Igor Bondarenko v. Eric H. Holder Jr. , 733 F.3d 899 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGOR BONDARENKO, No. 08-73972
Petitioner,
Agency No.
v. A096-360-042
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 4, 2013—Pasadena, California
Filed October 25, 2013
Before: Harry Pregerson, William A. Fletcher,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge W. Fletcher
2 BONDARENKO V. HOLDER
SUMMARY*
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision denying on adverse credibility
grounds an application for asylum, withholding of removal,
and protection under the Convention Against Torture by a
citizen of Russia.
The panel held that the immigration judge violated due
process by allowing the government to introduce without
prior notice a forensic report concerning a medical document
petitioner submitted and by refusing petitioner a continuance
to investigate the report. The panel further held that the due
process violation caused petitioner prejudice because the IJ’s
other grounds for finding petitioner not credible were not
supported by substantial evidence and petitioner established
past harm rising to the level of persecution.
The panel remanded to the Board for further proceedings
to allow petitioner a reasonable opportunity to investigate the
forensic report on the medical report and to present additional
evidence, as appropriate, to the IJ.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BONDARENKO V. HOLDER 3
COUNSEL
Vitaly B. Sigal (argued), Liberman & Sigal, Los Angeles,
California, for Petitioner.
Jacob Bashyrov (argued), Carl Henry McIntyre, Jr., Gary J.
Newkirk, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
Igor Bondarenko petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) denying his
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). Bondarenko
claims that he was arrested and beaten by the Russian police,
and later hit in the head so severely as to require
hospitalization, because of his political activism against the
war in Chechnya. The Immigration Judge (“IJ”) found
Bondarenko not credible, largely based on an investigative
report introduced by the government without prior notice to
Bondarenko. The report concluded that a medical document
Bondarenko had submitted in support of his hospitalization
claim was fraudulent. Bondarenko requested an opportunity
to investigate the manner in which the report had been
prepared, and to question the person who had prepared the
report. The IJ denied the request, saying that Bondarenko had
already had an opportunity to authenticate the medical
document and had failed to do so. The BIA affirmed.
4 BONDARENKO V. HOLDER
We conclude that Bondarenko was denied due process
and grant his petition. The two opinions upon which we
primarily base our decision are Cinapian v. Holder, 567 F.3d
1067 (9th Cir. 2009), and Vatyan v. Mukasey, 508 F.3d 1179(9th Cir. 2007). We note that both opinions came down after
the IJ rendered his decision, and that the opinion in Cinapian
came down after the BIA rendered its decision.
I. Background
Igor Bondarenko is a native and citizen of Russia. He
entered the United States on June 22, 2002, on a J-1 cultural
exchange visa. He filed for asylum in March 2003. The
Department of Homeland Security (“DHS”) initiated removal
proceedings in September 2003.
The following narrative is based on testimony and other
evidence provided by Bondarenko. Bondarenko was a
student at the state university in Novosibirsk in 2001 and
2002. He testified through a translator, “I was studying the
Russian language and literature and [sic] second subject was
German language.” While at the university, Bondarenko
organized what he characterized as an “anti-war, anti-military
student group” with several fellow students.
On three occasions, Bondarenko experienced problems
with Russian authorities as a result of his antiwar activities.
First, in November 2001, he participated in a small
demonstration near the military commissioner’s office in
Novosibirsk. During the demonstration, a special unit of the
police, the “Omon,” knocked Bondarenko and other
demonstrators to the ground, handcuffed them, and put them
on a bus. They were taken to a “cage” at a district police
station and held for approximately one and a half hours. The
BONDARENKO V. HOLDER 5
police questioned Bondarenko, warned him that he was
involved in “anti-government activity,” and instructed him
“not . . . to do it again.” The police fined him an amount
equivalent to five months’ average salary. They also
informed the dean of Bondarenko’s university that his
students were violating the law.
Second, on Saturday, February 23, 2002, Bondarenko
again distributed flyers, this time at a “huge” protest against
the Chechen war. As Bondarenko and several others were
packing up their car after the protest, four police officers
approached. Bondarenko recounted that the police “knocked
us on the ground . . . face[] down in the snow and they
handcuffed us and they put us in a bus that was standing
nearby . . . .” Bondarenko was taken to the central police
station and detained separately from other members of his
group. On Monday, the police took him from his cell and
asked him to admit that he and his fellow protesters were
receiving money from Chechen warlords. Bondarenko
refused to admit the charge. The police then took him back
to his cell.
