Tchoukhrova v. Gonzales

• Decision Date: 21 April 2005
• Docket Number: No. 03-71129.,03-71129.
• Citation: 404 F.3d 1181
• Parties: Victoria TCHOUKHROVA, Dmitri Tchoukhrova, and Evgueni Tchoukhrova, Petitioners, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

404 F.3d 1181

Victoria TCHOUKHROVA, Dmitri Tchoukhrova, and Evgueni Tchoukhrova, Petitioners, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-71129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 1, 2004.

Filed April 21, 2005.

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Jonathan D. Montag, Law Offices of Jonathan D. Montag, San Diego, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Margaret J. Perry, Senior Litigation Counsel; William C. Erb, Jr. and Frances M. McLaughlin, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before REINHARDT, TASHIMA, and WARDLAW, Circuit Judges.

REINHARDT, Circuit Judge.

The question before us is whether under our immigration laws asylum may be granted to the parents of a disabled child who has been persecuted in his native land on account of his disability or whether, instead, we are compelled to force the family to return involuntarily to its home country where the child is likely to face further persistent and debilitating persecution. To answer that question, we must decide (1) whether disabled children and their parents who provide care for them may constitute a particular social group within the meaning of our immigration laws and (2) whether, in order to protect a disabled child from persecution, a parent of such child may apply for asylum and withholding of removal and may rely during the administrative proceeding on the past persecutory conduct directed against the child.

We hold that disabled children and their parents constitute a statutorily protected group and that a parent who provides care for a disabled child may seek asylum and withholding of removal on the basis of the persecution the child has suffered on account of his disability. We also hold that, given the record before us, the parent who is seeking asylum and withholding in this case is eligible for the former relief and entitled to the latter. Finally, we hold that the parent's spouse and the disabled child are eligible for asylum by virtue of their derivative applications and are also entitled to withholding of removal.

I. FACTUAL AND PROCEDURAL HISTORY

Evgueni Tchoukhrova was born in 1991 in Vladivostok, Russia with infantile cerebral paralysis, or cerebral palsy. His disability resulted chiefly from the negligence of members of the staff of the Russian state-owned hospital, who first induced his mother's labor and then abandoned her for the entire night, during which time the fetus did not receive sufficient oxygen. The next morning, because the induced labor had stopped, hospital personnel decided to forcibly extract the child from its mother's body, breaking its neck in the process. Instead of giving the newborn child medical care, they initially threw Evgueni into a container holding abortion and other medical waste, telling his mother that "they didn't see the reason why he needed to live." The mother, Victoria Tchoukhrova, having lost a lot of blood, fell into a state of unconsciousness.

Against all odds and despite the staff's neglect, Evgueni survived, and was retrieved from the disposal bin. As soon as she became conscious again, Victoria commenced pleading to see her son, without success. She was told that he was severely disabled and that she should "refuse" him. After five 4562 days, Victoria managed to convince a nurse to break the rules and let her visit her child in the middle of the night because she "wanted desperately to see him and to hold his lifeless body close to [her] heart."

Despite Victoria and her husband Dmitri's attachment to their newborn son, government officials tried to intimidate the couple into abandoning him to a state-run orphanage. Notwithstanding his parents' refusal to give their consent, Evgueni was transferred to an institution for orphaned children with birth defects. Victoria and Dmitri repeatedly sought to visit their son, but were denied permission for the first two months.

When the Tchoukhrovas finally gained entrance to the "hospital" for children with birth defects, the conditions were horrifying. The children were wrapped in old, wet, dirty linens and cried out from hunger. No one cleaned or otherwise took care of them. Some children writhed in pain but received no treatment. Despite their cries and obvious plight, the "children were simply abandoned." The Tchoukhrovas would not allow their child to remain in confinement under such deplorable conditions and, notwithstanding intense pressure from state authorities to consent to Evgueni's permanent institutionalization, Victoria and Dmitri secured his release and put him in a private clinic.

