Smolniakova v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GALINA IVANOVNA SMOLNIAKOVA, 
Petitioner, No. 03-71600
v.
 Agency No.
A72-401-421
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 6, 2004—Seattle, Washington
Filed September 7, 2005
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge D.W. Nelson
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
12517
SMOLNIAKOVA v. GONZALES 12521
COUNSEL
Robert O. Wells, Jr., Mikkelborg, Broz, Wells & Fryer,
PLLC, Seattle, Washington, for the petitioner.
Peter D. Keisler, Mark C. Walters, and Margaret Perry (on the
briefs) and Jeffrey Bernstein (argued), United States Depart-
ment of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent.
OPINION
D.W. NELSON, Circuit Judge:
Petitioner Galina Smolniakova, a native and citizen of Rus-
sia, seeks review of the order of the Board of Immigration
Appeals (“BIA”), denying her requests for asylum, withhold-
ing of removal, and review of the termination of her condi-
tional permanent resident status. The Immigration Judge
(“IJ”) dismissed Smolniakova’s asylum claim based on find-
ings that she lacked credibility, failed to establish past perse-
cution on account of an enumerated ground, and did not have
a well-founded fear of future persecution. The IJ denied
Smolniakova’s request to review the termination of her condi-
tional resident status on the ground that Smolniakova had not
met her “heavy burden” of proving that her marriage in 1993
to a United States citizen was genuine, and found her deport-
able. The IJ granted Smolniakova voluntary departure in lieu
of removal. The BIA affirmed the decision without opinion.
We hold that substantial evidence does not support the IJ’s
adverse credibility finding in the asylum context and that
Smolniakova is statutorily eligible for asylum. We remand for
an exercise of discretion on Smolniakova’s asylum claim and
for a review of her claim of withholding of removal. We also
reverse and remand the IJ’s denial of Smolniakova’s petition
12522 SMOLNIAKOVA v. GONZALES
for review of the termination of her conditional resident sta-
tus. Accordingly, we reverse the IJ’s holding that because
Smolniakova’s conditional resident status was validly termi-
nated, she was deportable. The BIA is instructed to grant
Smolniakova a new hearing in which she has a full and fair
opportunity to establish her credibility in the qualifying mar-
riage context. On remand, the IJ shall also determine whether
the government has met its burden of establishing by a pre-
ponderance of the evidence that Smolniakova did not intend
to establish a life together with Roberto Quitevis at the time
of their marriage.
I. Factual and Procedural Background
A. Smolniakova’s Experiences in Russia
Smolniakova, a 39-year-old woman, was born in Kalinin-
grad, formerly Konigsberg, a city on the Baltic coast. She is
the daughter of a Jewish mother and a non-Jewish father.
In her asylum application, Smolniakova recounted numer-
ous instances of harassment and discrimination on account of
her Jewish identity, including anti-Semitic profanities scrib-
bled on the walls of her apartment entryway, human feces
smeared on her mailbox, fires set in her mailbox, and repeated
slashings of her front door. While instances of harassment and
discrimination do not themselves rise to the level of persecu-
tion for purposes of asylum, Nagoulko v. INS, 333 F.3d 1012,
1016-17 (9th Cir. 2003), in Smolniakova’s case they were
foreboding harbingers of things to come.
Before the IJ, Smolniakova testified that she lived in an
environment that was not only inhospitable to Jews, but one
in which practicing Judaism openly was very difficult. From
1988 to 1991, Smolniakova participated in a Jewish commu-
nity organization that met secretly. Smolniakova testified that
the Berenshteyns, close family friends of Smolniakova, were
very active in the group. Smolniakova testified that one sum-
SMOLNIAKOVA v. GONZALES 12523
mer night in 1990 she received a call while with her sister,
Regina, in their parents’ apartment, where they both lived.
The caller announced that Mr. and Mrs. Berenstheyn had been
killed and warned that the same fate lay in store for the rest
of the Jews in Kaliningrad. Smolniakova was horrified to
learn the following morning, when the news first became pub-
lic, that the Berenstheyns had indeed been brutally murdered.
They were discovered bound in their home with numerous
stab wounds. See A Crime on Bankovsky Street (translated
Russian newspaper article reporting the murder), reprinted in
the Administrative Record (“AR”) at 1453. Smolniakova tes-
tified that while the authorities claimed to make solving the
case a top priority, the case was never resolved. She also testi-
fied that the lead investigator in the case mysteriously disap-
peared a month after the murders. Yuliya Berenshteyn, the
surviving daughter of the slain Berenshteyns, testified that
since the murder of her parents, Tolik Payrkov, another mem-
ber of their Jewish organization, had also been killed.
Smolniakova testified that in May 1991, after the Beren-
shteyns’ murder, she was attacked by two men while walking
home from a town celebration. The men grabbed her from the
street and began to strangle her behind some bushes along the
side of the road. She testified that one of the assailants whis-
pered in her ear, “Jewish Bitch.” The attackers dispersed
when a witness, who heard the scuffle, yelled out and threat-
ened to call the police. Smolniakova testified that the men
slowly walked away, promising that they would be back and
that she would not get away alive next time. Regina, who
cared for Smolniakova after the attack and to whom both
Smolniakova and the good Samaritan stranger recounted the
assault, substantially corroborated her sister’s testimony.
Smolniakova testified that one evening, six months after
the attack, two men began pounding on her door, threatening
to kill her if she did not let them in and referring to her home
as a “Jewish snake nest.” Smolniakova and Regina called the
police, but they refused to help. Smolniakova and Regina
12524 SMOLNIAKOVA v. GONZALES
explained that when they called to report this and other inci-
dents, the police were unresponsive and dismissive, even to
the point of laughing at them.
In September 1991, Smolniakova married her Russian boy-
friend of several years, Alexey. As soon as they were married,
she moved in with him and his family in order to change her
address. After a few weeks, Alexey, a seaman, left for a five-
month assignment abroad. Shortly thereafter, Smolniakova
was forced to return to live with her parents because she was
no longer welcome in her in-laws’ home. Smolniakova testi-
fied that Alexey’s mother unabashedly expressed her displea-
sure at her son’s choice of a wife, who she feared would taint
her grandchildren with “Jewish blood.” Soon after leaving her
in-laws, Smolniakova obtained a six-month visitor’s visa to
the United States. She and her husband agreed that she would
be safe there until Alexey returned and she could rejoin him,
hopefully in Germany, where he had the prospect of perma-
nent employment.
