – including original papers documenting the medical
treatment she received after she was beaten and raped – with her sister in Belarus. Ms.
Dolab’s sister gave the original papers to her mother, who passed away on April 22, 2002.
No one was able to find the papers in Ms. Dolab’s mother’s home after she passed away.
Ms. Dolab also took copies of these papers with her to the United States. They were
destroyed, however, during her passage through the Rio Grande River to the United
States.
IV.
After the hearing, the IJ found Ms. Dolab not credible and denied her application.
-8-
The adverse credibility determination rested on several bases. The IJ found it implausible
that (1) police would have singled Ms. Dolab out for mistreatment when she had been
involved with the UCP for only a short time and had performed for the party only a
“menial job,” and that (2) Ms. Dolab would have returned to Belarus after leaving the
country on several occasions when she had been treated so brutally in Belarus. Further,
the IJ was disturbed by what he identified as inconsistencies between Ms. Dolab’s
testimony at the hearing and information she supplied in her application and
accompanying affidavit. Finally, the IJ was disturbed that Ms. Dolab lacked
documentation of her assertion that she was under government surveillance after the
October 8, 2000 rally, her membership in the UCP, and the medical treatment she
received after being beaten and raped. The IJ did not rely for his adverse credibility
determination on his personal observations of Ms. Dolab’s demeanor.
The IJ gave no indication in his opinion that he had reviewed the country
conditions reports that Ms. Dolab submitted, or compared the specific incidents she
described to the general information in those reports.
The BIA summarily affirmed the IJ’s decision.
JURISDICTION & STANDARD OF REVIEW
The BIA’s jurisdiction arose under 8 C.F.R. §1003.1(b). We have jurisdiction to
review the BIA’s decision under 8 U.S.C. §1252. Where, as here, “the BIA issues a
summary affirmance under its streamlining regulations, we essentially review the IJ’s
decision as if it were the decision of the BIA.” Jishiashvili v. Attorney General, 402 F.3d
-9-
386, 391 (3d Cir. 2005).
“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §1252(b)(4)(B). In other
words, the IJ’s decision must be supported by substantial evidence. Dia v. Ashcroft, 353
F.3d 228, 247 (3d Cir. 2003).
“An alien has the burden of supporting [her] claim for relief from removal. An
alien’s credibility, by itself, may satisfy [her] burden, or doom [her] claim.” Id. (citing
Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002)). “We look at an adverse credibility
determination to ensure that it was appropriately based on inconsistent statements,
contradictory evidences, and inherently improbable testimony.”
Id. at 249. Minor
inconsistencies do not provide an adequate basis for an adverse credibility finding. Xin
Jie Xie v. Ashcroft,
359 F.3d 239, 243 (3d Cir. 2004) (citations and quotations omitted).
“Where an IJ bases an adverse credibility determination on ‘implausibility,’” as the
IJ in part did here, “such a conclusion will be properly grounded in the record only if it is
made against the background of the general country conditions . . . [A]dverse credibility
determinations based on speculation or conjecture, rather than on evidence in the record,
are reversible.” Dia, 353 F.3d at 249 (citations and quotations omitted).
DISCUSSION
The IJ denied Ms. Dolab relief only because he found her not credible. The sole
issue before us is whether that adverse credibility determination was supported by
substantial record evidence. We thus evaluate each basis cited by the IJ for that
-10-
determination.
1. Implausibilities
The IJ found Ms. Dolab not credible in part because he found two aspects of her
testimony implausible. As explained below, there is no basis in the record for the first
finding of implausibility, but substantial evidence supports the second such finding.
First, the IJ found it difficult to believe that the Belarussian government would
have singled Ms. Dolab out for mistreatment. He stated:
It is difficult for the Court to understand or to believe that the
police would have a vested and such an interest [sic] in the
respondent as she would have me to believe. The respondent
was only a member of the [UCP] party for a rather short
period of time and had the menial job of printing fliers and
handing out fliers along with other individuals. It is
inconceivable for this Court to believe that the police were so
interested in her that they would arrest her and then
interrogate her as to the names of other party members. The
Court does not understand why the police would even think
that she would know other party members insofar as her
duties in the party would provide her with such information.
That line of testimony was totally incredible to the Court.
