Nagoulko v. I.N.S., 02-70467.

• Decision Date: 24 June 2003
• Docket Number: No. 02-70467.,02-70467.
• Citation: 333 F.3d 1012
• Parties: Valentina A. NAGOULKO, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1012

333 F.3d 1012

Valentina A. NAGOULKO, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 02-70467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2003.

Filed June 24, 2003.

Daniel Hoyt Smith, MacDonald, Hoague, and Bayless, Seattle, Washington, for the petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division; Mark C. Walters, Assistant Director; and Margaret Perry, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A73-397-458.

Before: LAY,^* GOODWIN, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

Petitioner Valentina Nagoulko is a 42 year old female native and citizen of the Ukraine. She entered the United States in October 1994 as a non-immigrant visitor. When her visa expired on March 31, 1995, she remained in the United States and filed an asylum application with the INS. The asylum application was denied on May 18, 1995. The INS then placed Nagoulko in deportation proceedings. Nagoulko conceded deportability, but she applied for relief from deportation in the form of asylum, 8 U.S.C. § 1158, and withholding of deportation, 8 U.S.C. § 1253(h).

After an evidentiary hearing, which was held on April 10, 1996, the Immigration Judge (IJ) issued a decision on January 9, 1997,¹ finding Nagoulko's testimony to be credible but nevertheless determining that Nagoulko was ineligible for asylum and withholding of deportation.² The IJ reasoned that although Nagoulko demonstrated a subjective fear of persecution, she could not show her fear was objectively reasonable. On appeal, the Board of Immigration Appeals (BIA) issued a per curiam decision on February 27, 2002, adopting the reasoning of the IJ and dismissing the appeal.³ Nagoulko timely petitions for review. We have jurisdiction, 8 U.S.C. § 1105a(a) as amended by IIRIRA § 309(c)(4), and we deny the petition.

I

Nagoulko alleges past persecution by the Communist party and Communist sympathizers in the Ukraine because of her Pentecostal Christian beliefs and active involvement in the Pentecostal Church. Only Nagoulko testified at the evidentiary hearing before the IJ. She testified as follows:

Nagoulko was born in the Ukraine in 1960 while the country was under Soviet Communist rule. Her mother was a member of the Pentecostal Christian faith and Nagoulko was raised as a Pentecostal. As a child she was pressured to join the Young Communist League but refused because of her religious beliefs. She was also persistently teased and discriminated against by teachers and other students because of her religion. Nevertheless, Nagoulko got a high school education and became a kindergarten teacher.

In 1980, at the age of 20, while she was employed as a kindergarten teacher, Nagoulko was baptized during a secret ceremony at a lake. The baptismal ceremony was secret because the country was still under Communist rule and the Church could not obtain permission to perform the baptismal ceremony. As Nagoulko testified through an interpreter, the ceremony was interrupted by militia who "came in and they just interfere in our, in the baptize process and they drown old people all over, but they finished and I actually got, I was baptized." Neither Nagoulko's counsel nor the government's counsel explored what Nagoulko meant by "drown." Further, Nagoulko did not mention any drowning in her application for asylum. Nor was there any other testimony about drownings causing loss of life.

A few days after her baptism, Nagoulko was interrogated at work, was pressured to "finish with her religion" and become a member of the Communist party, and was then fired for her refusal to stop practicing her religion. Her employers threatened her and "told [her] that they can finish[] [her] and they told [her] that they can send some people to finish[] [her]." Also, Nagoulko's father was threatened by the KGB because of Nagoulko's baptism.

After Nagoulko was fired from her job as a kindergarten teacher, she obtained work in a furnace factory. While working at the factory from 1981 to 1988, Nagoulko was harassed because of her religion by a coworker who told her he would stage a job accident and get Nagoulko sent to jail. Nagoulko quit her job at the factory in 1988 because of the "constant threat and constant harassment."

