Korablina v. I.N.S.

• Decision Date: 23 October 1998
• Docket Number: No. 97-70361,97-70361
• Citation: 158 F.3d 1038
• Parties: 98 Cal. Daily Op. Serv. 7957, 98 Daily Journal D.A.R. 11,043 Vera KORABLINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1038

158 F.3d 1038

98 Cal. Daily Op. Serv. 7957, 98 Daily Journal

D.A.R. 11,043

Vera KORABLINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-70361.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1998.

Decided Oct. 23, 1998.

Joseph J. Rose, Los Angeles, CA, for petitioner.

Francis W. Fraser (argued), and Anthony Wray Norwood (on the briefs), United States Department of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. I & NS No. A73-973-087.

Before: O'SCANNLAIN, TROTT, and FERNANDEZ, Circuit Judges.

TROTT, Circuit Judge:

Vera Korablina, a fifty-five year old native of Russia and a citizen of the Ukraine, witnessed, and was the subject of repeated beatings and severe harassment by an ultra-nationalist group in Kiev. She was the target of this oppression on account of her Jewish heritage.

Korablina petitions this court for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of an immigration judge's (IJ) denial of her application for asylum and withholding of deportation. Although finding her testimony and the testimony of her daughter to be credible in all respects, the IJ determined that Korablina had established that she was the target only of discrimination, not of persecution. The BIA reviewed the proceedings and affirmed. The BIA held that Korablina had failed to establish either past persecution or a well-founded fear of future persecution on account of being Jewish.

We have jurisdiction under 8 U.S.C. § 1105a, and we grant the petition for review. We hold that the credible evidence compels both a finding of past persecution and a well-founded fear of future persecution. The record also compels a finding that there is a clear probability of persecution as required for the withholding of deportation.

BACKGROUND

Korablina's father was Russian. Her mother was Jewish. Her father adopted Judaism, and she was raised in the Jewish tradition in the Ukraine. Korablina testified that during the German occupation, her grandmother, mother and aunt were either taken by the Germans or forced into hiding because of their religion.

Korablina testified that early in her life she had to attend technical school because she was denied admittance to the Poly-Technical Institute of Kiev because she was Jewish. After getting a degree, she worked in an automated machinery factory from 1962 until 1990. She testified that she encountered constant obstacles to career advancement because of her religion. She was ultimately fired in 1990 because of her religion and because her new boss was a member of an ultra-nationalist and anti-Semitic group. Her explanation of the cause of her dismissal is revealing.

Q. Now, let's move up a little ahead in the years to the perestroika years, the mid-80s. When perestroika came to the Soviet Union, how did it affect the situation regarding your Jewish identity?

A. (By Korablina) It only worsened the condition that I was in as well as the condition of all other Jews.

Q. Now, did this worsening of the condition affect you personally?

A. Me personally, yes, it did.

Q. Can you tell the Court how it affected you personally?

A. When the (indiscernible) and the disruptions in the Kiev started taking place, those extremist organizations which previously did not have the right of speech and had to act covertly, they had an open forum at that point in time. They were holding rallies in the city. They were announcing openly that Ukraine should be freed of Jews and, therefore, the Jews have to leave Ukraine. They was saying get out of here. These upheavals also took place everywhere. They were at all factories, plants, including ours.

Q. How did this affect you personally in your day-to-day situation?

A. I personally was fired from my work.

Q. When were you fired?

A. I was fired in the early 1990.

Q. Do you know why you were fired?

A. I was fired when I started asking around and finding out things. And when--at the time of perestroika a new general director was appointed for my plant. He was a member of the ultra-nationalist movement. And then layoffs started. I was laid off at the time of the first waive of layoffs.

Q. Did you inquire as to why you were laid off?

A. I was trying to find out but the list that--well, the majority basically all of them were Jewish.

After six months looking for a job, Korablina secured new employment as a clerical secretary to a Jewish man. In October, 1993, three men came into the office and demanded money from him, claiming that, as a Jew, he was living at the expense of Ukrainian resources. Korablina witnessed the beating and extortion of her Jewish boss. The men took several items of office equipment as well as a list of employees. After the beating, the employees immediately called for an ambulance and the police. The ambulance eventually arrived after thirty minutes, but the police never showed up at all.

