Evguene Borodachev v. Eric Holder, Jr.
441 F. App'x 354
6th Cir.2011Background
- Borodachev family (Evguene, Lioudmila, Larisa) are Kazakhstani citizens who lived in Almaty and came to the U.S. on B-2 visas in 1995, later Evguene on F-1 through 2004.
- In 2004–2007 they applied for asylum, withholding of removal, and CAT relief, alleging religious persecution of Baptists by Muslims in Kazakhstan.
- Petitioners testified to multiple incidents (1994–1995) including beatings, threats, and harassment tied to their Baptist faith; police investigations were allegedly inadequate.
- IJ found Petitioners not credible, deemed incidents to be street crime or neighborhood disputes, and required corroboration and evidence of past persecution or well-founded fear.
- BIA affirmed, agreeing no past persecution or well-founded fear, and rejected CAT relief; asylum timing issue deemed resolved in their favor but merits denied.
- Petitioners seek review in the Sixth Circuit, challenging the BIA’s denial of asylum, withholding of removal, and CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution or future fear on religion | Borodachevs contend past persecution and threat of future persecution based on religion exist. | Gonzales/BIA found lack of credible evidence and no well-founded fear due to changed country conditions. | Substantial evidence supports denial of asylum and withholding for lack of past persecution or well-founded fear. |
| Effect of police response on persecution finding | Police failures to investigate negate government protection; persecution established by police inaction. | Police investigations were reasonable; failure to locate attackers does not prove unwillingness to protect. | Evidence supports that police efforts were adequate; no persecution established. |
| CAT relief viability | Kazakhstan would torture Petitioners upon return under official intolerance of Baptists. | State Department reports show generally respectful religious freedom; no likelihood of torture. | Petitioners fail to show it is more likely than not they would be tortured; CAT relief denied. |
| Credibility and corroboration standard | IJ overemphasized minor inconsistencies and undervalued corroboration | Discrepancies undermine credibility; country conditions supported by reports. | Court declines to reweigh credibility; substantial evidence supports denial on merits. |
| Relocation within Kazakhstan as a mitigation | Could not reasonably relocate due to targeted persecution. | Kazakhstan has large cities and multiple locales; relocation feasible. | Relocation within Kazakhstan deemed reasonable; no well-founded fear. |
Key Cases Cited
- Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004) (definition and burden of asylum eligibility)
- Ouda v. INS, 324 F.3d 445 (6th Cir. 2003) (change in country conditions may rebut asylum presumption)
- Ali v. Reno, 237 F.3d 591 (6th Cir. 2001) (withholding of removal burden and standard)
- Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998) (well-founded fear standard requires substantial evidence)
- Ramaj v. Gonzales, 466 F.3d 520 (6th Cir. 2006) (specifies well-founded fear must be reasonably specific)
- Vata v. Gonzales, 243 Fed. Appx. 930 (6th Cir. 2007) (relocation may defeat well-founded fear if feasible)
- Wasef v. Holder, 387 Fed. Appx. 521 (6th Cir. 2010) (State Department reports as substantial evidence of country conditions)
- Gromovik v. Gonzales, 148 Fed. Appx. 479 (6th Cir. 2005) (police response and control of attackers relevant to persecution analysis)
- Haider v. Holder, 595 F.3d 276 (6th Cir. 2010) (administrative determinations and standard of review)
- Kaba v. Mukasey, 546 F.3d 741 (6th Cir. 2008) (CAT standard and rebuttable presumptions in asylum context)