NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0254n.06

                                          No. 09-4237                                 FILED
                                                                                   Apr 20, 2011
                           UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

VALENTIA SERGEIYEVNA KHOZHAYNOVA;                     )
ALEXANDER KHOZHAYNOVA,                                )
                                                      )
        Petitioners,                                  )
                                                      )
v.                                                    ) ON APPEAL FROM THE BOARD OF
                                                      ) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General ,               )
                                                      )
        Respondent.                                   )


Before:         KEITH, MERRITT, and MARTIN, Circuit Judges

        KEITH, Circuit Judge. Valentia Sergeiyevna Khozhaynova (“Khozhaynova”) and her son

Alexander Khozhaynova (“Alexander”) seek review of the final order of the Board of Immigration

Appeals, affirming the immigration judge’s denial of their petitions for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”). For the

reasons set forth below, we DISMISS the Khozhaynovas petition for review of the denial of their

application for asylum. We DENY the Khozhaynovas petition for review and AFFIRM the Board’s

decision in all other respects.

                                      I. BACKGROUND

        Khozhaynova, the lead petitioner, and Alexander are natives and citizens of Russia.

Khozhaynova first entered the United States on February 26, 1999 with her husband to find a doctor
No. 09-4237
Valentia Khozhaynova, et al. v. Eric Holder, Jr.

for Alexander, who suffers from phenylketonuria.1 Alexander stayed in Russia. Khozhaynova

returned to Russia after a year. She did not apply for asylum. Khozhaynova again entered the United

States on November 25, 2002, as a visitor with permission to remain for six months. Alexander was

admitted to the United States on February 7, 2004, as a visitor with permission to stay for three

months. Both overstayed their visas. The Department of Homeland Security initiated removal

proceedings on July 19, 2004, and Khozhaynova applied for asylum, withholding of removal and

protection under the CAT on July 25, 2006.

       Khozhaynova seeks asylum and withholding from removal for fear of persecution on account

of her imputed political opinion as a business owner who “advocat[es] for a free market system” and

refuses to submit to mafia payments. In 1994, Khozhaynova and her husband opened a wholesale

grocery store in Russia. Not long after the store opened, Khozhaynova and her husband began

receiving threats from people she believed were in the mafia, who demanded payment for protection.

In February 1995, Khozhaynova’s husband was robbed and beaten. Khozhaynova received more

threats from individuals not associated with the government. She further claims that between 1996

and 1998, she was attacked and beaten twice on account of her ownership of the store—once at her

store where the assailants robbed and raped her, and once in her apartment building with her husband

where her jewelry was stolen. Additionally, her truck was burned, and her store was burned by

unidentified members of the mafia. After all these incidents, Khozhaynova traveled to the United



       1
        This disease prevents Alexander’s body from properly absorbing proteins. The disease also
brought about developmental problems for Alexander, including mental retardation. He requires
constant care and supervision.

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States with her husband in February 1999. She stayed for a year, looking for doctors to treat her son.

She did not apply for asylum, but rather returned to the Russia without her husband and attempted

to reopen another store. Khozhaynova alleges that the same people who harassed her in 1998 found

her and threatened her again. Allegedly, she approached the police who told her they’d already put

one of her attackers behind bars, “and that [was] enough.” Moreover, the police told her that if she

complained about the situation further, they would take her son hostage. She ultimately had to close

the store because of tax and sanitation issues, along with the threats. Khozhaynova then left Russia

without her son, and entered the United States on November 25, 2002. Alexander joined two years

later. Khozhaynova now argues that she continues to fear returning to Russia. To corroborate her

statements asserting fear, Khozhaynova provides evidence of her estranged husband’s parents home

being robbed in 2006 allegedly because she and her husband failed to pay the mafia for protection.