On Tuesday evening, the police again took him from his
cell, took him to the same room as before, handcuffed him to
a chair, and again asked him to admit that he had been
receiving money from Chechen warlords. When Bondarenko
refused to sign a document admitting the charge, he was
knocked to the floor. Two sergeants took turns beating him
in the kidneys and legs with rubber-covered metal batons for
about thirty minutes. They then left him alone. After a time,
a captain of the Federal Security Service came in and asked
him to sign the document admitting the charge. When
Bondarenko again refused to do so, the two sergeants
6 BONDARENKO V. HOLDER
returned. This time, they beat him with batons for about an
hour.
Bondarenko was released early Wednesday morning. He
speculated that his release may have been due to a telephone
call from the “very influential” Soldiers’ Mothers
organization. After his release, Bondarenko had x-rays taken
and learned that no bones had been broken. He tried to
submit a complaint about the behavior of the police, but the
prosecutor’s office refused to accept it.
Third, on June 12, 2002, Bondarenko was present at a
demonstration of about five hundred people. While a speaker
was talking, a police captain “took the floor” and instructed
the participants to “disperse” and “break up.” About fifteen
or twenty minutes later, police arrived in “Omon” buses. The
police were “beating left and right.” While Bondarenko was
trying to protect a “short girl” who was trying to escape, the
police hit him on the head. He was “bleeding a lot,” “passed
out for a second,” and “fell down.” He was arrested and put
into one of the buses. Bondarenko and others on the bus were
sprayed with what Bondarenko believed to be tear gas.
Bondarenko and the others were taken to the central
police station. He and thirty other people were crowded into
a cell meant to hold four or five people. Because of his head
injury, he could not stand. Others in the cell asked the police
to call a doctor. After three hours, the police finally took
Bondarenko to the emergency room at a hospital, Public
Clinic No. 23. Bondarenko spent three days at the hospital.
When he was discharged from the hospital on June 15, a
“medical doctor” at the hospital gave him a document. The
document does not name Bondarenko, but it gives the dates
of admission and discharge and describes the injury as
BONDARENKO V. HOLDER 7
“closed skull-brain trauma of temporal area of medium
severity.” The document has what appears to be an official
stamp at the bottom. Bondarenko’s testimony before the IJ
was consistent with the dates and injury described in the
document.1
At the hearing, the IJ asked Bondarenko if he and his
fellow demonstrators had a permit for the November 2001
protest. Bondarenko said they did not need one because they
were not obstructing anything. Bondarenko added that he
knew “for sure” that there had been a permit for the February
2002 protest, testifying that “the permission was gotten by
Soldiers Mothers organization.” No questions were asked,
and no evidence was presented, on whether a permit was
required or obtained for the June 2002 protest.
After Bondarenko was discharged from the hospital, he
went to the university to prepare for his exams. When he
arrived, the dean informed him that he had been expelled as
a result of his continuing problems with the authorities.
Bondarenko had already received his J-1 visa authorizing him
1
The written translation of the document into English gives the date of
admission as July 12, 2002, rather than June 12, 2002. In its brief to us,
the government points out that the English translation of the document
shows an admission to Public Clinic No. 23 on July 12. If the document
actually had a date of July 12, that would be a reason to discount it, for
Bondarenko traveled from Moscow to the United States on June 22. The
English translation is an obvious mistake, apparent even to someone who
does not read Russian. The word “June” is written twice in the document
— June 12, the date of admission, and June 15, the date of discharge —
in virtually identical script. The confusion was cleared up in a preliminary
hearing before the IJ, when the Russian translator in the courtroom said
that the date on the document was June 12. The government does not
point out in its brief that the mistake in translation was corrected during
the course of the proceedings before the IJ.
8 BONDARENKO V. HOLDER
to travel to the United States. Bondarenko took the train from
Novosibirsk to Moscow on June 18, 2002. He flew to the
United States on June 22.
