Stserba v. Holder

• Decision Date: 12 August 2011
• Docket Number: No. 09–4312.,09–4312.
• Citation: 646 F.3d 964
• Parties: Lilia STSERBA; Igor Anatolievich Pabo; Anton Stserba, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

646 F.3d 964

Lilia STSERBA; Igor Anatolievich Pabo; Anton Stserba, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–4312.

United States Court of Appeals, Sixth Circuit.

May 20, 2011.Rehearing Denied Aug. 12, 2011.

ON BRIEF: Anna Markovich, Law Office of Anna Markovich, LLC, Cleveland, Ohio, for Petitioners. Stefanie A. Svoren, United States Department of Justice, Washington, D.C., for Respondent.Before: MOORE and WHITE, Circuit Judges; VARLAN, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Lilia Stserba and her son, Anton, are Estonian citizens who are ethnically Russian. Stserba's husband, Igor Anatolievich Pabo, is a Russian citizen. All three petitioners came to the United States legally and sought asylum and withholding of removal. They alleged past persecution on account of their Russian ethnicity and fear of future persecution. The alleged persecution centers around four issues: (1) revocation of Stserba's Estonian citizenship after Estonia regained independence from the USSR; (2) Estonia's invalidation of Russian medical degrees and attendant job limitations for Stserba; (3) delayed diagnosis of Anton's medical condition and inferior health care that he received on account of his ethnicity; and (4) and maltreatment of Stserba's older son, Artjom, who resides in Estonia.

The immigration judge (“IJ”) found the petitioners credible but deemed their allegations insufficient to justify asylum or withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed. Stserba and the derivative petitioners ¹ claim that insubstantial evidence supports the BIA's decision and that the BIA failed to consider Artjom's harassment. We conclude that the BIA did not consider whether revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked substantial evidence to support its conclusion that Stserba's job limitations were neither persecution nor on account of ethnicity. We GRANT the petition for review and VACATE the BIA's order. We REMAND the case for the BIA to consider: (1) whether ethnically motivated citizenship revocation that results in statelessness is persecution, and whether Stserba was persecuted on this basis; (2) whether the petitioners are entitled to a discretionary grant of asylum given our conclusion that Stserba endured past persecution when Estonia refused to recognize her medical degree; and (3) whether the petitioners are entitled to withholding of removal.

I. BACKGROUND

In 1991, Estonia regained independence from the Soviet Union. With anti-Soviet sentiments running high, Estonia denationalized residents unless they or their ancestors were Estonian citizens prior to 1940. Stserba and Artjom, both ethnic Russians born in Estonia, were denationalized and became stateless. They regained citizenship in 1993 “by complete chance” in exchange for Stserba's vote in an election. A.R. 316 (Stserba Aff. ¶ 8). Anton, who had been born in 1992, also became a citizen at that time.

Tensions with Russia persisted and, in 1998, Estonia “unilaterally stop[ped] the Estonian–Russian agreement regarding the mutual acceptance of the equivalency of educational and scientific degrees documents.” R. 456 (“Russian Diplomas Are Not Valid In Estonia” article). Stserba had earned a medical degree from Leningrad Pediatric School in St. Petersburg and had previously worked as a pediatrician at an Estonian hospital. The new policy meant that, in Estonia, practicing “medicine was no longer a career option” for Stserba. A.R. 317 (Stserba Aff. ¶ 15). In 1998 or 1999, she obtained employment as a doctor at a private Russian-language school, where the Russian hiring official overlooked her officially invalid degree. In 2003, she left that job to come to the United States.

Prompting Stserba's move was Anton's medical condition. Anton has phenylketonuria (“PKU”), a genetic defect that prevents the patient from metabolizing the amino acid phenylalanine. PKU can damage the brain and central nervous system. Newborns in Estonia are tested for PKU.² Either Anton was not tested or Stserba was not notified that Anton tested positive, which Stserba attributes to ethnic discrimination. Due to the delay in diagnosis until Anton was eight months old, Anton suffered neurological damage. Treatment for PKU involves dietary formulas that limit phenylalanine intake. After Anton's diagnosis, Stserba obtained formulas for Anton for no cost through a research group at the University of Tartu, although she discovered that program through her own legwork and without referrals from Anton's doctors. When Anton was eight, the university began providing a different formula “[p]robably because this new formula was cheaper.” A.R. 129 (2/21/08 Hr'g Tr., Stserba). For Anton, however, the formula was less effective. His condition worsened and he displayed new autistic symptoms. From then until Anton moved to the United States at age eleven, Stserba paid for his formula. During this time, Anton was attending a school for mentally disabled students. Stserba testified that Anton is mildly developmentally delayed but is not mentally disabled, although a letter from a doctor in the United States says that Anton has “mild mental retardation.” A.R. 478 (Dr. Swales Letter). Stserba believes that “only one reason” explains Anton's school placement in Estonia: his Russian ethnicity. A.R. 131 (2/21/08 Hr'g Tr., Stserba). All of the other 29 children in the PKU research group were ethnically Estonian and attended regular schools. Estonia does not have special-education programs that integrate special-needs children into standard schools. Anton's condition will require life-long treatment, but it has improved during his time in the United States, where he attends special-education classes at a public school.