Smolniakova left Russia in early December 1991. She testi-
fied that her husband had still not called for her after four
months, that her mother told her of rumors that he was seeing
other women, and that she believed his disapproving mother
had been “working on him.” At this point, Smolniakova
decided to seek political asylum in the United States.
Without the benefit of counsel, Smolniakova filled out an
asylum application, which was filed with the Immigration and
Naturalization Service (“INS”)1 on April 17, 1992. While the
INS officer who interviewed Smolniakova deemed her credi-
ble, the Service sent her a letter of intent to deny asylum on
October 15, 1992 for failure to meet the requirement of a
well-founded fear of persecution on account of one of the five
1
On March 1, 2003, the INS was abolished as an agency within the
Department of Justice and its functions were transferred to the newly cre-
ated Department of Homeland Security.
SMOLNIAKOVA v. GONZALES 12525
enumerated grounds. Her application was subsequently
denied on March 11, 1993.
B. Smolniakova’s Marriage to an American Citizen
Around November 1992, Smolniakova enlisted Regina’s
help in divorcing Alexey. The divorce was finalized in Febru-
ary 1993. Smolniakova testified that she met her second hus-
band, Roberto Quitevis, through a mutual friend, Richard
White, at a New Year’s party in December 1992. She testified
that they dated for a few months until she confided in him
about the denial of her asylum application and her pending
appeal, and he, in turn, proposed because, according to Smol-
niakova, he expressed strong feelings for her and could not
bear the thought of losing her. She testified that they began
having sexual relations that evening and continued to do so
over the course of their marriage, which began in June 1993.
Quitevis filed an immediate relative visa on Smolniakova’s
behalf, which the INS approved, and on January 24, 1994, the
INS granted Smolniakova two-year conditional permanent
resident status as the spouse of a United States citizen.
Smolniakova returned to Russia in July 1994 for three
months to tend to her gravely ill mother. This was the first of
three such trips. Smolniakova testified that Quitevis came to
resent her prolonged absence and was sullen and detached
when she returned home. She testified that while they contin-
ued to have conjugal relations, he became emotionally with-
drawn, “like a stranger to [her].” By the time of her next trip
to Russia in December 1994, the marriage had deteriorated
significantly. Regina testified that when her sister came home
to Russia the second time, she was “blue,” “very nervous,”
and had lost a lot of weight, and confided in her that Quitevis
had begun to sleep elsewhere.
On June 1, 1995, the INS revoked Smolniakova’s condi-
tional resident status pursuant to Immigration and Nationality
Act (“INA”) § 216(b), 8 U.S.C. § 1186a(b), based on a find-
12526 SMOLNIAKOVA v. GONZALES
ing — the culmination of an investigation precipitated by an
anonymous tip — that her marriage to Quitevis was a sham.
Deportation proceedings commenced in December 1995.
In the deportation proceedings, Smolniakova introduced
various pieces of documentary evidence, including wedding
pictures, a joint tax return, a marriage certificate, checks from
a joint checking account, joint phone bills, and a lease in both
her and Quitevis’ names. Sixteen witnesses submitted affida-
vits, declarations, letters, and testimony stating generally that
Smolniakova and Quitevis had been married since the sum-
mer of 1993, that they had lived together as husband and wife,
and that they had suffered some marital problems during the
course of their relationship, culminating in their divorce in
November 1995. The affidavits and testimony substantiate her
claims that she and Quitevis cohabited, shopped together, had
conjugal relations, entertained together, bought furniture
together, commingled assets, and generally lived as husband
and wife. See 8 C.F.R. § 216.4(a)(5) (enumerating these and
other indicia of a good faith marriage).
Quitevis presented a markedly different story. He testified
that Smolniakova had approached him through their mutual
friend, Richard White, about a business proposition, offering
to pay him $5,000 to marry her and help her secure permanent
resident status. He explained that Smolniakova paid him
between $500 and $1,000 up front in cash and then another
$1,500 to $2,500 in subsequent installments. He testified that
he had been at Smolniakova’s apartment a few times in order
to further the illusion that they were married, and even spent
the night at her place on at least one occasion, although he
denied that they ever had sexual relations. Richard White cor-
roborated Quitevis’ testimony.
Quitevis also introduced various pieces of documentary
evidence, including copies of checks made out to his aunt,
whose house he claimed to rent with a few friends, along with
various bill payments written from checks with the same
SMOLNIAKOVA v. GONZALES 12527
address, ranging in dates from March to August 1994.
Quitevis’ close friend, Edgar Franada, testified that Quitevis
had confided in him that he had entered into a “paper mar-
riage” with a Russian woman named Galina. Franada never
responded to INS counsel’s question about when Quitevis
actually confided this to him. Franada also testified that he
lived with Quitevis, along with another roommate, in
Quitevis’ aunt’s house from June 1993 to the end of 1994, a
time period that spans the duration of Smolniakova’s marriage
to Quitevis.
At the time of her separation from Quitevis, Smolniakova
began a relationship with Tony Roland, who accompanied her
on her final visit to Russia in the summer of 1995. Roland and
Smolniakova were wed in December 1995 and profess to be
happily married.
On March 4, 1996, Roland filed a Form I-130 Petition for
an Alien Relative visa on behalf of Smolniakova, which was
denied based on the marriage-fraud bar for such petitions. See
INA § 204(c)(1), 8 U.S.C. § 1154(c)(1). Smolniakova sought
review of the INS’s determination that her marriage to
Quitevis was a sham pursuant to INA § 216(b)(2), 8 U.S.C.
§ 1186a(b)(2), and review of her asylum and withholding of
removal claims. The IJ found Smolniakova incredible as to all
claims and denied her petition in its entirety. On March 19,
2003, the BIA affirmed the decision without opinion pursuant
to 8 C.F.R. § 1003.1(e)(4). Smolniakova timely appealed.
