Michulena v. Attorney General of the United States
Michulena v. Attorney General of the United States
Opinion of the Court
OPINION
Margarita Michulena, a citizen of Latvia, was admitted to the United States on October 22, 1998, as a non-immigrant student. She overstayed her admission period and was charged with removability pursuant to Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. Michulena conceded re-movability but applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), claiming that she was persecuted based on her sexual orientation as a lesbian.
Michulena claimed that she married her first husband in 1990, but that the relationship ended after they had lived together for approximately one year. In 1996, Mi-chulena began a relationship with Viktorija Timonina. Over the next two years, the couple was victimized by physical attacks, harassment, and vandalism. Michulena and Timonina traveled separately to the United States and, once here, began living together. Timonina’s asylum application was granted in September 2002. In November 2002, however, the couple broke up and Michulena started dating Alex Vargas, a United States citizen. Michulena married Vargas, although he later filed an affidavit with immigration authorities asserting that the marriage was not bona fide. Shortly thereafter, Michulena resumed her relationship with Timonina.
The Immigration Judge (“IJ”) found that Michulena was not credible, noting that her account contained numerous inconsistencies and was not adequately supplemented with documentary evidence.
“[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009) (en banc) (internal citation omitted). We will uphold
We agree with the Government that Mi-chulena “does not challenge the lion’s share of the agency’s adverse credibility determinations.” We note, however, that several of those determinations ai’e suspect, particularly the conclusion that Mi-chulena’s two marriages and the timing of her personal relationships undermined her allegation that she is a lesbian.
Michulena suggested that the March 1998 date provided in her asylum application was a mistake, and that she only recognized this error after receiving the medical report. Accepting this argument, however, presents another significant inconsistency. Michulena testified that
Michulena .argues that the IJ and the BIA failed to consider her explanations for the inconsistencies in the record. She does not identify the explanations which were allegedly ignored, and the IJ did indicate why Michulena’s explanations were insufficient and noted where she provided no explanation. Michulena also asserts that the IJ “demanded too much” corroborative evidence. We disagree. The IJ reasonably required Michulena to provide medical records and police reports related to specific treatment and attacks, especially considering that she had furnished similar documents as part of her application. See Toure v. Att’y Gen., 448 F.3d 310, 323 (3d Cir. 2006). Michulena concedes “the medical evidence did not match exactly to the injuries that ... [she] stated occurred to her,” but contends that “there was no evidence that the injuries to which [she] testified did not occur.” Significantly, though, it is Michulena who carries the “ultimate burden of persuasion in making an asylum claim.” Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008).
For the foregoing reasons, we will deny the petition for review.
. Although Michulena filed her asylum application more than a year after she arrived in the United States, the IJ found that it was timely ''[b]y stipulation of the Department of Homeland Security.”
. The provisions of the REAL ID Act of 2005 that address our review of an adverse credibility finding do not apply in this case because Michulena applied for relief before the Act’s effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).
. The IJ concluded that Michulena's two marriages were "so fundamentally inconsistent with her claimed social group membership that it shatters her credibility before the court.” The BIA clarified that the IJ "did not simply conclude from the fact that [Michule-na] was twice-married that her claim to be a lesbian was not credible. Rather, it was the timing of [Michulena’s] testimony on behalf of her putative partner's successful application for asylum, her marriage to a United States citizen and pursuit of adjustment of status, and then the reinstatement of her asylum claim based on sexual orientation immediately after the marriage ended that cause the [IJ] to cite this as a factor.” We believe, however, that neither Michulena’s marriage nor the timing of her relationships provide substantial evidence for concluding that she testified falsely regarding her sexual orientation. Mi-chulena suggested that she was bi-sexual but that "I think I'm more of a lesbian.” Moreover, it appears that she married her Latvian husband because he had raped her and she had become pregnant. When asked "why you as a lesbian decided to be married” in the United States, Michulena responded that she wanted to "live a nonnal life” and have children.
. Michulena was also asked on cross-examination why a police document indicated that she reported a theft in December 1998. A.R. 273, 707. Michulena claimed that she "submitted the complaint but my mother took that complaint [to the police] because I [had] already left." A.R. 273.
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