       Following a December 20, 2007 removal hearing, the immigration judge found

Khozhaynova’s asylum application barred as untimely. Though she alleged she filed more than three

years after arriving in the United States because Alexander was very sick and needed her constant

care, the immigration judge found that Alexander did not come to the United States until more than

a year after her arrival, thus the excuse did not make sense and did not amount to an extraordinary

circumstance. Next, the immigration judge held that even if her application was timely, she failed

to carry her burden of proof as to asylum. The immigration judge made an adverse credibility

determination based upon inconsistencies between Khozhaynova’s amended application and her

testimony at the removal hearing. Specifically, the immigration judge pointed to discrepancies

between the time and location of the beating in the apartment building, discrepancies concerning the

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details surrounding her alleged rape, and the lack of reasonably accessible corroborating statements

from her sister and in-laws to authenticate the documentation she provided with her asylum

application. Alternatively, the immigration judge held that even if she were credible, Khozhaynova

was not entitled to relief from removal because she failed to show that she would be persecuted on

account of a protected ground. Accordingly, the immigration judge denied withholding of removal

or relief under the CAT and ordered Khozhaynova and Alexander removed to Russia.

       On September 9, 2009, the Board affirmed the immigration judge in-part, but sustained

Khozhaynova’s appeal in-part.2      The Board affirmed the immigration judge’s rejection of

Khozhaynova’s asylum application as untimely. The Board affirmed the immigration judge’s

adverse credibility determination based upon inconsistencies surrounding the rape, the attacks, the

timing of the store burning down, and the lack of corroborating evidence. Finally, the Board

affirmed the immigration judge’s refusal to grant withholding of removal or protection under the

CAT because Khozhaynova failed to demonstrate the threat persecution on account of an enumerated

ground. Accordingly, Khozhaynova and Alexander now timely appeal.

                                         II. ANALYSIS

A. Standard of Review

       Because the Board issued an independent decision, we review the Board’s determination

including any parts of the immigration judge’s reasoning referenced by the Board. Khalili v. Holder,



       2
        The immigration judge found that Khozhaynova’s application was frivolous, and imposed
sanctions. However, the Board sustained Khozhaynova’s appeal from this determination, and the
Attorney General does not appeal from it. Thus, it is outside the scope of our review.

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, 435 (6th Cir. 2009). We review “any legal conclusions de novo and factual findings

and credibility determinations for substantial evidence.” Zhao v. Holder, 

, 246 (6th Cir.

2009) (citation omitted). Under the deferential substantial evidence standard, factual findings of the

Board, including credibility determinations, “are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4); Pablo-Sanchez v. Holder, 

, 594 (6th Cir. 2010).

B. Untimely Asylum Application

       To be eligible for asylum, an alien must demonstrate by clear and convincing evidence that

he or she filed the application for asylum within one year of arriving in the United States. 8 U.S.C.

§ 1158(a)(2)(B). An exception to this requirement can be made if the applicant demonstrates either

the existence of “changed circumstances which materially affect the applicant’s eligibility for asylum

or extraordinary circumstances relating to the delay in filing an application” within the one-year time

period. 

However, this Court’s review of timeliness is statutorily limited. 

Under the REAL ID Act of 2005, we have jurisdiction to “review asylum applications

denied for untimeliness only when the appeal seeks review of constitutional claims or matters of

statutory construction, not when the question is discretionary or factual.” Shkulaku-Purballori v.

Mukasey, 

, 502 (6th Cir. 2007) (citing Almuhtaseb v. Gonzales, 

, 748 (6th

Cir. 2006)) (internal quotation marks omitted).

       Here, Khozhaynova concedes that she filed her application more than one year after lawfully

entering the United States. Nevertheless, she claims that Alexander’s medical condition and her

ignorance of the availability of asylum were extraordinary circumstances that prevented her from

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timely applying for asylum. Because she could not be away from Alexander for long periods of time

and she was constantly looking for doctors to care for him, she argues that her failure to file the

application on time should be excused.

        However, Khozhaynova’s claim regarding extraordinary circumstances rests on challenging

the immigration judge’s factual determinations. The immigration judge specifically found that

Khozhaynova entered the United States almost two years before Alexander arrived in the United

States. As he explained, Khozhaynova “was not responsible for her son’s daily care during her first

year in the United States, and thus her son’s daily care or inability to secure medical treatment for

him in the United States in no way prevented her from filing for asylum.” He further held that her

failure to apply for asylum during this period was ultimately based upon her unfamiliarity with our

laws, which does not excuse untimeliness. Upon review, we see no bias on the part of the

immigration judge in making these findings. Because Khozhaynova’s claim is factual in nature, we

lack the jurisdiction to address it.

