The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 26, 2007
No. 06-12334 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-926-362
INGRIDA MOCKEVICIENE,
VESTA MOCKEVICIUTE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 26, 2007)
ON PETITION FOR REHEARING
Before BIRCH, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
We sua sponte grant rehearing in this case, vacate our prior opinion filed on
April 12, 2007 in its entirety, and substitute the following opinion in its place.
Ingrida Mockeviciene and her daughter, Vesta Mockeviciute, seek review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order denying their application for withholding of removal under the
Immigration and Nationality Act (“INA”). Because the BIA’s determination that
Mockeviciene was not eligible for withholding of removal does not compel
reversal, we deny the petition.
I. Background
a. Application and Testimony
Mockeviciene and her daughter, Vesta, both Lithuanian citizens, were
admitted to the United States on April 20, 2000, as non-immigrant visitors and
overstayed their visas. On January 20, 2004, Mockeviciene filed an application
seeking asylum and withholding of removal, based on membership in a particular
social group, and for relief under the CAT.1
In her application and at her hearing, Mockeviciene claimed that she was a
lesbian and had suffered persecution because of her sexual orientation.
1
The IJ found, and the BIA affirmed, that Mockeviciene’s asylum application was time-
barred. This finding is not challenged on appeal, and is, therefore, abandoned. Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). In addition, Mockeviciene makes no
argument as to relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), and so it too is abandoned.
2
Specifically, Mockeviciene testified that from 1994 until she left the country in
2000, the Lithuanian police searched her apartment without a warrant, had her
terminated from her employment, improperly evicted her from her apartment, and
twice detained her and beat her, all on account of her sexual orientation.
Mockeviciene’s troubles with the police began in 1994 when she told her husband
that she was a lesbian. According to her, her husband beat and raped her while his
friends held her down. Mockeviciene reported the incident to the police. But
instead of assisting her, she claimed that the police searched her mother’s
apartment, where Mockeviciene was staying, presumably looking for “homosexual
literature.” The police did not detain Mockeviciene but told her that they would
“keep an eye on [her].” The next year, Mockeviciene found a job at a cleaning
company. She claimed that the police informed her employer that she was a
lesbian and caused her to be terminated.
Mockeviciene testified that, in early 1997, a local police officer, Iankauskas,
questioned her at her apartment about her sexual orientation. Officer Iankauskas
expressed disgust at Mockeviciene’s lesbianism, physically molested her, and
threatened to make her life a “nightmare.” Mockeviciene’s neighbors became
openly hostile, and she attributed this hostility to her husband and the police
informing them all that she was a lesbian.
3
In September of 1997, Mockeviciene and her daughter went on a weekend
trip and when they returned they found another family living in their apartment
with appropriate documents. The neighbors called the police, who arrived and
arrested Mockeviciene and detained her daughter as well. At the station, an officer
explained that they had given away her apartment because they didn’t want a
lesbian living “in our district, our city or our country.” Mockeviciene claimed that
the officer then kicked her. She was detained for two days and then moved to a
nearby town. She continued to work at the same place she had before the eviction,
but lost that job in May of 1998 after her employer discovered she was a lesbian.
In December of 1999, Mockeviciene received a notice to appear at the police
station in the village in which she was living. The new inspector, Pelvikes,
informed her that he was aware of her “record” and that he did not intend to have a
“debauchee” in his community. The next month, Mockeviciene received a letter
asking if she wanted to join a gay-lesbian community and, if so, requesting that she
send a picture to the return address. Mockeviciene did so and soon heard from a
woman named “Donata,” and they arranged to meet in March. At the appointed
meeting time, Mockeviciene was arrested by Inspector Pelvikes and “abused
verbally and physically” and threatened with three years’ imprisonment. She did
not provide any details regarding this abuse. Mockeviciene and her daughter left
4
Lithuania to the United States, via the Netherlands, a month after this last
encounter with the police.
Mockeviciene’s daughter, Vesta, also testified at the hearing. She
corroborated Mockeviciene’s testimony regarding the two-day detention after the
eviction as well as the hostile treatment from the neighbors. Vesta also testified
that she knew her mother was a lesbian.