II. Standard of Review
Whether Smolniakova married Quitevis in good faith is an
intrinsically fact-specific question reviewed under the highly
deferential substantial evidence standard. “Under this stan-
dard, we must affirm unless the evidence is so compelling that
no reasonable fact-finder could fail to find the facts were as
[Smolniakova] alleged.” Damon v. Ashcroft, 360 F.3d 1084,
1088 (9th Cir. 2004). We also review the BIA’s decision as
12528 SMOLNIAKOVA v. GONZALES
to whether Smolniakova has established eligibility for asylum
under the substantial evidence standard. Cordon-Garcia v.
INS, 204 F.3d 985, 990 (9th Cir. 2000).
Where, as here, the BIA adopts the decision of the IJ and
affirms without opinion, we review the decision of the IJ as
the final agency determination under the substantial evidence
standard set forth above. 8 C.F.R. § 1003.1(e)(4); see also
Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.
2003).
Because Smolniakova was first placed in deportation pro-
ceedings before the effective date of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, and a final
order of deportation was entered after October 30, 1996, her
appeal is governed by the transitional rules of IIRIRA. See
Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).
III. Discussion
A. Asylum
1. The Adverse Credibility Determination
[1] Adverse credibility determinations must be “based on
specific, cogent reasons that bear a legitimate nexus to the
finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000);
see also de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.
1997). The inconsistencies that an IJ adduces to establish a
lack of credibility must therefore be specific and concrete, and
“must go to the heart of [the] asylum claim.” Singh v. Ash-
croft, 301 F.3d 1109, 1111 (9th Cir. 2002) (internal quotation
omitted).
[2] The perceived contradictions that the IJ attributed to
Smolniakova in support of her adverse credibility finding are
based on a misconstruction of the record, insufficient evi-
SMOLNIAKOVA v. GONZALES 12529
dence and improper speculation and conjecture. See Ge v.
Ashcroft, 367 F.3d 1121, 1124 (9th Cir. 2004) (stating that
adverse credibility determinations cannot be justified by spec-
ulation or conjecture). Moreover, many of the putative incon-
sistencies fail to “go to the heart” of the asylum claim.
[3] In support of her adverse credibility finding, the IJ first
pointed to discrepancies between Smolniakova’s asylum
application, completed without the assistance of counsel, and
her testimony at the merits hearing. The IJ noted that
“[r]espondent testified at the merits hearing that her wrist was
slashed by a man, but yet respondent did not mention this in
her asylum application.” In her first asylum application,
Smolniakova explained that she had been “mistreated and
threatened a lot of times” and that she “want[ed] to specify
one of the terrible incidents.” This court has recognized that
“an applicant’s testimony is not per se lacking in credibility
simply because it includes details that are not set forth in the
asylum application.” Lopez-Reyes v. INS, 79 F.3d 908, 911
(9th Cir. 1996) (citing Aguilera-Cota v. INS, 914 F.2d 1375,
1382 (9th Cir. 1990)). This court has also found that asylum
forms “filled out by . . . people who . . . are unable to retain
counsel” should be read charitably, especially when it comes
to the absence of a comprehensive and thorough account of all
past instances of persecution. Aguilera-Cota, 914 F.2d at
1382 (“Under these circumstances, the IJs cannot expect the
answers provided in the applications to be as comprehensive
or as thorough as they would be if set forth in a legal brief.”).
Smolniakova’s asylum application is not inconsistent with her
later, more detailed descriptions of persecution in Russia sim-
ply because she failed to describe all prior incidents of mis-
treatment and persecution in the early stages of her
application process. Smolniakova’s failure to file an applica-
tion that was “not as complete as might be desired cannot,
without more, serve as a basis for a finding of lack of credibil-
ity.” Lopez-Reyes, 79 F.3d at 911 (internal quotation omitted).
Second, the IJ made much over what she claimed was an
inconsistency between Smolniakova’s and Regina’s accounts
12530 SMOLNIAKOVA v. GONZALES
of the attempt on Smolniakova’s life in May 1991. The IJ
pointed out that Smolniakova testified her assailants simply
walked away after a witness to the assault threatened to call
the police, whereas her sister testified they ran away. The IJ
failed to consider, however, that Regina, or perhaps the trans-
lator through whom she was speaking, immediately corrected
her testimony about the manner in which the attackers dis-
persed — “[they did] not exactly run away, just start to walk
away.” Both Smolniakova and Regina, whose testimony the
IJ found “believable as a whole,” testified, then, that the
attackers “walked away.” The IJ found an inconsistency
where none exists. Moreover, this kind of judicial hair-
splitting does not go to the heart of the asylum claim. See
Singh, 301 F.3d at 1111-12. In contrast, the IJ did not cite any
material inconsistencies with respect to the various accounts
of the actual assault, or with respect to the repeated testimony
about anti-Semitic threats, including death threats and ethnic
slurs that others made to Smolniakova.
[4] Third, the IJ questioned the veracity of Smolniakova’s
claim that she came to the United States seeking a safe haven
from the menacing conditions for Jews in Russia. The IJ’s
efforts to discredit Smolniakova’s stated reason for leaving
her homeland betray, at best, inattention to the record and, at
worst, outright bias against Smolniakova.
The IJ opined, “If respondent was afraid in Russia, she
could have gone with her husband, Alexey, to Germany.”
Aside from being impermissibly speculative, the IJ’s pro-
nouncement demonstrates a willful disregard of the facts in
the record. Smolniakova explained that Alexey was away at
sea for five months and that they both believed she should
leave Russia during that period to ensure her safety. Smol-
niakova testified that Alexey’s permanent assignment in Ger-
many was only a “possibility” and that she planned to move
to Germany if Alexey received a permanent assignment there.
The IJ’s opinion that Smolniakova would have gone to Ger-
many had she truly left Russia out of concern for her safety
SMOLNIAKOVA v. GONZALES 12531
is at best mere conjecture. “Because conjecture is not a substi-
tute for substantial evidence, we cannot uphold this finding.”
