Lyubov Slyusar, et al v. Eric Holder, Jr.
OPINION and JUDGMENT filed: The petition for review is DENIED and the motion for a stay of removal [4930554-2] is DENIED AS MOOT. Damon J. Keith (AUTHORING), Ralph B. Guy , Jr., and Julia Smith Gibbons, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0021p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LYUBOV SLYUSAR, DENYS SLYUSAR and
Petitioners, -No. 13-3071
ERIC H. HOLDER, JR.,
On Petition for Review of an Order from the Board of Immigration Appeals.
Nos. A097 998 956; A099 201 279; A099 201 280—Detroit, MI.
Argued: October 11, 2013
Decided and Filed: January 30, 2014
Before: KEITH, GUY, and GIBBONS, Circuit Judges.
ARGUED: Troy A. Murphy, MURPHY LAW OFFICES, Avon, Ohio, for Petitioners.
Claire L. Workman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Troy A. Murphy, MURPHY LAW OFFICES,
Avon, Ohio, for Petitioners.
Kathryn M. McKinney, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
KEITH, Circuit Judge. Petitioner Lyubov Slyusar (“Slyusar”) and her two minor
children seek review of the Board of Immigration Appeals’ (“BIA”) dismissal of her
appeal of an immigration judge’s (“IJ”) denial of her applications for asylum,
withholding of removal, and protection pursuant to the Convention Against Torture
Slyusar, et al. v. Holder
(“Torture Convention”). We DENY Slyusar’s petition for review. We also DENY as
moot Slyusar’s motion for a stay of removal pending adjudication.
The facts underlying Slyusar’s claim are not uncontroverted, as the Immigration
Judge determined that her testimony was incredible. Slyusar testified to the following:
Slyusar is a Russian native and a Ukranian citizen who worked as a social
worker, assisting pensioners, in Shepetovka, Ukraine from May 1999 to December 2002.
In January 2001, Slyusar joined a private social organization called Caring Hands that
educated pensioners about their rights. Caring Hands asked Slyusar to record unlawful
non-cash pensions being distributed by her office, and she agreed. She discovered that
a significant amount of pension fraud was taking place in her office, issued a report on
her findings, and gave the report to her supervisor at Caring Hands. The report
identified certain government officials by name. Slyusar approached the supervisor
regarding the supervisor’s intentions for the report, and the supervisor informed her that
she would not take any further action regarding the report. Slyusar then took the report
to a local radio station, which broadcasted the contents of the report on November 12,
2002. While Slyusar was not named in the broadcast, the names of the officials
identified in the report were disclosed.
After the broadcast, Slyusar received phone calls that threatened her life and the
lives of her children. She did not inform the police of these calls because one of the
callers threatened her with “consequences” if she did. On December 4, 2002, a
uniformed police officer and two security guards in civilian attire arrested Slyusar while
she was walking home from work. She was taken to a police station, where the officer
and guards screamed at her and instructed her to sign papers apologizing to the
government officials and confessing that she had slandered them. Upon Slyusar’s
refusal to sign the papers, the officers and guards disrobed her, tied her legs and arms,
and beat her. They then placed Slyusar in a cell with four men, where she was raped by
three of the men while the fourth held down her hands. Following the rapes, a guard
Slyusar, et al. v. Holder
brought her a liquid substance and ordered her to drink it. Slyusar drank the liquid and
was taken to another cell, where she vomited. After a week of detention, the guards
allegedly gave her a shot that gave her an intense headache, and threw pepper powder
in her eyes, mouth and nose. She was then detained for another week, and was
subsequently released, without being charged with a crime.
Upon her return home, Slyusar’s parents delivered to her office a request to
resign from her job. She then moved to a small village approximately thirty minutes
away from Shepetovka and lived in a house belonging to her husband’s grandmother.
Slyusar’s husband was living in the United States, where he cared for his grandmother.
When Slyusar informed her husband that she had been raped, he informed her that he
could no longer have a sexual relationship with her and demanded a divorce. Though,
according to her account, Slyusar was in hiding at the time, she obtained a divorce on
February 25, 2003, by commissioning her parents to deliver divorce papers to her
On March 3, 2003, a police officer and two guards allegedly found Slyusar in the
village, violently apprehended her, and dragged her to a police car, ultimately returning
her to the same police station where she had been previously detained. There, she was
detained in a cell for several hours before being taken to an interrogation room for
questioning. Some of the people whom Slyusar had identified in her report for Caring
Hands were present in the room. She was then beaten, losing consciousness after
receiving two blows to the head. She awoke in a hospital and remained there for a week
before fleeing. Friends of Slyusar’s parents then contacted smugglers who agreed to
help Slyusar escape to the United States for a fee of $2,500.00. She used a Russian
passport and entered the United States on May 9, 2003 as Julia Pusharova.