Mockeviciene submitted numerous documents in support of her asylum
application, including both official reports regarding the status of gays and lesbians
in Lithuania and personal letters from individuals who knew Mockeviciene in
Lithuania. Friends of Mockeviciene wrote that they knew she was a lesbian and
that she had been harmed by the police because of her orientation. The State
Department’s 2003 Country Report did not mention sexual orientation, but reports
from the Council of Europe and the United Kingdom described the discrimination
and violence that gays and lesbians face in Lithuania.
b. IJ Decision
The IJ denied Mockeviciene’s application for asylum, withholding of
removal, and relief under CAT. The IJ found that Mockeviciene was not eligible
for asylum because her application was untimely.2 The IJ denied withholding of
2
An alien may seek asylum if she “demonstrates by clear and convincing evidence that
the application has been filed within 1 year after the date of the alien’s arrival in the United
States.” INA § 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application may be
5
removal and protection under CAT because she had not met her burden to show
past persecution on account of a protected status or a likelihood of future
persecution if removed.
The IJ expressly found that Mockeviciene was not credible because,
primarily, he did not believe she was actually a lesbian. The IJ provided the
following reasons for his doubts regarding Mockeviciene’s professed sexual
orientation: (1) Mockeviciene “defined” being a lesbian as “a woman who wants
to be around other women and . . . it does not necessarily involve[] sexual
relationships”; (2) although she had been in the United States for four years, she
had not had a lesbian partner, so that she was “[a]t best . . . a non-practicing
lesbian”; (3) she had “no documents to establish that she is a lesbian,” and the
letters or notes she did submit were not originals and did not “mention with any
degree of specificity the lesbian relationships of [Mockeviciene], only addressing
the conclusion that [Mockeviciene] is indeed a lesbian”; (4) she had “not joined
any groups while being here in the United States for four years that involve[d]
lesbian activities”; (5) she did not produce any witnesses to “attest to the fact that
she is indeed a lesbian”; (6) she provided no documentation of her problems with
the police; and (7) although her mother was currently visiting her, her mother did
considered, however, if the alien shows extraordinary circumstances for the delay in filing a
timely application. INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D). No evidence of extraordinary
circumstances was presented.
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not testify at the hearing. The IJ also based his adverse credibility determination
on Mockeviciene’s demeanor during testimony.
After finding Mockeviciene not credible, the IJ determined that, even
assuming that Mockeviciene was a member of a protected social group based on
her sexual orientation, she did not qualify for asylum because she failed to
establish that she was persecuted because of her membership in a particular social
group.3 The IJ found that the incidents that Mockeviciene testified about did not
constitute a threat to her life or freedom, and the incidents perpetrated by one
police officer were insufficient to establish that, even if she suffered persecution,
that the persecution was caused by the government. Furthermore, the IJ found that
the documents introduced into evidence indicated that (1) homosexuality had been
decriminalized in Lithuania, and (2) the Lithuanian President accepted the
credentials of the new Australian Ambassador who introduced his boyfriend to the
President at the ceremony, demonstrating that “homosexuality is at least somewhat
tolerated in Lithuania.” The IJ characterized Mockeviciene’s testimony as
amounting to, “at best . . . discrimination.” The IJ also determined that
Mockeviciene did not demonstrate the potential for future persecution or torture if
she returned to Lithuania.
3
The IJ noted that if Mockeviciene did not qualify under the asylum standard, she would
not qualify under the more difficult standard for withholding of removal.
7
c. BIA Decision
Mockeviciene, aided by counsel, filed a Notice of Appeal to the BIA
claiming that the IJ erred in determining that Mockeviciene was not a lesbian and
therefore ineligible for asylum based on her membership in a particular social
group. She also challenged the IJ’s credibility determination and claimed that the
IJ demonstrated bias by his question of the daughter’s sexual orientation.4
Although Mockeviciene’s attorney indicated that he intended to file a separate
brief in support of the appeal, he did not do so. Instead, he filed a motion to
remand in order to seek adjustment of status as the spouse of a lawful permanent
resident based on Mockeviciene’s recent marriage.
The BIA denied Mockeviciene’s motion to remand and affirmed the IJ’s
decision to deny Mockeviciene’s application. The BIA stated that Mockeviciene
had not submitted an application for adjustment of status or any evidence that her
husband had filed the appropriate visa petition. Furthermore, the BIA noted that an
immigrant visa would not be immediately available to Mockeviciene. Because
Mockeviciene did not establish her prima facie eligibility for adjustment of status,
the BIA denied her motion to remand.
After briefly noting the IJ’s conclusions in his decision, the BIA found that
Mockeviciene’s subsequent marriage to a man undercut the credibility of her claim
4
The BIA found no evidence of bias, and this issue in not appealed.
8
to be a lesbian and thus the IJ’s credibility determination was not clearly erroneous.
The BIA accepted the IJ’s “ultimate conclusion” that Mockeviciene did not
establish her burden of proof for asylum and therefore could not qualify for
withholding of removal or protection under the CAT.