While Bondarenko was living in the United States, he
received a summons to appear at the Russian Ministry of
Internal Affairs. After filing for asylum, he received a second
summons requiring him to appear at the “military registration
and enlistment office.” According to Bondarenko, his
expulsion from the university “automatically” required him
to serve in the army. He believed that the police were
searching for him while he was in the United States because
he was avoiding this service and because of previous
antigovernment activities. He fears that he will be arrested if
he returns to Russia and that he will be “disappear[ed]” or
“locked up forever.”
In support of his asylum application, Bondarenko
submitted (1) the medical document he says he received on
June 15, 2002, upon his release from Public Clinic No. 23, (2)
the two summonses from the Russian government, (3) a
certificate showing that he was dismissed from the university
on June 16, 2002, and (4) screenshots of websites for the
antiwar organizations with which he worked.
The IJ held a lengthy initial hearing on May 5, 2004,
during which Bondarenko testified on both direct and cross.
At the end of the hearing, the government objected to the
documents Bondarenko submitted, on the ground that they
had not been authenticated. Bondarenko’s attorney stated
that he would not try to have the exhibits independently
authenticated because of the difficulties in doing so, but
argued that Bondarenko should be allowed to authenticate the
documents through his own testimony. The government
BONDARENKO V. HOLDER 9
stated that it wished to send several of the documents for
forensic investigation.
Bondarenko appeared briefly before the IJ on March 7,
2005, March 15, 2006, and October 18, 2006. On each of
those dates, the hearing was rescheduled, in part because the
government had not received a response to its request for
forensic investigation of Bondarenko’s documents. Finally,
on July 9, 2007, the IJ conducted a brief hearing. The
government first questioned Bondarenko about the medical
document he claimed to have been given upon his discharge
from Public Clinic No. 23. The government then produced a
report summarizing its investigation into the authenticity of
the document. The government had not previously shown the
report to Bondarenko or his attorney.
The report, dated October 18, 2006, was prepared by
United States Citizenship and Immigration Service
(“USCIS”) Assistant Stephen Smoot. The report states, in its
entirety:
On April 3, 2006 a memorandum was
received from Megan Oshiro, ACC. Los
Angeles, CA requesting that USCIS Moscow
verify the authenticity of a medical document
submitted by Igor Bondarenko in support of
immigration benefits. The medical document
in question was purportedly issued by the
Municipal Clinic No. 23 in Novosibirsk,
Russia.
USCIS Moscow contacted the Head Physician
of the City Policlinic No. 26 (formerly
Municipal Clinic No. 23) in Novosibirsk, in
10 BONDARENKO V. HOLDER
order to verify the authenticity of the
document. The Head Physician of the
hospital, in an official written response to the
U.S. Embassy stated the following:
• The form of the document in question
does not match known examples of the
form that is issued by the hospital.
• There isn’t currently, nor has there ever
been a Doctor S. B. Ivanov employed by
the hospital.
• That there is no record of treatment for
Igor Bondarenko at the hospital.
• The document in question is fraudulent.
USCIS Moscow is aware of the
confidentiality requirements of 8 C.F.R.
§ 208.6, and did not reveal or imply the
existence of an asylum application on the part
of any alien in this investigation.
Given the date on the report, we may infer that by the
time of the hearing it had been in the possession of
government attorneys for more than eight months. The report
includes neither the name of the “head physician of the
hospital” who had written the “official response” to the
embassy, nor a copy of his response. The report indicates
that the number of the clinic has been changed from No. 23
to No. 26 but does not provide the address of the clinic.
USCIS Assistant Smoot, who prepared the report, did not
attend the hearing.
BONDARENKO V. HOLDER 11
Bondarenko’s attorney objected to the introduction of the
report on the ground that this was the first time he had seen
it. He requested a continuance so that he could investigate
the report. He specifically asked to be allowed to send
interrogatories to Smoot to ask him how he conducted his
investigation. Bondarenko’s attorney said, “We have had our
own investigator look into these types of reports and come
back with completely different results.” The IJ denied the
request for a continuance. In the IJ’s view, Bondarenko had
had the burden of authenticating the medical document, and
now it was too late:
[Bondarenko’s attorney]: . . . Your Honor,
may I request some more time to do our own
investigation?
[IJ]: You should have done it already. . . .
[Y]ou have had four years to get this
document authenticated.
[Attorney]: We were waiting for this report.
[IJ]: No, you had the burden of getting it
authenticated since September of 2003 and
you didn’t.
