Ivanov v. Holder

• Decision Date: 15 November 2013
• Docket Number: No. 11–1814.,11–1814.
• Citation: 736 F.3d 5
• Parties: Pavel IVANOV; Irina Kozochkina, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

736 F.3d 5

Pavel IVANOV; Irina Kozochkina, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–1814.

United States Court of Appeals, First Circuit.

Nov. 15, 2013.

Randy Olen, with whom Robert D. Watt, Jr. was on brief, for petitioners.

Andrew Nathan O'Malley, with whom Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Assistant Director, Office of Immigration Litigation, and D. Nicholas Harling, Attorney, Office of Immigration Litigation, were on brief, for respondent.

Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioners Pavel Ivanov and Irina Kozochkina seek review of a final order of removal. They say the immigration courts erred by finding that the persecution Ivanov experienced in Russia was not “on account of” his Pentecostal faith. We agree. After careful consideration of the decision and the record, we vacate and remand for additional proceedings.

Facts and Procedural History

Petitioners are natives and citizens of Russia. Ivanov is a long-standing member of the Pentecostal Church, which Kozochkina, a Baptist, now attends. ¹

Petitioners entered the United States in May 2003 on five-month educational exchange visas.² Having heard from family and fellow Pentecostals in Russia of ongoing threats and violence against persons of their faith, Petitioners overstayed their visas and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) in September 2004.³ Petitioners were married in Newport, Rhode Island in October 2004.

In August 2005, the Department of Homeland Security (DHS) served Petitioners with Notices to Appear, charging them with removability under the Immigration and Nationality Act. See8 U.S.C. § 1227(a)(1)(B). Petitioners filed amended applications for asylum, withholding of removal, and CAT relief in June 2007. They appeared before an Immigration Judge (IJ) in a series of hearings between 2006 and 2009. Because the IJ found Ivanov credible, we recount the facts here as Ivanov presented them in his documentation and testimony.

Ivanov was born in Chelyabinsk, Russia on November 21, 1983. His parents raised him in the Pentecostal faith, practicing in secret during the anti-religious Soviet regime, then joining a church in 1995 as Russia began to open up to religion after the fall of communism.

Pentecostals represent a religious minority in Russia.⁴ Though the Russian Constitution provides for freedom of religion, “[m]any citizens firmly believe that adherence to the Russian Orthodox Church ... is at the heart of their national identity,” ⁵ and “members of minority and ‘non-traditional’ religions,” including Pentecostals, “continue to encounter prejudice, societal discrimination, and in some cases physical attacks.” ⁶ Local authorities reportedly do not adequately respond to such attacks.⁷ For example, prior to 2005, Evangelicals and Pentecostals in various regions reported the vandalizing and burning of prayer houses, including in Ivanov's hometown of Chelyabinsk, where authorities made no arrests.⁸

Ivanov's memories of problems for his church date back to March 1996, when he learned that members of the Russian Orthodox Church intercepted Pentecostal literature sent from France. Then, on January 7, 1997 (Orthodox Christmas), he heard that a group of “Barkashovtsy”—Russian nationalist, neo-Nazi “skinheads” ⁹—had burned his church's office and beat up the night watchman. Later, on May 30, 1999, while Ivanov and his parents were visiting their pastor's home for Pentecost, a mob led by a disgraced Russian Orthodox priest attacked the home, beating the pastor's wife, looting the premises, and burning religious literature.

Ivanov testified that he was personally mistreated because of his religious beliefs on several occasions. First, on November 21, 1999, during Ivanov's baptism into the Pentecostal faith on his sixteenth birthday, bystanders heckled and threw bottles at celebrants during the initial ceremony at a public pool. That evening, while rites continued at the prayer house, skinheads burst in, shot rubber bullets, confiscated literature, and ransacked the house.

Second, on April 20, 2002, the anniversary of Hitler's birth, skinheads attacked Ivanov as he left the church-run drug rehabilitation center where he volunteered.¹⁰ His church operated the center as part of its mission of public service. Patients received medical treatment and followed a strict regimen of daily bible study.