Lopez-Reyes, 79 F.3d at 912; see also Paramasamy v. Ash-
croft, 295 F.3d 1047, 1052 (9th Cir. 2002).
The IJ, by again grossly misconstruing the record, found
incredible Smolniakova’s claim that she intended to leave the
United States and rejoin her husband when he returned from
his deployment at sea. The IJ stated:
Respondent also testified that she asked her sister to
help her get a divorce in February, 1992, 2 months
after her arrival to the United States. This fact further
proves that respondent is not only not credible,
respondent is lying to this Court as to her intention
when she arrived in the United States. Respondent
had no intention of returning to her Russian husband.
The record is plain; Smolniakova did not seek help from her
sister in divorcing Alexey in February 1992, but rather in
November 1992. She did not in fact divorce him until Febru-
ary 1993, a full 14 months after her arrival in this country.
The IJ culled her damning “fact” about Smolniakova — viz.,
that she sought a divorce only two months after her arrival in
this country — from the early part of a colloquy between
Smolniakova and her lawyer, wherein they try to establish the
date of Smolniakova’s divorce from Alexey. Smolniakova
tries to reconstruct the timeline based upon a mistaken recol-
lection, and it becomes clear that the timeline is off by a year
because of the mistake. When corrected on this point, Smol-
niakova clarifies that the divorce happened in February 1993,
not February 1992. Even a cursory reading of the transcript
makes this clear, and yet the IJ seized upon the obviously mis-
taken timeline initially proffered, and later corrected, by
Smolniakova as fact to impugn her credibility.
The IJ also found that Regina’s testimony that Smolniakova
left Russia shortly after her marriage to Alexey in order to
12532 SMOLNIAKOVA v. GONZALES
escape persecution contradicts Smolniakova’s own testimony
that, according to the IJ, “she left Russia for a visit to the
United States.” The IJ again found a contradiction where none
exists. Smolniakova testified that in order to obtain a visa for
the United States she needed an invitation from people
already in the country. That she was going to visit friends in
the United States was thus the official reason for her trip, the
true purpose of which, she testified, was to seek a safe haven
for the five months in which Alexey was away at sea.
[5] The IJ concluded that this “entire scenario does not
make any sense.” She explained as follows:
Respondent left Russia for the United States in
December, 1991, three months after her marriage to
her boyfriend of many years. Respondent got mar-
ried 4 months after her purported incident of attack
and rape. If respondent’s reason for leaving Russia
was fear, why did she get married within 4 months,
and then leave 3 months later when her husband was
out of town.
Far from “making no sense,” it is perfectly reasonable that,
faced with the prospect of living for an extended period with
her parents — where she had been threatened and attacked
several times before — and without the protection of her hus-
band, Smolniakova would decide to seek safe haven in the
United States. And, in fact, this is exactly what Smolniakova
testified that she and Alexey agreed she would do for the five
months he was away at sea. The IJ erred by not considering
in a reasoned manner Smolniakova’s explanation for what the
IJ thought to be a nonsensical course of events. Osorio v. INS,
99 F.3d 928, 933 (9th Cir. 1996) (holding that the IJ “must
address in a reasoned manner the explanations that [peti-
tioner] offers for [any] perceived inconsistencies”). In sum,
the IJ had no reason to find Smolniakova’s explanation of
why she came to the United States incredible.
SMOLNIAKOVA v. GONZALES 12533
Fourth, the IJ faulted Smolniakova for failing to provide
corroborating evidence in support of her testimony. The IJ
found that Smolniakova’s credibility was undermined by her
failure to corroborate her testimony about the May 1991
attack with a letter from the stranger who witnessed the
assault. The IJ committed legal error in so finding. This court
has held that “[s]upplying corroborating affidavits . . . has
never been required to establish an applicant’s credibility.”
Lopez-Reyes, 79 F.3d at 912 (citing Bolanos-Hernandez v.
INS, 767 F.2d 1277, 1285 (9th Cir. 1984)). Furthermore, it is
unreasonable to expect Smolniakova to have obtained a cor-
roborating letter from an unidentified stranger.
The IJ also claimed that “respondent never offered any cor-
roborating evidence to verify the death of the Berenshteyns.”
To the contrary, Smolniakova provided a copy of a newspaper
article describing the incident, along with a translation, in her
amended asylum application. This court has found that a
newspaper article reporting an alleged incident of persecution
offered in support of oral testimony is sufficient documentary
evidence of such an incident. See Aguilera-Cota, 914 F.2d at
1382-83. The IJ clearly erred by finding that Smolniakova
never offered corroborating evidence of the Berenstheyns’
murder and by using this finding to impugn her credibility.
[6] In light of the foregoing, it is appropriate to echo the
words of this court in Paramasamy and express a similar
worry that “these passages demonstrate the IJ’s ‘predisposi-
tion to discredit’ the testimony, rather than any lack of credi-
bility on the part of the witnesses.” 295 F.3d at 1051 (quoting
Garrovillas v. INS, 156 F.3d 1010, 1015 (9th Cir. 1998)). In
Paramasamy, this court found that the IJ’s adverse credibility
finding was not supported by substantial evidence because,
among other things, it relied upon “perceived inconsistencies
not based on the evidence.” Paramasamy, 295 F.3d at 1052.
In this case, as in Paramasamy, “the facts as they appear in
the record do not support the [IJ’s] articulated basis for an
adverse credibility determination.” Id. That the IJ rebuked in
12534 SMOLNIAKOVA v. GONZALES
Paramasamy is the same IJ who presided over Smolniakova’s
asylum hearing is a fact not lost on this court.2
Because of the IJ’s reliance on contradictions with no fac-
tual basis in the record, and in light of the many inconsisten-
cies she unfairly imputes to Smolniakova, we reverse the IJ’s
adverse credibility finding with respect to the asylum claim,
and accordingly “deem [Smolniakova’s] testimony credible.”
Akinmade v. INS, 196 F.3d 951, 958 (9th Cir. 1999);
Aguilera-Cota, 914 F.2d at 1383 (internal quotation marks
omitted) (reversing the IJ’s adverse credibility finding and
holding that when, with the exception of minor omissions and
other insignificant inconsistencies, there is an absence of evi-
dence that undermines the petitioner’s credibility, “we accept
the testimony as true”).
