Hanna Marynenka v.  ERIC H. HOLDER, JR., Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 HANNA MARYNENKA,
Petitioner,
v. No. 07-1792 
ERIC H. HOLDER, JR., Attorney
General,
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: October 27, 2009
Decided: January 25, 2010
Before MICHAEL and GREGORY, Circuit Judges,
and Benson E. LEGG, United States District Judge for the
District of Maryland, sitting by designation.
Petition for review granted; vacated and remanded with
instructions by published opinion. Judge Michael wrote the
opinion, in which Judge Gregory and Judge Legg joined.
COUNSEL
ARGUED: Joshua Adam Berman, BLAINE L. GILBERT &
ASSOCIATES, PA, Baltimore, Maryland, for Petitioner.
Lauren Fascett, Office of Immigration Litigation, Civil Divi-

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sion, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Blaine L.
Gilbert, BLAINE L. GILBERT & ASSOCIATES, PA, Balti-
more, Maryland, for Petitioner. Jeffrey S. Bucholtz, Acting
Assistant Attorney General, Civil Division, David V. Bernal,
Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.
OPINION
MICHAEL, Circuit Judge:
Hanna Marynenka, a citizen of Belarus, petitions for review
of the decision of the Board of Immigration Appeals (BIA)
denying her application for asylum, withholding of removal,
and protection under the United Nations Convention Against
Torture (CAT). The BIA adopted and affirmed the determina-
tion of the immigration judge (IJ) that Marynenka had failed
to meet her burden of establishing past persecution or a well-
founded fear of future persecution. Because the IJ committed
substantial legal error in rejecting certain of Marynenka’s cor-
roborating evidence, we grant her petition for review, vacate
the BIA decision, and remand to allow the IJ to reconsider
Marynenka’s application in light of this opinion.
I.
A.
Marynenka entered the United States on May 29, 2003,
traveling under a J-1 exchange visitor visa that expired on
October 1, 2003. She overstayed her visa and, on March 2,
2004, the Department of Homeland Security served her with
a notice to appear charging her with removability. Marynenka
conceded removability, and in the meantime, in December
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2003, filed an application for asylum under 8 U.S.C.
§ 1158(a)(1), withholding of removal under 8 U.S.C.
§ 1231(b)(3), and CAT relief, see 8 C.F.R. § 208.16(c). The
following facts are drawn from Marynenka’s statement in
support of her application and her testimony and documentary
evidence presented at the hearing before the IJ on May 22,
2006.
Marynenka is a member of Zubr, a Belarusian youth orga-
nization that opposes the government and works to promote
democracy and freedom in Belarus. Marynenka joined Zubr
in November of 2001 with her close friend, Hanna Chuyash-
kova, while both were attending a university in Gomel,
Belarus. Chuyashkova, who currently lives with Marynenka
in the United States, has also applied for asylum.
Marynenka and Chuyashkova attended their first Zubr
demonstration on December 27, 2001, in Minsk, Belarus. The
demonstration took place in front of the Committee for State
Security (BKGB) building to commemorate the death of Zubr
member Andrei Zaytsev. Zaytsev had committed suicide,
allegedly in reaction to pressure from the BKGB. No arrests
were made at this demonstration. On January 28, 2002,
Marynenka and Chuyashkova participated in a second demon-
stration commemorating Zaytsev’s death, this time at their
university in Gomel. The police arrested Marynenka at this
event and held her for interrogation. When Marynenka did not
respond to police questions about her involvement in Zubr,
she was beaten. She was detained for three days and, once
released, spent five days in bed due to her injuries. Chuyash-
kova was also arrested, interrogated, and beaten as a result of
her participation in the same demonstration.
On July 27, 2002, Marynenka and Chuyashkova joined
other Zubr members in a demonstration in Minsk to mark the
anniversary of Belarus’s independence from the Soviet Union.
Marynenka testified that she was arrested for carrying an out-
lawed red and white flag. She was taken to the BKGB build-
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ing where she was again interrogated and beaten. She was
detained for five days and thereafter spent five days in a hos-
pital because of two cracked ribs and a ruptured left kidney.