        Khozhaynova tries to avoid the jurisdictional bar by asserting that her claim presents a

“mixed question of fact and law.” To support this assertion, Khozhaynova relies upon Ramadan v.

Gonzales, 

, 650 (9th Cir. 2007) (“Ramadan II”). In Ramadan II, the Ninth Circuit, on

a petition for rehearing, overruled-in-part its prior decision in Ramadan v. Gonzales, 

(9th Cir. 2005) (“Ramadan I”), that Amendment 106 of the REAL ID Act restores court of appeals’

jurisdiction over “constitutional claims or questions of law,” and expanded its jurisdiction to also

consider “questions involving the application of statutes or regulations to undisputed facts,

sometimes referred to as mixed questions of fact and law.” Ramadan 

. In making

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this decision, the Ninth Circuit joined the Second Circuit in determining that statutory language

grants the circuit courts jurisdiction to consider these issues. See Chen v. U.S. Dep’t of Justice, 

(2d Cir. 2006) (“Chen II”), vacating in part on petition for rehearing, Xiao Ji Chen v. U.S.

Dep’t of Justice, 

(2d Cir. 2006) (“Chen I”).

       Our circuit first considered the impact of Amendment 106 on the Real ID Act of 2005 in

Almuhtaseb v. Gonzales, 

(6th Cir. 2006). There, we specifically relied upon the

persuasiveness of Chen I to hold that Amendment 106 only permits judicial review of purely legal

questions, such as constitutional and statutory construction questions. 

(citing Chen 

). Discussing both the statutory text and the legislative history, we

agreed with the Second Circuit’s initial conclusion that “questions of law” as stated in 8 U.S.C. §

1252(a)(2)(D) means questions regarding statutory construction. 

However, we also noted

that whether we have jurisdiction to review an asylum application based on untimeliness presents

a “predominately factual” question that requires a “particularized inquiry into the nature of a

petitioner’s claim.” 

n.3.

       Today, Khozhaynova essentially asks this panel to reconsider our decision in Almuhtaseb,

though this court did not grant a motion for rehearing to that case. She argues that the Ninth and

Second Circuits were correct in reconsidering their interpretation of Amendment 106, and that we

should adopt their revised holdings. Khozhaynova points to no intervening Supreme Court case

clarifying what effect Amendment 106 should have, nor is this panel aware of one. Therefore,

because “[i]t is a well-established rule of this circuit that one panel cannot overrule the holding of

another panel, absent an intervening inconsistent opinion from the U.S. Supreme Court,” we decline

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to reconsider our initial statutory interpretation of Amendment 106. Susan Lewis v. Humboldt

Acquisition Corp., Inc., No. 09-6381, 

, at *1 (6th Cir. Mar. 17, 2011).               We

continue to maintain a more narrow interpretation of our jurisdiction to review untimely asylum

applications, and limit review to constitutional or statutory interpretation claims.           Because

Khozhaynova’s argument that her concern about Alexander’s medical condition impeded her

discovery of the availability of asylum and submission of a timely asylum application is

predominately factual, we dismiss Khozhaynova’s petition to review for lack of jurisdiction.

C. Withholding of Removal

        Khozhaynova also seeks review of the Board’s denial of her application for withholding of

removal under the Immigration and Nationality Act. To qualify for withholding of removal,

Khozhaynova must show that there is a clear probability that she would be subject to persecution on

the basis of her race, religion, nationality, membership in a particular social group, or political

opinion if she returned to Russia. 8 U.S.C. § 1231(b)(3)(A); Vincent v. Holder, 

, 354

(6th Cir. 2011). If she can establish past persecution, she is entitled to a rebuttable presumption that

her life or freedom would be threatened if she returns to Russia. 8 C.F.R. § 1208.16(b)(1).