Slyusar has lived in Warren, Michigan since her arrival in the United States, save
for a brief stay in New York. While in New York, she married a United States citizen,
Mr. Diterlizzi, who promised to help her with her immigration status if she married him.
Slyusar also maintains that she retained counsel on May 19, 2003, in order to file an
Slyusar, et al. v. Holder
application for asylum. That attorney, Simon Edelstein, allegedly never filed the asylum
The record in this case reflects that Slyusar applied to adjust her status to that of
lawful permanent resident based on her marriage to Mr. Diterlizzi. Slyusar’s two eldest
children applied for adjustment of status as well. On September 20, 2005, the United
States Citizenship and Immigration Services denied the applications. On October 20,
2005, Slyusar filed an asylum application, and Slyusar’s case was referred to an
In 2005, the Department of Homeland Security issued Notices to Appear, which
alleged that Slyusar and two of her children were subject to removal from the United
States because they had entered the country without inspection. Slyusar then requested
asylum, withholding of removal, and protection under the Torture Convention. The IJ
denied all of Slyusar’s applications for relief in 2011, after determining that many
discrepancies existed between her testimony and the evidence that she submitted, along
with internal inconsistencies within the testimony itself. The IJ also held that Slyusar’s
asylum application was not timely filed, and further found that Slyusar failed to
demonstrate extraordinary circumstances justifying the delay in filing.
determined that because Slyusar had not complied with the requirements for
demonstrating extraordinary circumstances, she was barred from raising a justification
based on extraordinary circumstances before the immigration court. The IJ noted further
that even if Slyusar’s application had been timely filed, it would have been denied
because of Slyusar’s incredible testimony. Finally, the IJ found that because Slyusar had
failed to prove her eligibility for asylum, she could not prove eligibility for withholding
of removal, and that her adverse credibility determination was fatal to her Torture
The BIA dismissed Slyusar’s appeal on December 20, 2012, declining to disturb
the adverse credibility determination of the IJ. The BIA agreed with the IJ that Slyusar’s
testimony and evidence were inconsistent and incredible, and found no error in the IJ’s
denial of Slyusar’s application for asylum and withholding of removal. The BIA also
Slyusar, et al. v. Holder
found that Slyusar’s application for Torture Convention protection failed. Finally, the
BIA refused to accept the additional evidence that Slyusar presented on appeal on the
basis that the BIA was charged with reviewing an existing record, not with creating the
Standard of Review
Decisions of the BIA are reviewed under the deferential substantial evidence
standard, “in which we uphold a BIA determination as long as it is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (internal quotation marks omitted).
While this Court reviews legal conclusions made by the BIA de novo, see Karimijanaki
v. Holder, 579 F.3d 710, 714 (6th Cir. 2009), administrative factual findings are
reviewed for substantial evidence and “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)). Credibility determinations are also reviewed for substantial evidence.
See Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). “When the BIA adopts the IJ’s
reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the BIA,
becomes the basis for review.” Id. This Court “directly reviews the decision of the IJ
while considering the additional comment made by the BIA.” Id. (quoting Mapouya v.
Gonzales, 487 F.3d 396, 405 (6th Cir. 2007)).
The REAL ID Act
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, applies to
“applications for asylum, withholding of removal, or other relief from removal filed on
or after May 11, 2005.” El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009). While
the law previously only permitted an IJ to consider inconsistencies that went to the heart
of an applicant’s claim when making an assessment of the applicant’s credibility, see
Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011), the REAL ID Act allows triers of
fact to consider “any inaccuracies or falsehoods in [an applicant’s] statements, without
Slyusar, et al. v. Holder
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). An
adverse credibility determination is fatal to claims for asylum and relief from removal,
preventing such claims from being considered on their merits. See Perlaska v. Holder,
361 F.App’x 655, 661 & n.6 (6th Cir. 2010).
Slyusar has not demonstrated sufficient evidence to compel this Court to reverse
the IJ's adverse credibility determination.
In Slyusar's case, “[t]he IJ denied relief and the BIA upheld the decision based
on the IJ’s finding that [Slyusar] did not testify credibily.” El-Moussa, 569 F.3d at 255.
