Ivanov v. Holder, Jr. ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1814
PAVEL IVANOV; IRINA KOZOCHKINA,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Randy Olen, with whom Robert D. Watt, Jr. was on brief, for
petitioners.
Andrew Nathan O'Malley, with whom Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr.,
Assistant Director, Office of Immigration Litigation, and D.
Nicholas Harling, Attorney, Office of Immigration Litigation, were
on brief, for respondent.
November 15, 2013
THOMPSON, Circuit Judge. Petitioners Pavel Ivanov and
Irina Kozochkina seek review of a final order of removal. They say
the immigration courts erred by finding that the persecution Ivanov
experienced in Russia was not "on account of" his Pentecostal
faith. We agree. After careful consideration of the decision and
the record, we vacate and remand for additional proceedings.
Facts and Procedural History
Petitioners are natives and citizens of Russia. Ivanov
is a long-standing member of the Pentecostal Church, which
Kozochkina, a Baptist, now attends.1
Petitioners entered the United States in May 2003 on
five-month educational exchange visas.2 Having heard from family
and fellow Pentecostals in Russia of ongoing threats and violence
against persons of their faith, Petitioners overstayed their visas
and applied for asylum, withholding of removal, and relief under
1
Petitioners' claims derive from Ivanov's experiences as a
Pentecostal in Russia in the 1990s and early 2000s. Given that
Kozochkina's claims are derivative of Ivanov's, we will discuss
only Ivanov's entitlement to relief.
2
Petitioners' visas list September 2003 as their expiration
date. However, because Petitioners never entered the educational
programs for which their visas were issued, the government asserts
that their status actually expired in June 2003, thirty days after
their entry. This discrepancy is not relevant to this appeal.
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the Convention Against Torture (CAT) in September 2004.3
Petitioners were married in Newport, Rhode Island in October 2004.
In August 2005, the Department of Homeland Security (DHS)
served Petitioners with Notices to Appear, charging them with
removability under the Immigration and Nationality Act. See 8
U.S.C. § 1227(a)(1)(B). Petitioners filed amended applications for
asylum, withholding of removal, and CAT relief in June 2007. They
appeared before an Immigration Judge (IJ) in a series of hearings
between 2006 and 2009. Because the IJ found Ivanov credible, we
recount the facts here as Ivanov presented them in his
documentation and testimony.
Ivanov was born in Chelyabinsk, Russia on November 21,
1983. His parents raised him in the Pentecostal faith, practicing
in secret during the anti-religious Soviet regime, then joining a
church in 1995 as Russia began to open up to religion after the
fall of communism.
Pentecostals represent a religious minority in Russia.4
Though the Russian Constitution provides for freedom of religion,
"[m]any citizens firmly believe that adherence to the Russian
3
Because Petitioners missed the one-year filing deadline for
asylum by only three months, the Immigration Judge gave Petitioners
"the benefit of the doubt" and treated their claim as timely.
4
United States Department of State, Bureau of Democracy,
Human Rights and Labor, Russia: Country Reports on Human Rights
Practices 20 (Mar. 2007), available at
http://www.state.gov/j/drl/rls/hrrpt/2006/78835.htm [hereinafter
2006 Country Report].
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Orthodox Church . . . is at the heart of their national identity,"5
and "members of minority and 'non-traditional' religions,"
including Pentecostals, "continue to encounter prejudice, societal
discrimination, and in some cases physical attacks."6 Local
authorities reportedly do not adequately respond to such attacks.7
For example, prior to 2005, Evangelicals and Pentecostals in
various regions reported the vandalizing and burning of prayer
houses, including in Ivanov's hometown of Chelyabinsk, where
authorities made no arrests.8
Ivanov's memories of problems for his church date back to
March 1996, when he learned that members of the Russian Orthodox
Church intercepted Pentecostal literature sent from France. Then,
on January 7, 1997 (Orthodox Christmas), he heard that a group of
"Barkashovtsy" — Russian nationalist, neo-Nazi "skinheads"9 — had
burned his church's office and beat up the night watchman. Later,
on May 30, 1999, while Ivanov and his parents were visiting their
5
United States Department of State, Bureau of Democracy,
Human Rights and Labor, Russia: International Religious Freedom
Report 1 (Sept. 2006), available at
http://www.state.gov/j/drl/rls/irf/2006/71403.htm [hereinafter 2006
Religious Freedom Report].
6
2006 Country Report at 1.
7
United States Commission on International Religious Freedom,
Policy Focus on Russia 14 (Fall 2006) [hereinafter Policy Focus].
8
2006 Religious Freedom Report at 15.
9
Henceforth, "skinheads," for ease of reference.
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pastor's home for Pentecost, a mob led by a disgraced Russian
Orthodox priest attacked the home, beating the pastor's wife,
looting the premises, and burning religious literature.
Ivanov testified that he was personally mistreated
because of his religious beliefs on several occasions. First, on
November 21, 1999, during Ivanov's baptism into the Pentecostal
faith on his sixteenth birthday, bystanders heckled and threw
bottles at celebrants during the initial ceremony at a public pool.
That evening, while rites continued at the prayer house, skinheads
burst in, shot rubber bullets, confiscated literature, and
ransacked the house.
Second, on April 20, 2002, the anniversary of Hitler's
birth, skinheads attacked Ivanov as he left the church-run drug
rehabilitation center where he volunteered.10 His church operated
the center as part of its mission of public service. Patients
10
Ivanov recounts that the skinheads were often more
aggressive around the time of "Hitler's Birthday." He cites April
20, 2000, as another example of when skinheads attacked a
Pentecostal prayer house. They wreaked havoc and covered the walls
with insulting slurs and swastika graffiti. Luckily, no
parishioners were present or harmed.