During the 1980s, while working at the furnace factory, Nagoulko attended weekly church services held in private residences. In 1983 or 1985, the police disrupted one service in a private home, used "vulgar force" to stop the service, and arrested the preachers. Some of Nagoulko's friends were severely beaten. Nagoulko was not beaten. But the police pushed her, causing her to fall down, and took her handbag. At another service, the police came in, tried to stop the service, and insulted and pushed the attendees. Though relating these two instances of "pushing," Nagoulko testified she was never arrested and she was never beaten.

In 1991, the Ukraine gained its independence when the Soviet Union disbanded. The new central government enacted legislation that guaranteed freedom of religion and permitted religious organizations to establish public places of worship. Nagoulko started working for the Good Samaritan Mission doing full-time religious work. She co-authored a Christian journal and worked on radio and television broadcasts. She went on trips to Israel (in 1993) and Germany (in 1991) on group visas with members of the Church to "get familiar with biblical places." She did not seek asylum in either of these countries.

During the summer of 1991, the Mission was visited by local government officials who threatened those at the Mission and said that the government would "finish[] with [them]." One sympathetic government officer warned the workers that the government kept a list of people who worked at the Mission, and that "all workers who worked for the mission were first on that list to be arrested." Nagoulko feared for her life because she knew that under the Communist regime, members of the Pentecostal Church died in concentration camps and one woman was sent to Siberia for 25 years.

In 1994, local government officials ordered the Mission to stop publishing its Christian journal. During 1994, the Mission was also forbidden from recruiting members or converts at schools or jails, and church services were often interrupted by local government officials or "just simply hooligans." To Nagoulko, these were signs that the "the spirit of the communism [was] born, born again." She suspected that the phones at the Mission were tapped. In the spring of 1994, an official came to an evangelical meeting and told the people that "our time is coming ... we will kill all of you, shoot all of you." At another time, unidentified people shouted outside Nagoulko's residence in the middle of the night, saying "we will be back and we will torture you and you will[] suffer from our actions, we will finish[] you." And, finally, at one time when Nagoulko was visiting her childhood home town in 1994, she was stopped by a "hooligan" who "just simply want[ed] to kill [her]." Though people at the Mission complained to the police about the hooligans, the government did not take measures to stop them. Nagoulko suspects that "the government and all those hooligans had a connection between each other and ... that the government hired those people to interfere, to interrupt our meetings, our services, and to do something against us."

In 1995, after Nagoulko had left the Ukraine, the Mission was told that it could no longer rent the office space that it was using. The television and radio station temporarily had to stop broadcasting from September 1995 until February 1996. Nagoulko believes that this happened because the Communist party was and is regaining power incrementally in the Ukraine. On cross-examination, Nagoulko admitted that the temporary stop in broadcasting could have been due to economic problems because the government had increased the cost of air time. The Mission still continues to conduct church services. Nagoulko's brother and parents still attend church.

At the heart of Nagoulko's concerns, she does not want to return to the Ukraine because she fears that the Communist party will regain power and kill her: "I just don't want to go there because what I think, if I, if I go back to Ukraine and if the communist will take power over and will take over the government, they will just finished me, that's all." On cross-examination, when asked whether her "greatest fear is that the communist[s] will come back into control," Nagoulko responded "Yes."

II

Nagoulko's testimony is presumed to be true because the IJ accepted the testimony as credible. See Shoafera v. INS, 228 F.3d 1070, 1073 (9th Cir.2000). The BIA's denial of asylum is reviewed for substantial evidence, even in cases where the IJ accepts the applicant's testimony as credible. See id. at 1073. We will "reverse the BIA's decision that an applicant is ineligible for asylum only if a reasonable fact-finder would have to conclude that the requisite fear of persecution existed." Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000) (internal quotations omitted).

To establish eligibility for asylum, Nagoulko must show that she is "unable or unwilling to return to[her] home country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion." Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). An alien's "well-founded fear of persecution" must be both subjectively genuine and objectively reasonable. Id. Nagoulko satisfies the subjective component by credibly testifying that she genuinely fears persecution. See ...