(87). The State Department Report on Belarus, however, contains statements that directly
bear upon and inferentially support Ms. Dolab’s testimony that the Government singled
her out for interrogation despite the fact that her job disseminating flyers was, in the IJ’s
view, “menial.” For example, that Report states that
[u]nidentified plainclothes officials working for the security
services . . . regularly apprehended and detained individuals
engaged in antiregime demonstrations and in the distribution
of opposition materials. There were several reports that
-11-
individuals and members of organizations involved in
publishing opposition media were arrested and detained.
(171) (emphasis added).
The IJ’s “implausibility” finding was not “made against the background of the
general country conditions,” as was required. Dia, 353 F.3d at 249. It thus is not
supported by substantial evidence. See
id. at 259 (rejecting IJ’s finding that it was
implausible that low-ranking persons in a Guinean opposition party would be arrested and
detained when the record contained evidence that such arrests and detentions were
occurring in Guinea).4
The IJ also found it implausible that Ms. Dolab would have returned to Belarus
after leaving the country on several occasions (to go to Poland, the Czech Republic and
Russia). The IJ stated
It is difficult for this Court to believe . . . that notwithstanding
the horrendous episodes that the respondent related to the
Court she time and time again returned to Belarus when she
had the opportunity of leaving that country and staying in the
country traveled to and asking for some type of protection in
that country. When confronted with this fact the respondent’s
answer was simple, and she stated that Belarus was her home
and consequently she would return there. That in and of
itself, again, does not make particular sense. If, indeed, the
respondent had undergone what she told the Court she had
experienced in her country, surely in one of her many trips
4
Disturbingly, the IJ did not even indicate that he had reviewed the country conditions
reports, as he was required to do. See Berishaj v. Ashcroft, 378 F.3d 314, 320 (3d Cir. 2004)
(noting that an article in the record corroborated petitioner’s testimony and that it is not
“permissible for the IJ . . . not to address the relevant country report in some detail”).
-12-
outside of Belarus she would have sought some type of
protection in that country she was visiting.
(93).
The fact that an asylum applicant leaves the country in which she allegedly fears
persecution and then returns to it before fleeing for good is not per se enough to
undermine her credibility.5 See, e.g., Ding v. Ashcroft, 387 F.3d 1131, 1139-40 (9th Cir.
2004); Damaize-Job v. I.N.S.,
787 F.2d 1332, 1337 (9th Cir. 1986). Nevertheless, we are
as troubled as the IJ was by the fact that Ms. Dolab took such an unusually large number
of international trips during 2001, and each time returned to Belarus. This fact, and the
fact that several of these trips occurred after the incident (the July 2001 rape) that she
presented in her testimony as the turning point – the event that precipitated her desire to
leave Belarus for good – are difficult to reconcile with her claim that she feared for her
safety. When the Government asked Ms. Dolab why she returned to Belarus time and
time again, she replied (as the IJ noted) only: “It’s my home. I resided, I had my family.
I cannot live in a foreign country on the street.” (163). We cannot conclude that any
reasonable adjudicator would be compelled to find Ms. Dolab credible despite the many
trips she took to Poland, the Czech Republic and Russia during the period state agents
5
Ms. Dolab explained that she returned from her visit to her aunt in Moscow in particular
because she needed to earn some money. We note that needing to work is not an unreasonable
impetus for returning home. In fact, we recently reversed an IJ’s denial of asylum to a Ghanaian
woman who had been persecuted in Ghana despite the fact that she had fled to Nigeria and then
returned from there to Ghana in part because she had “no money.” Fiadjoe v. Attorney General,
411 F.3d 135, 140 (3d Cir. 2005).
-13-
allegedly were persecuting her.
2. Inconsistencies
The first inconsistency the IJ identified was in Ms. Dolab’s accounts of the July 3,
2001 rape. Ms. Dolab wrote an affidavit in Russian which she had translated into English
and then submitted with her asylum application. In the translated affidavit Ms. Dolab
stated that, on the way home from an evening spent distributing leaflets at her city’s
celebration of “the day of Liberation of Belarus from Fascists,”
I heard steps behind my back. I tried to escape but they
caught up at the porch of my house and hit me on the head
with a bottle. As I was loosing [sic] my consciousness I
managed to make out the faces of two men, who were the
same individuals that chased me earlier. I know they were the
militia officers. I cannot tell how much time I spent lying
unconscious on the ground, but when I regained my
consciousness I realized I was raped. It is very hard for me to
put in words what I felt at that horrific moment.
(271). At her hearing, Ms. Dolab recounted the same story. An interpreter present at the
hearing translated her words in this way:
A: [In] July there was a liberation date in Belarus and the
celebration of the city.
