Krotova v. Gonzales, 04-70806.

• Decision Date: 04 August 2005
• Docket Number: No. 04-70806.,04-70806.
• Parties: Lioudmila G. KROTOVA; Anastasia Krotova; Aleksandra Krotova, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.3d 1080

Lioudmila G. KROTOVA; Anastasia Krotova; Aleksandra Krotova, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-70806.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 17, 2005.

Filed August 4, 2005.

Angela Bortel and Christopher A. Kerosky, Kerosky & Associates, San Francisco, CA, for the petitioners.

Jennifer Keeney, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A76-853-686, A76-853-817, A76-853-818.

Before: PREGERSON, GRABER, and GOULD, Circuit Judges.

GRABER, Circuit Judge:

Lead Petitioner Lioudmila Krotova and her daughters, Anastasia Krotova and Aleksandra Krotova, who are all natives and citizens of Russia, petition for review of a final order of removal by the Board of Immigration Appeals ("BIA"). The BIA denied their applications for asylum and withholding of removal because it concluded that Petitioners had failed to demonstrate that the harassment, discrimination, and violence experienced by the lead Petitioner on account of her being Jewish rose to the level of persecution. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners entered the United States in 1994. They first applied for asylum and withholding of removal in 1998. In 2002, they were charged with removability for overstaying their visas. They conceded removability and requested asylum, withholding of removal, relief under the Convention Against Torture and, in the alternative, voluntary departure.

At the hearing before the immigration judge ("IJ"), the lead Petitioner was the only witness. She is a 54-year-old woman from the far eastern regions of Russia, specifically the Amurskaya, Primorskiy, and Magadon areas. Her mother was Jewish, so her Russian birth certificate lists her "nationality" as Jewish.

Petitioner testified to a history of economic discrimination because of being Jewish. Although she was trained as a meteorologist at a technical college, she was placed in unskilled positions because the best jobs were reserved for ethnic Russians. She was sexually harassed by a supervisor and, when she complained to another supervisor, he told her that "whenever there is Jews in the company, there always is some problem [that] arise[s]" and that she should resolve the situation by herself. At a different job, she learned from coworkers that her supervisor had denied her promotions and salary increases because she is Jewish.

Similarly, her children were denied spaces in state-sponsored day care. The president of the workers' union told her that the vacancies would be taken instead by ethnic Russians.

Although there were few Jews in the areas of Russia where she lived, Petitioner tried to practice her religion. When she lived in the Amurskaya region, she and some other Jews found an abandoned building, minimally restored it, and used it as a synagogue where they could worship together. On several occasions, "the walls of [the] synagogue were painted with sentences such as kikes mugs get out of here." Another time, when Petitioner and fourteen others had gathered at the synagogue, a group of people dressed entirely in black (a uniform that Petitioner recognized as common to "skinheads or nazis") burst in with "baseball bats and other objects and started breaking windows." Petitioner and six other members of the congregation were able to escape, but the rest were beaten.

The attack was reported to the police. The police first attributed it to "hooligans" and detained two people. Ultimately, however, the police told Petitioner's group "that it is our problems and we should sort them out on our own." After the attack, the synagogue closed and "nobody gathered any more because it was very scary," especially for those who brought their children.¹

Petitioner was targeted personally on two occasions. In December 1993, she was walking her 9-year-old daughter home from school at six in the evening, in the dark. When Petitioner and her daughter approached their apartment building, a group of people surrounded them and began yelling "zit mug" (which translates as "kike") and "you're still not out of here." When the people began to assault Petitioner by pulling at her clothes, she told her daughter to run for help. This move made her assailants angry and they started to push Petitioner. One person kicked her, leaving a large bruise.

The incident terrified Petitioner, and she began to have nightmares. She reported the incident to the police, but they would not accept her complaint because she did not recognize her attackers nor, because of the dark, could she describe them with particularity.

