Smolniakova v. Gonzales, 03-71600.

• Decision Date: 07 September 2005
• Docket Number: No. 03-71600.,03-71600.
• Citation: 422 F.3d 1037
• Parties: Galina Ivanovna SMOLNIAKOVA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.3d 1037

Galina Ivanovna SMOLNIAKOVA, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-71600.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2004.

Filed September 7, 2005.

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Robert O. Wells, Jr., Mikkelborg, Broz, Wells & Fryer, PLLC, Seattle, W.A, for the petitioner.

Peter D. Keisler, Mark C. Walters, and Margaret Perry (on the briefs) and Jeffrey Bernstein (argued), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-401-421.

Before D.W. NELSON, REINHARDT, and THOMAS, Circuit Judges.

D.W. NELSON, Circuit Judge.

Petitioner Galina Smolniakova, a native and citizen of Russia, seeks review of the order of the Board of Immigration Appeals ("BIA"), denying her requests for asylum, withholding of removal, and review of the termination of her conditional permanent resident status. The Immigration Judge ("IJ") dismissed Smolniakova's asylum claim based on findings that she lacked credibility, failed to establish past persecution on account of an enumerated ground, and did not have a well-founded fear of future persecution. The IJ denied Smolniakova's request to review the termination of her conditional resident status on the ground that Smolniakova had not met her "heavy burden" of proving that her marriage in 1993 to a United States citizen was genuine, and found her deportable. The IJ granted Smolniakova voluntary departure in lieu of removal. The BIA affirmed the decision without opinion.

We hold that substantial evidence does not support the IJ's adverse credibility finding in the asylum context and that Smolniakova is statutorily eligible for asylum. We remand for an exercise of discretion on Smolniakova's asylum claim and for a review of her claim of withholding of removal. We also reverse and remand the IJ's denial of Smolniakova's petition for review of the termination of her conditional resident status. Accordingly, we reverse the IJ's holding that because Smolniakova's conditional resident status was validly terminated, she was deportable. The BIA is instructed to grant Smolniakova a new hearing in which she has a full and fair opportunity to establish her credibility in the qualifying marriage context. On remand, the IJ shall also determine whether the government has met its burden of establishing by a preponderance of the evidence that Smolniakova did not intend to establish a life together with Roberto Quitevis at the time of their marriage.

I. Factual and Procedural Background

A. Smolniakova's Experiences in Russia

Smolniakova, a 39-year-old woman, was born in Kaliningrad, formerly Konigsberg, a city on the Baltic coast. She is the daughter of a Jewish mother and a non-Jewish father.

In her asylum application, Smolniakova recounted numerous instances of harassment and discrimination on account of her Jewish identity, including anti-Semitic profanities scribbled on the walls of her apartment entryway, human feces smeared on her mailbox, fires set in her mailbox, and repeated slashings of her front door. While instances of harassment and discrimination do not themselves rise to the level of persecution for purposes of asylum, Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir.2003), in Smolniakova's case they were foreboding harbingers of things to come.

Before the IJ, Smolniakova testified that she lived in an environment that was not only inhospitable to Jews, but one in which practicing Judaism openly was very difficult. From 1988 to 1991, Smolniakova participated in a Jewish community organization that met secretly. Smolniakova testified that the Berenshteyns, close family friends of Smolniakova, were very active in the group. Smolniakova testified that one summer night in 1990 she received a call while with her sister, Regina, in their parents' apartment, where they both lived. The caller announced that Mr. and Mrs. Berenshteyns had been killed and warned that the same fate lay in store for the rest of the Jews in Kaliningrad. Smolniakova was horrified to learn the following morning, when the news first became public, that the Berenshteyns had indeed been brutally murdered. They were discovered bound in their home with numerous stab wounds. See A Crime on Bankovsky Street (translated Russian newspaper article reporting the murder), reprinted in the Administrative Record ("AR") at 1453. Smolniakova testified that while the authorities claimed to make solving the case a top priority, the case was never resolved. She also testified that the lead investigator in the case mysteriously disappeared a month after the murders. Yuliya Berenshteyn, the surviving daughter of the slain Berenshteyns, testified that since the murder of her parents, Tolik Payrkov, another member of their Jewish organization, had also been killed.

