Parussimova v. Mukasey

• Decision Date: 24 July 2008
• Docket Number: No. 06-75217.,06-75217.
• Parties: Tatyana Michailovna PARUSSIMOVA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

533 F.3d 1128

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.

COPYRIGHT MATERIAL OMITTED

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.

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

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 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."

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, 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 in original). This necessitates an assessment of the persecutors' motives. Indeed, the INA "makes motive critical" and, while it does not require the applicant to provide "direct proof of his persecutors' motives," it does demand "some evidence of motive, direct or circumstantial." Id. (emphasis in original).

In some cases, such as this one, the record suggests that persecutors may have had several motives for mistreating an asylum applicant. We have considered such mixed-motive cases before, most notably in the companion en banc decisions, Briones v. INS, 175 F.3d 727 (9th Cir. 1999) (en banc), and Borja v. INS, 175 F.3d 732 (9th Cir.1999) (en banc). In Borja, we held that the term "on account of" in § 1101(a)(42)(A) does not burden the applicant with proving that she was persecuted "solely on account of" a protected ground, but only requires that she "produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground." Id. at 735-36 (first emphasis in original) (internal quotation marks omitted); see also Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir.1995) ("Persecutory conduct may have more than one motive, and so long as one motive is one of the statutorily enumerated grounds, the requirements have been satisfied.").

Our development of the "at least in part" rule was consistent with our previous holdings in political persecution cases that imposed a presumption that a government's harassment of an asylum applicant was politically motivated absent evidence of "a legitimate prosecutorial purpose" for such conduct. Singh, 63 F.3d at 1509 (internal quotation marks omitted); see also Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir.1988) (same); Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir.1985) (same). Our subsequent caselaw followed suit, applying the "at least in part" rule to allow an asylum applicant to establish persecution on account of a protected ground as long as such ground was at least one reason for her persecutors' conduct, even if other reasons appeared to have been the dominant cause of the persecutory action. See, e.g., Ndom v. Ashcroft, 384 F.3d 743, 755 (9th Cir.2004) (concluding that, in the absence of evidence of a "legitimate criminal prosecution," a member of a group seeking forcibly to overthrow the government in his home...