Ivanov's assertion that skinheads commemorate "Hitler's
Birthday" is confirmed by the 2006 Country Report, which
highlighted a display of Nazi posters on April 20, 2005 as
occurring "on the anniversary of Hitler's birth." 2006 Country
Report at 21. It also reported the firebombing of a Baptist church
in Chelyabinsk and the arson of an Adventist church in another
region during that same month (though it did not specify whether
those events also occurred on April 20). Id. at 20.
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received medical treatment and followed a strict regimen of daily
bible study.
That night, as Ivanov left the center, four young
skinheads "knocked [him] down and dragged [him] 3 blocks" to a
basement where he was "chained and beaten with full plastic water
bottles." They handcuffed him, then applied an electric shock to
one hand and put cigarettes out on the other. They told him he had
two days to figure out how to close the church's "'satanic'
dispensary." The skinheads then left Ivanov for nearly three days
without food and water. His parents filed a police report, but to
their knowledge no action was taken. Fortunately, the skinheads
released Ivanov of their own accord a few days later. It was only
after Ivanov's release that he realized the drug rehabilitation
center's work interfered with the skinheads' lucrative drug trade.
Third, in February 2003, Ivanov "was summoned to the
local police department." There, a federal security service
officer identified as Major Kozlov ordered Ivanov to provide false
testimony in the prosecution of his pastor. Prosecutors accused
the pastor of using hypnosis to extort a ten-percent tithe from
congregants. Major Kozlov told Ivanov he "would be sorry for not
cooperating" with the prosecution.
A few days later, in early March 2003, four skinheads
attacked Ivanov in the lobby of his apartment building. They beat
him with batons while wearing rubber gloves, bruising his legs so
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severely that he missed school for a week. Although they wore no
uniforms, Ivanov knew they were skinheads by the weapons they used.
Because the beating occurred shortly after Ivanov's conversation
with Major Kozlov, Ivanov believes the skinheads were retaliating
against him for his refusal to testify against his pastor. Ivanov
called the police when he got back to his apartment, but no one
ever came. Ivanov did not seek further police assistance or
medical attention because he thought it would be futile.
Fourth, on April 22, 2003, unknown assailants threw
Molotov cocktails at Ivanov's home in the middle of the night.
Ivanov, his father, and his mother were home. Fortunately,
Ivanov's mother was awake and the family was able to put out the
resulting fire. That same night, the church's drug rehabilitation
center also was set on fire. Ivanov did not see the people who
threw the Molotov cocktails, but based on the perpetrators'
precision and the familiar timing of the attacks — almost exactly
one year after skinheads accosted him as he left the center and
just two days after "Hitler's Birthday" — he believes the skinheads
were again responsible. Petitioners left Russia and came to the
United States roughly one month after this incident.
In his asylum application, Ivanov stated that he feared
if he returned to Russia, skinheads would "sever[e]ly harm[] or
kill[]" him, or the federal security service would imprison him on
"trumped-up" charges or confine him to a mental facility under a
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false diagnosis, because of his membership in a "non-traditional"
sect and his refusal to testify falsely against his pastor. At a
hearing before the IJ in July 2007, after recounting his past
mistreatment, Ivanov said he feared if he returned to Russia, "the
same thing would [happen]." He also said he would "continue to be
[subject] to the same lawlessness that [he] felt before."
When Ivanov's attorney asked if he had any fear of the
government, Ivanov explained that it was "a well-known and
established fact that . . . the skinheads . . . are connected to
the government structure." He elaborated that because he "look[ed]
like [a] Russian" and his religious beliefs were not outwardly
apparent, the only way the "young kids" who attacked him would know
that he did not fit their view of a "pure nation [or] pure race in
Russia" is by the guidance or influence of "somebody from above."
In July 2009, the IJ delivered an oral decision denying
Petitioners relief. Although the IJ found Ivanov's testimony to be
credible and generally consistent, he determined that Ivanov "fell
short of credibility" where he drew "conclusions . . . from the
facts" and engaged in "speculation . . . with regard to the abusive
activity of the skinheads." Accepting for the sake of discussion
that Ivanov's experiences amounted to past persecution, the IJ
dismissed Ivanov's assertion that the skinheads were connected to
government authorities as mere supposition without record support.
He further concluded that Ivanov's admission that "the skinheads
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wanted to close the [church's] drug rehabilitation center because
it was having a negative effect on their drug trade" meant that
"[t]he motivation of the skinheads was an intention to profit by
criminal activity, rather than to punish [Ivanov] and others for
engaging in the Pentecostal faith." Finally, he found that
Ivanov's fear of return to Russia was based on "the general
lawlessness of the place," rather than abuse due to his religion.
As a result, the IJ found that Ivanov had not shown he
experienced persecution "on account of" a protected ground, and
thus he failed to qualify for asylum. Ivanov therefore also fell
short of the more stringent standard for withholding of removal.
Finally, Ivanov's claim for CAT relief failed because there was no
evidence that Ivanov had been or would be tortured at the hands of
public officials or with the government's acquiescence if he
returned to Russia. The IJ consequently denied Petitioners'
applications but granted them voluntary departure.
Petitioners appealed. On review, the Board of
Immigration Appeals (BIA) affirmed the IJ's decision without
opinion. This appeal followed.
Standard of Review
Ordinarily, we review decisions of the BIA, not the IJ.
Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010). However,
where, as here, "the BIA summarily affirms the IJ's asylum
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determination, . . . we review the IJ's decision as if it were the
decision of the BIA." Id.
We review an IJ's findings of fact, including the
determination of whether persecution occurred on account of a
protected ground, under the familiar and deferential substantial
evidence standard. Lopez de Hincapie v. Gonzales, 494 F.3d 213,
217 (1st Cir. 2007). Under this rule, we respect the IJ's findings
if "supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Larios, 608 F.3d at 107
(quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). However, "our deference is not unlimited,"
and "we may not affirm [the IJ's findings]" if "we cannot
conscientiously find that the evidence supporting [them] is
substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to the
[IJ's] view." Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir.
2009) (citations omitted) (internal quotation marks omitted).