2. Past Persecution on Account of Religion
In addition to finding that Smolniakova was not credible,
the IJ held, in the alternative, that Smolniakova was ineligible
for asylum because she failed to establish either past persecu-
tion or a well-founded fear of future persecution on account
2
In fact, the IJ in this case, Anna Ho, has been reversed by this court
at least three times in the last year for reasons similar to those that compel
our reversal here. Most recently, in Zolotukhin v. Gonzales, No. 04-70945,
slip op. at 10004 (9th Cir. Aug. 3, 2005), we held that IJ Ho violated a
Russian asylum applicant’s due process right to a full and fair hearing
because she “improperly prejudged the petitioner’s case” and “excluded
the testimony of several key witnesses.” Just one year earlier, in Rivera v.
Ashcroft, 387 F.3d 835, 1135 (9th Cir. 2004), amended by 394 F.3d 1129
(9th Cir. 2005), we held that IJ Ho failed “to conduct herself as an impar-
tial judge but rather as a prosecutor anxious to pick holes in the petition-
er’s story.” Moreover, in Singh v. Gonzales, 403 F.3d 1081, 1090 (9th Cir.
2005), this court reversed IJ Ho’s adverse credibility finding in part
because her “focus on minutely disparate dates” in the asylum applicants’
testimony regarding seven-year-old events reflected “a flawed approach to
credibility determination.” Given this line of cases, we cannot help but
question whether this IJ has, at least in some instances, improper hostility
towards asylum applicants who appear before her.
SMOLNIAKOVA v. GONZALES 12535
of a qualifying ground. As a result, we need not remand to the
BIA for a determination of these issues and we consider each
in turn.
To establish eligibility for asylum, Smolniakova must qual-
ify as a refugee. INA § 208(b), 8 U.S.C. § 1158(b). A refugee
is one “who is unable or unwilling to return to . . . [her native]
country because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that
Smolniakova qualifies as a refugee and is statutorily eligible
for asylum.
a) Past Persecution
Asylum is not restricted to petitioners who have suffered
persecution at the hands of state actors. See Singh v. INS, 134
F.3d 962, 967 n.9 (9th Cir. 1998); see also Sangha v. INS, 103
F.3d 1482, 1487 (9th Cir. 1997) (“ ‘Persecution’ may be
inflicted either by the government or by persons or organiza-
tions which the government is unable or unwilling to con-
trol.”) (citation omitted). Taken as true, as it must be for
purposes of this appeal, Smolniakova’s testimony compels the
conclusion that the government turned a blind eye to her per-
secution, refusing to intervene in any meaningful way to stop
it. That her assailants who attacked her in May 1991 “slowly
walked away” when a witness threatened to alert the police is
consistent with this testimony; it suggests that Smolniakova’s
assailants recognized the acquiescence of the local authorities
in this type of conduct and that the witness’s threat was thus
a hollow one. See Krotova v. Gonzales, No. 04-70806, slip op.
10085, 10098 (9th Cir. Aug. 4, 2005) (holding that the Rus-
sian government was “unwilling or unable to control the anti-
Semitic groups responsible for [Jewish] Petitioner’s mistreat-
ment”).
Smolniakova’s account of the May 1991 assault alone com-
pels a finding of past persecution. See Montoya-Ulloa v. INS,
12536 SMOLNIAKOVA v. GONZALES
79 F.3d 930, 931 (9th Cir. 1996) (holding that persecution for
asylum purposes means “infliction of suffering or harm upon
those who differ . . . in a way regarded as offensive”). The
death threats she received immediately following the murder
of the Berenshteyns, during the May 1991 assault, and at her
apartment where her would-be attackers called her home a
“Jewish snake nest,” also amount to past persecution.
Repeated death threats, especially when those threats occurred
in conjunction with other forms of abuse, require a finding of
past persecution. See Mamouzian v. Ashcroft, 390 F.3d 1129,
1134 (9th Cir. 2004) (finding past persecution when harm was
“inflicted [on petitioner] on more than one occasion . . . , and
where the physical abuse was combined with other incidents,
such as detention and threats”); see also Navas v. INS, 217
F.3d 646, 658 (9th Cir. 2000) (“[W]e have consistently held
that death threats alone can constitute persecution.”); contrast
Lim v. INS, 224 F.3d 929, 933, 936 (9th Cir. 2000) (holding
that death threats may be deemed hollow and bereft of “sig-
nificant actual suffering or harm” and thus do not constitute
past persecution where they are unaccompanied by infliction
of actual abuse or harm upon petitioner or petitioner’s fam-
ily). Even if a single incident does not rise to the level of per-
secution, the cumulative effect of these several incidents
constitutes persecution. See Krotova, slip op. at 10093 (hold-
ing that a “background of anti-Semitic harassment and eco-
nomic and social discrimination against [Jewish Petitioner],
and in Russia generally” combined with three violent assaults,
the murder of a close family friend, and the beating of Peti-
tioner’s brother, all compelled a finding of past persecution).
b) On Account of Religion
[7] The facts in the record compel the finding that Smol-
niakova was persecuted on account of her religion. The IJ’s
finding that there was no nexus between the asserted persecu-
tion and Smolniakova’s religion is not supported by substan-
tial evidence.
SMOLNIAKOVA v. GONZALES 12537
The IJ found that the May 1991 attempt on Smolniakova’s
life was not motivated by anti-Semitism. Given Smol-
niakova’s and Regina’s repeated testimony that Smol-
niakova’s assailants called her a “Jewish bitch,” it is difficult
to understand how the IJ could assert that “[n]othing said by
the young men would indicate that this attack had anything to
do with respondent’s ethnicity.”
The IJ also extended this dismissive, and seemingly biased,
attitude to her analysis of another incident described by Smol-
niakova. Smolniakova testified that one evening in November
1991 two men banged on her door and threatened to kill her.
She described the incident thus: “[T]hey were saying some-
thing like you better open the door, otherwise we’ll kill you.