Marynenka testified on cross-examination that Chuyashkova
had suffered essentially the same injuries after her own arrest
at the same event: two broken ribs and a damaged left kidney.
After Marynenka’s release from the hospital, her parents
received anonymous phone calls warning them that
Marynenka should end her participation in Zubr. On Septem-
ber 16, 2002, three internal affairs agents searched the home
of Marynenka’s parents. According to Marynenka, these
agents told her parents "that their daughter would get impris-
oned for her actions as a member of Zubr." J.A. 68.
Marynenka and Chuyashkova were called to the dean’s
office at their university on October 13, 2002. The dean asked
them if they were members of Zubr. A BKGB agent who was
present accused the two women of participating in Zubr activ-
ities, slapped Marynenka on the face, knocked her to the
floor, and then kicked her in the stomach.
On November 2, 2002, Marynenka and Chuyashkova took
part in a government-sanctioned march in Minsk. When they
returned to Gomel the following day, November 3, they were
met at Chuyashkova’s residence by policemen who forced
them into a car and drove them to a forest. Both women were
then raped by four policemen. Marynenka submitted a medi-
cal record showing that the next morning, on November 4,
2002, she was treated at a clinic for sexual assault. The medi-
cal record characterized Marynenka as a "victim" and
reported that during her examination "the following was
determined: there are numerous abrasions and bruises in the
groin area, the entire body reveals multiple lacerations,
bruises and scratches, inside the vagina there are numerous
ruptures. All of the findings indicate a recent sexual act." J.A.
136.
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In further support of her application, Marynenka introduced
statements from her mother Nadezhda Marynenka, Hanna
Chuyashkova, Zubr member Kiryl Zhurau, and Anzhalika
Shuppo. She also submitted documentary evidence establish-
ing that country conditions in Belarus were consistent with
her testimony. The regime was undemocratic, brutally oppres-
sive, and engaged in human rights violations to stifle dissent.
Rape and sexual abuse of women was widespread.
Marynenka’s mother’s statement supports Marynenka’s
activity with Zubr, her allegations of the beatings she received
in January and July of 2002, the harassing phone calls and
police search, and the November 3, 2002, rape. Chuyash-
kova’s statement confirms both her and Marynenka’s associa-
tion with Zubr. Chuyashkova "personally witnessed what
[Marynenka] went through," and Chuyashkova mentions the
"anonymous phone calls which [the two] received periodi-
cally, warnings from the rector, house searches, threats," and
"detentions and beatings." J.A. 143. Chuyashkova’s statement
focuses on and describes the rapes of both women by four
police officers on November 3, 2002. At Marynenka’s
removal hearing on May 22, 2006, a question was raised as
to why Marynenka’s friend and roommate, Chuyashkova, did
not appear and testify. On cross-examination Marynenka
acknowledged that Chuyashkova had personal knowledge of
the events described above. When asked why Chuyashkova
did not appear as a witness, Marynenka answered that
Chuyashkova "had a brain concussion and because of that . . .
she is getting treatment and being advised not to be exposed
to anything that make[s] her upset." J.A. 43.
Zhurau’s statement confirms Marynenka’s membership in
Zubr. He confirms her attendance at the December 27, 2001,
and July 27, 2002, demonstrations, and he saw Marynenka
being arrested by police officers during the July 27, 2002,
event. Shuppo’s statement does not mention the basis for her
knowledge, but she says that Marynenka was a member of
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Zubr and that Marynenka participated in the December 27,
2001, and November 2, 2002, demonstrations.
B.
The IJ denied Marynenka’s application in an oral statement
at the conclusion of the May 22, 2006, hearing. The IJ "recog-
nize[d] that country conditions in Belarus have gone from bad
to worse." J.A. 167. Although the IJ questioned some aspects
of Marynenka’s testimony, the IJ did not make an explicit
adverse credibility determination with respect to her testi-
mony. The IJ found, however, that Marynenka "failed to meet
her burden in establishing past persecution and that she has a
well-founded fear of future persecution should she return to
Belarus." Id. Specifically, according to the IJ, Marynenka
"[did] not submit[ ] persuasive corroborating evidence that
she was a Zubr member, that she was politically active, that
she was arrested, that she was harmed and that she fled
Belarus in fear for her life." J.A. 170.