Otherwise, Khozhaynova bears the burden of demonstrating that it is “more likely than not” that she

will be persecuted on the basis of one of the five protected grounds if she returns to Russia. 

both that she suffered from past persecution in Russia on account of

her imputed political opinion as a member of a particular social group, and that she would more

likely than not suffer from persecution if she were returned to Russia on account of the same

protected grounds. The immigration judge and the Board rejected these arguments. The basis of this

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Court’s review is the finding that Khozhaynova was not credible, and, even if she were credible, she

failed to present a valid claim of fear of persecution based upon her status as a business owner

refusing to make extortion payments. We will address each ground in turn.

1. Adverse Credibility Determination

       Credibility determinations are made based upon the “totality of the circumstances,” based

upon the following factors:

       [T]he demeanor, candor, or responsiveness of the applicant [], the inherent
       plausibility of the applicant’s [] account, the consistency between the applicant’s []
       written or oral statements . . . , the internal consistency of each statement, the
       consistency of such statements with other evidence of record . . . , 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, or
       any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). We review the grounds relied upon by the immigration judge, and

adopted by the Board, to determine whether the adverse credibility determination was supported by

substantial evidence, or whether a reasonable adjudicator would be compelled to conclude to the

contrary. 

.

       There is substantial evidence to support the immigration judge’s finding that Khozhaynova

was not credible about her past persecution or fear of future persecution. For example, Khozhaynova

amended her asylum application prior to submission with the aid of a Russian speaking attorney to

indicate that every time she was beaten or robbed, she was raped. She later changed this statement

during her testimony, indicating that she was only raped once but attackers attempted to rape her by

making her take off all her clothes and molesting her during two other attacks. Khozhaynova only

pointed to two instances where she was attacked, once at her store alone when she was robbed and

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raped by two men,3 and once with her husband in the stairwell of their apartment building when her

jewelry was stolen. She never testified about an instance of attempted rape. And while she explains

that she never filed a complaint about the attempted rape because she did not want her husband to

know, she did not indicate that a rape or an attempted rape occurred during the attack she suffered

in the presence of her husband at the apartment building. Thus her amended assertion on her

application and her testimony were inconsistent, and the record supports a finding that her statement

concerning the attempted rapes lacked credibility.

       Inconsistencies in Khozhaynova’s testimony concerning the details of the attack in the

apartment building also support an adverse credibility determination. Khozhaynova stated that she

and her husband were robbed and beaten at her apartment building in either November 1997 or 1998.

There is a discrepancy between her written application, which states that the incident occurred in the

lobby of the building, and her oral testimony before the immigration judge, at which she stated that

the incident occurred on a landing of a stairwell in the apartment building. Significantly, between

1997 and 1998, Khozhaynova’s store was burned. However, her testimony vacilates between

whether the attack at the apartment building happened before or after the store burned down. While

it may be conceivable that Khozhaynova confused the meaning of the words lobby and stairwell in



       3
        The Board noted that Khozhaynova’s application stated that she was attacked by three
criminals, but then during the hearing she specifically stated that she was raped and robbed by two
individuals. It was not until the immigration judge inquired about the inconsistency that she
explained that “the third one was on [sic] the distance . . . He was observing.” While we are not
troubled by this inconsistency, the Board and the immigration judge’s finding to the contrary is
supported by the record. 

(citing Koulibaly v. Mukasey, 

, 619 (6th
Cir. 2008).

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explaining the location of the attack, it is less likely that she would not be able to recall when such

an attack occurred in relation to the burning of her store. Thus, the record supports the adverse

credibility determination on this ground as well.

       Additionally, the Board found that Khozhaynova’s failure to provide corroborating evidence

where available bolstered the immigration judge’s adverse credibility determination.              The

immigration judge states that Khozhaynova “submitted significant documentation in an attempt to

corroborate her claim, but her documentation is entitled to little or no weight” because the

documentation is not authenticated and she fails to provide letters from her sister and in-laws

explaining how the documents were obtained. The Board affirmed this finding, stating that “she did

not give a reasonable explanation as to why she did not [provide letters from her sister or in-laws].”

Khozhaynova argues that the Board erred in suggesting that she needed to provide additional

corroborating evidence from her family because they lacked firsthand knowledge of the incidents

supporting her application and no one asked her why they failed to provide more information.