Which, you know, doesn’t make much sense, but I remember
that that’s exactly how they were saying it . . . And, uh, and
calling us . . . Jewish, uh, snake nest or something like that.”
The IJ interpreted this testimony as follows. “Respondent
described an incident in November, 1991, wherein men
threatened to have her open the door of the apartment.
Respondent refused, and thus the men just left. Again, even
if the men yelled, “Jewish snakes”, this is not evidence that
any harm would come to respondent.” We cannot agree with
the IJ’s interpretation; indeed, one would expect that the reac-
tion of any reasonable person who was the victim of such an
episode would include a well-founded fear of future persecu-
tion on account of her religious identity.
Smolniakova’s consistent and corroborated testimony that
she was called a “Jewish bitch” by one of the assailants who
attacked her in May 1991, that she was warned that she and
all Jews in Kaliningrad would be murdered as the Beren-
stheyns were, and that her home was called a “Jewish snake
nest” by those who threatened to kill her if she would not let
them enter her apartment compels the conclusion that Smol-
niakova was persecuted on account of her religion. The IJ’s
finding to the contrary was not supported by substantial evi-
dence.
12538 SMOLNIAKOVA v. GONZALES
3. Fear of Future Persecution
In addition to finding that Smolniakova failed to show past
persecution, the IJ concluded separately that Smolniakova
failed to demonstrate a well-founded fear of future persecu-
tion. We review the decision to determine whether it was sup-
ported by substantial evidence. Mamouzian v. Ashcroft, 390
F.3d 1129, 1135 (9th Cir. 2004). Because the IJ made a deter-
mination on the question of well-founded fear, we do not
remand for further consideration. Id.; see also Khup v. Ash-
croft, 376 F.3d 898, 904 (9th Cir. 2004) (declining to remand
for an analysis of changed country conditions because appli-
cant established a well-founded fear without the benefit of the
presumption).
[8] In order to demonstrate a fear of future persecution,
Smolniakova’s fear “must be both subjectively [genuine] and
objectively reasonable.” Hoxha v. Ashcroft, 319 F.3d 1179,
1182 (9th Cir. 2003) (alteration in original) (internal citations
and quotation marks omitted). An alien satisfies the subjective
component of the well-founded fear test by testifying credibly
about his fear of future persecution. Mamouzian, 390 F.3d at
1136. Because we find that Smolniakova’s testimony is credi-
ble, she satisfies the subjective portion of the test. Korablina
v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998).
[9] Smolniakova’s credible testimony also compels the
conclusion that her fear is objectively well-founded. As Smol-
niakova testified, she suffered violent attacks and repeated
death threats as a result of her Jewish identity. She was
attacked and strangled by men calling her a “Jewish Bitch.”
On one occasion, an assailant slashed her wrist. Despite this
evidence, the IJ found that Smolniakova’s three trips back to
Russia demonstrated there was no likelihood of future perse-
cution. However, Smolniakova provided a reasonable expla-
nation for the trips. Smolniakova testified that she went to
Russia on those three occasions to take care of her dying
mother, who was languishing in the hospital “like a corpse,”
SMOLNIAKOVA v. GONZALES 12539
and to help her family, which was ill-equipped to deal with
the situation. Rather than belying her avowed fear of returning
home, Smolniakova’s trips served as a testament to her love
for her mother, whom she went to great pains to visit despite
the risk she bore in doing so. See Karouni v. Gonzales, 399
F.3d 1163, 1176 (9th Cir. 2005) (holding that asylum appli-
cant’s two return visits to Lebanon to see his dying parents
did not constitute substantial evidence that his fear of persecu-
tion was not well-founded); see also Singh v. Moschorak, 53
F.3d 1031, 1034 (9th Cir. 1995) (reversing denial of asylum
where the INS “fails to distinguish fortitude in the face of
danger from absence of fear”).3
The murder of Smolniakova’s close family friends, the
Berenshteyns, also supports a finding of well-founded fear of
persecution. See Zhang v. Gonzales, 408 F.3d 1239, 1249 (9th
Cir. 2005) (holding that “acts of violence committed against
an applicant’s friends or family can establish well-founded
fear of persecution.”). The IJ concluded that there was no evi-
dence that the Berenshteyns’ death caused problems for Smol-
niakova. However, on the night of their murder, Smolniakova
received an anonymous phone call warning her that what hap-
pened to the Berenshteyns would happen to her. Moreover,
after Smolniakova left Russia, Tolik Payrkov, another mem-
ber of her Jewish organization, was killed. Smolniakova
understandably fears the same fate would befall her if she
returned to Russia. In light of these circumstances, no reason-
able fact-finder could conclude that Smolniakova has less
than a ten percent chance of future persecution in Russia on
account of her religion. See Al-Harbi v. INS, 242 F.3d 882,
3
The government’s reliance on Hakeem v. INS, 273 F.3d 812, 817 (9th
Cir. 2001), is inapposite because the court’s consideration of the import
of Hakeem’s uneventful trips home was solely in the context of its review
of Hakeem’s claim of withholding of removal, which requires an applicant
to show a greater likelihood of persecution than she must establish to be
eligible for asylum. Moreover, as Smolniakova points out, the safety of
her one family member remaining in Russia, her father, is not probative
because he is not Jewish.
12540 SMOLNIAKOVA v. GONZALES
888 (9th Cir. 2001) (noting “even a ten percent chance of per-
secution may establish a well-founded fear”). We thus con-
clude that the IJ’s finding that Smolniakova lacked a well-
founded fear of future persecution is not supported by sub-
stantial evidence.
There is an alternative basis on which we may ground our
well-founded fear holding. Even were Smolniakova otherwise
unable to demonstrate a well-founded fear of persecution, the
finding that she established past persecution entitles her to a
presumption of well-founded fear. See Korablina, 158 F.3d at
1043; 8 C.F.R. § 1208.13(b)(1). The presumption shifts the
burden of proof to the government to establish by a prepon-
derance of the evidence that the presumption no longer con-
trols. Id. The government may satisfy this burden by showing
that there has been a “fundamental change in circumstances,”
such that Smolniakova no longer has a well-founded fear, or
that Smolniakova could “avoid future persecution by relocat-
ing to another part of [Russia], and under all the circum-
stances, it would be reasonable to expect [her] to do so.” 8
C.F.R. § 1208.13(b)(1)(i)-(ii); see also Ochave v. INS, 254
F.3d 859, 868 n.5 (9th Cir. 2001).