The IJ expressed concern "that [Marynenka] appears to
have filed virtually an identical asylum application to that of
her friend, Hanna Chuyashkova." J.A. 167. Nevertheless, the
IJ recognized that "[i]t would indeed not be unusual for
friends and fellow activists to be involved in similar activities,
to be arrested at similar times and to be harmed." Id. While
accepting that "all of these similarities could happen," the IJ
was troubled "that Hanna Chuyashkova [wa]s not present to
testify on behalf of [Marynenka]." J.A. 168. The IJ noted that
Marynenka and Chuyashkova, who were roommates, "could
have traveled to Court together today." Id. The IJ then
expressed skepticism about Marynenka’s explanation for
Chuyashkova’s absence. The IJ observed that Chuyashkova’s
"alleged brain concussion" occurred in 1999 and that she
thereafter "joined Zubr, then participated in numerous demon-
strations and was arrested and harmed on several occasions,"
despite the "requirement that she avoid stress." Id. Although
Chuyashkova’s statement provided specifics about the rapes
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that she and Marynenka suffered together, the IJ otherwise
saw nothing in Chuyashkova’s statement that referred to "ar-
rests with" Marynenka or "being called to the dean’s office"
with her. Id.
The IJ found it "implausible . . . that after th[e] alleged bru-
tal assault [the rape], that [Marynenka] would not go immedi-
ately to an emergency room," but rather waited "until 10:00
the next morning" to "seek medical assistance." J.A. 169. The
IJ also discounted Marynenka’s medical record of the rape
because the document was not on clinic letterhead and
because she had not established its chain of custody.
The IJ noted the lack of documentation to support
Marynenka’s claim that she was hospitalized in July 2002
after being interrogated and beaten. The IJ also noted that
Shuppo’s statement did not provide any foundation for her
knowledge of Marynenka’s membership in Zubr or her partic-
ipation at two demonstrations. Nor did Shuppo mention that
Marynenka had been harmed or arrested.
Although Zhurau’s statement confirmed Marynenka’s par-
ticipation in Zubr and her arrest at the July 27, 2002, demon-
stration, the IJ did not credit Zhurau because "there is
absolutely no way for this Court [the IJ] to corroborate the
information in [Zhurau’s] affidavit." J.A. 170. Finally, the IJ
explained that Marynenka’s mother’s statement did not over-
come the "aforementioned concerns and indeed this letter
does not constitute independent evidence of [Marynenka’s]
alleged persecution." J.A. 170 (citing Gandziami-Mickhou v.
Gonzalez, 445 F.3d 351, 359 (4th Cir. 2006)).
Based on the foregoing reasoning, the IJ found that
Marynenka failed to meet her burden of proof and denied her
application for asylum. Similarly, the IJ found that
Marynenka did not satisfy her burden of proving eligibility
for withholding of removal. Finally, the IJ denied
Marynenka’s request for protection under CAT because she
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failed to prove that it is more likely than not that she would
be tortured if removed to Belarus.
Marynenka appealed the IJ’s decision to the BIA, which
adopted and affirmed the IJ’s decision and dismissed
Marynenka’s appeal. Like the IJ, the BIA did not make an
express adverse credibility finding. Instead, the BIA found
that Marynenka "ha[d] not met her burden of proof to estab-
lish eligibility for relief." J.A. 293. Marynenka petitioned this
court for review.
II.
To establish eligibility for the discretionary grant of asylum
under the Immigration and Nationality Act, the applicant has
the burden of showing either that she was subjected to past
persecution or that she has a "well-founded" fear of future
persecution "on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion." 8
C.F.R. § 208.13(b)(1). Fear of future persecution "contains a
subjective and an objective component." Chen v. INS, 195
F.3d 198, 201 (4th Cir. 1999). The subjective component is
satisfied "by presenting candid, credible, and sincere testi-
mony demonstrating a genuine fear of persecution." Id. (quo-
tations omitted). "The objective element requires the asylum
[applicant] to show, with specific, concrete facts, that a rea-
sonable person in like circumstances would fear persecution."
