Pitcherskaia v. I.N.S.

• Decision Date: 24 June 1997
• Docket Number: No. 95-70887,95-70887
• Citation: 118 F.3d 641
• Parties: 97 Cal. Daily Op. Serv. 4844, 97 Daily Journal D.A.R. 7939 Alla Konstantinova PITCHERSKAIA, Petitioner, The International Human Rights Law Group, Intervenor, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 641

118 F.3d 641

97 Cal. Daily Op. Serv. 4844, 97 Daily Journal

D.A.R. 7939

Alla Konstantinova PITCHERSKAIA, Petitioner The International Human Rights Law Group, Intervenor, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70887.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 11, 1996.

Decided June 24, 1997.

Ignatius Bau, San Francisco, CA, and Suzanne Goldberg, Lambda Legal Defense and Education Fund, New York City, for Petitioner.

Stephen W. Funk, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-143-932.

Before: FLETCHER, WIGGINS, and T.G. NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

Alla K. Pitcherskaia petitions for review of the Board of Immigration Appeals' decision denying her application for asylum and withholding of deportation. We must decide whether Section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A), requires an alien to prove that her persecutor harbored a subjective intent to harm or punish. We conclude that it does not. We have jurisdiction over this timely petition, 8 U.S.C. § 1105a(a), and we grant the petition and remand to the board.

I.

Alla Pitcherskaia is a 35 year old native and citizen of Russia. She entered the United States as a visitor for pleasure on March 22, 1992, with authorization to remain for six months. On June 2, 1992, she applied for asylum on the basis that she feared persecution on account of her own and her father's anti-Communist political opinions. After a complete interview, the Immigration and Naturalization Service Asylum Office found that she was credible and that she had suffered past persecution. However, it found that she failed to establish a well-founded fear of future persecution and denied her application. She was placed in deportation proceedings for overstaying her visa.

Pitcherskaia renewed her request for asylum and withholding of deportation, under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. §§ 1158(a) and 1243(h). In this application, she claimed an additional basis for granting her petition-that she was persecuted and feared future persecution on account of her political opinions in support of lesbian and gay civil rights in Russia, and on account of her membership in a particular social group: Russian lesbians. ¹ She also requested voluntary departure.

The Immigration Judge ("IJ") conducted a full hearing at which Pitcherskaia and one Pitcherskaia's father was an artist and political dissident. As a result of his antigovernment activities, he was arrested and imprisoned numerous times during Pitcherskaia's childhood until 1972 when he died in prison. Pitcherskaia testified that, because of her father's anticommunist activities, she has been under the control and surveillance of the police for her entire life.

other witness testified. The following is a summary of the relevant testimony presented at that hearing.

Pitcherskaia was first arrested by the militia in 1980, when she was eighteen years old. She was charged with the crime of "hooliganism" ² and detained for fifteen days because she protested her former school director's beating of a gay friend. At the time of this arrest, the director was unaware Pitcherskaia was herself a lesbian.

In 1981, Pitcherskaia was arrested again, imprisoned for fifteen days, and beaten for participating in an illegal demonstration demanding the release of the leader of a lesbian youth organization which she belonged to. ³ Pitcherskaia claims that, at the time of this arrest, the Russian militia warned her not to continue to associate with other women in the organization and threatened her with involuntary psychiatric confinement if she continued "to see women." ⁴

Over the next two years Pitcherskaia claims that she was detained by the militia for short periods, interrogated, and on occasion beaten. On several occasions she was pressed to identify gay and lesbian friends. In May 1983, she was again arrested, charged with "hooliganism," and detained for ten days. Pitcherskaia maintains that the sole reason for her arrest was the arresting officer's knowledge of her sexual identity and political opinions.