The Supreme Court has held that we cannot determine the
issue of changed country conditions in the first instance. INS
v. Ventura, 537 U.S. 12, 14 (2002). However, here, the IJ
addressed the issue of changed circumstances. The relevant
portion of the IJ’s decision reads as follows: “This Court does
not find that even if there had been past persecution, that there
is any likelihood of future persecution. The country condition
has changed substantially.” Where the IJ reaches the issue of
changed circumstances, we need not remand, see Ali v. Ash-
croft, 394 F.3d 780, 788 (9th Cir. 2005), unless she fails to
“make an individualized determination as to the effect of
country conditions.” Lopez v. Ashcroft, 366 F.3d 799, 806
(9th Cir. 2004). The IJ here made an individualized determi-
nation. In concluding that the “country condition has changed
substantially,” the IJ noted that Smolniakova’s trip to Russia
SMOLNIAKOVA v. GONZALES 12541
with her new husband was proof that she was not afraid to
return to Russia. In light of the limited evidence submitted by
the government in rebuttal4 — just two newspaper articles —
it is not clear whether the IJ could have made her analysis
more individualized. Because the agency has already brought
“its expertise to bear upon the matter” and “evaluate[d] the
evidence,” cf. INS v. Ventura, 537 U.S. 12, 17 (2002) (per
curiam), this case requires no further remand for the applica-
tion of agency expertise or for agency evaluation. See Ali v.
Ashcroft, 394 F.3d 780, 788 (9th Cir. 2005).
[10] We review the IJ’s factual findings regarding changed
country conditions for substantial evidence. Lopez, 366 F.3d
at 805; see also Gui v. INS, 280 F.3d 1217, 1229 (9th Cir.
2002). The record does not support the IJ’s conclusion that
the government rebutted the presumption of well-founded
fear. The government offered two newspaper articles into evi-
dence in support of its assertion that Russia was no longer a
country that posed a threat to Smolniakova. The only relevant
article profiled a Rabbi who works to cultivate Jewish life in
Moscow. Nothing in the article suggests that a Jewish refugee
would no longer have reason to fear persecution if she
returned to Russia. The article simply concludes that “[t]oday
there are three Jewish day schools in Moscow. Emigration has
stabilized and the approximately 2 million Russian Jews are
4
We note that the extremely limited evidence of changed country condi-
tions offered by the government in this case may constitute an alternate
ground for not remanding on the issue of changed conditions. Where the
INS offers no evidence concerning changed circumstances before the
immigration judge, the BIA, or this court, we do not remand because “to
provide the INS with another opportunity to present evidence of changed
country conditions . . . would be exceptionally unfair.” Nuru v. Gonzales,
404 F.3d 1207, 1228 (9th Cir. 2005) (quoting Baballah, 367 F.3d at 1078
n.11); see also Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004). Here,
aside from the two articles presented to the IJ, the government did not
assert changed country conditions in its memorandum on appeal to the
BIA or in its brief to this court. Because we have concluded that remand
is unnecessary for other reasons, we need not determine whether the scant
evidence introduced amounts to “no evidence” under our Nuru rationale.
12542 SMOLNIAKOVA v. GONZALES
not only permitted to leave the country; but to retain their
Russian citizenship.” U.S. Rabbi Cultivates Jewish Life in
Russia, Wash. Times, Aug. 24, 1996, at 13, reprinted in AR
at 1017.5 Moreover, a news article such as this is not authori-
tative. Cf. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th
Cir. 2002) (holding that generalized information from a State
Department report on country conditions is not sufficient to
rebut the presumption of future persecution). In addition,
“[i]nformation about general changes in the country is insuffi-
cient for the government to overcome the presumption.”
Lopez, 366 F.3d at 805 (citing Rios v. Ashcroft, 287 F.3d 895,
901 (9th Cir.2002)).
Not only is the record bereft of any substantial evidence
supporting the government’s contention that Russia has
changed, but Smolniakova, her sister and Yuliya Berenshteyn
testified that the persecution of Jews in the Kalingrad area of
Russia continues and has grown substantially worse in recent
years due to the growing strength of anti-Semitic organiza-
tions such as the anti-Jewish party, Pamyat. Indeed, Smol-
niakova testified that she believed her attackers were
members of Pamyat and pointed out in her brief to the BIA
that the U.S. Department of State Russia Country Report on
Human Rights Practices for 1997 states that “Jews continue
to encounter societal discrimination, and government authori-
ties have been criticized for insufficient action to counter it.”
None of this testimony was contradicted or disputed by the
5
The other article detailed how the INS had cataloged the misuse of the
Lautenberg amendment, which allows certain historically persecuted
groups of the former Soviet Union, including Jews, to seek refugee status
abroad. See 1989 amendment to 8 U.S.C. § 1157 (Lautenberg amend-
ment). Notwithstanding that the Lautenberg amendment is not the law
under which Smolniakova may seek asylum, the article in fact supports
Smolniakova’s position. See Vast Soviet Refugee Fraud Detailed, Wash.
Times, Nov. 4, 1995, at A1, reprinted in AR at 1083 (“ ‘The irony is that
there are plenty of cases from the former Soviet Union which could qual-
ify [as persecuted refugees],’ noted a top INS official in Moscow in
December 1993.”) (emphasis added).
SMOLNIAKOVA v. GONZALES 12543
government. The IJ’s finding that Smolniakova’s presumption
of well-founded fear was rebutted is thus not supported by
substantial evidence. Accordingly, the presumption of a well-
founded fear of persecution stands and Smolniakova is eligi-
ble for asylum on this basis as well.
[11] We therefore hold that Smolniakova is statutorily eli-
gible for asylum and remand to the BIA so that it may exer-
cise its discretion whether to grant her that form of relief.