Id. at 202. If the applicant establishes past persecution, a
rebuttable presumption of a well-founded fear of persecution
is also established. 8 C.F.R. § 208.13(b)(1).
To qualify for withholding of removal, the applicant must
establish that if she is removed, there is a clear probability
that her "life or freedom would be threatened . . . because of
[her] race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A).
An applicant "who has failed to establish the less stringent
well-founded fear standard of proof required for asylum relief
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is necessarily also unable to establish an entitlement to with-
holding of removal." Anim v. Mukasey, 535 F.3d 243, 253
(4th Cir. 2008) (quotations and citation omitted).
To be eligible for protection under CAT, the applicant must
show that it is "more likely than not that he or she would be
tortured if removed to the proposed country of removal." 8
C.F.R. § 208.16(c)(1), (2); see Gandziami-Mickhou, 445 F.3d
at 354. The likelihood of torture, however, need not be tied to
a protected ground under CAT. See Dankam v. Gonzales, 495
F.3d 113, 115-16 (4th Cir. 2007).
"We review the BIA’s administrative findings of fact under
the substantial evidence rule, and we are obliged to treat them
as conclusive unless the evidence before the BIA was such
that any reasonable adjudicator would have been compelled to
conclude to the contrary." Haoua v. Gonzales, 472 F.3d 227,
231 (4th Cir. 2007). We review legal issues de novo. Abdel-
Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir. 2007). The
agency decision that an alien is not eligible for asylum is
"conclusive unless manifestly contrary to the law and an
abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). When, as
here, the BIA adopts the IJ’s decision and includes its own
reasons for affirming, we review both decisions. Camara v.
Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004).
In considering Marynenka’s petition for review, we "pre-
sume that [she] testified credibly" because neither the IJ nor
the BIA made an express adverse credibility determination.
Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir. 2007).*
Even though a few of the IJ’s statements implied doubt about
*This principle was codified as follows in the REAL ID Act of 2005,
Pub. L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005): "if no
adverse credibility determination is explicitly made, the applicant or wit-
ness shall have a rebuttable presumption of credibility on appeal." 8
U.S.C. § 1158(b)(1)(B)(iii). This REAL ID Act provision does not apply
in Marynenka’s case because her asylum application was filed prior to the
effective date of the provision. REAL ID Act § 101(h)(2).
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certain aspects of Marynenka’s testimony, both the IJ and the
BIA rested their decisions on the lack of persuasive corrobo-
rating evidence. At oral argument the government conceded
that Marynenka’s testimony must be taken as credible because
the IJ did not make an express adverse credibility finding.
An applicant’s credible testimony, standing alone, "may be
sufficient to sustain [her] burden of proof without corrobora-
tion." 8 C.F.R. § 208.13(a). "However, even for credible testi-
mony, corroboration may be required when it is reasonable to
expect such proof and there is no reasonable explanation for
its absence." Lin-Jian, 489 F.3d at 191-92 (citing In re S-M-
J-, 21 I. & N. Dec. 722, Interim Decision 3303 (BIA 1997)).
An IJ may not rely on "speculation, conjecture, or an other-
wise unsupported personal opinion" to discredit an applicant’s
testimony or her corroborating evidence. Tewabe v. Gonzales,
446 F.3d 533, 538 (4th Cir. 2006) (citation and quotations
omitted); Zuh v. Mukasey, 547 F.3d 504, 508-10 (4th Cir.
2008).
III.
The IJ denied Marynenka’s asylum application because she
did "not submit[ ] persuasive corroborating evidence that she
was a Zubr member, that she was politically active, that she
was arrested, that she was harmed and that she fled Belarus
in fear for her life." J.A. 170. As we explain below, the IJ
offered reasons that are unsupportable as a matter of law in
discrediting key pieces of Marynenka’s corroborating evi-
dence. This evidence relates to Marynenka’s rape, her Zubr
membership, and her arrest at the July 27, 2002, demonstra-
tion.