After the initial beating, the attackers returned on a monthly basis to extort money. Korablina told a friend at the municipal city hall of the extortion. He said he would try to help. Soon afterward, he disappeared without a trace. Korablina testified that people who protested often "disappeared" in Kiev during that time period.

Korablina also testified that after the attackers beat her Jewish boss and stole a list of employees, she began to receive numerous anti-Semitic telephone calls and notes, sometimes as often as several times a week. The notes threatened to kill her and threatened that if she decided to go to anyone for help, she too could disappear. She did not report the calls to the police. She testified credibly that the police were not interested in protecting Jews.

On another occasion, Korablina was working at a pavilion where her employer was trying to arrange contracts for his business. Two young men approached Korablina when she was alone, demanding she turn over the business' paperwork in her possession. When she refused, they tied her up in a chair, placed a noose around her neck and pulled it tighter until she agreed to release the papers. The attackers looked at her exhibition badge and informed her that her Russian last name could not help her to conceal her Jewish origin. They left her tied to the chair. She testified that she was barely breathing and in a state of shock. She had to go to the hospital for treatment for a brain concussion from being struck in the forehead with a blunt instrument. She did not report this incident to the authorities because she claimed it would be fruitless. Considering what had happened to her missing friend from the municipal city hall, she worried that calling the police would jeopardize her life.

In September 1994, members of the ultra-nationalist group came to the office, ransacked the place, painted a Star of David on the wall, and threatened Korablina's boss. Soon after this incident, her boss also disappeared.

Korablina testified that many Jewish-owned businesses in Kiev suffered from the same treatment at the hands of anti-Semitic hoodlums. She testified that her boss' disappearance finally convinced her it was too dangerous for her to remain in the Ukraine.

Korablina's daughter, Irene Cimbal, was present at the deportation proceeding as a temporary visitor to the United States. Her testimony, found to be credible, corroborated her mother's account of the conditions in the Ukraine and the persecution Korablina had suffered. Her daughter testified that after her mother departed, she moved in with her father. The harassing phone calls and notes became more frequent. Cimbal and her father changed their telephone number and moved in with other family members in a nearby city. Cimbal testified that one night her father returned home after having been severely beaten:

I helped to open the door and he came in a dreadful condition. He was all beaten up. His entire coat was bloody and apparently the majority of the blood was to his head because he was in a horrible condition and he didn't seem to be mentally together, and he was practically crawling on the wall. I asked him what happened, but he just hugged real hard and he said, "Thank goodness that mom is far away and that she doesn't see it."

During the beating, the attackers threatened, "your kike wife won't be able to hide for long, and it doesn't really matter where she is hiding." Both Korablina's daughter and her husband elected not to report the incident, claiming that the authorities provided Cimbal also testified that she was attacked and threatened with rape by men who proclaimed "we did not manage to clarify where is your kike mother, but we could play with you." Cimbal testified that on her way home one evening:

no sympathy and certainly no protection for them.

I felt that someone was following me and as soon as I turned around to see who was it, I was attacked. I know that there was a strong man, some strong men covered my mouth and I could not scream. And he was holding my arms.... I remember a hard blow to my face, and for a moment after I lost my consciousness and I came to, my face was covered with blood, that man was sitting on my legs and he was trying to tear my clothing.

She testified that another man was hovering around all the time and watching for witnesses. She then heard some footsteps and a dog barking. Before leaving her, the attackers said, "you little kike woman, we're not done with you yet." A neighbor stopped the attack and offered to call the police, but the daughter refused. The daughter testified that telling the authorities was useless.

In addition to Korablina's own testimony regarding the police's unwillingness to help her and her fear that they may actually have been collaborating with the ultra-nationalists, Korablina offered her daughter's corroborating testimony and submitted articles detailing the authorities' unresponsiveness to complaints...