Avetova-Elisseva v. INS.

• Decision Date: 07 February 2000
• Docket Number: No. 98-70547,P,AVETOVA-ELISSEV,98-70547
• Citation: 213 F.3d 1192
• Parties: (9th Cir. 2000) Mayaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1192

213 F.3d 1192 (9th Cir. 2000)

Maya AVETOVA-ELISSEVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70547

U.S. Court of Appeals for the Ninth Circuit

Submitted February 7, 2000¹

Filed May 15, 2000

Amended June 26, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] S. Austin Johnson, Bradford, Brady & Johnson, Provo, Utah, for the petitioner.

Marshall Tamor Golding, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A74-795-951

Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Milton I. Shadur, District Judge.²

Opinion by Judge SHADUR; Dissent by Judge WARDLAW.

SHADUR, District Judge:

Maya Avetova-Elisseva ("Avetova"), a 62 year-old Armenian native and citizen of both Azerbaijan and Russia, petitions for review of a final decision of the Board of Immigration Appeals ("BIA") affirming the denial by an immigration judge ("IJ") of her application for asylum and withholding of deportation. Avetova claims that she suffered persecution in Russia on account of her Armenian ethnicity and Mormon faith and that she has a well-founded fear of future persecution if she were returned to that country.³ We have jurisdiction under 8 U.S.C. S 1105a(a) ⁴ and, for the reasons given below, we grant Avetova's petition.

Eligibility for Asylum

Under Section 1158(b) the Attorney General has discretion to grant asylum to aliens who qualify as statutory "refugees." In turn, Section 1101(a)(42)(A) defines a "refugee" as an alien who is "unwilling or unable" to return to the alien's home country "because of [past] persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." While "[a]n alien who establishes past persecution is presumed to have a well-founded fear of persecution . . . . [that] presumption may be rebutted where the conditions in the country have significantly changed" (Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir. 1997)(citation omitted)).

Any alien who premises an asylum claim on a wellfounded fear of persecution must demonstrate a subjectively genuine and objectively reasonable fear (Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir. 1991)). While the subjective component is satisfied by "showing that the alien's fear is genuine" (id.), the objective component requires "credible, direct, and specific evidence in the record that would support a reasonable fear of persecution" (Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998) (internal punctuation and source reference omitted)).

For a sustainable showing of past persecution, a "[p]etitioner must establish that the mistreatment she suffered . . . was substantially more grievous in kind or degree than the general manifestation of hostility between . . . competing ethnic and religious groups . . ." (id. at 967). But as to the requisite fear of future persecution, Mgoian v. INS , 184 F.3d 1029, 1035 (9th Cir. 1999)(internal quotation marks, punctuation and citations omitted) teaches:

[T]he applicant is not required to show that she would be singled out individually for persecution if there is a pattern or practice of persecution of groups of persons similarly situated and she can establish her own inclusion in the group such that her fear of persecution upon return is reasonable. Thus, if[an applicant] is able to show a "pattern or practice" of persecution against a group of which she is a member, then she will be eligible for asylum.

Finally, affirmative state action is not necessary to establish a well-founded fear of persecution if the government "is unwilling or unable to control those elements of its society responsible for targeting" a particular class of individuals (id. at 1036).

Standard of Review

Adverse BIA asylum decisions are upheld if supported by "substantial evidence" (see Singh, 134 F.3d at 966). Under that deferential standard "a petitioner contending that the Board's findings are erroneous must establish that the evidence not only supports that conclusion, but compels it" Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)(internal quotation marks omitted and emphasis in original). ⁵ Though limited to reviewing the administrative record, we consider the record in its entirety, including evidence that contradicts the BIA's findings (Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998)).

Background

Avetova was born in Baku, Azerbaijan. In 1990 she and her family fled Baku to escape the Azeri campaign to cleanse Azerbaijan of Armenians and Russians.⁶ With the help of Soviet troops they crossed the Caspian Sea and were ultimately evacuated to Moscow. But Russia proved to be only slightly more hospitable to Avetova, for she and her friends were victims of numerous incidents of harassment due to their Armenian ethnicity and Mormon faith.

