John Doe v. Holder

• Citation: 736 F.3d 871
• Decision Date: 27 November 2013
• Docket Number: No. 09–72161.,09–72161.
• Parties: John DOE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

736 F.3d 871

John DOE, Petitioner,

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

No. 09–72161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 2013.

Filed Nov. 27, 2013.

Katherine M. Lewis (argued), Van Der Hout, Brigagliano & Nightingale, LLP, Allan A. Samson, Law Office of Allan A. Samson, San Francisco, CA, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel, and Kimberly A. Burdge, Trial Attorney, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098–690–486.

Before: ARTHUR L. ALARCÓN, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

ALARCÓN, Senior Circuit Judge:

John Doe ¹ has petitioned for a review by this Court of the Board of Immigration Appeals' (“BIA”) dismissal of his appeal from the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). He contends that he has a wellfounded fear of future persecution if he is removed to Russia because he is a homosexual. An immigration judge (“IJ”) found, and the BIA did not disagree, that Doe had been subjected to past persecution in Russia by nongovernmental forces because he is a homosexual. The IJ concluded, however, that Doe failed to carry his burden of demonstrating that the Russian government was unable or unwilling to control his nongovernmental persecutors.

The BIA dismissed Doe's appeal from the IJ's decision based on the BIA's conclusion that Doe “failed to demonstrate that the government was unable or unwilling to control the non-governmental actors who attacked the Respondent in Russia” or prove that “there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government.”

We grant the petition in this matter because we conclude that Doe met his burden of presenting evidence that the Russian government was unable or unwilling to control the nongovernmental actors who persecuted him because he is a homosexual. We also hold that in order to obtain the relief he requested, Doe was not required to demonstrate that the Russian government sponsored or condoned the persecution of homosexuals or was unwilling for that reason to control persecution of Doe. We remand with directions that the BIA determine whether the Government can meet by a preponderance of the evidence its burden of demonstrating either that changed circumstances in Russia overcome the presumption that Doe has a well-founded fear of future persecution based on the past persecution he was subjected to because he is a homosexual or that Doe reasonably can relocate to an area of safety within Russia.

I

A

Doe is a Russian citizen who was born in Ulan–Ude, the capital of the Republic of Buryatia, and is ethnically a Buryat.² Doe identifies his sexual orientation as homosexual or bisexual.

After high school, Doe attended East Siberian Technological University in Ulan–Ude for two years. During his first year, Doe joined a club for homosexuals, called Kletka. Members of Kletka socialized and supported each other when they had problems. In April 2002, when he was eighteen years old, some of Doe's classmates from the university saw him socializing with members of Kletka and surmised that Doe was a homosexual. When Doe returned to school the following Monday, almost “everybody [he] knew”—classmates, persons from Doe's wrestling club, students from his former school—began mocking him.

In his testimony, Doe described two violent attacks. The first occurred in September2002 while he was walking in a park with his partner, Mark. A group of five persons, some of whom were Doe's classmates, approached Doe and Mark and asked what they were doing. Doe at first remained silent or gave short answers. The group then became enraged, pushing Mark and knocking Doe to the ground where they beat and kicked him. Doe attempted to defend himself, but he could not. His attackers' assaults injured his eye and bruised his body, but he was able to go home unassisted.

Following the attack, Doe went to the police station and filed “an application for a complaint” describing the attack and naming his assailants. The police officer on duty told Doe that he did not want to receive the report and that Doe's injuries were “just bruises, nothing.” The officer then discussed Doe's complaint with his supervisor and told Doe “to wait for the boss.” When the officer returned, he told Doe that “maybe [he could] come back later” and that his “case is not so serious.” The officer further commented that Doe was a man and asked why he had not defended himself. Doe testified that the police were “really busy and physically [could] not exam[ine] [his] report.” Doe eventually left, because “[t]hey simply clearly let [him] know that they d[id]n't want to consider it at all.”