Then, in 1994, just before Petitioners left Russia, some friends of a skinhead neighbor surrounded her at the entrance to her building:

[T]hey started telling me so you're still here kike mug. The whole entrance is stinking with your kike smell. I tried to ask them what did I do to you and it ended with them pushing me, one just struck me over the face and actually broke my lip.

Again, Petitioner reported the incident to the police. This time she described the assailants, but even so the police never responded.

Petitioner testified that when she and her then-husband and daughters came to the United States in 1994, she considered the move temporary and hoped to rejoin her family in Russia if conditions improved. She decided to apply for asylum in 1997, after her mother told her that a close friend of the family had been beaten to death in his store after having being assaulted by people who screamed that "this is not a place for Jews [and] that they should get out." Other bad news continued to come from her family in Russia. In 2000, Petitioner's brother was beaten severely by skinheads, and his car was burned; he required surgery to correct damage to his hip that was caused by the beating. Petitioner's sister told her that anti-Semitic flyers commonly are left in the lobby of her apartment building. And, in 2002, Petitioner's sister reported that skinheads had attacked a Jewish school in her city.

Documentary evidence in the record provided a context for Petitioner's testimony. For example, the 2001 Country Report noted that "Jews continued to face prejudice and social discrimination." The Report described numerous incidents in which "unknown persons vandalized Jewish synagogues, cemeteries, and memorials." Very few of the incidents resulted in arrests by the Russian police.² The Country Report also referred to "numerous other anti-Semitic incidents" across the country and described, as an example, three violent assaults in a single month by skinheads against Jews.

The IJ denied relief, finding Petitioner "generally credible as to her education and background" but not credible "concerning her persecution on account of her ethnic background, that of being Jewish." The IJ based her adverse credibility determination on Petitioner's failure to mention two incidents of harassment in her application and during her interview with the asylum officer, even though the incidents in fact were described in the declaration that she filed in support of the application. The IJ also found, in the alternative, (1) that the harm experienced by Petitioner did not rise to the level of persecution; and (2) that there was "no evidence that the government could not control or has not tried to control these criminals." For those three reasons, the IJ denied Petitioners' applications for asylum and found that they also failed to meet the higher burdens for withholding of deportation and relief under the Convention Against Torture.³

The BIA affirmed on the sole ground that "[t]he incidents described by [Petitioner], including episodes of verbal insults and slurs, an attempted attack consisting of a slap in the face, are consistent with incidents of discrimination, but have not been shown to rise to the level of persecution." This timely petition for review followed.

STANDARD OF REVIEW

When the BIA conducts an independent review of the IJ's findings, as it apparently did here, we review the BIA's decision and not that of the IJ. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). We review the BIA's denial of asylum for substantial evidence, and we may grant the petition only if the record compels a contrary result. See Nagoulko v. INS, 333 F.3d 1012, 1015-16 (9th Cir.2003).

The BIA did not address the IJ's negative credibility finding. When the BIA's decision is silent on the issue of credibility, despite an IJ's explicit adverse credibility finding, we may presume that the BIA found the petitioner to be credible, Maldonado-Cruz v. U.S. Dept. of Immigration and Naturalization, 883 F.2d 788, 792 (9th Cir.1989); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986), and we so presume here. That presumption is particularly reasonable here, because the IJ's adverse credibility finding is not supported by substantial evidence.

DISCUSSION

In concluding that the lead Petitioner had suffered only discrimination, the BIA summed up her experience as "including episodes of verbal insults and slurs [and] an attempted attack consisting of a slap in the face." That description inaccurately minimizes Petitioner's experience. Against a background of anti-Semitic harassment and economic and social discrimination against her, and in Russia generally, Petitioner experienced three violent assaults (one occurring at a synagogue and one involving her 9-year-old daughter), the murder of a close family friend, and the severe beating of her brother —all perpetrated by anti-Semitic groups. Those experiences are not consistent with mere discrimination but, instead, compel a finding of past persecution.

Persecution is "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as...