Lyubov Slyusar v. Eric Holder, Jr.
2014 U.S. App. LEXIS 1843
6th Cir.2014Background
- Slyusar, a Ukrainian citizen and former social worker, reported pension fraud and provided a report naming officials; a radio station broadcast the report in 2002.
- After the broadcast she received threats; she alleges arrests by police/security, physical abuse, gang rape while detained, and subsequent harassment that prompted her to flee to the U.S. in 2003 using a Russian passport.
- In the U.S. she married, sought adjustment of status (denied), and later filed for asylum, withholding of removal, and Convention Against Torture (CAT) protection; DHS issued Notices to Appear for removal based on entry without inspection.
- An Immigration Judge (IJ) denied relief, finding numerous inconsistencies in Slyusar’s testimony and documentary evidence, ruling her asylum filing untimely and her testimony incredible; the IJ held that adverse credibility precluded relief under asylum, withholding, and CAT.
- The Board of Immigration Appeals (BIA) affirmed the IJ, declining to consider new evidence submitted on appeal and agreeing the credibility determination and factual inconsistencies supported denial; Slyusar petitioned for review in the Sixth Circuit.
- The Sixth Circuit applied the REAL ID Act standard, reviewed the BIA/IJ credibility findings for substantial evidence, and denied the petition and a stay of removal (the stay was also held moot).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA erred in adverse credibility finding under REAL ID Act | Slyusar argued inconsistencies were immaterial or explained and did not compel disbelief | Government argued inconsistencies and internal contradictions justified adverse credibility | Court: Substantial evidence supports adverse credibility; no compulsion to reverse |
| Timeliness of asylum application / extraordinary circumstances | Slyusar argued counsel failed to file timely application and/or extraordinary circumstances excused delay | Government maintained asylum was untimely and petitioner failed to meet extraordinary-circumstances requirements | Court: BIA/IJ credibility findings fatal; timeliness primarily factual and not reversed |
| Whether adverse credibility forecloses withholding/CAT relief | Slyusar argued underlying persecution/torture claims merited relief if believed | Government argued adverse credibility bars all forms of relief including withholding and CAT | Court: Same credibility standard applies; adverse credibility dispositive for asylum, withholding, and CAT |
| Stay of removal pending review | Slyusar sought stay, asserting risk of irreparable harm and likelihood of success on merits | Government opposed stay | Court: Irreparable harm shown but Slyusar failed to show strong likelihood of success; stay denied as moot after disposition |
Key Cases Cited
- Marku v. Ashcroft, 380 F.3d 982 (6th Cir. 2004) (substantial-evidence review of BIA factfinding)
- El-Moussa v. Holder, 569 F.3d 250 (6th Cir. 2009) (REAL ID Act governs credibility; review under substantial evidence)
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (caution about treating immaterial inconsistencies as dispositive)
- Karimijanaki v. Holder, 579 F.3d 710 (6th Cir. 2009) (de novo review of legal questions from BIA)
- Zhao v. Holder, 569 F.3d 238 (6th Cir. 2009) (BIA adoption/supplementation and credibility review)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (stay of removal factors)
- INS v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (scope of judicial review when BIA declines to reach merits)
- Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) (standards for CAT and withholding burdens)