[Attorney]: How would I know what’s in this
report[?]
[IJ]: You don’t have to know. All you had to
do was get the record authenticated and you
didn’t do it.
12 BONDARENKO V. HOLDER
In a written decision, the IJ denied Bondarenko’s claims
for asylum, withholding of removal, and CAT relief. The IJ
found Bondarenko was not credible. Based on the forensic
report presented by the government, he found that the medical
document was fraudulent. He wrote, “Since Respondent
vouched for the veracity of the medical record and did not
claim that someone else obtained this document, the court
finds that Respondent knew the document was fraudulent.”
The IJ then pointed to other things in the record, such as
inconsistencies in Bondarenko’s testimony and the lack of
specific detail in the written narrative of his asylum
application, and made an adverse credibility finding. The IJ
held, in the alternative, that even if Bondarenko were
credible, he did not qualify for relief.
The BIA rejected Bondarenko’s due process claim:
Nor are we persuaded by the respondent’s
arguments that the Immigration Judge
committed error and violated his due process
by concluding that the respondent’[s]
document was fraudulent without allowing the
respondent to cross-examine the investigating
officer or granting a continuance so that he
could conduct his own investigation. In this
regard, the Immigration Judge did not abuse
his discretion in denying the continuance
request, and the proceedings were not “so
fundamentally unfair that [the respondent]
was prevented from reasonably presenting his
case.” Gonzalez v. INS, 82 F.3d 903, 908 (9th
Cir. 1996); Colmenar v. INS, 210 F.3d 967,
971 (9th Cir. 2000)[.]
BONDARENKO V. HOLDER 13
The BIA upheld the IJ’s adverse credibility finding as not
clearly erroneous. The BIA noted that the medical document
was not the only basis for the IJ’s adverse credibility finding.
It pointed to other credibility problems and stated, “[T]he
constellation of problems identified by the Immigration Judge
leads us to conclude that his findings regarding the
respondent’s lack of credibility are not ‘clearly erroneous.’”
The BIA further concluded that even if Bondarenko were
credible, the harm he had suffered was not “of such severity
as to rise to the level of persecution,” and that the IJ did not
err “in concluding that the respondent failed to adequately
demonstrate an objectively reasonable well-founded fear of
future persecution.”
Bondarenko timely petitioned for review.
II. Standard of Review
The BIA affirmed the IJ’s decision, citing Matter of
Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994). When the
BIA cites Matter of Burbano and does not expressly disagree
with the IJ’s decision, it adopts the IJ’s decision in its
entirety. Id. at 874; Abebe v. Gonzales, 432 F.3d 1037, 1040
(9th Cir. 2005) (en banc). When the BIA cites Burbano but
adds its own analysis, we review factual findings by both the
BIA and the IJ for substantial evidence. Ali v. Holder,
637 F.3d 1025, 1028-29 (9th Cir. 2011); Hakeem v. INS,
273 F.3d 812, 816 (9th Cir. 2001).
We review constitutional due process challenges to
immigration decisions de novo. Ramirez-Alejandre v.
Ashcroft, 319 F.3d 365, 377 (9th Cir. 2003) (en banc). “We
review for substantial evidence the BIA’s decision that an
applicant has failed to establish eligibility for asylum.”
14 BONDARENKO V. HOLDER
Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004). The
BIA’s d etermination of facts is “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
III. Discussion
Bondarenko challenges the BIA’s decision in several
respects. His most important arguments are (1) the IJ
violated due process by allowing the government to introduce
its forensic report on the medical document without prior
notice and by refusing a continuance to allow Bondarenko to
investigate the report; (2) on the assumption that Bondarenko
was credible, the IJ and the BIA improperly concluded that he
had not suffered past persecution; and (3) the government
improperly revealed information about Bondarenko’s asylum
application in conducting its forensic investigation of the
medical document.
A. Due Process
We conclude that the IJ violated due process in not
allowing Bondarenko a continuance to investigate the
forensic report. “[A]n alien who faces deportation is entitled
to a full and fair hearing of his claims and a reasonable
opportunity to present evidence on his behalf.” Colmenar,
210 F.3d at 971. In circumstances remarkably similar to
those in Bondarenko’s case, we held in Cinapian v. Holder,
567 F.3d 1067 (9th Cir. 2009), that the government had
violated due process. Id. at 1074–75. At the Cinapians’
asylum hearing, the government had submitted, without prior
notice, forensic reports concluding that documents the
Cinapians had submitted were fraudulent. Id. at 1071–72.