In 1985 or 1986, Pitcherskaia's ex-girlfriend was forcibly sent to a psychiatric institution for over four months, during which time she was subjected to electric shock treatment and other so-called "therapies" in an effort to change her sexual orientation. Pitcherskaia testified that while she was visiting this woman at the psychiatric institution, she was grabbed by the militia, forcibly taken to a doctor's office and questioned about her sexual orientation. She was permitted to leave only after she provided a false address outside the jurisdiction of the clinic. Although she denied being a lesbian, the clinic registered her as a "suspected lesbian" and told her she must undergo treatment at her local clinic every six months. When she failed to show up for these outpatient sessions, she received a "Demand for Appearance." She testified that if she failed to comply, the militia would threaten her with forced institutionalization and forcibly take her from her home to the sessions.

Pitcherskaia testified that she attended eight of these "therapy" sessions. During these sessions, Pitcherskaia continued to deny that she was a lesbian. However, she was officially diagnosed with "slow-going schizophrenia," a catchall phrase often used in Russia to "diagnose" homosexuals. The psychiatrist prescribed sedative drugs, which Pitcherskaia never took. On one occasion, the psychiatrist tried to hypnotize her.

On two separate occasions, in 1990 and 1991, Pitcherskaia was arrested while in the homes of gay friends and taken to prison overnight. She received several "Demands for Appearance" when the militia sought to interrogate her about her sexual orientation and political activities. In 1991, she was interrogated about her activities with a gay and lesbian political organization-the "Union of Coming Out"-that had been denied legal recognition by the government.

Since her arrival in the United States, Pitcherskaia has received two more "Demands for Appearance" from the militia that were delivered at her mother's residence. Since she did not respond to the two recent Demands, Pitcherskaia fears that the militia will carry out their previous threats and forcibly institutionalize her if she returns to Russia.

After hearing testimony and reviewing an advisory opinion from the State Department, the IJ denied Pitcherskaia's applications for asylum and withholding of deportation and granted 30-days voluntary departure. The IJ did not render a specific finding with respect to Pitcherskaia's credibility, but simply proceeded as if her testimony was essentially credible. The IJ found that, "based upon the entire record including the Court's observation of the demeanor of the respondent as well as her witness while testifying and after consideration of the arguments of counsel," Pitcherskaia had not established that she was eligible for asylum pursuant to Section 208(a), nor that she was eligible for withholding of deportation pursuant to Section 243(h) of the Act.

Pitcherskaia appealed to the Board of Immigration Appeals ("BIA" or "Board"). In a divided opinion, the Board denied her appeal. The BIA majority voted to deny her petitions for asylum and withholding of deportation and to reinstate voluntary departure. The BIA majority did not make a finding as to Pitcherskaia's credibility because it found that, "even if her testimony is essentially credible," she had failed to meet her burden in establishing eligibility for relief under either Section 208(a) or 243(h) of the Act. The BIA majority concluded that Pitcherskaia had not been persecuted because, although she had been subjected to involuntary psychiatric treatments, the militia and psychiatric institutions intended to "cure" her, not to punish her, and thus their actions did not constitute "persecution" within the meaning of the Act. The BIA majority also concluded that recent political and social changes in the former Soviet Union make it unlikely that she would be "subject to psychiatric treatment with persecutory intent upon [her] return to the present-day Russia." The BIA majority denied withholding of deportation and granted voluntary departure under section 244(e) of the Act. 8 U.S.C. § 1254(e).

In dissent, Chairman Schmidt concluded that Pitcherskaia had established a well-founded fear of persecution on account of her membership in a particular social group. He rejected both the BIA majority's legal holding that an alien must prove that her persecutor had an "intent to punish" as well as its factual finding that the situation had improved markedly for gays and lesbians in Russia. Thus, he would have granted the petition for asylum. He concurred, however, in the BIA majority's decisions to deny withholding of deportation and to grant voluntary departure.

Because both the IJ and the BIA assumed, for purposes of their decisions, that Pitcherskaia's testimony was credible, we will also, for purposes of this appeal, assume that the testimony was credible.

II.

A. Statutory Scheme

The Attorney General may grant asylum to an alien present in the United States who is a "refugee." 8 U.S.C. § 1158(a). A "refugee" is an alien who is unable or unwilling to return to her or his country of origin "because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). ⁵ Either past persecution or a well-founded fear of future persecution provide eligibility for a discretionary grant of asylum. Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir.1996).

To establish a well-founded...