Q: What happened on that day?
A: I am coming back home in the evening. It was like, it was
the middle of the night because we distributed fl[y]ers. I can
hear steps in the back. I got frightened, ran into a lobby. I
tried to press the button to get the elevator down, but the
elevator was far away. I mean the elevator was up and I knew
they will get me . . .
-14-
Q: And the building you walked into was your, was your
apartment house or was that another building?
A: That’s correct. My residence.
Q: All right. And what happened.
A: Okay. I pushed the button to get the elevator, but I knew it
was not enough time because the elevator was up and the door
in the lobby were already in the process of being opened. I
see two men running toward me. I made decision run
upstairs. I reside on the sixth floor at the time. They got me.
Q: What happened next?
A: They knocked me with a bottle on my head . . . I fell to the
ground and I am, I am feeling I’m passing out. I could
identify those as a police. I saw them before at the time I
been interrogated back on March 25 th . Eventually I passed
out. When I regained my composure I realize I got raped . . .
After, after that particular event I could not get back to myself
for a long time.
(131-32).
Ms. Dolab’s attorney pointed out that the English version of Ms. Dolab’s affidavit
translated the word Ms. Dolab used to describe the place where the rape took place as
“porch,” whereas the interpreter at the hearing (a different person than translated Ms.
Dolab’s affidavit) translated that word as “lobby.” To demonstrate that this difference
was one of translation only and did not reflect a substantive difference in the two tellings
of the story, Ms. Dolab’s attorney showed the interpreter present at the hearing the
version of Ms. Dolab’s affidavit that she had written in Russian, and asked him to
translate the relevant portion of it. The interpreter translated that portion in this way:
-15-
Coming back home I heard behind steps. I was running. But
they apprehended me in the lobby and they literally gave me a
bottle on my head, which is they strike for my head.
(166) (emphasis added). After this clarification, it was clear that the porch/lobby
disparity was actually no disparity at all.
During Ms. Dolab’s cross-examination, the Government pointed out that her
affidavit referred to the building in which she lived (in translation) as a “house” whereas
it had been referred to (in translation) at the hearing as a “building.” The Government
asked
can you explain why you call it your house in your affidavit,
but here in testimony you call it your building, an apartment
building. There is a significant difference between those.
(141). Ms. Dolab replied: “Well, you have to understand every building we call a house.”
Id. Indeed, the words “house” and “apartment” are often used interchangeably by city
dwellers in this country as well.
Both inconsistencies in Ms. Dolab’s two accounts of her rape thus were (1) in the
first place, minor, and (2) explained away at her hearing as being products of translation
from the Russian. Nevertheless, the IJ cited them as one of the major reasons for his
denial of Ms. Dolab’s application. He stated that the version of her story she told at the
hearing was
completely different than the version set forth in her affidavit.
Whenever the Court sees diametric differences between the
testimony of the respondent and the affidavits that she is
-16-
submitting in support of her claim, the credibility of the
respondent in a case in chief naturally suffer. [sic].
(90). These differences were explained. The IJ’s adverse credibility determination is not
supportable on the basis of them.
The other inconsistencies the IJ identified were between information submitted on
Ms. Dolab’s I-589 application and information she supplied at her hearing. They, too,
were explained at Ms. Dolab’s hearing, but the IJ persisted in relying on them, pointing to
them in his opinion as one basis for his adverse credibility finding.
On her application Ms. Dolab stated that she first came to the United States in
October 10, 2000, (285), whereas she testified at the hearing that she first entered this
country in autumn of 1998. (143-44). On her application she stated that she had had no
employers in the past 5 years, (286), but she testified at her hearing that she had had two
employers during that period. The location of her signature on her application reflects
that no one besides Ms. Dolab prepared the document, (292), but she testified that
someone in her lawyer’s office had actually typed it for her. (144, 146-49).
Ms. Dolab stated that the information on her application that conflicted with her
testimony was erroneous and that the fault for it lay with her lawyer’s office. Her lawyer
then represented to the court:
I do confirm that our office did fill out the application . . . I
was training a new secretary at the time and these are her
typos, Your Honor. I do apologize . . . This is completely my
mistake and no fault of the respondent.
-17-
(151-52).
Despite this admission, the IJ apparently refused to believe that Ms. Dolab had not
completed the I-589 application herself, and thus that the inconsistencies between the
application and the testimony were not evidence that she was lying. He stated that
It is extremely difficult for this Court to believe that an
attorney’s office completing an application for asylum would
note on that application that it was not, indeed, completed by
them.
