Parussimova v. Mukasey, No. 06-75217.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: O'Scannlain
• Citation: 555 F.3d 734
• Docket Number: No. 06-75217.
• Decision Date: 24 July 2008
• Parties: Tatyana Michailovna PARUSSIMOVA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

555 F.3d 734 Tatyana Michailovna PARUSSIMOVA, Petitioner,
v.
Michael B. MUKASEY, Attorney General, Respondent. No. 06-75217. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 14, 2008. Filed July 24, 2008. Amended January 26, 2009.

[555 F.3d 736]

Saad Ahmad, Esq., Saad Ahmad & Associates, Fremont, CA, argued the cause for the petitioner and filed a brief; Robert L. Volz, Esq., Saad Ahmad & Associates, Fremont, CA, was on the brief.

Sarah Maloney, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, argued the cause for the respondent and filed a brief; James E. Grimes, Senior Litigation Counsel, and Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A98-822-251.

Before: DIARMUID F. O'SCANNLAIN and HAWKINS, Circuit Judges, and JAMES V. SELNA,^* District Judge.

ORDER AMENDING OPINION AND AMENDED OPINION ORDER

The opinion filed in this case on July 24, 2008, is amended as follows:

At page 9245, 533 F.3d at 1135 of the slip opinion, line 11, after the sentence concluding "did not exist," insert

Judges O'Scannlain and Hawkins have voted to deny the petition for rehearing en banc and Judge Selna so recommends. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

O'SCANNLAIN, Circuit Judge:

We are called upon to interpret a provision of the Real ID Act of 2005 imposing a new evidentiary burden on asylum applicants and to determine whether the Board of Immigration Appeals, in applying such provision, properly denied asylum to an

555 F.3d 737

alien who claimed she was the victim of religious and ethnic persecution in Kazakhstan.

I A

Tatyana Parussimova is a 28-year-old native and citizen of Kazakhstan. She is an ethnic Russian and an adherent of the Orthodox Christian faith.¹ Parussimova was admitted to the United States on a nonimmigrant B-1 visa in May 2005 for the purpose of attending a conference organized by her employer, Herbalife International of America, Inc., in Atlanta, Georgia. She overstayed her visa and, on the day after it expired, filed an application for asylum claiming that she had been persecuted in Kazakhstan on account of her ethnicity and religion, and that she feared persecution on account of the same grounds upon her return.

On September 28, 2005, an asylum hearing was held before an Immigration Judge ("IJ"), at which Parussimova conceded removability under 8 U.S.C. § 1227(a)(1)(B), and testified in support of her application for asylum. Parussimova described her life in Kazakhstan as a harsh one. She witnessed riots against the Soviet government in 1986, which she said left her permanently affected. As a student, her schoolteachers discriminated against her and other Russian students. She narrowly escaped an attempted sexual assault by an unknown stranger in 1999, and her cousin was beaten and killed by a group of Kazakhs in March 2005.

The most significant event Parussimova described occurred on January 10, 2005. According to Parussimova, she was walking on a street near her home, wearing an Herbalife pin on her chest, when she was confronted by two Kazakh men who began "bugging" and "insulting" her. Suddenly, the men dragged Parussimova into the entryway of an apartment building, where they told her that she "did not have the right to work for an American company," and pulled the Herbalife pin off her chest. Parussimova briefly passed out, and when she regained consciousness, the men were kicking her, spitting at her, and told her that "we were Russian pigs and we ... had to get out of their country." The men warned Parussimova not to report the attack, and then tore off her clothes and tried to rape her.

Parussimova screamed, which alerted residents of the apartment building and caused her assailants to flee. A passerby came to Parussimova's aid and called the police, who arrived, questioned Parussimova, and took her to the hospital.

One week later, Parussimova recognized her assailants on the street while she was walking with her father. Parussimova's father called the police, who detained the men and had them "taken away." Parussimova's assailants were apparently released, however, as she testified that she saw them again a few days afterwards, while she was walking with her cousin. This time the men threatened to kill her because she had reported them to the police. Parussimova escaped, but the men beat her cousin, leaving him unconscious. According to Parussimova, the police "didn't do anything" about this incident. The men threatened Parussimova on several subsequent occasions, but each time they would always "just disappear."

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As a result of the attacks and subsequent threats, Parussimova told the IJ that she would be "scared for her life" if she is returned to Kazakhstan, particularly because her assailants remain at large and because she believes she has "no protection from the government."

B

At the conclusion of the hearing, the IJ denied Parussimova's asylum application.² At the outset, the IJ discussed several inconsistencies between Parussimova's testimony and other evidence in the record as well as several notable omissions from the affidavit she filed in support of her application. Nevertheless, the IJ declined to deny the application on account of Parussimova's credibility, instead holding that she could not establish that she was a refugee under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., because she could not demonstrate that her assailants attacked her "on account of" her religion or ethnicity as opposed to some other ground. See id. § 1101(a)(42)(A). The BIA affirmed in a separate opinion, resting its decision on the same conclusion.³

Parussimova timely filed this petition for review.

II

We begin with the well-established principle that our review of BIA decisions is highly deferential; we may reverse only if the evidence in the record compels a contrary result. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004).

The Secretary of Homeland Security or the Attorney General has the discretion to confer asylum on any person who qualifies as a "refugee." 8 U.S.C. § 1158(b)(1)(A). The INA defines a "refugee" as an alien who is "unable or unwilling to return to [his or her home country], and is unable or unwilling to avail himself or herself of the protection of[ ] that country 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." Id. § 1101(a)(42)(A) (emphasis added). We refer to these five categories as the "protected grounds."

The term "persecution" is not explicitly defined in the INA, but we have held that an alien who seeks to demonstrate that she was persecuted in the past must prove (1) that she was the victim of "an incident, or incidents, that rise to the level of persecution"; (2) that the persecution was "on account of" one of the protected grounds; and (3) that such persecution was "committed by the government or forces the government is either unable or unwilling to control." Navas v. INS, 217 F.3d 646,

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655-56 (9th Cir.2000) (internal quotation marks omitted). Only the second element of that definition is at issue here, as the BIA rejected Parussimova's asylum application for the sole reason that she failed to establish that she was persecuted "on account of" a protected ground. Thus, if substantial evidence does not support the BIA's determination, we must remand to allow the BIA to consider, in the first instance, whether the other two elements of persecution are present in Parussimova's case. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

A

As the Supreme Court held in Elias-Zacarias, the term "on account of" in § 1101(a)(42)(A) requires an asylum applicant to prove that she was persecuted "because of" a protected ground. 502 U.S. at 483, 112 S.Ct. 812 (emphasis...