Halaim v. I.N.S.

• Decision Date: 18 February 2004
• Docket Number: No. 02-72311.,No. 02-72312.,02-72311.,02-72312.
• Citation: 358 F.3d 1128
• Parties: Galyna Semienovna HALAIM and Mariya Semienovna Halaim, Petitioners, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.3d 1128

Galyna Semienovna HALAIM and Mariya Semienovna Halaim, Petitioners, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 02-72311.

No. 02-72312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2003.

Filed February 18, 2004.

COPYRIGHT MATERIAL OMITTED

Rocco N. Treppiedi, Spokane, WA, for the petitioners.

Robert M. Loeb, Civil Division, United States Department of Justice, Washington, DC, for the respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals. INS Nos. A75-246-634, A75-246-637.

Before: MELVIN BRUNETTI, THOMAS G. NELSON, and SUSAN P. GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

In this consolidated action, Petitioners Galyna Halaim and Mariya Halaim petition for review of the Board of Immigration Appeals' ("BIA") orders affirming without opinion the decision of an immigration judge ("IJ"). The IJ held that Petitioners had failed to establish their eligibility for asylum and withholding of deportation but granted Petitioners voluntary departure. Petitioners argue that (1) the IJ's determination that they did not suffer past persecution is not supported by substantial evidence in the record; (2) the Lautenberg Amendment, 8 U.S.C. § 1157 note, either applies in their favor or, if not, violates their right to equal protection; and (3) the IJ violated their due process rights.

Because Petitioners were placed in deportation proceedings before April 1, 1997, and the orders denying them asylum and withholding became final after October 30, 1996, this case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-288, 110 Stat. 3009. Therefore, we have jurisdiction to consider the petitions for review under 8 U.S.C. § 1105a as amended by IIRIRA § 309(c)(4). Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000). Because substantial evidence supported the IJ's determination, and because there was no constitutional violation, we must deny the petitions.

FACTS AND PROCEDURAL HISTORY

Petitioners are sisters who are in their 70s. They are natives and citizens of Ukraine and are Pentecostal Christians. Petitioners arrived in the United States in May 1995 as nonimmigrant visitors, but they have overstayed their visas and continue to live with their brother-in-law in his mobile home in Sumas, Washington. They were placed in deportation proceedings in January 1997.

Petitioners filed applications for asylum and withholding of deportation, claiming that they had suffered past persecution in Ukraine because of their religion. Following a hearing, the IJ found Petitioners' testimony to be credible.

Mariya Halaim testified that she had suffered no problems after about 1986, when she retired. Before then, unknown persons had broken a window in her house and had stolen five chickens. Before 1960, Mariya was summoned to the police station at least four times. Sometime after 1960, she was questioned once by the police, who threatened to crucify her to a wall "like Jesus Christ." Mariya testified that she was able to attend church without difficulty from the date of her retirement around 1986, at the age of 55, until she left for the United States in 1995. While she was traveling to church meetings, however, private citizens on the streetcar or bus sometimes would scream at her and complain that Pentecostals should be exiled.

Galyna Halaim also retired around 1986. Thereafter she received a pension from the Ukrainian government, and she owned her own home. She testified that when she was young, the police disrupted church services two to three times per month, yelling at the members of the church and telling them to go home. Later, members of volunteer militias interrupted church meetings and called parishioners "cult members." Additionally, her home was burglarized in the early 1990s, and the police refused to respond. Private citizens called her names on account of her religion. Galyna testified that she believed that the government had her name on a list, but offered no evidence that she is actually on such a list or that such a list exists.

Both sisters were denied education on account of their religion, and they testified that they therefore suffered reduced employment opportunities and were forced to do an unfair share of the work at the jobs they did hold. They testified to "constant" harassment by private citizens, which worsened after the Soviet Union split up, as a result of a misconception that Christians are "rich."