(192-93).
The IJ’s adverse credibility determination is not supportable on the basis of these
inconsistencies.
3. Lack of Documentation
Finally, the IJ based his adverse credibility finding on the fact that Ms. Dolab did
not present documentation (1) demonstrating that she was under government surveillance
after the October 8, 2000 rally, (2) proving that she was a member of the UCP, and (3)
showing that she had undergone medical treatment after she was beaten and raped by
police. Of course, corroboration is not always required to establish credibility. Dia, 353
F.3d at 253. We have held, however, that an applicant – even an otherwise credible
applicant – may be required to present evidence to corroborate her story so long as the
BIA (1) identifies the facts for which it is reasonable to expect corroboration, (2) inquires
into whether the applicant has provided information corroborating the relevant facts, and
(if she has not) (3) analyzes whether the applicant has adequately explained his or her
-18-
failure to do so. Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2003). See also, e.g.,
Dia, 353 F.3d at 253-54.
We find that it was unreasonable for the IJ to have expected Ms. Dolab to
corroborate her assertion that she was under government surveillance after the October 8,
2000 rally. It is not at all clear how a person would corroborate such an assertion, see,
e.g., Dia, 353 F.3d at 253 (finding it impossible to imagine how an asylum applicant
could have provided documentary support for his assertion that the military was “after
him”), other than to submit reports indicating that the Lukashenko regime monitored the
activities of opposition groups and their members generally, which Ms. Dolab did.6
Under the particular circumstances of this case, however, we do find that it was
reasonable for the IJ to expect some sort of corroborating evidence for Ms. Dolab’s claim
that she was a member of the UCP and that she underwent medical treatment. See
Abdulai, 239 F.3d at 554 (observing without expressing agreement that the BIA’s
decisions establish that it is reasonable to expect an applicant to corroborate her assertion
that she underwent medical treatment).
Though Ms. Dolab had more than a year during which to gather such evidence, she
failed to do so. She explained how original copies of certain documentation of her
medical treatment and membership in the UCP was lost (after her mother died) and
6
The State Department Report, for example, stated that “[t]he security services continued
to infringe on privacy rights and freedom of movement by closely monitoring the activities of
opposition politicians, human rights organizations, and other segments of the population . . . The
Presidential Guard (or security service) reportedly continued to conduct surveillance activities of
the President’s political opponents.” (169 & 171).
-19-
destroyed (in the Rio Grande River). She presented no explanation, however, for why she
was not able to obtain affidavits from Ivanov (who is currently in California) or members
of her family (with whom she is in telephone contact) confirming some of the facts to
which she testified, though the Government gave her the opportunity to articulate such an
explanation during its cross-examination of her. (142, 163). See, e.g., id. (noting that the
BIA has “stated that it is generally reasonable to expect applicants to produce letters from
family members remaining in the applicant’s home country”). When the IJ explained his
denial of her application to Ms. Dolab, he stressed that her failure to either produce
documentation or explain why she could not do so was a major reason for his decision.7
He thereby analyzed whether Ms. Dolab had adequately explained her failure to produce
7
The IJ told Ms. Dolab
I don’t believe your testimony and you haven’t helped yourself by
the fact that you have not submitted one bit of evidence to support
what you’re telling me. You could have submitted letters,
affidavits, anything. Even from this person you traveled with,
[Ivanov]. Nothing. Now, your affidavit says that you had copies
of medical reports and a complaint against the government and had
evidence that what you were telling me was true and that while you
came into the United States they got wet and they got destroyed.
It’s highly unlikely, ma’am. Then in your affidavit you say you left
everything back in Belarus with your sister . . . Well, since this
case was last heard more than [a] year ago, the natural presumption
would be that you would get these documents from your sister.
And your rebuttal to that is, well, my sister gave them to my
mother and my mother, and now the documents are lost. That
doesn’t make sense either. I’m pretty sure you’re lying. I know
you’re not credible. I’m pretty sure you’re intentionally lying to
me and that you made [up] this entire . . . case.
(167-68).
-20-
documentation, within the meaning of Abdulai.
CONCLUSION
Though some of the evidence supports a finding that Ms. Dolab was credible, we
hold that the IJ’s determination is sustainable on the basis of Ms. Dolab’s several
international trips and her failure to produce witnesses (e.g., Ivanov) and documentation
of certain facts. We will DENY the Petition for Review of the BIA’s decision.
-21-
