Pavlova v. I.N.S.
| Decision Date | 14 March 2006 |
| Docket Number | Docket No. 03-4094-AG. |
| Citation | 441 F.3d 82 |
| Parties | Tatiana PAVLOVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
counsel), DiRaimondo & Masi, LLP, Melville, New York, for Petitioner.
Jim Letten, United States Attorney, Eastern District of Louisiana (Eneid A. Francis and Diane Hollenshead Copes, Assistant United States Attorneys, on the brief), New Orleans, Louisiana, for Respondent (on submission).
Before: CALABRESI, STRAUB, and WESLEY, Circuit Judges.
Petitioner Tatiana Pavlova ("Pavlova"), a native and citizen of the Russian Federation, petitions for review of a December 17, 2002 order of the BIA, which summarily affirmed an IJ's July 30, 2001, decision denying her application for asylum, for withholding of removal under the Immigration and Nationality Act of 1952(INA), as amended, as well as for withholding of removal under the Convention Against Torture (CAT).1 The IJ found Pavlova's account of religiously-motivated persecution to be incredible. He also concluded that, even if her story were credible, she did not qualify for the relief requested because the mistreatment she described lacked the government involvement necessary to constitute persecution within the meaning of the INA. Because the IJ's credibility finding rested on serious errors, and because he misstated the legal standard governing the level of government involvement needed to support a claim of persecution, we grant the petition for review, vacate the decision of the BIA, and remand the case to the BIA for further proceedings.
At her removal hearing, Pavlova testified that, as a member of the Baptist faith, she had been subjected to violence and threats by Russian National Unity ("RNU"), a Russian nationalist group founded and led by Alexandr Barkashov. According to Pavlova, the RNU's acts of aggression began in May 1994 when RNU members beat Pavlova and others for proselytizing in a public park. Although Pavlova reported this incident to the authorities, the RNU was apparently undeterred. As the proselytizing continued, so did the beatings. In early 1995, Pavlova was attacked while walking home from a prayer meeting. Later that year, Igor Nazim, a member of Pavlova's prayer group, died from injuries sustained in a similar attack.
In March 1996, Pavlova and her fellow Baptists founded a business, the purpose of which was to print and distribute religious literature. Over the next two years, the RNU waged a campaign of aggression to disrupt the operations of this business. The opening salvo in this violent campaign was apparently aimed at Vladimir Tkachenko, a fellow Baptist and one of Pavlova's business colleagues. In the summer of 1996, Tkachenko began receiving threats concerning his role in distributing literature for the business. Tkachenko ignored the threats and, in August, was hit by a truck on the street and killed. One year later, in June 1997, two RNU members broke into Pavlova's home and destroyed office equipment and printed literature. Although their activities were temporarily crippled by this setback, Pavlova and her colleagues reopened the business a few months later, relocating it in Belgorod. Any hope of benefitting from the anonymity of the city was dashed when, in November 1997, RNU members appeared at the new business office and threatened Pavlova and the others with force unless they shut down operations within one week. When the one-week deadline arrived without the business having been closed, true to their threats, the RNU members destroyed the printing equipment and violently assaulted the workers. During this melee, one of Pavlova's colleagues, Alexander Malachev, sustained injuries from which he later died. Pavlova herself was knocked unconscious and raped. When she finally awakened at the hospital, she learned that, as a result of the ordeal, "[her] internal organs had been ruptured" and that she had to undergo surgery.
Unfortunately for Pavlova, her travails did not end there. While in the hospital, Pavlova provided testimony to the authorities that one of her assailants was a former schoolmate and neighbor, Alexander Tkachenko. Upon her release from the hospital, Pavlova began receiving threats pressuring her to change her testimony. Then, one day, on her way home from a church service in Belgorod, Pavlova heard a gunshot and fell to the ground. The bullet had missed Pavlova and lodged into one of the walls next to her house.