The author of the report was not available for cross-
BONDARENKO V. HOLDER 15
examination at the hearing. Id. at 1072. The IJ refused a
continuance to allow the Cinapians to review the reports. Id.We held that “the combination of the government’s failure to
disclose the DHS forensic reports in advance of the hearing
or to make the reports’ author available for cross-examination
and the IJ’s subsequent consideration of the reports under
these circumstances denied Petitioners a fair hearing.” Id. at
1075.
Our central concern in Cinapian was the right to cross-
examination. We emphasized “the importance of Petitioners’
right to cross-examine witnesses against them and test the
strength and establish the scope of an expert witness’s factual
determinations.” Id. But we indicated that the due process
right to a timely production of an adverse forensic report goes
beyond the inability to cross-examine its author. The due
process right, incorporated into 8 U.S.C. § 1229a(b)(4)(B),
includes, among other things, “a reasonable opportunity to
examine the evidence against the alien.” Cinapian, 567 F.3d
at 1074 (quoting the statutory language). The government did
not provide “a reasonable opportunity” in the Cinapians’ case
to investigate the reports. Similarly, in the case now before
us, the government did not provide “a reasonable
opportunity” to investigate the forensic report. It had the
report in its possession for over eight months before the
hearing, yet failed to provide that report to Bondarenko until
after he was on the witness stand. But even if the government
had received the report only a few days before the hearing,
that would not have relieved it of its obligation to allow
Bondarenko “a reasonable opportunity” to investigate the
report.
It is no answer to say, as the IJ did, that Bondarenko had
an obligation to “authenticate” the medical document, above
16 BONDARENKO V. HOLDER
and beyond his own testimony, such that he forfeited any
right to investigate the forensic report. We held in Vatyan
that an alien may provide authentication through his or her
own testimony. 508 F.3d at 1184–85. It is often
unreasonable to expect an alien to obtain authentication by
officials of the persecuting government from which he or she
seeks asylum. Id. at 1183. Further, even putting to one side
the difficulty of obtaining official authentication from a
persecuting government, the expense and difficulty of
obtaining official authentication is often substantial.
Therefore, as we wrote in Vatyan, “[W]e have recognized that
‘an asylum applicant does not have an affirmative duty to
have a document examiner authenticate every piece of
documentary evidence.’” Id. (quoting Lin v. Gonzales,
434 F.3d 1158, 1165 (9th Cir. 2006)). Until the government
introduced the forensic report at the July 2007 hearing,
Bondarenko had authenticated the medical document though
his testimony that he had personally received it when he was
discharged from the hospital on June 15, 2002. When the
government introduced the forensic report, Bondarenko’s
authentication was of course put in serious doubt. But at that
point, Bondarenko had a due process right to “a reasonable
opportunity” to investigate the report.
“To establish prejudice, an asylum seeker must . . . show
that ‘the outcome of the proceeding may have been affected
by the alleged violation.’” Cinapian, 567 F.3d at 1075(quoting Colmenar, 210 F.3d at 971). The government
argues that Bondarenko was not prejudiced by any due
process violation, contending that the IJ and the BIA found
Bondarenko to be not credible independent of the forensic
report discrediting the medical document. We disagree with
the government’s reading of the record and with its
conclusion that the due process violation was harmless.
BONDARENKO V. HOLDER 17
If the medical document is fraudulent, it fatally
undermines Bondarenko’s application for relief. The IJ made
clear that his finding that the medical document was
fraudulent was the central justification for his adverse
credibility finding. He described what were, in his view,
additional credibility “problems,” but he did not say that he
would have found Bondarenko incredible if the medical
document had been genuine. Similarly, the BIA affirmed the
IJ’s adverse credibility finding based on what it called the
“constellation of problems identified by the Immigration
Judge.” Moreover, we note that some of the additional
“problems” identified by the IJ do not support an adverse
credibility finding. For example, the IJ questioned the
validity of the “certificate” from Bondarenko’s university that
stated that Bondarenko had been dismissed on June 16, 2002.