In December 1993 Avetova entered the United States legally to be with her ill sister. In April 1996, one month after her visa expired, she conceded deportability but applied for asylum and withholding of deportation. On October 30, 1996 the IJ, in an oral decision, found Avetova's testimony to be credible but, while granting her application for withholding of deportation from Azerbaijan, denied it as to Russia. Avetova filed a timely administrative appeal that the BIA denied on April 22, 1998. This petition followed.

Avetova's Fear of Future Persecution

At issue is whether the record compels a finding that Avetova has a well-founded fear of future persecution because of her Armenian ethnicity.⁷ On that score the BIA simply stated:

While the respondent testified to incidents of harm suffered by Mormons and Armenians in Russia, the record does not reflect that there exists in Russian a pattern or practice of persecution of persons on the basis of Armenian ethnicity or membership in the Mormon faith.

Although the BIA's opinion does not expressly state whether or not it was conducting a de novo review, its phrasing seems in part to suggest that it did conduct an independent review of the record. If that were the case, it would be the BIA's decision that we review (see Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir. 1999)). But the lack of analysis that the BIA opinion devoted to the issue at hand--its simple statement of a conclusion--also suggests that the BIA gave significant weight to the IJ's findings. In light of that ambiguity, we will also look to the IJ's oral decision as a guide to what lay behind the BIA's conclusion.

Any petitioner in Avetova's position may create a rebuttable presumption of an objective fear of future persecution by demonstrating past persecution (see, e.g., Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir. 1998)). In support of her claim of past persecution because she is an Armenian, Avetova recites several incidents:

(1) she was harassed and pushed by Russian officers because of her ethnicity; ⁸ (2) she could not get a job even though she had a diploma because "there were no jobs for Armenians"; and (3) her friend's daughter (who was Armenian) was raped and beaten by police officials. Although such experiences may certainly contribute to a petitioner's state of mind (to satisfy the subjective component) and, if adequately supported, may also provide the required showing of an objectively reasonable fear of future persecution, we agree with the BIA that these incidents of hostility alone do not amount to "persecution " (that is, past persecution) within the meaning of the statute.

In terms of the fear of future persecution, there is no question that Avetova satisfies the subjective component of the two-part test. As the IJ said after listening to and witnessing her testimony, Avetova demonstrates a "high degree of fear and . . . emotionalness [sic]." Summarizing the "background materials" in the case, the IJ said that the objective evidence established this:

[T]here is harassment, discrimination, and mistreat ment of people of Armenian descent in Russia; in particular, Moscow, because of the problems that that city has encountered after the fall of the Soviet Union. However, the background materials indicate that the inability of the police to sometimes deal with these problems, is not due to the fact that the police is [sic] participating in the persecution or harassment but, rather, because of lack of resources and a very high crime rate, which leads the police to only prose cute those cases where the evidence is abundantly clear . . . . The evidence is not one that shows that the government is systematically engaging in these acts or tolerating the people that do engage in acts of discrimination and harassment, deliberately to perse cute Armenians because of the fact that they are Armenian.

In other words, the IJ conceded that "there is ⁹ harassment, discrimination, and mistreatment of people of Armenian descent in Russia," but that the Russian government is powerless to stop that harassment.¹⁰

Though it is not clear exactly what "background materials" the IJ relied upon, it would appear that significant weight was given to the Profile of Asylum Claims and Country Conditions (1995) prepared by the State Department's Office of Asylum Affairs. That report, which mirrors most of the IJ's sentiments, states unequivocally that protection from ethnic harassment is generally unavailable in Russia because the "Russian police . . . is [sic] clearly incapable of coping with the situation" (emphasis supplied).¹¹

It does not matter that financial considerations may account for such an inability to stop elements of ethnic persecution. What matters instead is that the government "is unwilling or unable to control those elements of its society" committing the acts of persecution (Mgoian, 184 F.3d at 1036)(emphasis added).¹² Indeed, any lack of funding might be labeled as a...