Seeking a safe haven, Pavlova moved in with relatives in Moscow, but RNU members quickly discovered Pavlova's new location. Pavlova changed addresses again, this time sharing space with fellow Baptists who warned her that she was still at risk. Aware that she "had to spend some amount of time outside of Russia in a safe place," Pavlova nevertheless did not want to leave Russia forever. Acting on a desire to visit the United States, Pavlova acquired a visa from the United States Embassy and an airplane ticket through a tour agency where she was working and left Russia. Six months after arriving in the United States, Pavlova extended her visa when she learned from relatives that it was not yet safe for her to return to Russia. After extending her visa, Pavlova discovered that a fellow Baptist, Alexander Cazlitin,2 had been killed by RNU members — the fourth such murder — and she decided to apply for asylum.3
Before her removal hearing, Pavlova submitted into evidence, inter alia, (1) a passport, visa and other identification; (2) two letters from the Evangelical House of Prayer in New York, indicating that she is a member; (3) a photograph of herself showing a pelvic scar; (4) a number of articles from news outlets and other materials concerning religion in Russia, and in particular, the impact of a 1997 Law of Religion that treats minority Christian sects less favorably than the Russian Orthodox Church; (5) a death certificate for Igor Nazin, whom she identified as one of the Baptists beaten to death; (6) a notice from local administrators that "A. Tkachenko," whom she identified as an RNU attacker, had been reprimanded for "small hooliganism"; (7) materials describing RNU, some of which appear to be taken from websites; and (8) a supplemental affidavit, describing in detail the incidents of persecution that form the basis for her asylum claims. Following an adjournment in her hearing, Pavlova submitted, inter alia, (9) a letter from a fellow Baptist, Elena Karabutova, that corroborated RNU's violent disruption of the publishing operation and the continuing danger to Baptists, and (10) a letter from a gynecologist, Dr. Jason Halper, stating his conclusion, on the basis of a physical examination, that Pavlova had operations on both ovaries which could have been necessitated by a rape. Dr. Halper also testified to this effect after the adjournment.
In an oral decision, the IJ provided seven grounds for his adverse credibility determination. First, the IJ found it implausible that, having suffered beatings and a rape in Russia, Pavlova would come to the United States solely for the purpose of tourism. Second, the IJ questioned why Pavlova decided to apply for asylum nearly one year after her arrival in the United States and only after learning of the murder of her fellow Baptist, Alexander Cazlitin. Third, the IJ regarded as inconsistent Pavlova's testimony regarding her decision not to see a gynecologist in the United States. Fourth, the IJ faulted her for failing to mention her rape and the killings of the three other fellow Baptists in the statement accompanying her I-589 application for asylum. Fifth, the IJ found it suspicious that Pavlova could not accurately describe her medical condition. Sixth, the IJ found deficient Pavlova's corroborating evidence. Finally, the IJ identified certain pieces of corroborating evidence that, despite their availability, Pavlova had failed to submit.
As another basis for rejecting Pavlova's application for asylum and withholding, the IJ found that Pavlova had not alleged the requisite degree of government involvement in her persecution. The IJ concluded that Pavlova "has at no time indicated that she was ever subjected to persecution, abuse, or harassment by any element of the Russian Government."
Because Pavlova failed to demonstrate eligibility for asylum, the IJ found that she also failed to meet the higher standard for withholding of removal. The IJ further concluded that, taking into account Pavlova's testimony and evidentiary submissions, "there is no basis to believe that [she] has ever been subjected to torture in her home country nor that she would be subjected to torture there upon her return." The IJ denied voluntary departure, as Pavlova gave no evidence that she could afford to buy a ticket to leave the United States.
On December 17, 2002, the BIA summarily affirmed, without opinion, the decision of the IJ. Pavlova filed a motion to reopen, which was also denied.
Where, as here, the BIA summarily affirms the IJ's decision we review the decision of the IJ directly. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We defer to the IJ's factual findings so long as they are supported by substantial evidence, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and we afford "particular deference" in applying the substantial evidence standard to credibility determinations, Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). At the same time, however, we will ordinarily affirm an IJ only on the basis of the reasons he actually articulated, see Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 400 (2d Cir.2005), and we will vacate the IJ's decision if he has not applied the law correctly or supported his findings with record evidence, see Jin Shui Qiu v. Ashcroft, 329 F.3d...
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