Therefore, “we review the IJ’s credibility determination under the deferential
‘substantial evidence’ standard.” Id. (citation omitted).
Adverse credibility determinations are conclusive unless any reasonable
adjudicator would be compelled to make a contrary conclusion. Id at 256. That this
Court could conceivably make a contrary conclusion is not enough to justify reversal of
the IJ’s decision; compulsion is required. See Singh v. Ashcroft, 398 F.3d 396, 404 (6th
In the instant case, the IJ found numerous inconsistencies between Slyusar’s
testimony and the information she had previously given to the Department of Homeland
security—including discrepant information regarding her employment history, her date
of entry into the United States, whether or not she had a Ukranian passport in her
possession when she arrived in the United States, her marriages, and her attempts to file
asylum claims. Under the REAL ID Act, these inconsistencies are sufficient reason for
an IJ to find Petitioners incredible and to subsequently deny them asylum, withholding
of removal, or protection under the Torture Convention. The Board declined to disturb
the IJ’s findings, agreeing that Slyusar had made internally inconsistent claims in
support of her asylum petition.
Slyusar has not presented evidence that would compel a reasonable adjudicator
to disagree with the IJ’s finding. Her appeal is conclusory, providing this Court with no
Slyusar, et al. v. Holder
evidence that it could use to contradict the IJ’s fact-based determination that Slyusar’s
credibility was riddled with inconsistencies. “[I]t is a settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” United States v. Villareal, 491 F.3d 605, 611 (6th
Cir. 2007) (citations omitted). While Slyusar contends that the alleged inconsistencies
in her testimony do not go to the heart of her claim, under the REAL ID Act, even
ancillary inconsistencies in a petitioner’s testimony support adverse credibility
determinations. See El-Moussa, 569 F.3d at 256. Finally, even if this Court agreed with
Slyusar that the IJ committed reversible error by failing to allow her to submit evidence
in support of her claim that her asylum application should be deemed timely filed,
enough inconsistencies in her testimony and documents would exist to support the IJ’s
determination. Accordingly, while another IJ might have ruled differently, we find that
no evidence has been presented that compels a different ruling. We are thus bound by
the decision of the IJ and the additional observations of the BIA.
Issues not addressed by the BIA are not properly before this Court.
The BIA declined to address whether Slyusar would have met her burden of
proof for asylum or withholding of removal, had her testimony been deemed credible,
because the IJ determined that her testimony was not credible. Therefore, whether or not
Slyusar could meet her burden of proof is not properly before this Court. See INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002).
The BIA agreed with the IJ that Slyusar’s testimony—including her claim that
her attorney failed to timely file her asylum claim—was incredible. Therefore, the
timeliness of Slyusar's asylum application is properly before us. However, as the
timeliness of Slyusar’s asylum claim is primarily a factual matter, we have no reason to
review the BIA’s ruling that her claim was not timely filed. See Khozhaynova v. Holder,
641 F.3d 187, 191 (6th Cir. 2011).
Slyusar, et al. v. Holder
The IJ’s adverse credibility determination is fatal to Slyusar’s claims for asylum,
withholding of removal, and relief under the Convention Against Torture
Slyusar’s application for relief under the Torture Convention was addressed by
the BIA, and it is therefore properly before this Court. Applicants for protection under
the Torture Convention must demonstrate that they would be more likely than not to
suffer torture if removed. See Khozhaynova, 641 F.3d at 197. Before making a decision
on the merits of a claim, however, the IJ must determine whether the applicant is
credible; an application deemed incredible will not be reviewed on the merits. See Zhao,
569 F.3d at 243.
As discussed above, the IJ determined that Slyusar’s testimony was incredible,
and the IJ’s adverse credibility determination was dispositive of her application for
asylum and withholding of removal. “The same credibility standard applies to claims
for asylum, withholding of removal, and for relief under the torture convention.”
El-Moussa, 569 F.3d at 256.
The IJ’s adverse credibility determination, then,
necessarily disposes of Slyusar’s application for Torture Convention protection.
Slyusar moved for a stay of removal pending adjudication of her petition for
review on August 31, 2013. The government opposed Slyusar’s motion on September
9, 2013. In order to qualify for a stay of removal, this Court must determine whether the
applicant for the stay “has made a strong showing that he is likely to succeed on the
merits”; 2) whether the applicant will be “irreparably injured absent a stay”; 3) “whether
issuance of the stay will substantially injure the other parties interested in the
proceeding”; and 4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434
(2009). The first two factors are “the most critical.” Id. The third and fourth factors
merge when the Government is the opposing party. Id. at 435. While the grant of a stay
is governed by legal standards, it is ultimately subject to a court’s discretion. Id.