Stserba and Anton entered the United States on July 28, 2003 as nonimmigrant visitors authorized to stay for eleven months. Pabo had entered the United States seven months earlier. They lived in Cleveland, Ohio. Stserba applied for asylum before her authorization expired, but her application was denied. Stserba, Pabo, and Anton were charged as removable under 8 U.S.C. § 1227(a)(1)(B) for overstaying their valid entry authorization. All three petitioners conceded removability but requested asylum and withholding of removal.³

At their hearing before the IJ, Stserba testified about her citizenship revocation and restoration, her employment troubles, and Anton's medical condition. She also testified about assorted acts of discrimination and harassment. For example, in 1993, an Estonian woman poured water on Stserba's head while Stserba was having her hair cut and said “you Russian [are] supposed to get out of here.” A.R. 126–27 (2/21/08 Hr'g Tr., Stserba). In 1996, an Estonian sicced his dog on Artjom, causing an injury that required sixteen stitches, and rumor had it that the motivation was Artjom's Russian ethnicity. Stserba's apartment was burglarized in 1999. Artjom has faced more harassment since the rest of his family came to the United States: his car was set on fire, someone called him a “Russian Pig” while beating him and stabbing his hand with a knife, A.R. 560 (Egorova letter), and police struck him with a stick during the 2007 riots at the relocation of the Bronze Soldier of Tallinn, a Soviet-era statue of a Russian World War II soldier.

Should they return to Estonia, Stserba fears that Anton's life will be in danger because she will not be able to buy the formula that Anton needs. Estonia, she says, provides health care to citizens, but not to those who are ethnically Russian. Stserba suspects that her employment opportunities in Estonia will be limited to babysitting and cleaning. Pabo fears that his family will be beaten or killed in Estonia. Pabo has also had trouble obtaining Estonian resident status and has been mistakenly detained by police.

Although the IJ found each petitioner's testimony to be credible, he determined that their testimony did not demonstrate past persecution. The IJ noted that Stserba regained citizenship quickly and did not suffer “any adverse consequences” from the years that she spent stateless. A.R. 69 (IJ Op.). As for Stserba's job prospects, the IJ found that voiding diplomas from Russian universities affected Estonian citizens of all ethnic backgrounds. The IJ also noted that Stserba can still obtain work as a babysitter or as a pediatrician at a private Russian school. Finally, the IJ agreed that Anton “is more likely to get the best medical treatment for his condition in the United States,” and the State of Ohio has provided his dietary supplements free of charge, whereas the treatment was expensive in Estonia. Id. at 77. Nevertheless, Anton's past treatment evidences that treatment options exist in Estonia, and “the fact that a higher quality of medical care is available in the United States is not a basis for asylum.” Id. The IJ also determined that mistake—not the family's persecution—could account for the hospital's failure to provide PKU test results at birth, and that the decision not to integrate developmentally delayed students into regular schools is also not a result of ethnic persecution. Therefore, the IJ ordered that Stserba and Anton be removed to Estonia and Pabo to Russia.

The BIA affirmed, adding that, although the IJ did not expressly mention the events involving Artjom, “they do not, either individually or cumulatively with the other evidence of record, warrant a remand for further consideration.” A.R. 4 (BIA Op.).⁴ A panel of this court denied Stserba's motion to stay removal.

II. DISCUSSION

A. Standard of Review

We review de novo the BIA's resolution of “[q]uestions of law and constitutional questions.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir.2009). At the same time, “[w]e generally accord Chevron deference to the BIA's decisions construing ambiguous statutory terms in the [Immigration and Nationality Act (“INA”) ]...