Indeed, we are obligated to reject the IJ's findings if a
"reasonable adjudicator would be compelled to conclude to the
contrary." Precetaj v. Holder, 649 F.3d 72, 75 (1st Cir. 2011)
(quoting 8 U.S.C. § 1252(b)(4)(b)).
Discussion
We begin with a brief overview of pertinent asylum law.
To qualify for asylum, an alien must establish that he is a
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refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is
unable or unwilling to return to his homeland "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." 8 U.S.C. § 1101(a)(42). Proof of
past persecution creates a presumption of a well-founded fear of
future persecution that the government may rebut. Harutyunyan v.
Gonzales, 421 F.3d 64, 67 (1st Cir. 2005); see also 8 C.F.R. §
1208.13(b)(1).
Persecution is not defined by statute, but we know that
it requires "more than ordinary harassment, mistreatment, or
suffering." Lopez de Hincapie, 494 F.3d at 217. To constitute
persecution, abuse "must have reached a fairly high threshold of
seriousness, as well as some regularity and frequency." Rebenko v.
Holder, 693 F.3d 87, 92 (1st Cir. 2012) (quoting Alibeaj v.
Gonzales, 469 F.3d 188, 191 (1st Cir. 2006)) (internal quotation
marks omitted).
Persecution also "always implies some connection to
government action or inaction," whether in the form of direct
government action, "government-supported action, or government's
unwillingness or inability to control private conduct." Sok v.
Mukasey, 526 F.3d 48, 54 (1st Cir. 2008) (citations omitted)
(internal quotation marks omitted); see also Burbiene v. Holder,
568 F.3d 251, 255 (1st Cir. 2009). Local authorities' failure to
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respond to prior persecution may demonstrate a government's
unwillingness or inability to control persecutors. Cf. Ortiz-
Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (quoting
Harutyunyan, 421 F.3d at 68) ("In determining whether a government
is willing and able to control persecutors, . . . a prompt response
by local authorities to prior incidents is 'the most telling
datum.'").
For purposes of asylum, an alien must also demonstrate
that the persecution he experienced occurred "on account of" a
statutorily-protected ground. Lopez de Hincapie, 494 F.3d at 217.
To meet this "nexus" requirement, an alien must provide sufficient
evidence of an actual connection between the harm he suffered and
his protected trait. Id. at 217-18. This does not require him "to
identify [his] antagonists with absolute certainty," id. at 219, or
"to show that the impermissible motivation was the sole motivation
for the persecution," Sompotan v. Mukasey, 533 F.3d 63, 69 (1st
Cir. 2008) (citing In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996))
(emphasis added). Rather, he must demonstrate only "that the
persecution was based, 'at least in part,' on an impermissible
motivation." Id. (quoting Sanchez Jimenez v. U.S. Att'y Gen., 492
F.3d 1223, 1232-33 (11th Cir. 2007)).
In many asylum cases, the central issue is whether the
applicant's story of past abuse is credible. Precetaj, 649 F.3d at
-12-
76. The IJ has "considerable latitude in evaluating credibility,"
and its assessment receives substantial weight. Id.
In this case, the IJ found that Ivanov's testimony about
the mistreatment he experienced was credible, generally internally
consistent, and consistent with the record. Based on this
testimony, the IJ observed it was "a close question" as to whether
Ivanov established past persecution, but assumed for the purpose of
discussion that he had done so. Relying on the IJ's credibility
determination, we find that Ivanov met the past persecution
threshold.
As outlined above, Ivanov testified about four specific
occasions of mistreatment because of his Pentecostal faith within
a four-year period: (1) when skinheads violently interrupted his
baptism ceremony at a prayer house in November 1999; (2) when
skinheads attacked him as he left the church-run drug
rehabilitation center where he volunteered, beat him up, handcuffed
and shocked him, and left him in a basement for three days without
food and water in April 2002; (3) when skinheads attacked him in
his apartment lobby a few days after he refused to comply with a
federal security officer's forceful request that he testify against
his pastor in March 2003; and (4) when unidentified assailants
launched Molotov cocktails at his home in April 2003.
Ivanov also testified to a history of mistreatment of his
congregation reaching back to his youth, including the repeated
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confiscation of religious literature, looting and burning of prayer
houses, and violence against church members. Ivanov's testimony
was consistent with U.S. State Department human rights reports
describing the mistreatment of Pentecostals and persons of other
minority religions in Russia, including incidents occurring on or
around the anniversary of Hitler's birth.11
Considered together, these events suggest a pattern of
escalating abuse directed at Ivanov beginning the day he was
baptized and continuing until he left the country. The harm Ivanov
suffered, particularly during his three-day detention in April
2002, rose above "ordinary harassment, mistreatment, or suffering."
See Sok, 526 F.3d at 54 (six events occurring over the course of
four years, considered together, suggested a pattern of abuse,
where the most serious incident involved a three-day detention).
Ivanov's mistreatment occurred regularly and with some frequency
for four years. Viewed within the broader context of intolerance
and abuse of Pentecostals in Russia as documented in the U.S. State
Department human rights reports, these incidents reach the "fairly
high threshold of seriousness" required of persecution. See
Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir. 2008) ("Common
sense suggests that larger social, cultural, and political forces
can lend valuable context to particular incidents and, thus, can
11
See 2006 Country Report at 1, 18-22; 2006 Religious Freedom
Report at 9-15.
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influence the weight that a factfinder may assign to those
incidents.").
Seen in this context, these abuses also demonstrate the
requisite nexus to government action or inaction. Here, Ivanov
testified that his parents contacted the police when skinheads
kidnapped him for three days in April 2002, but no follow-up action
was taken. There is nothing in the record to suggest that Ivanov's
abusers were ever apprehended, punished, or even looked for, in
spite of having severely beaten and detained him for three days.12
This is consistent with reports that local authorities do not
adequately respond to attacks against members of minority religious
communities, including Pentecostals.13
12
We do not, as the dissent suggests, fault the police for not
finding Ivanov during the days he was detained. We are certainly
aware that even the best police work will not always enable police
to halt a criminal in the act. However, here, there is no evidence
of the police either seeking Ivanov while he was kidnapped or
contacting Ivanov after he was released to try to find his
attackers or to ensure his protection from future violence. We
consider this to be the very definition of police inaction.