The IJ committed legal error in discrediting the medical
record showing that on November 4, 2002, Marynenka was
treated for sexual assault at a clinic in Gomel. The IJ was "not
persuaded" by the document because it was not written on
clinic letterhead and because Marynenka did not establish a
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chain of custody. J.A. 169. However, the document bears a
rectangular seal or stamp that reads "Gomel City Clinic No.
10." J.A. 136. The document, which describes in detail the
results of a physician’s examination, confirms a brutal rape
and notes the date and time of the examination. The govern-
ment offered no reason for the IJ to doubt the legitimacy of
the document. And the IJ had no basis, other than conjecture,
for rejecting the document on the ground that it was not writ-
ten on printed letterhead. Finally, with respect to the chain of
custody, "the rules of evidence do not apply strictly in admin-
istrative adjudications of immigration cases, and here the
immigration judge . . . offer[ed] no other [valid] reason" to
doubt the authenticity of the document. Kourouma v. Holder,
588 F.3d 234, 242 (4th Cir. 2009).
Rejection of the medical document as corroboration appar-
ently cleared the way for the IJ to reach another unsustainable
conclusion. The IJ thought it "implausible . . . that after this
alleged brutal assault [specifically, the rape], that [Marynenka
did] not go immediately to an emergency room," but instead
waited until early the next morning to "seek medical assis-
tance." J.A. 169. Waiting overnight to seek medical attention
after a traumatic sexual assault is not implausible; if anything,
it is understandable. Even in the United States, when the per-
petrator of a rape is a stranger, the crime is not reported to
police 54 percent of the time. See Callie Marie Rennison,
Rape and Sexual Assault: Reporting to Police and Medical
Attention, 1992-2000, at 3 (Bureau of Justice Statistics,
August 2002), available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/rsarp00.pdf. In addition, of the victims who
do not report their rapes to police, only 17 percent seek medi-
cal attention. Id. The IJ’s conclusion that Marynenka would
not have waited a few hours to seek medical care appears to
be based on conjecture or unsupported personal opinion.
The IJ also committed legal error when she discounted the
corroborating evidence from Kiryl Zhurau, a member of the
Gomel branch of Zubr since 2001. Zhurau’s statement estab-
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lished that Marynenka was an active Zubr member. He con-
firms that he participated with Marynenka in the July 27,
2002, demonstration in Minsk and "saw [her] being arrested
by police officers and taken to their vehicle." J.A. 148. The
IJ discounted Zhurau’s statement because "there is absolutely
no way for this Court [the IJ] to corroborate the information
in this particular [statement]." J.A. 170. There is no general
rule that evidence offered in corroboration requires indepen-
dent corroboration. Zhurau’s statement therefore could not be
discredited on the ground that it automatically required cor-
roboration.
When we take Marynenka’s testimony as credible, "we
cannot uphold the IJ’s decision based on the stated rationale"
that she failed to provide persuasive corroborating evidence.
Zuh, 547 at 513. The IJ used legally unsupportable reasons to
reject the corroborating medical record that confirms
Marynenka’s rape. The IJ also committed legal error in reject-
ing Zhurau’s statement under what the IJ appeared to regard
as a general rule that corroborating evidence requires further
corroboration. In short, the IJ’s reasoning renders her decision
"manifestly contrary to the law and an abuse of discretion."
8 U.S.C. § 1252(b)(4)(D). We recognize, of course, that "our
role is not to weigh the evidence and determine which of the
competing views is more compelling." Zuh, 547 F.3d at 513
(internal quotation marks and citation omitted, emphasis
removed). The better course is to vacate the BIA decision and
remand the case to that body with instructions that the case be
returned to the IJ. The IJ will reconsider Marynenka’s appli-
cation in light of this opinion.
IV.
Marynenka’s petition for review is granted. We vacate the
BIA’s decision denying Marynenka’s application for asylum,
withholding of removal, and relief under CAT. The case is
remanded to the BIA, which will, in turn, remand it to the IJ
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for reconsideration of Marynenka’s application in light of this
opinion.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED WITH INSTRUCTIONS
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