B. Withholding of removal
[12] A finding of past persecution also gives rise to a pre-
sumption of withholding of removal. 8 C.F.R.
§ 1208.16(b)(1)(i); Hoque v. Ashcroft, 367 F.3d 1190, 1198
(9th Cir. 2004). Because of her finding on the asylum claim,
however, the IJ did not consider Smolniakova’s withholding
claim in light of this presumption. We therefore remand
Smolniakova’s withholding of removal claim to the BIA so
that it may consider this claim in light of the presumption. See
He v. Ashcroft, 328 F.3d 593, 604, (9th Cir. 2003) (holding
that petitioner was statutorily eligible for asylum, but that
remand for consideration of withholding of removal claim
was still required under Ventura).
C. Qualifying Marriage
[13] Pursuant to INA § 216(b)(2), Smolniakova requested
a removal proceeding to review the INS’s determination that
her marriage to Roberto Quitevis, a United States citizen, was
a sham. Under INA § 216(b)(2), “the burden of proof shall be
on the Attorney General to establish, by a preponderance of
the evidence” that the qualifying marriage was improper. 8
U.S.C. § 1186a(b)(2). To dispose of the marriage fraud issue,
the IJ merely concluded that “the evidence is not clear as to
whether this was a fraudulent marriage” and went on to hold
that “[t]he respondent has not met her ‘heavy burden’ of prov-
ing that she did not enter into this marriage solely for the pur-
12544 SMOLNIAKOVA v. GONZALES
pose of obtaining immigration benefits.” In so holding, the IJ
applied the wrong standard of proof to the wrong party.
Imposing the heavy burden of clear and convincing evidence
on Smolniakova likely affected the result, especially in light
of the IJ’s conclusion that the evidence of marriage fraud was
not clear. This alone would be sufficient reason to reverse the
denial of Smolniakova’s petition for review of the termination
of her conditional resident status and to remand to the BIA.
[14] We also note that the IJ’s misguided, and at times
seemingly biased, adverse credibility finding in the asylum
context casts serious doubt on her analogous finding in the
sham marriage context. The IJ’s application of differing stan-
dards to assess the credibility of witnesses undermines her
impartiality and suggests a “ ‘predisposition [selectively] to
discredit’ the testimony, rather than any lack of credibility on
the part of the witnesses.” Paramasamy, 295 F.3d at 1051.
Quitevis testified that his marriage to Smolniakova was
never more than a mere business proposition — a way for a
young college graduate in bad financial straits to make some
easy money. And yet, he testified inconsistently about the first
payment installment he allegedly received from Smolniakova.
The IJ was forgiving of this inconsistency, explaining that
“[a]lthough the amount of payment was not completely con-
sistent, the testimony is consistent in that Mr. Quitevis was
paid for marrying the respondent.” The IJ was similarly for-
giving of Quitevis’ inability to provide consistent testimony
regarding the date he first met Smolniakova. It is striking,
however, that the IJ did not extend the same understanding to
minor inconsistencies, including inconsistent dates, in Smol-
niakova’s testimony and the testimony of those who were cal-
led on her behalf.
Although Smolniakova’s claims were presented together at
a single hearing, the asylum claim and the qualifying marriage
claim are analytically distinct. The adverse credibility finding
in the asylum context must not be allowed to “wash over the
SMOLNIAKOVA v. GONZALES 12545
[qualifying marriage] claim.” Kamalthas v. INS, 251 F.3d
1279, 1284 (9th Cir. 2001) (quoting Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000)); see also Taha v. Ashcroft, 389 F.3d
800, 802 (9th Cir. 2004) (reversing the IJ’s adverse credibility
finding in the asylum context and citing Kamalthas, 251 F.3d
at 1284, for the proposition that such a finding should not be
allowed to “wash over” petitioner’s Convention Against Tor-
ture claim). Where, as here, the IJ’s adverse credibility find-
ing in the asylum context betrays the IJ’s bias against the
petitioner, such a finding of necessity casts a suspicious cloud
over the negative credibility determination made in reviewing
whether petitioner’s qualifying marriage was a sham.
[15] Indeed, the IJ explicitly acknowledges this “wash
over” effect in her decision. When discussing the marriage
claim, the IJ states, “[T]he totality of the respondent’s evi-
dence is so internally inconsistent, inconsistent with her asy-
lum application and inconsistent between witnesses, that the
Court cannot possibly believe the witness.” We therefore hold
that the IJ’s numerous erroneous findings that Smolniakova
was lying about her asylum claim tainted the IJ’s view of her
credibility with respect to the qualifying marriage claim.
Accordingly, we reverse the IJ’s credibility determinations in
the qualifying marriage context and remand to the BIA with
instructions to hold a new hearing to make fresh findings on
this issue. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059
(9th Cir. 2005) (remanding for a new hearing “to ensure that
Petitioner has a full and fair opportunity to establish her credi-
bility”). We further direct the BIA not to return the case to IJ
Anna Ho. Id.; Perez-Lastor v. INS, 208 F.3d 773, 782 (9th
Cir. 2000).
IV. Conclusion
In sum, we reverse the IJ’s adverse credibility finding in
the asylum context and find that Smolniakova has suffered
past persecution on account of her religion and has a well-
founded fear of future persecution. We accordingly find
12546 SMOLNIAKOVA v. GONZALES
Smolniakova statutorily eligible for asylum. We remand for
an exercise of discretion on Smolniakova’s asylum claim and
for further consideration of the withholding of removal claim
in light of the presumption that now operates regarding her
ability to show future threats to her life or freedom. We
reverse the IJ’s denial of Smolniakova’s petition to review the
INS’s determination that her marriage to Quitevis was a sham.
We remand to the BIA for a new hearing to make fresh credi-
bility findings in the qualifying marriage context and for fur-
ther review of the INS’s termination of Smolniakova’s
conditional permanent resident status in light of the new cred-
ibility findings and in conjunction with an application of the
appropriate burden of proof. The BIA is instructed not to
remand the case to IJ Anna Ho.
PETITION GRANTED, REVERSED AND
REMANDED.