Fisher v. I.N.S.

• Decision Date: 28 May 2002
• Docket Number: No. 01-1833.,01-1833.
• Citation: 291 F.3d 491
• Parties: Volodymyr FISHER; Irina Nikolaeva, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F.3d 491

Volodymyr FISHER; Irina Nikolaeva, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-1833.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2001.

Filed: May 28, 2002.

COPYRIGHT MATERIAL OMITTED

Steven C. Thal, argued, Minnetonka, NM, for appellant.

Edward C. Durant, DOJ, argued, Washington, DC, for appellee.

Before WOLLMAN,¹ Chief Judge, JOHN R. GIBSON, and MAGILL, Circuit Judges.

GIBSON, Circuit Judge.

The question for review is whether Volodymyr Fisher and his wife, Irina Nikolaeva, have established that they qualify as refugees from religious or ethnic persecution. Fisher and Nikolaeva applied for asylum in the United States, claiming past persecution and a well-founded fear that they would suffer future persecution on account of Fisher's German ethnicity and Lutheran religion if they were repatriated to the Ukraine. An Immigration Judge and the Board of Immigration Appeals denied their application on the ground that the record established only ethnic or religious discrimination against Fisher, not persecution. Because that finding is supported by substantial evidence, we deny Fisher and Nikolaeva's petition for review of the Board's decision.

Fisher and Nikolaeva came to this country from the Ukraine. Fisher was born in Uzbekistan in 1937. His father was an ethnic German and his mother was Russian. He moved to the Ukraine in 1957, to attend the Aviation Institute in Kiev. There, he married Nikolaeva, an ethnic Russian, in 1962, and the couple lived in Kiev until they came to this country in 1995 on visitor visas.

On May 30, 1996 Fisher and Nikolaeva applied for asylum, citing ethnic and religious persecution of Fisher as an ethnic German and as a Lutheran. Fisher is the principal asylum applicant, and his wife's claim depends on his. The couple sought withholding of deportation as well as asylum.

At the asylum hearing, much of Fisher's testimony recounted incidents and patterns of discrimination occurring during the Soviet era. The government of the Ukraine changed fundamentally following the breakup of the Soviet Union. The 1996 Ukrainian Constitution and a 1991 Law on Freedom of Conscience and Religion provide protection for religious freedoms, and current citizenship laws encourage the existence of a multi-ethnic country.

Fisher's claims of ethnic persecution are predicated both on his identity as a German, and on the perception by other Ukrainians that anyone with a German name is Jewish. Fisher contends that he was denied various educational and career opportunities as a result of his German ethnicity. However, Fisher testified that he was educated after high school, first at the Aviation Institute in Riga and then for five and a half years at the Aviation Institute in Kiev. He was employed as an engineer in Kiev until he left for the United States.

Fisher also testified that he was frequently insulted with anti-Jewish slurs by neighbors and co-workers. Fisher explained to people that he was not Jewish but he did not feel that they believed him. Once, just before he left the Ukraine, he passed by a demonstration of Ukrainian nationalists who were making anti-Semitic arguments. Fisher began arguing with the protesters, telling them that what they said was "a lie." Three young protesters pushed him, told him to leave, and threatened to follow him and burn his apartment.

After Fisher left the Ukraine, apparently without advising his employer that he was not coming back to work, he received a letter from the employer asking why he had been absent from work. The letter continued, "Please return the company assets you possess (radio transceiver "Len," microcontrollers, power supply, etc.) If the assets will not be returned, you will be taken to a court of law." Fisher testified that he did not have any company property, and that after he wrote his employer a letter saying that he was staying in the United States, his employer had taken no further action during the intervening three years.

Fisher's claims of religious persecution stem from his activities in reviving the Lutheran church in Kiev after the break up of the Soviet Union. Fisher and about fifteen others applied for registration of a church and contacted the German Lutheran Church in Munich for help in finding a pastor. Fisher received some aid from the church in the form of food and clothing. When this became known at the Mathematics Institute where he worked, his salary was dramatically reduced, by four fifths or more. A deputy of the Institute told Fisher privately that his salary was suspended because he was receiving money from the church. For two years after that, the Lutheran pastor shared some of his salary with Fisher. Fisher tried to challenge the suspension of his salary through court proceedings, but the receptionist at the court told him his case would not be considered because he was getting money through the church and didn't need his salary. The receptionist also suggested he should be paying taxes on money he received through the church.