13
Policy Focus at 14 (citing, inter alia, an attack by youths
following a Pentecostal service in 2006 where authorities failed to
act). Indeed, one of the U.S. Commission on Religious Freedom's
key concerns about Russia is "[t]he rise in xenophobia and ethnic
and religious intolerance, resulting in an increased number of
violent attacks and hate crimes, and the government's failure to
address this serious problem adequately." Id. at 3. Their report
details a range of attacks motivated by religious or ethnic hatred
and the authorities' lackluster responses, such as classifying hate
crimes as mere "hooliganism." Id. at 3-6. The 2006 Country Report
likewise noted that while "[a]uthorities usually investigated
incidents of religious vandalism and violence, . . . arrests of
suspects were extremely infrequent and convictions were rare."
2006 Country Report at 20.
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Furthermore, skinheads attacked Ivanov in March 2003 only
days after a federal security officer tried to intimidate him into
testifying against his pastor. This fits with accounts that
members of the federal security service "increasingly treat[] the
leadership of some minority religious groups as security threats."14
It also aligns with religious leaders' apprehensions "that Russian
government officials provide tacit or active support to a view held
by many ethnic Russians that Orthodoxy is the country's so-called
'true religion.'"15 Moreover, it shows that local authorities have
significant opportunities to restrict individuals' religious
freedoms, leading to great variation between the laws on the books
and national policies on the one hand, and the on-the-ground
reality on the other.16
Ivanov contacted the police immediately after the March
2003 attack, but again no one came to his aid. As in April 2002,
there is no evidence that the police made any efforts to apprehend
or punish Ivanov's attackers. It is no wonder Ivanov thought
further attempts to elicit police assistance would be "futile."
Although the IJ did not credit Ivanov's assertion that
skinheads were "used by the police as surrogates" or "aided and
abetted by the authorities," Ivanov was not required to make such
14
2006 Religious Freedom Report at 1.
15
Policy Focus at 4.
16
2006 Country Report at 18-19.
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a showing to qualify for asylum. Ivanov had only to establish that
the government was unable or unwilling to control the skinheads'
actions, see Sok, 526 F.3d at 53, and it appears clear from the
record that this is the case. Local authorities either failed to
take action against, or perhaps even supported, Ivanov's
persecutors. Their failure to respond signals their unwillingness
or inability to control Ivanov's persecutors.17 Cf. Ortiz-Araniba,
505 F.3d at 42. Accordingly, we make explicit what the IJ assumed
and hold that Ivanov demonstrated past persecution linked to
government action or inaction.
We next turn to the question of nexus to a protected
ground. Although the IJ was willing to accept that Ivanov proved
past persecution, he found that Ivanov did not establish a
sufficient connection between the abuse he suffered and his
religion. As set out above, the IJ provided two reasons for his
finding: (1) he interpreted Ivanov's admission that skinheads
opposed the drug rehabilitation center because of its negative
impact on their drug trade as an indication that they were not
punishing Ivanov for engaging in his Pentecostal faith; and (2) he
17
The dissent goes out of its way and far beyond the record
to say we are assuming that only actual arrests by government
authorities — in Russia or the United States — demonstrate their
willingness or ability to control religious persecutors. We said
no such thing. The evidence here not only shows a failure to
arrest, but a total failure to investigate or follow up with Ivanov
on any of the occasions he was attacked. This utter lack of
intervention or action compels us to conclude Ivanov cannot live
safely in Russia without facing persecution.
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concluded that Ivanov's fear of return to Russia was based on "the
general lawlessness of the place, rather than mistreatment on
account of" his religion. Considering the record as a whole, we
are unable to find that either of these rationales or the IJ's
ultimate determination was "supported by reasonable, substantial,
and probative evidence."18
First, the IJ's fixation on the skinheads' drug trade to
the exclusion of any other motivation is misguided on principle and
on fact. As a matter of principle, we do not require an alien to
show that an impermissible motivation was the sole motivation for
his persecution. Sompotan, 533 F.3d at 69. We have noted that
aliens "seldom know the 'exact motivation[s]' of their persecutors
and, of course, persecutors may often have more than one
motivation." Id. (alteration in original) (quoting In re S-P-, 21
I. & N. at 490). Our sister circuits agree. See, e.g., Menghesha
v. Gonzales, 450 F.3d 142, 148 (4th Cir. 2006); Mohideen v.
Gonzales, 416 F.3d 567, 570 (7th Cir. 2005); Lukwago v. Ashcroft,
329 F.3d 157, 170 (3d Cir. 2003); Girma v. Immigration &
Naturalization Serv., 283 F.3d 664, 667 (5th Cir. 2002); Borja v.
18
Though the IJ did not point this out as a concern, we note
preliminarily that Ivanov identified his antagonists with
sufficient certainty. Ivanov's use of the term "skinheads" to
describe his attackers implies that they shared the common
appearance symbolic of their group membership. Though they did not
wear uniforms, Ivanov could also identify them by their choice of
weapons: rubber batons and gloves in March 2003 and Molotov
cocktails in April 2003.
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Immigration & Naturalization Serv., 175 F.3d 732, 735-36 (9th Cir.
1999) (en banc); Osorio v. Immigration & Naturalization Serv., 18
F.3d 1017, 1028 (2d Cir. 1994).