However, Khozhaynova misconstrues the purpose for which the immigration judge wanted

information from her family. Rather than requiring additional statements from the family to bolster

her statements concerning the incidents, the immigration judge wanted statements concerning the

credibility of the documents themselves. Khozhaynova focuses upon her family’s lack of firsthand

knowledge concerning the attacks, which may be true, but fails to make any assertions concerning

their firsthand knowledge in obtaining the other documentation. And while the Board, citing to

Pilica v. Ashcroft, 

, 945 (6th Cir. 2004), notes that lack of corroborating evidence can

support an adverse credibility finding, it makes no suggestion that the type of evidence that the

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immigration judge was suggesting concerned the details of the alleged attacks. Accordingly, we find

that it was reasonable for the immigration judge to ask for a statement concerning the manner in

which the documents were collected. Moreover, as the immigration judge found that Khozhaynova’s

testimony was not credible, he was entitled to doubt the authenticity of the supporting documents.

Barry v. Holder, 392 F. App’x 418, 422-23 (6th Cir. 2010) (finding substantial evidence supported

an immigration judge’s skepticism of unauthenticated documents where the immigration judge

made an adverse credibility determination to the applicant submitting the documents). In total, the

record supports the immigration judge’s adverse credibility determination.

2. Statutory Insufficiency

       As an alternative ground for denying Khozhaynova’s petition for withholding of removal,

the immigration judge and the Board determined that she failed to demonstrate that she falls under

one of the five protected grounds as required by 8 U.S.C. § 1158(b)(1)(A). As stated above,

Khozhaynova must show past persecution or a well founded fear of future persecution “on account

of [her] race, religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A).

       Khozhaynova argues that she fears persecution based upon her imputed political opinion as

a member of a particular social group of business owners who refuses to pay for protection from the

mafia under a free enterprise system. To support this, she indicates that many, if not all, of the

attacks she suffered were because the individuals demanded money or valuable items. She points

to her attack in the stairwell of her apartment, where her jewelry was taken. She points to the rape

at her store, which she alleges occurred because she refused to pay extortion demands from the

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mafia. She even points to the burglary of her father-in-law’s home in 2006, where items were

allegedly stolen from their home because Khozhaynova and her husband still refused to pay extortion

demands. While these events are unfortunate, and may have occurred because of her status as a

business owner, they are insufficient to establish persecution on the basis of either a protected social

group or her political opinion.

         As we previously held in Lugovyj v. Holder, “mere defiance of unidentified thugs’ extortion

demands” does not render a petitioner status as a member of a protected social group. 353 F. App’x

8, 10 (6th Cir. 2009). “A social group is a group of persons all of whom share a common, immutable

. . . [and] fundamental characteristic that either cannot be changed or should not be required to be

changed because it is fundamental to the members’ individual identities or consciences.” 

v. I.N.S., 

, 546-47 (6th Cir. 2003)) (internal quotation

marks omitted). To become a social group for the purposes of this statute, individuals “must share

a narrowing characteristic other than their risk of being persecuted.” 

omitted).

Repeatedly, this court has held that one’s status as a business owner who refuses to pay extortion

demands does not constitute a protected social group. See 

petitioner’s status as a

business owner refusing to pay extortion demands did not satisfy burden to establish himself as part

of a protected social group under the INA); Jelkovski v. Ashcroft, 103 F. App’x 578, 579 (6th Cir.

2004) (finding that targeting of shop owners by criminals for extortion purposes did not constitute

persecution on account of membership in a particular social group). Accordingly, Khozhaynova’s

claim is insufficient to establish persecution on account of her membership in a protected social

group.