Fisher also testified that he believed the KGB had infiltrated his church in Kiev, because this was the only way he could explain the statements and actions of some of his fellow parishioners.

Fisher reported some problems in connection with his attempt to obtain property that had belonged to Lutheran congregations, but had been confiscated during the communist era. He recounted efforts to establish a claim to a Lutheran church house, a gymnasium, and a parsonage. He met with the Ukrainian Minister of Minorities, who assured him that the property would be turned over to his parish. The most the congregation got was one room in the church. Fisher continued his efforts, but he received a phone call from the Minister of Minority's office saying that Fisher's activities were "complicating and bringing tension into the relationship between the community and the government," and suggesting that Fisher keep silence. Fisher also reported a veiled threat of violence from a deputy in the bureau that was occupying the parsonage that Fisher wanted to reclaim for his church and a threat from yet another official that Fisher would run into problems at work if he pursued claims on church property.

The church Fisher helped organize has grown from around 40 members at the time Fisher left the Ukraine to about 400 to 500 members at the time of the hearing.

Fisher testified that if he returned to the Ukraine, he would be eligible for a pension unless criminal charges were brought against him. Nikolaeva qualified for a pension and began receiving payments before the couple left the Ukraine.

Fisher and Nikolaeva's adult daughter remains in the Ukraine. According to Fisher, after he and Nikolaeva left for the United States, their daughter was fired from her job because her employer inferred that if her parents were in the United States, she did not need the money from her job. Also, someone broke into the daughter's apartment. Fisher volunteered the opinion that the burglars probably thought the daughter would have valuable goods from the United States in the apartment.

On March 10, 1997, the INS filed Orders to Show Cause why Fisher and Nikolaeva should not be deported. Fisher and Nikolaeva conceded deportability, and so the hearing focused only on their application for asylum. After a hearing, the Immigration Judge denied Fisher and Nikolaeva's application for asylum.

The Judge found that Fisher and Nikolaeva had not established that they had been subject to past persecution on account of ethnicity or religion or that they had a well-founded fear of future persecution on those grounds. Nikolaeva herself had "never been subjected to anything remotely approaching consideration as persecution." The Judge found that Fisher's claims that his educational and job opportunities had been curtailed because of his ethnicity did not rise to the level of persecution, in light of the fact that Fisher had been permitted to attend the aviation institutes in Riga and Kiev. Moreover, Fisher was continuously employed in the Ukraine until he left for this country. The Judge held that whatever ethnic discrimination Fisher had faced was not severe enough to constitute persecution.

The evidence of past religious discrimination also fell short of persecution. Fisher had been actively involved in his church while living in the Ukraine. Fisher's primary complaint was that he had not been able to obtain the return of the Lutheran property to his congregation. Although he was only partly successful in getting the property turned over to his congregation, Fisher had never been arrested, detained, interrogated by authorities, or convicted of any crime.

The Immigration Judge also found that there was not an objective basis for Fisher to fear future persecution. The incident with the nationalist protesters was only one incident, with no documentation in the record. The letter from his employer did not appear to be threatening or persecutory, but was instead an understandable response to an employee's absence from work. There was nothing in the State Department's report on the Ukraine that would substantiate the claim that ethnic Germans are currently being persecuted. Nor did the record support the contention that the Ukrainian government was preventing its people from practicing their religions. Fisher's claim of pay cuts was more likely explained by economic problems within the Ukraine than by religious persecution.

Fisher and Nikolaeva appealed, and the Board of Immigration Appeals affirmed. In re Volodymyr G. Fisher and Irina V. Nikolaeva, No. A75 016 872 and A75 016 871 (B.I.A. Mar. 14, 2001). In addressing Fisher's claim that his salary was reduced after he began working for the church, the Board noted that potential job loss and generalized economic disadvantage are not severe enough to rise to the level of persecution. Moreover, the Board found there...