The IJ held that Petitioners failed to establish that they had suffered past persecution or, in the alternative, that they had a well-founded fear of future persecution. Consequently, the IJ denied Petitioners' claims for asylum and withholding of deportation. The IJ explained that, in her view, "[Petitioners] were never persecuted for their beliefs, but they were discriminated against." The IJ also found that Petitioners did not intend to come to the United States to ask for asylum, but chose to do so only after they arrived here and saw "how nice people were." The IJ observed that Petitioners "were able to work in the Ukraine, practice their religion and collect [a] pension."

The BIA affirmed without opinion, pursuant to 8 C.F.R. § 3.1(a)(7) (2002). Petitioners timely sought review in this court.

STANDARDS OF REVIEW

We review for substantial evidence the agency's factual findings. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir. 2003). We must uphold those findings unless the evidence compels a contrary result. Id.

Because the BIA affirmed without opinion, the IJ's order constitutes the final agency determination that we review. 8 C.F.R. § 3.1(a)(7) (2002). We accept Petitioners' testimony as true when, as here, the IJ found them to be credible. Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002).

We review de novo an agency's interpretation or application of a statute. Brower v. Evans, 257 F.3d 1058, 1065 (9th Cir.2001).

DISCUSSION

I. The IJ's determination that Petitioners failed to establish eligibility for asylum or withholding of deportation is supported by substantial evidence in the record.

A. Asylum

In Singh v. INS, 340 F.3d 802, 807 (9th Cir.2003), we summarized what an alien must show in order to be eligible for asylum:

Section 208(a) of the Immigration and Nationality Act ("INA") gives the Attorney General discretion to grant political asylum to any alien deemed to be a "refugee" within the meaning of § 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1). "A refugee is defined as an alien unwilling to return to his or her country of origin `because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc) (quoting 8 U.S.C. § 1101(a)(42)(A)). Thus, to be eligible for asylum, an applicant must establish "either past persecution or a well-founded fear of present persecution on account of [a protected ground]." Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997).

We have defined "persecution," in turn, as "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive." Kataria v. INS, 232 F.3d 1107, 1112-13 (9th Cir.2000) (internal quotation marks omitted). Persecution is an "extreme concept that does not include every sort of treatment our society regards as offensive." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (internal quotation marks omitted). Thus, "[d]iscrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to `persecution' within the meaning of the [INA]." Id.

Petitioners argue that the IJ erred in holding that the hardship inflicted on them in Ukraine on the basis of their religion was discrimination that did not rise to the level of persecution. They suggest that the IJ's recitation of the factual record was wrong in several respects and that the abuse they suffered was worse than the IJ realized. They submit that the record, properly understood, compels a finding that they suffered past persecution. We disagree.

Although the IJ's recitation of the facts in the record is not perfect, her holding that Petitioners did not suffer past persecution (as distinct from discrimination) is supported by substantial evidence in the record. Petitioners were able to secure long-term employment, and they lived relatively unmolested lives for the last decade of their time in Ukraine. Petitioners were the victims of many derogatory comments and, over the course of 50 years, a few incidents that might be deemed police harassment. Reasonable minds may differ over the question whether the abuse suffered by Petitioners constituted persecution. However, the record does not compel us to reach a conclusion different from the IJ's.

B. Withholding of Deportation

Because the adverse asylum determination is supported by substantial evidence, Petitioners are not entitled to withholding of deportation. Section 243(h) of the INA, 8 U.S.C. § 1253(h)(1) (1994), requires the Attorney General, subject to certain exceptions, to withhold deportation if the Attorney General determines that an alien's life or freedom would be threatened on account of a protected ground. An alien is statutorily eligible for such relief only if she demonstrates a "clear probability of persecution," which means it is "more likely than not" that she will be persecuted if deported. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (internal quotation marks omitted).

The standard of proof required to establish eligibility for withholding is higher than the standard for establishing eligibility for asylum. As a result, "failure to satisfy the lower standard...