Poradisova v. Gonzales

• Decision Date: 16 August 2005
• Docket Number: Docket No. 03-40555.,Docket No. 03-40550.,Docket No. 02-4641.,Docket No. 02-4642.
• Citation: 420 F.3d 70
• Parties: Tatiana PORADISOVA, Pavel Poradisov, and Gennadi Poradisov Petitioners, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

420 F.3d 70

Tatiana PORADISOVA, Pavel Poradisov, and Gennadi Poradisov Petitioners, v. Alberto GONZALES,¹ Respondent.

Docket No. 02-4641.

Docket No. 02-4642.

Docket No. 03-40550.

Docket No. 03-40555.

United States Court of Appeals, Second Circuit.

Argued: June 3, 2005.

Decided: August 16, 2005.

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Alexander Berkovich, New York, New York, for Petitioners Tatiana Poradisova, Pavel Poradisov, and Gennadi Poradisov.

Edward Olsen, Assistant United States Attorney for the Northern District of California, San Francisco, California for Respondent Alberto Gonzales.

Before: McLAUGHLIN, STRAUB, and HALL, Circuit Judges.

STRAUB, Circuit Judge.

Petitioners Tatiana Poradisova and Gennadi Poradisov and their son Pavel Poradisov ("Poradisovs") petition for review of Board of Immigration Appeals ("BIA") decisions summarily affirming the denial of their asylum application and denying their motion to reopen. The Poradisovs argue that the Immigration Judge ("IJ") and BIA erred in 1) finding that the Poradisovs failed to meet their burden of proof despite their extensive and detailed testimony, 2) finding that the abuse they recounted did not amount to persecution, and 3) failing to take note of the record evidence of general antisemitism in Belarus. With respect to their motion to reopen, the Poradisovs argue that the BIA's denial was an abuse of discretion because they had met their burden of showing materially worsened conditions in Belarus since their original application.

We agree with the Poradisovs that the IJ's legal analysis was flawed in a number of significant respects, and that the BIA's affirmance of her decision must therefore be vacated. Specifically, the IJ erred in dismissing certain portions of the Poradisovs' testimony for lack of corroboration (much of which, in all likelihood, was not reasonably available), in failing to consider the cumulative significance of the events described, in drawing adverse inferences from the Poradisovs' decision not to seek protection from the police or seek asylum from the United States Consulate in Belarus, in dismissing Tatiana's account of anonymous threats solely because the threats were anonymous, and in dismissing as irrelevant evidence that similarly-situated friends of the Poradisovs had been persecuted. As an additional ground for remand, we hold that the BIA abused its discretion in denying the Poradisovs' motion to reopen because it inexplicably dismissed as "merely cumulative" the strong evidence they presented that antisemitism in Belarus is virulent and on the rise. For both these reasons, either of which would suffice for remand, we grant the petitions for review, vacate the BIA decision affirming the IJ's denial of asylum, reverse the BIA decision denying the motion to reopen, and remand for further proceedings in conformity with this opinion.

BACKGROUND

The Poradisovs-Tatiana and Gennadi and their son Pavel-are part-Jewish Belarusians from the city of Minsk who arrived in the United States in 1991 and 1992 and immediately applied for asylum based on ethnic/religious persecution. For unknown reasons, their first hearing before an IJ did not take place until October 1997. In the series of hearings that followed, Tatiana and Gennadi testified that throughout their lives they were mistreated because of their Jewish ethnicity.

The Poradisovs' testimony, somewhat distilled, is as follows. Tatiana's father, who was not Jewish, was harassed by neighbors in their high-rise apartment about having married a Jewish woman-told, for example, that his wife had an offensive odor-to the point where he eventually moved out of the apartment, although he stayed in contact with the family and assisted them financially. At the end of eighth grade, because they were Jewish, Tatiana and a friend were forced by their school to transfer to another, more distant school. When Gennadi was in eighth grade, his class was talking about WWII, and a negative comment was made about Jews (questioning their loyalty to Russia). Gennadi protested because his grandfather had been killed in the Holocaust. He was taken into the basement of the school and badly beaten by several of his classmates. He suffered a head injury and a broken nose and finger, and had to be hospitalized.

