Batalova v. Ashcroft

• Decision Date: 23 January 2004
• Docket Number: No. 02-9588.,02-9588.
• Parties: Vera Alekseyevna BATALOVA, Valeriy Semenovich Batalov, and Irina V. Batalova, Petitioners, v. John ASHCROFT, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1246

355 F.3d 1246

Vera Alekseyevna BATALOVA, Valeriy Semenovich Batalov, and Irina V. Batalova, Petitioners, v. John ASHCROFT, United States Attorney General, Respondent.

No. 02-9588.

United States Court of Appeals, Tenth Circuit.

January 23, 2004.

Beverly W. Oserow, Denver, CO, for Petitioners.

David E. Dauenheimer, Attorney (Robert D. McCallum, Jr., Assistant Attorney General, and Jeffrey J. Bernstein, Senior Litigation Counsel, with him on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

Before HENRY, HOLLOWAY, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioners Vera Batalova, her husband, Valeriy Batalov, and their daughter, Irina Batalova, are natives and citizens of Russia. They petition for review of an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture. We deny the petition and affirm.

BACKGROUND

Petitioners entered the United States on February 15, 1999, as tourists with permission to stay for six months. On February 11, 2000, they filed applications for asylum under the Immigration and Nationality Act ("INA") § 208, 8 U.S.C. § 1158. Their applications were administratively denied and referred to the Immigration Court. Petitioners were charged with being subject to removal under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States beyond the date authorized without receiving permission from the Immigration and Naturalization Service ("INS").¹

At a hearing before the IJ, petitioners admitted having remained in the United States longer than permitted and conceded that they were subject to removal. They sought asylum and withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and under the Convention Against Torture.² After conducting a hearing, the IJ denied their applications but granted them voluntary departure. Petitioners appealed the IJ's decision to the BIA, where a single Board member adopted and affirmed the IJ's decision, with an additional finding, in accordance with the new streamlining regulations. See 8 C.F.R. § 3.1(e)(5).³ Petitioners seek review of that order.

Petitioners claim persecution based upon Vera's Armenian ancestry. As indicated, petitioners are natives and citizens of Russia. Vera was born in Nagutskove, Russia. According to Vera's birth certificate, her mother was Armenian and her father was Russian. She listed her nationality as Russian on the birth certificate of her daughter, petitioner Irina, as well as on her internal passport. Both parents of petitioner Valeriy (Vera's husband and father of Irina) were Russian. Vera concedes that her birth surname is Russian, as is her married name.

She attended secondary school in Russia, followed by two years of technical school. Valeriy attended the same technical school. They were each assigned positions in Pyatigorsk, Russia, in 1972. They married in 1973.

Vera asserts that, because of an ongoing war in Chechnya, many people fled from that area to Pyatigorsk. She avers that in 1994 she joined the North Caucus Committee ("NCC") as a volunteer, helping Armenian refugees arriving in Pyatigorsk find housing and jobs. She lived and worked in Pyatigorsk without incident until 1995. She states that her work supervisor was a Cossack, who disliked the influx of Armenian refugees. She testified that problems that occurred in the city were unfairly blamed on the Armenians.

She claims that one day in 1995, she confronted her supervisor about his negative views towards Armenians and told him that her mother had been Armenian, a fact about which her supervisor was apparently unaware. Vera asserts that after that confrontation, her supervisor told her he would make her work situation intolerable, and he began giving her very difficult assignments and prevented her from using available equipment. She also claims her husband's employer tried to pressure her husband into making Vera stop volunteering for the NCC. She testified that the company for whom she and her husband worked finally stopped paying their salaries and they quit in 1995 so they could find some other way to support themselves.⁴ They did not file any complaint concerning the company's conduct because "the Cossacks have power in Russia [and][t]hey work together with government." Admin. R. at 75.