The facts of this case illustrate the need for this
principle. The IJ's determination that the skinheads were
motivated only by their "intention to profit by criminal activity"
ignores both the skinheads' overarching mission and the greater
pattern of religiously-motivated abuse that Ivanov suffered. As
Ivanov noted, the skinheads' raison d'etre is to "purify the
Russian nation." They are notoriously xenophobic, racist, anti-
Muslim, anti-Semitic, and, most relevantly here, intolerant of
"adherents of 'foreign' religions."19 The skinheads who attacked
Ivanov in April 2002 may indeed have had an economic interest in
closing the church's drug rehabilitation center. But they also, at
their core, undoubtedly opposed the center's religious mission and
methods. The center's religious message was inseparable from the
service it performed: church volunteers operated the center and
rigorous bible study was integral to patients' treatment. Indeed,
it appears that Ivanov's skinhead assailants recognized this and
gave voice to their anti-religious motivation when they told Ivanov
to find a way to close the "satanic" center. That those skinheads
may have had an additional motive for attacking Ivanov cannot
19
See 2006 Country Report at 33.
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reasonably be read to refute that they were also acting upon the
central motive underlying their group identity.
This is especially true given the other abuse that Ivanov
suffered. Remember, the April 2002 attack is only one of four
events supporting Ivanov's asylum claim. In the other instances,
Ivanov provided specific evidence of his attackers' anti-
Pentecostal motivation. For example, in November 1999, skinheads
attacked his baptism ceremony at a prayer house. In March 2003,
skinheads attacked him a few days after he refused to testify
against his pastor. In April 2003, unknown assailants threw
Molotov cocktails at his house the same night that someone attacked
the church's drug rehabilitation center. Considered in view of the
history of attacks against members of his church community and
religious intolerance in Russia at-large, a reasonable adjudicator
would be compelled to conclude that each of the attacks, including
the attack in April 2002, was based, "at least in part," on the
impermissible motivation of Ivanov's Pentecostal faith. See
Sompotan, 533 F.3d at 69.
Second, the IJ's interpretation of Ivanov's testimony
that he feared "the same lawlessness" if he returned to Russia to
mean that Ivanov feared "general lawlessness" in Russia runs
counter to the record. The IJ appears to have construed Ivanov's
statement out of context: Ivanov said he feared "the same
lawlessness" immediately after he described the specific instances
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of abuse discussed above, but the IJ took him to mean he feared
"lawlessness" in Russia generally. To the contrary, Ivanov
consistently maintained in his application and testimony that he
feared if he returned to Russia skinheads or government authorities
would harm him due to his religious beliefs.20 The IJ's monocular
focus on Ivanov's remark, to the exclusion of the balance of
Ivanov's statements alleging specific fears of targeted
persecution, is not supported by the record as a whole.
In sum, viewing the record in its entirety, including the
evidence the IJ ignored or misconstrued, and relying on the IJ's
own finding that Ivanov's testimony was generally credible, we
cannot conscientiously find the IJ's determination that Ivanov did
not establish the requisite nexus between the persecution he
suffered and his Pentecostal faith is supported by substantial
evidence. While we are mindful of the deferential nature of our
standard of review, we are also cognizant of our obligation to
reject the IJ's findings if, as here, a "reasonable adjudicator
20
There is also nothing in the record to indicate that Russia
is awash in the type of general civil strife or violence that we
have held would not qualify an applicant for asylum. See, e.g.,
López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009) ("A
country-wide risk of victimization through economic terrorism is
not the functional equivalent of a statutorily protected ground .
. . ."); Aguilar-Solis v. Immigration & Naturalization Serv., 168
F.3d 565, 572 (1st Cir. 1999) ("Danger resulting from participation
in general civil strife, without more, does not constitute
persecution.").
-21-
would be compelled to conclude to the contrary." See Precetaj, 649
F.3d at 75 (quoting 8 U.S.C. § 1252(b)(4)(b)). It is not the first
time we have rejected an IJ's findings under this standard. See,
e.g., id. at 76; Kartasheva, 582 F.3d at 105-06; Sok, 526 F.3d at
56, 58; Heng v. Gonzales, 493 F.3d 46, 49 (1st Cir. 2007);
Mukamusoni v. Ashcroft, 390 F.3d 110, 126 (1st Cir. 2004). And so
long as our review is not "a hollow exercise in rubber-stamping,"
we doubt it will be the last. See Cuko v. Mukasey, 522 F.3d 32, 41
(1st Cir. 2008) (Cyr, J., dissenting).
We therefore find that Ivanov has established his
eligibility for asylum. Accordingly, we have no need to proceed to
Petitioners' requests for withholding of removal or relief under
CAT, and we do not reach them here.
Conclusion
The order of the BIA affirming the IJ's decision is
vacated and the matter is remanded for proceedings consistent with
this decision.
-Dissenting Opinion Follows-
-22-
KAYATTA, Circuit Judge, dissenting. I respectfully
dissent because the record does not compel us to reject the factual
findings of the immigration judge. The immigration judge found
that the serious abuse and harassment to which Ivanov credibly
established he was subjected was not "on account of" his religion.
Rather, the immigration judge concluded, Ivanov faced persecution
on account of his association with a drug rehab center that posed
a threat to the skinheads' illicit drug trade. The immigration
judge also found that Ivanov failed to establish the required nexus
to government acquiescence manifest through its action or inaction.
Either of these findings, unless reversed, means that Ivanov has
failed to establish an entitlement to asylum. See López de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) ("[S]howing
a linkage to one of the five statutorily protected grounds
[including religion] is 'critical' to a successful asylum claim."
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)));
Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005)
("[P]ersecution always implies some connection to government action
or inaction.").
As we have previously held, the question of the
persecutor's motivation generates a "fact-specific" inquiry. López
de Hincapie, 494 F.3d at 218. Similarly, the question of whether
Ivanov established a connection between the government and his
-23-
abuse is also a finding of fact. See Harutyunyan, 421 F.3d at
68. Our review of both findings is therefore limited by the
"highly deferential" substantial evidence test. Larios v. Holder,
608 F.3d 105, 107 (1st Cir. 2010). That test requires that we
defer to the immigration judge's findings of fact as long as those
findings are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. (quoting Elias-
Zacarias, 502 U.S. at 481). As we observed more recently, in
practical terms, the test turns on whether we are "compelled to
conclude to the contrary." Precetaj v. Holder, 649 F.3d 72, 75
(1st Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).