This abuse allegedly continued into Tatiana's and Gennadi's adulthood. In 1988, Tatiana and Gennadi participated in a peaceful demonstration in memory of Jews who died in WWII. (Gennadi participated every year.) The demonstration was violently attacked by an antisemitic group, although neither of the Poradisovs was physically harmed. The police came and, rather than arresting the attackers, arrested the Jewish demonstrators for "organizing a fight in a public place." A good friend of the Poradisovs' was arrested and "beat up very badly" in prison. He was marked as an "activist Zionist" on his work papers, and thereafter was unable to find work. He left for the United States, where he currently resides.

In another alleged incident, the son of good friends of the Poradisovs, also Jewish, committed suicide after being verbally and physically abused by his classmates. In a suicide note, the boy stated that he could no longer live as an "ever persecuted kike." According to the Poradisovs, their friends had tried to convince the school to intervene, without success. Tatiana testified that she feared that her young son, Pavel, would face similar abuse when he started attending school. The Poradisovs also described, as a general aspect of life, that antisemitic groups would distribute fliers, send letters, and make phone calls threatening Jews and inciting others to attack them. As a result of this atmosphere, the Poradisovs refrained from going out at night because they believed that they would be physically attacked by ultra-nationalists.

Sometime after Pavel was born, the Poradisovs purchased a local business selling ice cream. Tatiana testified that they were continually harassed by the authorities and forced to renovate and pay fines, even though their premises were far cleaner than other stores. On September 3, 1991, their ice cream store was burned down. The Poradisovs did not witness the event, but a neighbor who lived across the street told them that the men who attacked the store were shouting "dirty Jews" and similar epithets. The neighbor called the police, but when they came, they gave her the impression that nothing would be done about the incident and that it would be better not to pursue the case.

Also in 1991, Gennadi left Belarus for the United States. Tatiana testified that, after he left, the local authorities began visiting her and asking her questions about her husband. She also received threatening phone calls, beginning in Spring, 1992, accusing her husband of being a traitor and telling her to leave or she or her son would be killed. Their home was also broken into and vandalized at this time.

The 1997 and 1998 State Department country reports in the record described growing societal antisemitism met by governmental inaction, antisemitic media, official antisemitic statements made as propaganda against the opposition party, desecration of Jewish cemeteries, and some targeting of prominent Jewish individuals for harassment or prosecution.

The IJ denied the Poradisovs' claims in a decision issued September 20, 1999, finding that they had "failed to demonstrate sufficient evidence to be entitled to" asylum. Although the IJ did not make an adverse credibility determination, she found parts of the Poradisovs' account "nebulous," noted the lack of documentary evidence that Tatiana was part-Jewish, and found that certain facts "undermined" their claim — namely, that the Poradisovs never filed police complaints, that the threatening callers never identified themselves, that the Poradisovs did not inform the American Consulate of their alleged reason for leaving Belarus, that Gennadi was able to graduate from high school and later to find employment by a state company, and that the Poradisovs had failed to submit any supporting affidavits from family or friends. As for the specific incidents described, the IJ found that each, considered individually, fell short of amounting to persecution because they were either remote in time, insufficient in degree, or (in the case of attacks on the Poradisovs' friends) not sufficiently connected to their own situation. The BIA summarily affirmed the IJ's decision in an order dated October 10, 2002, and the Poradisovs filed petitions for review by this Court.

In January, 2003, the Poradisovs also moved to reopen their case based on worsened antisemitism in Belarus. In support of this motion, they submitted the 2001 State Department report on Belarus which characterized the overall human rights situation as "[still] very poor and worse[ ] in several areas." Pertinent to the Poradisovs' claims, the report observed that "[r]egime officials took a number of hostile actions toward the Jewish community" as well as toward other minority faiths, and connected this hostility to a dominant "Slavic Unity"/pro-Russia philosophy. Specifically, the Report stated that the government does nothing to counter the spread of antisemitic literature and antisemitic vandalism; harasses proselytizing messianic Jews; arrested Jews picketing the illegal destruction of a synagogue in Minsk (the Poradisovs' home city), and prosecuted one of the picketers; makes openly antisemitic statements; refuses to create memorials to Belarusian Holocaust victims or help maintain Jewish cemeteries or monuments; and refused to investigate the recent firebombing of a synagogue in Minsk. The report further found that "[s]ocietal anti-Semitism persisted and sentiment critical of minority faiths increased," with "a number of small, ultranationalist organizations operat[ing] on the fringes of society, and a number of newspapers regularly print[ing]...