Smolniakova testified that in May 1991, after the Berenshteyns' murder, she was attacked by two men while walking home from a town celebration. The men grabbed her from the street and began to strangle her behind some bushes along the side of the road. She testified that one of the assailants whispered in her ear, "Jewish Bitch." The attackers dispersed when a witness, who heard the scuffle, yelled out and threatened to call the police. Smolniakova testified that the men slowly walked away, promising that they would be back and that she would not get away alive next time. Regina, who cared for Smolniakova after the attack and to whom both Smolniakova and the good Samaritan stranger recounted the assault, substantially corroborated her sister's testimony.

Smolniakova testified that one evening, six months after the attack, two men began pounding on her door, threatening to kill her if she did not let them in and referring to her home as a "Jewish snake nest." Smolniakova and Regina called the police, but they refused to help. Smolniakova and Regina explained that when they called to report this and other incidents, the police were unresponsive and dismissive, even to the point of laughing at them.

In September 1991, Smolniakova married her Russian boyfriend of several years, Alexey. As soon as they were married, she moved in with him and his family in order to change her address. After a few weeks, Alexey, a seaman, left for a five-month assignment abroad. Shortly thereafter, Smolniakova was forced to return to live with her parents because she was no longer welcome in her in-laws' home. Smolniakova testified that Alexey's mother unabashedly expressed her displeasure at her son's choice of a wife, who she feared would taint her grandchildren with "Jewish blood." Soon after leaving her in-laws, Smolniakova obtained a six-month visitor's visa to the United States. She and her husband agreed that she would be safe there until Alexey returned and she could rejoin him, hopefully in Germany, where he had the prospect of permanent employment.

Smolniakova left Russia in early December 1991. She testified that her husband had still not called for her after four months, that her mother told her of rumors that he was seeing other women, and that she believed his disapproving mother had been "working on him." At this point, Smolniakova decided to seek political asylum in the United States.

Without the benefit of counsel, Smolniakova filled out an asylum application, which was filed with the Immigration and Naturalization Service ("INS")¹ on April 17, 1992. While the INS officer who interviewed Smolniakova deemed her credible, the Service sent her a letter of intent to deny asylum on October 15, 1992, for failure to meet the requirement of a well-founded fear of persecution on account of one of the five enumerated grounds. Her application was subsequently denied on March 11, 1993.

B. Smolniakova's Marriage to an American Citizen

Around November 1992, Smolniakova enlisted Regina's help in divorcing Alexey. The divorce was finalized in February 1993. Smolniakova testified that she met her second husband, Roberto Quitevis, through a mutual friend, Richard White, at a New Year's party in December 1992. She testified that they dated for a few months until she confided in him about the denial of her asylum application and her pending appeal, and he, in turn, proposed because, according to Smolniakova, he expressed strong feelings for her and could not bear the thought of losing her. She testified that they began having sexual relations that evening and continued to do so over the course of their marriage, which began in June 1993. Quitevis filed an immediate relative visa on Smolniakova's behalf, which the INS approved, and on January 24, 1994, the INS granted Smolniakova two-year conditional permanent resident status as the spouse of a United States citizen.

Smolniakova returned to Russia in July 1994 for three months to tend to her gravely ill mother. This was the first of three such trips. Smolniakova testified that Quitevis came to resent her prolonged absence and was sullen and detached when she returned home. She testified that while they continued to have conjugal relations, he became emotionally withdrawn, "like a stranger to [her]." By the time of her next trip to Russia in December 1994, the marriage had deteriorated significantly. Regina testified that when her sister came home to Russia the second time, she was "blue," "very nervous," and had lost a lot of weight, and confided in her that Quitevis had begun to sleep elsewhere.

On June 1, 1995, the INS revoked Smolniakova's conditional resident status pursuant to Immigration and Nationality Act ("INA") § 216(b), 8 U.S.C. § 1186a(b), based on a finding — the culmination of an investigation precipitated by an anonymous tip — that her marriage to Quitevis was a sham. Deportation proceedings commenced in December 1995.

In the deportation proceedings,...