Vera asserts that in January 1996, several men smelling of alcohol came to their apartment and beat her and her husband. In her asylum application, she stated that the men tied her husband up and knocked her teeth out. She did not mention these specifics in her initial testimony before the IJ, although on cross-examination she stated her front teeth had been knocked out but were later replaced. She testified that they threatened to rape her daughter, stating "now your daughter will have intercourse with the Cossacks she will know what a real man is." Id. at 61. She claimed that she was knocked unconscious and, when she awoke, her daughter was missing. She stated that they did not go to the police because they thought the police would not help. Instead, Vera and Valeriy looked for Irina by themselves and, when they were unable to find her, they returned to their apartment. Irina arrived home "sometime later" and apparently told her parents that the men had driven her somewhere, drank alcohol, and told her they would rape her. Vera testified that "one of them, he was — maybe he was too drunk, maybe he — it was a joke, he broke a bottle of — just glass bottle and he said, now he will kill her." Id. at 62-63. She claims that Irina tried to kick the man but instead cut her foot on the bottle. Id. at 63. The men then threw Irina from their car, and she found her way back to her parents' apartment. Vera claims they did not file a police report regarding this incident because the police support the Cossacks.

Vera testified that Irina then went to nursing school and moved out of their apartment to live closer to the school. Vera claims that she and Valeriy also no longer stayed in their apartment, but instead stayed at friends' houses, hotels or houses they were fixing up for newly arrived refugees. They returned to their apartment periodically to care for their pets and to pick up clothes or other necessities. Vera avers that in November 1996, she and Valeriy went to their apartment and found several men breaking their furniture. She claims that they fled and determined "never" to return to their apartment. Id. at 64. She further claims that occasionally they would secretly check on their apartment and find notes threatening their lives because they continued to help refugees.

Vera further alleges that two years later (in November 1998), she and her husband encountered a Cossack patrol truck at one of the homes they had just finished fixing up for some refugees. She claims that she recognized one of the men from her previous encounters at her apartment, and she avers that they "immediately recognize[d]" her and her husband. Id. She says they ran and hid and were saved by the arrival of the truck with the refugees in it. She testified that they never returned to their apartment thereafter.

Vera further testified that her older daughter, Svetlana, who was active in the Pentecostal church, fled to the United States in 1996, where she received asylum based upon religious persecution. She said that in August 1998, she and Valeriy learned that Svetlana was seriously ill. They decided to visit Svetlana, so petitioners went to Moscow and obtained Russian passports and United States tourist visas. Vera alleged that at the time they applied for their visas, they intended to return to Pyatigorsk. She said that, before they returned to Pyatigorsk from Moscow, they called "some people," who told them they had "no apartment anymore." Id. at 66. She testified that they later received a letter telling them that two men had come to their apartment looking for them and that, one week later, their apartment burned down.⁵ In fact, as she conceded on cross-examination, several apartment units burned in the fire. She said that she and her friends assumed the fire was set by Cossacks. She claims that this event changed their outlook and made them decide to stay in the United States and seek asylum. Petitioners claim they will be in great danger if they return to Russia, because of Vera's Armenian ancestry.

The IJ conducted a hearing, at the conclusion of which he determined that petitioners had demonstrated neither past persecution nor a well-founded fear of future persecution. The IJ found that Vera's testimony "was not sufficiently detailed, consistent or believable to provide a plausible and coherent account for the basis for their fears." Oral Decision of the IJ at 9, Admin. R. at 39. The IJ noted that "none of the [petitioners] ... look Armenian," that Vera "is ... half Russian from her father and Russian through marriage through her husband," and that their name was Russian. Id. at 9-10, Admin. R. at 39-40. The IJ also indicated that he "has not heard of the North Caucus Committee membership group whatsoever," and that the NCC was not mentioned in the State Department's Country Conditions Report on Russia. Id. at 10, Admin. R. at 40. Further, the IJ noted that an affidavit in the administrative record was from an Armenian individual still living in Russia who had also worked for the NCC, and "if he is able to remain residing in Russia without complications [the IJ] cannot comprehend why the [petitioners] cannot do the same, particularly since this individual is Armenian." Id. at 11, Admin. R. at 41. Finally, the IJ noted that petitioners failed to make any showing that the threat of persecution exists countrywide. Id.

The IJ also concluded petitioners had failed to show that they were eligible for...