The IJ wrote that the certificate does not state the reason why
Bondarenko was dismissed. He then wrote, “More
importantly, the validity of this ‘Certificate,’ or Respondent’s
testimony, is seriously placed in question by Respondent’s
testimony that he majored in ‘Russian Language and
Literature’ . . . . However, the ‘Certificate’ states that he was
a student of the ‘Faculty of Foreign Languages with major in
“English and German Languages.”[’]” (Emphasis in
original.) The IJ left out some of Bondarenko’s testimony.
Bondarenko had testified that his “second subject was
German language.” Particularly given the possible distortions
produced by the translation from Russian into English, it is
quite conceivable that a student with a “second subject” of
German could have been enrolled in the Faculty of Foreign
Languages with a major entitled “English and German
Languages.”
18 BONDARENKO V. HOLDER
B. Past Persecution
The government further argues that Bondarenko was not
prejudiced because the IJ and the BIA found, on the
assumption that he was credible, that he had not suffered past
persecution. We disagree.
To be eligible for asylum, an alien must show that he or
she has a “well-founded fear of persecution,” that the
persecution is “on account of” a protected ground — “race,
religion, nationality, membership in a particular social group,
or political opinion” — and that he or she is “unable or
unwilling to return to” his or her home country as a result.
8 U.S.C. § 1101(a)(42)(A). Persecution is “the infliction of
suffering or harm . . . in a way regarded as offensive.” Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)
(internal quotation marks omitted). An applicant can show
harm sufficient to constitute persecution in two ways. He can
demonstrate past persecution, after which his “fear of future
persecution is presumed,” or he can “actually show[] a
well-founded fear of future persecution.” Deloso v. Ashcroft,
393 F.3d 858, 863-64 (9th Cir. 2005). Injuries that might not
individually reach the level of persecution may nevertheless
cumulatively support an asylum claim. See Korablina v. INS,
158 F.3d 1038, 1044 (9th Cir. 1998).
We conclude, assuming that Bondarenko is credible, that
he has suffered past persecution. Bondarenko’s evidence, if
believed, shows that he was detained three times because of
his political activism against the Chechen war. During his
second detention, he was severely beaten. During the protest
that led to his third detention, he was hit in the head by the
police with such force that he was hospitalized for three days.
BONDARENKO V. HOLDER 19
After he was released from his third detention, he was
dismissed from the university where he had been studying.
The IJ and the BIA concluded that, even if Bondarenko
were credible, the harm he suffered at the hands of the
Russian police did not rise to the level of past persecution.
The IJ wrote that Bondarenko’s “so-called beating and short
detention in February 2002 was not extreme enough to rise to
the level of persecution since he was not seriously injured and
no conditions were attached to his release.” He wrote further,
“Respondent was only detained and ‘beaten’ on one occasion
in February 2002, and the occasion when he was allegedly
struck on the head, was a single incident where the police
were trying to disperse the demonstrators who apparently did
not have a permit.” Without summarizing or referring to the
evidence of harm suffered by Bondarenko, the BIA wrote that
he “failed to establish that any harm he may have suffered,
even in the aggregate, was of such severity as to rise to the
level of persecution.” We disagree with the IJ and the BIA.
In reaching his conclusion, the IJ misstated the evidence.
First, the IJ unduly minimized the severity of what he
characterized as the “short detention” and “so-called beating”
in February 2002. According to Bondarenko, he was detained
at the central police station in February for about three and a
half days, from Saturday evening until early the following
Wednesday. He was subjected to two beatings on his kidneys
and legs by two police sergeants with rubber-covered metal
batons. The first beating lasted about thirty minutes. The
second lasted about an hour. Second, the IJ minimized the
severity of the blow on the head Bondarenko suffered in June
2002, saying only that he was “struck in the head.” He did
not say that the blow was so severe that Bondarenko was
hospitalized for three days. Further, the IJ stated there was
20 BONDARENKO V. HOLDER
“apparently” no permit for the June protest, suggesting that
the police were justified in hitting Bondarenko in the head as
they broke up the protest. The IJ’s suggestion that a permit
was required and not obtained for the June protest is entirely
without foundation. As recounted above, there is evidence in
the record that no permit was required for the first
demonstration in November 2001, and that a permit had been
obtained for the second demonstration in February 2002. But
there is nothing in the record with respect to a permit for the
third demonstration in June 2002. Finally, the IJ does not
consider the fact that Bondarenko was dismissed from the
university as a result of his difficulties with the police.