A. There Is Substantial Evidence to Support the Finding of Fact
That Ivanov Was Not Persecuted on Account of His Religion and
Has Not Established a Realistic Risk of Such Persecution in
the Future.
I begin by reviewing Ivanov's testimony, which supports
the factual finding that the abuse visited on (or feared by) him
was not on account of his religion. I then address the arguments
advanced by the majority for finding this evidence insubstantial.
1. Ivanov's Own Testimony Directly Supports the Finding.
This is not a case in which the immigration judge
stretched to draw inferences to support a conclusion in the face of
direct evidence to the contrary. Instead, this is a case in which
the direct evidence substantially and heavily supported the finding
-24-
that Ivanov was not persecuted on account of his religion. That
evidence is as follows:
The skinheads who assaulted Ivanov in 2002 and 2003 were
in the illegal drug trade, while Ivanov worked at a drug rehab
center that, he claims, possessed evidence of the skinheads'
illegal activity and, in any event, cut into their business. When
the skinheads kidnapped Ivanov in April of 2002 they did so as he
left the rehab center. They never demanded that he change his
religion, or stop going to his church. To the contrary, their
demands focused exclusively on the rehab center.
On direct exam, Ivanov volunteered the following
explanation of why the skinheads locked him up: "they wanted me to
shut down the operation of this rehab and because of that they
locked me up in the basement." On cross, Ivanov both reinforced
his testimony that the skinheads wanted the drug rehab center
closed because it hurt their business, and unreservedly agreed that
the center's Pentecostal affiliation was not what garnered the
skinheads' opposition:
Q: Sir, you testified that the skinheads that you say
assaulted you when you were leaving the rehabilitation
center wanted you to close the clinic or the center and
you say in your asylum application that these skinheads
had a very lucrative drug business, drug sale business
and you also testified today that these skinheads were
losing money because of the drug rehabilitation center.
That was because the goal of the center was to try and
help people get off drugs. Is that correct?
A: Yes.
-25-
Q: So they didn't want the center shut down because it
was a Pentecostal center. They wanted it shut down
because they were losing drug sales, correct?
A: That is absolutely correct because these people have
not a single notion about religion, but any church
whether it be Protestant or Catholic it will also be on
opposite side against the drugs.
2. The Evidence Relied on by the Majority is Either
Conjectural or, In Any Event, Insufficient to Compel
Reversal.
The foregoing evidence should be enough by itself to
support the decision of the immigration judge, even if the evidence
to the contrary cited by the majority were as substantial as
described. In fact, for the following reasons, much of that
contrary evidence is based on conjecture and is otherwise
reasonably viewed as not especially substantial.
The majority points to a second attack on Ivanov that
occurred almost a year after the skinheads delivered their
narrowly-focused demand that the rehab center be shut down. There
is no evidence (much less compelling evidence) that the attack was
on account of Ivanov's religion. The majority nevertheless guesses
that the attack was at the behest of the police, who had told
Ivanov "days"21 previously that he would regret not providing
testimony to support charges that his pastor was hypnotizing his
parishioners into tithing ten percent of their income to the
Pentecostal church.
21
Ivanov spoke with the police officer in the "end of
February" and was beaten on March 1st.
-26-
This conjecture falters on two levels. First, if
conjecture is the game, then it would be equally plausible to
suggest that the skinheads attacked Ivanov when they did because it
was almost one year after they delivered their own unmet demand
that he close the rehab center. In short, the skinheads had--and
expressed--their own reasons and there is no need to imagine that
the police put them up to their crime. Additionally, even if one
were to assume that the police officer and the skinheads were in
cahoots, there is no reason that one must also assume that
religious animus played any role in the relationship. Certainly
the gains of an illicit drug trade would provide an equally if not
more customary and plausible motivation. The pastor, after all,
actually ran the rehab center. Ivanov himself plainly implied such
a drug-centered nexus:
[I]t's a well-known and established fact that, you know,
all the skinheads and similar organizations are connected
to the government structure. For example, you know, our
attempt to run this rehab for drug addicts, you know, was
met with such resistence on their part and it's a well-
known fact also that, you know, they profit from selling
drugs . . . .
While Ivanov's statement is not dispositive, it leans towards
suggesting that money, rather than religious animus, was a common
interest shared by the skinheads and the police. Certainly the
immigration judge was not required to speculate to the contrary.
The majority also points to the final attack on Ivanov,
the 2003 firebombing of the apartment he shared with his parents.
-27-
There is nothing about this attack to compel the conclusion that it
was motivated by religious animus. It actually coincided with an
attack on the rehab center that same day. The rehab center and
Ivanov (the person the skinheads knew worked there) were therefore
again the common factor in the skinheads' selection of targets.
This is not to say that there was no evidence at all in
Ivanov's favor. The majority notes that the skinheads once
referred to the rehab center as "satanic" when they held him
prisoner. But a single use of a religiously-charged word does not,
on these facts, compel us to find the skinheads' abuse of Ivanov
was on account of his religion. See Sompotan v. Mukasey, 533 F.3d
63, 70 (1st Cir. 2008). In Sompotan we rejected the argument that
the immigration judge was compelled to conclude that "hooligans"
who robbed the petitioners and their restaurant yelling "Chinese
bastard, crazy Christian, crazy Chinese" were motivated by
religious and racial animus rather than by a desire to rob, noting
that "[t]he fact that hooligans would stoop to the level of using
racial slurs is, unfortunately, not surprising." Id. at 70.
Indeed, as noted above, Ivanov himself did not regard his
kidnapping as religiously motivated. How then can a court say that
the immigration judge was compelled to disagree?