This petition follows.
II. Standard of Review
We review the BIA’s legal conclusions de novo. D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814. 817 (11th Cir. 2004). We review the BIA’s factual findings
under the deferential substantial evidence test and will affirm its decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. at 817-18 (11th Cir. 2004) (quoting Al Najjar, 257
F.3d at 1283-84) (quotations omitted). “Under the substantial evidence test, we
view the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc). “To reverse the IJ’s fact findings, we
must find that the record not only supports reversal, but compels it.” Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
III. Discussion
Mockeviciene petitions us to reverse the BIA’s determination that she was
9
not persecuted on account of her status as a lesbian.5 The IJ rejected
Mockeviciene’s claim upon finding her testimony not credible. The BIA did not
expressly adopt the IJ’s findings regarding Mockeviciene’s lack of credibility but
rather found that the evidence of her recent marriage to a man supported the
finding that the IJ’s credibility determination was not clearly erroneous.
Mockeviciene argues that the BIA erred in referencing material, i.e., the motion to
remand for adjustment of status, that was not properly before the IJ. The BIA’s
scope of review is limited:
Except for taking administrative notice of commonly known facts such as
current events or the contents of official documents, the Board will not
engage in factfinding in the course of deciding appeals. A party asserting
that the Board cannot properly resolve an appeal without further factfinding
must file a motion for remand. If further factfinding is needed in a particular
5
The government argues that we do not have jurisdiction to hear petitioner’s appeal
because she did not exhaust her administrative remedies before the BIA. See 8 U.S.C. §
1252(d)(1); see also Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (holding that this court
lacks jurisdiction to review a claim not raised in the appeal to the BIA) (quotation and citation
omitted).
We review de novo whether we have subject matter jurisdiction. Gonzalez-Oropeza v.
U.S. Att'y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). “A court may review a final order of
removal only if . . . the alien has exhausted all administrative remedies available to the alien as
of right . . . .”
8 U.S.C. § 1252(d)(1).
Mockeviciene’s Notice of Appeal is brief but it specifically challenges the IJ’s credibility
determination and denial of asylum. Although Mockeviciene does not specifically mention
withholding of removal, it is proper for us to treat an application for asylum to include an
application for withholding of removal. 8 C.F.R. § 208.3(b). We therefore have jurisdiction.
10
case, the Board may remand the proceeding to the immigration judge or, as
appropriate, to the Service.
8 C.F.R. § 1003.1(d)(3)(iv).
The question before us then is whether the BIA may take into account
Mockeviciene’s recent marriage when reviewing the IJ’s credibility determination.
It is undisputed that her marriage was not before the IJ. Although the BIA is not
normally to engage in fact finding, this case falls into the “official documents”
exception in the regulations governing the BIA. Id. Mockeviciene herself
submitted the motion to remand for adjustment of status based on her recent
marriage. It would be absurd to allow the BIA to consider evidence of the
marriage in determining the motion and then bar the BIA’s consideration of the
very same evidence when evaluating the IJ’s credibility determination.
We are skeptical of the reasoning the IJ used to determine his adverse
credibility finding. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005) (holding that “the [BIA] must offer specific, cogent reasons for an adverse
credibility finding.”). The fact that Mockeviciene had not been in a recent
relationship with a woman is not probative of her sexual orientation. And contrary
to the IJ’s findings, Mockeviciene did not define being a lesbian as “not necessarily
involv[ing] sexual relationship,” but, rather, when the IJ asked her what she
thought being a lesbian meant, she responded that “[i]t doesn't have to be a sexual
11
affair,” and added that “[s]ex is necessary between two lesbians. I want to say that I
want to have the sex with the woman. I cannot have it with a man.” Additionally,
the IJ’s statement that no witnesses attested to the fact that she was a lesbian is
incorrect, because her daughter testified that Mockeviciene was a lesbian. This
testimony and the affidavits provided extrinsic evidence of Mockeviciene’s
claimed sexual orientation that the IJ was required to consider.
Nevertheless, it is not our role to evaluate the record anew. We are limited
to reviewing the BIA and IJ decisions and reversing only if the evidence compels
us to do so. Mendoza, 327 F.3d at 1287. Given Mockeviciene’s recent marriage,
the evidence does not compel reversal of the BIA’s credibility determination.
IV. Conclusion
The record before us, including evidence of Mockeviciene’s recent marriage,
does not compel a finding that the IJ’s credibility determination was in error.
Accordingly, we DENY Mockeviciene’s petition.
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