Tchoukreeva, Janna v. Gonzales, Alberto R. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 15, 2005
Decided October 20, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-2661
JANNA TCHOUKREEVA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A74-417-769
ALBERTO R. GONZALES,
Respondent.
ORDER
Janna Tchoukreeva entered the United States illegally in 1996, one year
after her father, Valerii Tchoukreev; both fled alleged persecution in Kazakhstan.1
Initially, Janna’s application in this country was again derivative of Valerii’s, but at
the hearing before the immigration judge (IJ) on their joint application, she elected
to apply separately on the belief that having turned 21 she could no longer be a
derivative applicant. Her application references her father’s application, and
makes no additional claims. Valerii gave nearly all of the testimony before the IJ,
including that relevant to his daughter’s application.
1
The Tchoukreevs share the same surname, but Janna uses the feminine
form of the name.
No. 04-2661 Page 2
At the joint hearing Valerii testified that he is an ethnic Tatar, while his wife
is ethnically Russian. Valerii testified that the series of abusive incidents that
prompted him to flee began in June 1995. While traveling in Kazakhstan with his
family, he said, he stopped at a rest stop for something to drink. Five Kazakh men
approached him and demanded that he purchase cigarettes for them. When Valerii
refused, they shouted anti-Russian slurs and assaulting him, breaking one of his
fingers and injuring his head before a police vehicle arrived. Two of the five
assailants were taken into custody and detained at the police station, but only for
questioning.
Valerii made an official complaint, but the other three assailants were not
taken into custody. The two assailants who had been taken into custody were
released, for lack of evidence, by September, and began threatening Valerii over the
telephone. The callers identified themselves as members of the Kazakh nationalist
Azat Party. Valerii contacted the officer in charge of his assault complaint, who
suggested that it was a “personal problem” that Valerii should handle it himself.
When Valerii persisted, the same officer told him “that no Russian has the right to
teach the Kazakh Militia how to work.” The threats continued, as callers insisted
that he drop the complaint against his assailants and leave Kazakhstan.
In September of 1995, Janna was attacked while returning home from a
sporting event. Valerii testified that Janna’s clothes were torn during the attack
and that it “was a miracle she was not raped, that she was able to escape and run
away.” Janna testified that her attackers shouted that she should tell her father
“that things are going to get even worse.” Valerii did not report the incident to the
police. Yet, despite daily telephone threats and the vandalization of his vehicle, he
did not drop the complaint he had filed after the original assault.
In early October, the attacks escalated when a group of men entered Valerii’s
apartment, vandalized it, and detained him there. The assailants threatened to kill
Valerii if he reported the break-in to the police, and demanded that he drop his
original complaint. This incident convinced Valerii to do so. Five days after the
break-in, before Valerii withdrew his complaint, his assailants took action against
him. Valerii testified that, while he was riding a bicycle to work, a van struck him
and threw him into an embankment. The occupants of the van, including one of the
men who had broken into his apartment, seized him and took him to a location he
could not identify. They repeated the demand that he withdraw his complaint and
then they beat him. The kidnappers also warned him to leave Kazakhstan within a
year “or they would kill me and my family.” After being held for “a day, or I think a
night,” his attackers drove him to the police station, where he submitted a written
request that the investigation into the June 1995 incident be abandoned. Valerii
and his family sold their apartment and moved to live with his mother while he
prepared to seek refuge abroad. During this period, telephone threats and
harassment continued, even after Valerii’s family moved in with his mother; callers
No. 04-2661 Page 3
told his mother they would burn her apartment. On December 11, 1995, Valerii fled
Kazakhstan.
Several months after Valerii departed, Janna and her mother were attacked
in a marketplace, and Janna received cranial injuries and a concussion. The details
are uncertain because at the hearing the court temporarily turned off the recording
device. Apparently, though, Valerii conceded that the attack was not related to his
troubles with the Azat nationalists, and characterized it as general hostility
towards ethnically Russian Kazakhstanis. The record does not indicate that the
Tchoukreevs reported this incident to the police.
After the close of testimony, the IJ issued a single order denying both
applications. The IJ found both Valerii and Janna credible, but noted that the
attacks on them did not constitute past persecution because they were not
“perpetrated by state agents nor by an organization that the state is unwilling or
unable to control.” The IJ distinguished between ethnic persecution and ethnic
discrimination, and concluded that Valerii and Janna suffered only discrimination.
According to the opinion, neither “the private discrimination suffered by the
respondents, nor the low-level official discrimination exemplified by the police’s
unenthusiastic investigation in to Valerii’s beating, amount to ‘persecution.’”
In June 2004, the Board of Immigration Appeals (BIA) affirmed in separate
per curiam orders for Valerii and Janna. Because the BIA adopted the IJ's opinion,
this court reviews both. See Ursachi v. I.N.S., 296 F.3d 592, 594 (7th Cir. 2002);
Pop v. INS, 270 F.3d 527, 529 (7th Cir.2001). Janna must show a well-founded fear
of future persecution if she is returned to Kazakhstan, although she can establish a
rebuttable presumption of future persecution if she can show that she suffered
persecution in the past. 8 C.F.R. § 208.13(b).
Janna argues that she suffered past persecution as a consequence of the
harassment campaign waged against her father. This campaign consisted of
abusive telephone calls, vandalism of the family vehicle, and physical violence
directed against her father. Janna suffered direct physical violence related to these
events only once, when she was seized by assailants in an attempt to coerce her
father into dropping his police complaint. She also suffered another beating at the
marketplace, although she concedes that this was unrelated to her father's
complaint to the local police. Janna does not contend that the assailants in either
incident were agents of the state.
Persecution “is something a government does, either directly or by abetting
(and thus becoming responsible for) private discrimination by throwing in its lot
with the deeds or by providing protection so ineffectual that it becomes a sensible
inference that the government sponsors the misconduct.” Hor v. Gonzales, 400 F.3d
482, 485 (7th Cir. 2005). Simple discrimination, however, is not persecution;
No. 04-2661 Page 4
neither “a pattern of private discrimination or of low-level, ad hoc, official
discrimination” will support a claim for asylum. Bucur v. I.N.S., 109 F.3d 399, 403
(7th Cir. 1997). In order to constitute persecution, Janna needed to show that the
government of Kazakhstan was unable or unwilling to control the violence directed
against her family. See Guchshenkov v. Ashcroft, 366 F.3d 554, 559 (7th Cir.
2004); Bace v. Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir.2003).
Janna’s only evidence on this point is the apparently lackadaisical efforts of
law enforcement to prosecute her father's original attackers. That the Kazakh
nationalists were intent on forcing Valerii to drop his police complaint, however,
suggests that the government was both able and willing to do something about his
situation. Since Valerii did drop his complaint, it is impossible to say whether the
police would have pursued their investigation, so there is no evidence that
authorities were indifferent to her plight. While Valerii's testimony suggests that
the authorities were reluctant to take action on his complaint, Janna has not shown
that they were completely unwilling or unable to assist her.
Since Janna’s claimed fear of future persecution rests entirely on her claim of
past persecution, the above analysis of past events in Kazakhstan is dispositive.
“The BIA's findings will be rejected only if the evidence is so compelling that no
reasonable factfinder could fail to find the requisite fear of persecution.” Awad, 328
F.3d at 341 (citation omitted). A reasonable factfinder could conclude, as the IJ did,
that Janna does not fear future persecution. The petition for review is DENIED.