The majority also correctly notes that there is evidence
in the record of earlier attacks not limited in their apparent
focus to rehab center activities and personnel. These attacks
-28-
occurred in 1997 (on the congregation's office), 1999 (on a
Pentecost service at Ivanov's pastor's house and on Ivanov's
baptism), and 2000 (on a Pentecostal prayer house). The majority's
view presumes that the abuse of Ivanov several years later was a
refocusing of these earlier, religiously-motivated attacks directed
at the church. Under this view, the skinheads attacked the rehab
center because it was both a visible symbol of the church and a
threat to their drug trade. This view is certainly plausible. I
am at a loss, though, to see how it is so compelling that it
requires rejection of the alternative view adopted by the
immigration judge.
There is no evidence compelling us even to conclude that
the same individuals were behind the earlier and later attacks,
much less that their motivations remained constant. Indeed, there
is no evidence that the "skinheads" involved in these various
incidents are all part of a single group with a unified and
disciplined mission and motivation.22 As chronicled above, those
individuals behind the later attacks expressly limited their
demands to ending the drug rehab activity. And certainly Ivanov's
experience in dealing with those assailants persecuting him
suggested that greed was their monocular focus. As we held before,
22
Indeed, Ivanov described the skinheads who kidnapped him
as "very young kids" and said that "some of them" were "around 16."
This suggests that they may well not have been personally involved
in incidents several years before.
-29-
where the evidence suggests a plausible motivation not within the
ambit of the statute's protection, we defer to the choice made by
the immigration judge to deny asylum on that basis. See López de
Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007).
The majority also relies on evidence that skinheads in
Russia often possessed and acted on religious animus and that their
activities often spiked on the anniversary of Hitler's birth. But
if the skinheads who kidnapped and later beat Ivanov shared that
religious animus, for some unknown reason they were remarkably
reluctant to voice such views to Ivanov, while nevertheless making
forcefully clear their strong desire to profit from and protect
their drug trade. The factual finding that the abuse here,
directed at the rehab center and its worker, was motivated only by
the latter desire is a type of choosing among plausible scenarios
that is within the purview of the immigration judge, not a
reviewing court. See Amouri v. Holder, 572 F.3d 29, 34 (1st Cir.
2009) ("The mere fact that the extortionists were associated with
an extremist group [did] not compel" us, on its own, to reverse a
finding that petitioner's persecution was not on account of a
-30-
protected characteristic because "fanaticism and a love of money
are not mutually exclusive.").23
The immigration judge who heard this case was hardly out
to get Ivanov. He expressly found Ivanov credible in his
recounting of events he had witnessed. The immigration judge was
also willing to assume that the instances of abuse to which Ivanov
was subjected over seven years rose to the very high level of
actual persecution. Cf. Topalli v. Gonzales, 417 F.3d 128, 129-32
(1st Cir. 2005) (no persecution where petitioner was arrested,
detained, and beaten over the course of three years but never
required medical attention and was not abused for three years
before leaving the country); Bocova v. Gonzales, 412 F.3d 257, 261-
63 (1st Cir. 2005), superseded in unrelated part by 8 C.F.R.
§ 1240.26(i), as described in Garfias-Rodriguez v. Holder, 702 F.3d
504, 524 (9th Cir. 2012) (two beatings twenty-five months apart,
one of which caused petitioner to lose consciousness and require
hospitalization, insufficient to compel a finding of persecution).
The majority readily adopts the immigration judge's assumption of
persecution and his finding that Ivanov was credible in relating
23
Nor can the majority's citations to country reports
containing evidence that religious animus sometimes motivates
persecution in Russia compel a finding that it did so in this case,
where the petitioner has described a different motivation. See
Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009) ("Without some
specific, direct, and credible evidence relative to her own
situation, there is an insufficient nexus between the petitioner
and the general unrest depicted in the country conditions
reports.").
-31-
facts, but then proceeds to criticize the immigration judge's
reasoning simply because he also chose to believe Ivanov's
testimony that the particular people who attacked him "have not a
single notion about religion," and were instead motivated by
protecting their drug trade. The immigration judge witnessed the
testimony, heard Ivanov's tone, saw his facial expressions, and
concluded that the testimony I have quoted above was due great
weight.
Nor can the State Department's Country and Religious
Freedom Reports perform the work assigned to them by the majority.
One would think from reading the majority's description of the
reports that Pentecostals could live nowhere in Russia without
facing a realistic risk of actual persecution. The majority
presumably proffers such a description because the absence of such
a country-wide hazard could by itself defeat Ivanov's asylum
request. Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007)
(asylum application will be denied "if it is shown by a
preponderance of the evidence that '[t]he applicant could avoid
future persecution by relocating to another part of the applicant's
country . . . and under all the circumstances, it would be
reasonable to expect the applicant to do so.'" (quoting 8 C.F.R.
§ 1208.13(b)(1)(i)(B)) (alteration in original)).
The 2006 Country Report, however, reports no acts of
actual persecution of Pentecostals throughout all of Russia in the
-32-
previous year. Even reports of lesser degrees of harassment of
Pentecostals decreased during 2006, following the appointment of
Pentecostal Bishop Sergey Ryakhovskiy to Russia's Public Chamber.24
United States Department of State, Bureau of Democracy, Human
Rights, and Labor, Country Report on Human Rights Practices in
Russia at 20 (Mar. 2007), available at http://www.state.gov/j/
drl/rls/hrrpt/2006/78835.htm [hereinafter 2006 Country Report].
These reports belie the notion that Ivanov, merely because he is
Pentecostal, cannot live in Russia without a risk of actual
persecution.
B. There Is Sufficient Evidence to Support the Finding of Fact
That There Was an Insufficient Nexus between the Russian
Government and the Abuse of Ivanov.
The law also requires that Ivanov prove that the persons
who persecuted him were "aligned with the government" or that the
government was "unwilling or unable to control [the violence.]"
Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir. 2009). The
majority's conclusion that Ivanov made such a showing is based
partly on conjecture, appears to be the product of stereotypical
thinking about Russian law enforcement bereft of any sense of
context, and certainly fails to provide a compelling case for
24
The Public Chamber was established to represent civil
society and to foster tolerance. It was directed by President
Putin. United States Department of State, Bureau of Democracy,
Human Rights, and Labor, International Religious Freedom Report for
Russia at 13 (Sept. 2006), available at http://www.state.gov/
j/drl/rls/irf/2006/71403.htm [hereinafter 2006 Religious Freedom
Report].
-33-
rejecting the contrary conclusion of the immigration judge, who
found Ivanov's claims in this regard to rest on "speculation."
First, the majority implies that the kidnapping of Ivanov
was aided by the police merely because the kidnapping occurred some
uncertain number of days after the police told him that he would be
sorry for refusing to accede to a police officer's demand that he
provide incriminating testimony in an investigation of his pastor.
I addressed this conjecture in Part A2 of this opinion.
Second, the majority cites excerpts from State Department
reports recounting other incidents in Russia (a country of roughly
143 million people, 2006 Country Report at 1) where the authorities
were, in the majority's words, "lackluster" in their responses to
reports of religious attacks and that arrests were "extremely
infrequent and convictions rare." 2006 Country Report at 20. The
majority's use of such excerpts is selective, omitting, for
example, the fact that the 2006 and 2007 Religious Freedom Reports
describe in detail only a single incident, in a nation containing
approximately 1,500 Pentecostal groups, 2006 Religious Freedom
Report at 1, of violence against individual Pentecostals which
could plausibly rise to the serious level of abuse sufficient to
support an asylum claim. That incident was an attack by "youths"
in early 2005 on Pentecostals holding a protest in Moscow. 2006
Country Report at 20. There is no indication in the record of
whether this incident was investigated expeditiously. Id. There
-34-
are no reports of individual Evangelicals, or any Christians,
suffering abuse comparable to that which Ivanov described being
directed at him personally, let alone evidence that government
officials acquiesced to such abuse.
The same report also states that in February of 1997
Russian authorities obtained the convictions of five skinheads for
an anti-Semitic murder, and that "[f]ederal and regional officials
participated actively in, and in many cases strongly supported, a
range of government and NGO-organized programs to promote
tolerance." United States Department of State, Bureau Democracy,
Human Rights, and Labor, International Religious Freedom Report for
Russia at 9 (Sept. 2007), available at http://www.state.gov/j/
drl/rls/irf/2007/90196.htm. The same report further relates that
in late 2006 a Russian court ruled in favor of the Pentecostal
Church's ability to register its property, and the group reported
no further harassment. Id.
Third, the majority's heavy reliance on the fact that
Ivanov was unaware of any investigations or arrests arising out of
the crimes he described evidences a lack of perspective and
context. Certainly the failure of the police to interview Ivanov
after he was released by his captors could support a finding that
their investigation after the fact was lackluster. On the other
hand, the actual record is that the police told Ivanov's parents
that they would look for him when his parents reported him missing.
-35-
The fact that they did not find him within two days in a city of
over one million people, Library of Congress, Russia: A Country
Study (1998), available at http://lcweb2.loc.gov/frd/cs/rutoc.html,
hardly proves anything. And the unstated assumption that Ivanov
would have been aware of investigations concerning the other events
he described is not compelling. All in all, this is not a record
that compels a finding that the police were aligned with the people
who attacked Ivanov or unwilling or unable to do their jobs.
To put all of the foregoing in perspective and provide
the context missing from the majority's discussion, one need only
look at this country. According to the October 1998 Report of the
National Church Arson Task Force, in less than four years there
were 670 arsons, bombings or attempted bombings of houses of
worship in the United States. National Church Arson Task Force,
Second Year Report for the President (Oct. 1998), available at
http://www.justice.gov/crt/church_arson/arson98.php. Even in the
wake of a nationally coordinated investigative effort, arrests
were made in connection with only 230 of the 670 incidents (a
higher rate than typical for similar crimes, according to the Task
Force). Id.
I do not presume from these facts that churchgoers in the
United States face persecution with government acquiescence. To
the contrary, if Ivanov cited these facts to suggest that he could
not safely live in the United States without facing persecution, I
-36-
hope that we would reject such a suggestion. And when we have a
record reporting no higher rates of bombing or unsolved bombings in
Russia, and an unsolved incident of abuse of a drug rehab worker by
drug dealers in Chelyabinsk (a city of more than 1 million people),
I do not see why an immigration judge cannot find as a matter of
fact that Ivanov does not face the requisite risk of government
related persecution should he return to Russia.
Of course, I am now arguing the weight of the facts,
which I need not do. All I need show is that the facts are not so
hefty and one-sided as to compel the conclusion that they must be
weighed as the majority weighs them.
C. Conclusion
At base, the majority appears to act on a conviction that
if many so-called skinheads possess a strong animus against
Pentecostals as manifest in prior acts of harassment and abuse, and
Pentecostals operate a rehab center for religious reasons using
religious methods, then any skinheads' later abuse of operators of
that center must necessarily be, at least in part, on account of
the skinheads' religious animus. I fear that such a conviction
under-appreciates the complexities of human behavior, and
substitutes stereotypical thinking for allegiance to the actual
facts as described by Ivanov himself. Similarly, the majority
fills holes in Ivanov's case with conjecture about what the police
did and did not do, all resting in part on what seems to be an
-37-
unrealistic assumption about the aims and efficiency of police work
in Russia. More importantly, even accepting that conviction as
plausible, on this record it is not so compelling as to overbear
the deference due to the amply supported findings of fact by an
immigration judge who decided that Ivanov could practice his faith
in Russia without persecution on account of that faith. I must
therefore conclude that, notwithstanding our shared sympathy for
Ivanov's desire to remain in this country, the record contains
substantial enough evidence to require that we defer to the
findings of the immigration judge.
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