That night, as Ivanov left the center, four young skinheads “knocked [him] down and dragged [him] 3 blocks” to a basement where he was “chained and beaten with full plastic water bottles.” They handcuffed him, then applied an electric shock to one hand and put cigarettes out on the other. They told him he had two days to figure out how to close the church's “ ‘satanic’ dispensary.” The skinheads then left Ivanov for nearly three days without food and water. His parents filed a police report, but to their knowledge no action was taken. Fortunately, the skinheads released Ivanov of their own accord a few days later. It was only after Ivanov's release that he realized the drug rehabilitation center's work interfered with the skinheads' lucrative drug trade.

Third, in February 2003, Ivanov “was summoned to the local police department.” There, a federal security service officer identified as Major Kozlov ordered Ivanov to provide false testimony in the prosecution of his pastor. Prosecutors accused the pastor of using hypnosis to extort a ten-percent tithe from congregants. Major Kozlov told Ivanov he “would be sorry for not cooperating” with the prosecution.

A few days later, in early March 2003, four skinheads attacked Ivanov in the lobby of his apartment building. They beat him with batons while wearing rubber gloves, bruising his legs so severely that he missed school for a week. Although they wore no uniforms, Ivanov knew they were skinheads by the weapons they used. Because the beating occurred shortly after Ivanov's conversation with Major Kozlov, Ivanov believes the skinheads were retaliating against him for his refusal to testify against his pastor. Ivanov called the police when he got back to his apartment, but no one ever came. Ivanov did not seek further police assistance or medical attention because he thought it would be futile.

Fourth, on April 22, 2003, unknown assailants threw Molotov cocktails at Ivanov's home in the middle of the night. Ivanov, his father, and his mother were home. Fortunately, Ivanov's mother was awake and the family was able to put out the resulting fire. That same night, the church's drug rehabilitation center also was set on fire. Ivanov did not see the people who threw the Molotov cocktails, but based on the perpetrators' precision and the familiar timing of the attacks—almost exactly one year after skinheads accosted him as he left the center and just two days after “Hitler's Birthday”—he believes the skinheads were again responsible. Petitioners left Russia and came to the United States roughly one month after this incident.

In his asylum application, Ivanov stated that he feared if he returned to Russia, skinheads would “sever[e]ly harm[ ] or kill[ ]” him, or the federal security service would imprison him on “trumped-up” charges or confine him to a mental facility under a false diagnosis, because of his membership in a “non-traditional” sect and his refusal to testify falsely against his pastor. At a hearing before the IJ in July 2007, after recounting his past mistreatment, Ivanov said he feared if he returned to Russia, “the same thing would [happen].” He also said he would “continue to be [subject] to the same lawlessness that [he] felt before.”

When Ivanov's attorney asked if he had any fear of the government, Ivanov explained that it was “a well-known and established fact that ... the skinheads ... are connected to the government structure.” He elaborated that because he “look[ed] like [a] Russian” and his religious beliefs were not outwardly apparent, the only way the “young kids” who attacked him would know that he did not fit their view of a “pure nation [or] pure race in Russia” is by the guidance or influence of “somebody from above.”

In July 2009, the IJ delivered an oral decision denying Petitioners relief. Although the IJ found Ivanov's testimony to be credible and generally consistent, he determined that Ivanov “fell short of credibility” where he drew “conclusions ... from the facts” and engaged in “speculation ... with regard to the abusive activity of the skinheads.” Accepting for the sake of discussion that Ivanov's experiences amounted to past persecution, the IJ dismissed Ivanov's assertion that the skinheads were connected to government authorities as mere supposition without record support. He further concluded that Ivanov's admission that “the skinheads wanted to close the [church's] drug rehabilitation center because it was having a negative effect on their drug trade” meant that “[t]he motivation of the skinheads was an intention to profit by criminal activity, rather than to punish [Ivanov] and others for engaging in the Pentecostal faith.” Finally, he found that Ivanov's fear of return to Russia was based on “the general lawlessness of the place,” rather than abuse due to his religion.

As a result, the IJ found that Ivanov had not shown he experienced persecution “on account of” a protected ground, and thus he failed to qualify for asylum. Ivanov therefore also fell short of the more stringent standard for withholding of removal. Finally, Ivanov's claim for CAT relief failed because there was no evidence that Ivanov had been or would be tortured at the hands of public officials or with the government's acquiescence if he returned to Russia. The IJ consequently denied Petitioners' applications but granted them voluntary departure.

Petitioners appealed. On review, the Board of Immigration...