After the first incident, Doe continued to suffer harassment and was pushed and hit “[a]lmost constantly.” During a second attack in April 2003, Doe was beaten severely while he was at a restaurant with Mark. Between five and ten persons, three of whom Doe knew, entered the restaurant and sat near Doe and Mark. A man named Timur spoke to him in a kind tone at first, but then began to speak more rudely. Timur then hugged Doe, stuck his tongue out at him, and asked Doe, “[D]o you like this? Do you like this?” Timur then “started to say dirty words.” Doe pushed Timur away. Timur hit Doe, and the group joined in, beating both Doe and Mark. Doe was beaten until he lost consciousness. He regained consciousness in the ambulance on the way to the hospital.

Doe suffered internal brain hemorrhaging and a concussion as a result of the attack. He was hospitalized for three weeks.

While Doe was in the hospital, his father reported the attack on his son to the police. Law enforcement officers interviewed Doe at the hospital. Doe told the police officers what happened and provided the names of some of his attackers. Doe does not believe that police took any further action aside from conducting this initial interview, because his attackers “were just walking free.”

Doe introduced into evidence a “Confirmation Paper” he received from law enforcement officers. The Confirmation Paper states that his father's application for the prosecution of Doe's persecutors “was rejected on the basis of Criminal Code of the Russian Federation, Regulation 24 Chapter 1 Paragraph 2.” The Confirmation Paper did not set forth the text of the regulation. No evidence was presented to the BIA by Doe or the Government regarding the contents of Regulation 24.

After Doe was released from the hospital, he saw some of his attackers. At first, they ignored him, but they soon began harassing him again.

In July 2003, Doe moved to Moscow, where he lived for approximately four months, until November 2003. Doe testified that while he was in Moscow, he was discriminated against based on his ethnicity. Doe testified that persons he encountered said things like, “[Y]ou narrow slanted eye person.” He could not find work. In addition, police stopped Doe on several occasions to check his registration, but did not stop people near Doe who were ethnically Russian. On one occasion, a police officer detained Doe for several hours because the officer suspected that Doe's registration documents were false. The officer eventually released Doe after concluding that his documents were genuine. Doe believed the police stopped him because he is not ethnically Russian and he does not “look like the typical Russian person.”

Doe moved from Moscow to the United States on November 11, 2003, to attend American Language Communications Center in New York on a nonimmigrant student visa.

On February 14, 2005, the Department of Homeland Security filed a notice to appear, which initiated removal proceedings against Doe because he violated the conditions of his nonimmigrant status when he stopped attending school. Doe admitted the factual allegations at the notice to appear hearing and conceded his removability as charged.

Doe applied for asylum, under § 208 of the Immigration and Nationality Act (“INA”), and withholding of removal, under INA § 241(b)(3). Doe also sought relief under the Convention Against Torture. Alternatively, Doe requested voluntary departure. Doe argued he was eligible for asylum because he suffered past persecution on account of his membership in a particular social group, specifically, “gay people, or homosexuals,” and had a well-founded fear of facing future persecution if returned to Russia. He also argued that he could not reasonably relocate to Moscow, because of ethnic discrimination, including harassment and inability to find work, that he faced there. The IJ found that Doe “testified credibly and his application was credible.”

B

On October 29, 2007, the IJ denied Doe's application for asylum, withholding of removal, and relief under CAT. The IJ concluded that Doe suffered physical injury and persecution in April 2003 on account of a “cognizable particular social group consisting of homosexuals.” The IJ found, however, that “the record does not support the conclusion that the government was unable or unwilling to protect the respondent.”

In finding that Doe failed to prove that the Russian government was unable or unwilling to protect him, the IJ stated that “the comments of the officer at the time of the first incident do indeed reflect societal prejudices.” The IJ also commented, however, that while he did “not condone the police reaction to the first incident,” the two incidents were “best considered together.” The IJ noted that the police officers responded to Doe's father's report regarding the second violent attack by coming to the hospital to interview Doe. The IJ observed that the police rejected that report on the basis of a specific provision of Russian law, but that the...