Evgueni's parents' struggles had still not ended. Once Evgueni was diagnosed as having infantile cerebral palsy, he was permanently labeled as disabled and was consequently banned from receiving any public medical support for his condition. In search of better medical care for their child, the family traveled three times to the Osteopathic Center for Children in San Diego. As a result of the treatment that he received in the United States, Evgueni was able to walk for the first time in his life. When the family returned to Russia, Victoria and Dmitri, in accordance with the recommendation of his American doctor, refused to allow Evgueni to be vaccinated. The doctor was concerned about the boy's fragile immune system. Because Evgueni was not vaccinated, it became difficult for him to obtain any medical care in state-run medical facilities.

The diagnosis of cerebral palsy resulted in Evgueni's being denied access to public school, despite the fact that his disability was a physical and not a mental one.¹ The Russian government doctor recommended that, if Evgueni's parents insisted on refusing to allow him to be institutionalized, he "be isolated at home" and not taken out into public places, a recommendation that was understandable given the extreme degree of societal prejudice against the disabled in Russia. When Victoria took Evgueni out in public, he was subjected to verbal abuse and spat upon. Victoria would often hear parents say to their children: "Get away from that boy, can't you see that he's abnormal" or "Don't get near him, he's sick." Children would throw things at him. Although many of the interactions were simply frightening and humiliating, two assaults resulted in Evgueni's hospitalization. On one visit to a park when he was six years old, several young men attacked him. The broken arm and severe head trauma that he suffered due to this incident required him to be hospitalized for two months and led to insomnia, spontaneous crying, shaking, and paranoia. Victoria and Dmitri filed a report with the police, but they never investigated the incident. On another occasion, a women yelled at Victoria, "Get your ugly imbecile out of here," and shoved Evgueni to the ground. He was rushed to the emergency room and received several stitches in his head, from which he still has a visible scar. Victoria again filed a police report; this time, the police told her the case was insignificant and to settle it herself. Evgueni became so frightened of the dangers he faced every time he went outside that he refused to leave the house. All the while, the government continued to try to have him institutionalized.

Unable to get the government to treat their son with decency or even to attempt to protect him from the violent harassment he faced, Victoria and Dmitri decided to take political action in order to create a normal life for him. They joined together with other parents of disabled children and founded an association "that opposed the prevailing oppressive conditions of the handicap [sic] children," called "Mothers Unite!" Victoria worked to have a newspaper article published criticizing the Russian government's treatment of disabled children, but the proposed article was canceled at the last minute. The couple spoke to the authorities, wrote letters demanding equal rights, and engaged in fundraising on behalf of the cause. The family also sought help from the Moon Society; this action only provoked additional harassment. After one meeting, people threw stones at Victoria and vandalized the family's car. When Dmitri complained to the police, the authorities failed to respond. In 1997, Dmitri was fired from his job as a civil engineer and was unable to find employment for two years. In several job interviews, he was urged to stop advocating for the rights of the disabled. With hostilities toward the whole family increasing and the mounting certainty that Victoria and Dmitri would never be able adequately to protect their son and provide him with a life free from persecution, the family left for the United States in 2000.

Documentary evidence corroborates Victoria's testimony. The wretched treatment Evgueni received from both the Russian government and from private individuals in Russia is far from uncommon in that country. For example, the 2000 State Department Human Rights Report ("State Department Report") confirms that Evgueni's treatment as a child with cerebral palsy reflects the standard practice. Russia institutionalizes its "orphans," more than 90% of whom are so-called "social orphans" — children who have at least one living parent but who, like Evgueni, are so-classified by the state because they have been deemed undesirable in some respect. The State Department Report states:

[T]he prospects of children/orphans who are disabled physically or mentally are extremely bleak. The label of "imbecile" or idiot, which signifies "uneducable," is almost always irrevokable. The most likely future is a lifetime in state institutions.

The Report also explains that, once institutionalized, children are often "provided for poorly" and are in some cases "abused...