The IJ relied on our decision in Gu v. Gonzales, 454 F.3d
1014 (9th Cir. 2006), to conclude that Bondarenko did not
suffer past persecution. The government similarly relies on
Gu. Gu was arrested by Chinese authorities because he
distributed Christian religious materials and attended an
unofficial “house church.” Id. at 1017. He was detained by
the police for three days. During those three days, he was
interrogated for two hours. The police “hit his back with a
rod approximately ten times.” Id. at 1018. “[H]e was in pain
at the time and . . . the strikes left temporary red marks, but
required no medical treatment.” Id. We concluded in Gu that
the harm suffered did not rise to the level of persecution. Id.at 1019–22.
The more closely comparable case is Guo v. Ashcroft,
361 F.3d 1194 (9th Cir. 2004), in which, on the assumption
that Guo was credible, the IJ and the BIA held that he had not
suffered past persecution. According to Guo, he was arrested
by Chinese police during a Christian service in a private
home. He was then held at the police station for a day and a
half. While there, he was struck twice in the face, forced to
BONDARENKO V. HOLDER 21
do pushups “until he could no longer stand it,” and kicked in
the stomach while on the floor. Id. at 1197. A week later,
Guo tried to stop a police officer from removing a cross from
a tomb. The officer subdued him with an “electrically-
charged baton,” and two police officers caused him to fall by
kicking his legs from under him. Id. at 1198. He was then
taken to the police station and held for fifteen days. While at
the police station, he was struck in the face seven or eight
times. After his release, he was terminated from his
employment. We held that the BIA’s conclusion that Guo
had not suffered past persecution was not supported by
substantial evidence. Id. at 1202–03.
The details of mistreatment by police always differ from
one case to the next, and of course the precise details in
Bondarenko’s case are different from those in Guo’s. But the
severity of harm suffered by Bondarenko and Guo is
comparable. Both suffered repeated detentions by the police
(Guo’s somewhat longer); both suffered injuries
(Bondarenko’s somewhat more severe); and both lost their
position (employment in Guo’s case, student status in
Bondarenko’s). By contrast, the harm suffered by Gu was
much less severe. Gu was detained by the police on one
occasion for three days and was struck on the back with a rod
approximately ten times.
C. Improper Revealing of Personal Information
Bondarenko contends that the government improperly
disclosed information contained in his asylum application to
medical authorities in Russia when it investigated the medical
document. The government may not disclose “[i]nformation
contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted
22 BONDARENKO V. HOLDER
pursuant to [8 C.F.R.] § 208.30, and records pertaining to any
reasonable fear determination conducted pursuant to
[8 C.F.R.] § 208.31” without the permission of the alien
seeking asylum. 8 C.F.R. § 208.6(a). Bondarenko argues
that the investigating officials inappropriately disclosed
information about him that may “lead . . . authorities and the
very people that are searching for Petitioner to discovering
that Petitioner is seeking asylum.”
Bondarenko’s argument is foreclosed on the current
record. The forensic report expressly states that “USCIS
Moscow is aware of the confidentiality requirements of
8 C.F.R. § 208.6, and did not reveal or imply the existence of
an asylum application on the part of any alien in this
investigation.” Bondarenko has produced no evidence
contradicting this statement.
D. Withholding of Removal and CAT Relief
The government also claims that Bondarenko was not
prejudiced because he is statutorily ineligible for withholding
of removal or CAT relief. The BIA did not discuss
withholding of removal or CAT relief except to note briefly
that Bondarenko had appealed the IJ’s decision. Under the
circumstances, we do not address those claims for relief at
this time. We vacate the BIA’s denial of withholding of
removal and CAT relief and remand to the BIA in light of
what we hold above. See Su Hwa She v. Holder, 629 F.3d
958, 963–64 (9th Cir. 2010); Arredondo v. Holder, 623 F.3d
1317, 1320 (9th Cir. 2010).
BONDARENKO V. HOLDER 23
Conclusion
We grant Bondarenko’s petition for review and remand to
the BIA for further proceedings to allow him a reasonable
opportunity to investigate the forensic report on the medical
report and to present additional evidence, as appropriate, to
the IJ.
PETITION GRANTED AND REMANDED.