Slyusar satisfies the second prong of the test, as removal would be an irreparable
injury. As to the third and fourth prongs, which are merged in the instant case, the
Slyusar, et al. v. Holder
government would not be substantially injured by the grant of a stay, and the public
certainly has an interest in “preventing aliens from being wrongfully removed,
particularly to countries where they are likely to face substantial harm.” Id. at 436.
Slyusar does not satisfy the first prong of the test, however, because she has not
made a strong showing that she would likely succeed on the merits. However, we note
that Slyusar has not been afforded the opportunity to demonstrate the strength of her case
on the merits. Indeed, the IJ and BIA have not considered the merits of her case, due
to the dispositive nature of the IJ’s adverse credibility determination under the REAL
ID Act. In effect, the REAL ID Act forecloses stays of removal to asylum-seekers who
have received adverse credibility determinations by constructively preventing them from
proving eligibility for such relief.
In any case, Slyusar’s motion is applicable during the pendency of adjudication,
and this Court has now reached a disposition as to Slyusar’s case. Therefore, Slyusar’s
motion is moot.
Though we rule against Slyusar here, we wish to make the following cautionary
note: We respect Congress’s calculated decision to imbue upon an IJ a significant
amount of deference with regards to adverse credibility determinations. However, we
wish to emphasize that “[a]lthough the REAL ID Act expands the bases on which an IJ
may rest an adverse credibility determination, it does not give a blank check to the IJ
enabling him or her to insulate an adverse credibility determination from our review of
the reasonableness of that determination.” Ren, 648 F.3d at 1084 (quotation omitted).
As the Ren Court recognized, “victims of abuse often confuse the details of particular
incidents, including the time or dates of particular assaults and which specific actions
occurred on which specific occasion; thus, the ability to recall precise dates of events
years after they happen is an extremely poor test of how truthful a witness’s substantive
account is.” Id. at 1085-86 (internal citations and quotation marks omitted).
Slyusar, et al. v. Holder
We are concerned that the provisions of the Act may have the effect of punishing
applicants for their trauma. The Ren court disagreed with the IJ’s determination that
petitioner was not a committed Christian as petitioner claimed, after interpreting
petitioner’s testimony to mean that church attendance was a “low priority.” Id. at 1087.
“In reviewing an adverse credibility determination, ‘the mistakes that witnesses make
in all innocence must be distinguished from slips that ... show that the witness is a liar
or his memory completely unreliable.’” Id. (quoting Kadia v. Gonzales, 501 F.3d 817,
822 (7th Cir. 2007)).
We are further concerned by the precedent that, even if an omission or
inaccuracy is categorized as de minimis, it may still support an IJ’s adverse credibility
finding. See Harutyunyan v. Holder, 512 F. App’x 548, 553 (6th Cir. 2013). Although
the credibility determination no longer includes a requirement that the inconsistency be
material to the asylee’s claim, we urge courts to remember that any inconsistencies or
inaccuracies must always be considered in light of the “totality of the circumstances.”
8 U.S.C. § 1158(b)(1)(B)(iii).
With this in mind, we observe that credibility
determinations can often be based on external factors not indicative of veracity. See,
e.g., Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir. 2006); Zeru v. Gonzales, 503
F.3d 59, 73 (1st Cir. 2007).1 Accordingly, because the Act permits IJs to deny asylum
applications based on inconsistencies that are unrelated to the claim itself, we urge the
exercise of due care in evaluating such inconsistencies when reaching a credibility
Here, this Court rules as it does because it is bound by the decision of the Board,
in the absence of evidence that would compel a reasonable adjudicator to conclude
contrarily. Therefore, and in conclusion, we DENY Slyusar’s petition for review of the
Board’s decision. We also DENY her motion for a stay of removal pending adjudication
See also James P. Eyster, Searching for the Key in the Wrong Place: Why "Common Sense"
Credibility Rules Consistently Harm Refugees, 30 B.U. INT'L L.J. 1, 30-31 (2012); Juliet Cohen, Questions
of Credibility: Omissions, Discrepancies, and Errors of Recall in the Testimony of Asylum Seekers,
13 INT'L J. REFUGEE L. 293, 309 (2001).
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