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       Likewise, Khozhaynova’s mere refusal to pay extortion demands does not constitute a

political opinion in this instance. In order to prove persecution on account of a political belief, she

must show, through direct or circumstantial evidence, that she was persecuted on account of or

because of her political opinion. Marku v. Ashcroft, 

, 986 (6th Cir. 2004). She must

show that “she acted based on a political opinion and that her actions were interpreted as such by her

alleged persecutors.” Bu v. Gonzales, 

, 430 (6th Cir. 2007) (quoting 

) (internal quotation marks omitted). Here, the record fails to sufficiently connect her alleged

persecution to her political opinion. Rather, the record supports the Board’s conclusion that “there

is no evidence that the alleged perpetrators knew or cared what [Khozhaynova’s] political opinion

might be or if she was part of a particular group.” Khozhaynova failed to connect the attacks on her

and her husband, the robberies, the fire or the threat to kidnap her son, to anything more than the

financial demands of criminal corruption.4 In each of her alleged attacks, she was robbed of valuable

items. Thus, it is just as likely, if not more likely, that assailants targeted Khozhaynova because of


       4
         Khozhaynova also states that she suffered “gender persecution” because she was raped. In
essence, though, she argues that the rape resulted from an expression of her political opinion.
According to Khozhaynova, the rape indicates her imputed political opinion that she is “opposed to
the threats, violence and rape inflicted upon her.” Putting aside the circularity of Khozhaynova’s
argument, whether an applicant was persecuted on account of their political opinion turns on the
persecutor’s motive, and in this instance Khozhaynova concedes that there was “no overt indication
that her persecutors cared what her political opinion might have been.” Additionally, Khozhaynova
argues that her complaints to the authorities about her rape demonstrate “her political opinion as
opposition to government-sanctioned or government acquiesced persecution.” However, she
conceded during her testimony before the immigration judge that she 1) was not raped by a
government official, and 2) did not tell anyone, not even her family, about the rape until she appeared
before the immigration judge in 2007. Accordingly, the incident only supports a finding of criminal
corruption and demonstrates a random act of violence, beyond the reach of the statutorily enumerated
protected grounds.

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her perceived wealth as a store owner. See 

(denying relief or

protection for political opinion where petitioner was attacked twice after leaving the bank by

unidentified assailants). She provides no evidence that she is politically active in any other way than

by running a business, nor does she establish that her persecutors interpreted her refusal to pay

extortion demands as an articulation of her political opinion. And while she argues that the

government refused to control her persecutors, Khozhaynova testified before the immigration judge

that the Russian police incarcerated one of her attackers, but could not prosecute any others for lack

of evidence. Whether their attitude was “flippant” or not, it appears the Russian police did what they

could to protect her given the limited information Khozhaynova provided about the attacks. Thus,

substantial evidence supports the Board’s determination that Khozhaynova failed to demonstrate that

she was persecuted on account of a statutorily protected ground.5 Accordingly, the Board’s denial

of withholding of removal is affirmed.

D. Protection Under the CAT

       Finally, Khozhaynova seeks review of the denial of protection under the CAT. To qualify

for protection, Khozhaynova bears the burden of demonstrating that she would more likely than not



       5
        Prior to oral arguments, Khozhaynova submitted an additional citation, Vincent v. Holder,

, 355-56 (6th Cir. 2011) (finding past persecution where rebels who targeted petitioner
for his well known political opinion burned down his home), and argued that she qualifies for
withholding of removal and protection under the CAT because she suffered economic deprivation
as a form of past persecution. The claim has not been administratively exhausted as she did raise
it below in her appeal to the Board. See Hasan v. Aschcroft, 

, 419-20 (6th Cir. 2005).
Nevertheless, because she fails to connect the burning of her store to her political opinion, and
substantial evidence supports a finding that it was an act of criminal corruption, this argument is
unpersuasive.

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suffer torture by public officials in Russia. 8 C.F.R. § 1208.16(c)(2). Khozhaynova rests her CAT

claim on the same grounds as her withholding of removal claim, namely that she fears torture

because of her status as a business owner who refuses to pay extortion money to the mafia.

However, “credibility determinations regarding applications for withholding under the Act and the

CAT are reviewed under the same standard.” 

. Because Khozhaynova failed

to satisfy the threshold showing of credibility for withholding of removal, she likewise failed to

demonstrate entitlement to relief under the CAT. See 

deny review of

Khozhaynova’s claim for relief under the CAT as well.

                                        III. CONCLUSION

         For the foregoing reasons, we DISMISS for lack of jurisdiction the petition for review of the

Board’s denial of asylum for untimeliness. We DENY the petition for review of Khozhaynova’s

petition for withholding of removal and protection under the CAT, and AFFIRM the decision of the

Board.




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