Ivanov v. Holder, Jr.
2013 U.S. App. LEXIS 23115
| 1st Cir. | 2013Background
- Pavel Ivanov (Pentecostal) and Irina Kozochkina (Baptist) entered the U.S. in 2003, overstayed, and applied for asylum, withholding of removal, and CAT relief in 2004; IJ found Ivanov credible.
- Ivanov recounts multiple violent incidents in Russia (1999–2003): attacks on a baptism and prayer house, a three-day kidnapping and torture in 2002, a beating in 2003 after refusing to testify against his pastor, and Molotov attacks on his home and the church rehab center in 2003.
- The church ran a drug rehabilitation center; Ivanov testified attackers told him to close the center and at times called it “satanic.” He also linked skinhead activity to spikes around April 20 (Hitler’s birthday).
- Ivanov’s parents reported attacks to police; record shows little or no effective police follow-up; Ivanov alleges ties between skinheads and state security officers.
- The IJ assumed Ivanov met the threshold for past persecution but concluded the harm was motivated by the skinheads’ economic interest in the drug trade and general lawlessness, not by Ivanov’s religion; IJ denied asylum, withholding, and CAT relief; BIA affirmed without opinion.
- The First Circuit majority vacated and remanded, holding the record compels a finding that Ivanov suffered persecution on account of his Pentecostal faith; it did not reach withholding or CAT relief. Judge Kayatta dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ivanov suffered past persecution | Ivanov: multiple violent incidents (including torture and arson) tied to his Pentecostal affiliation and church activity amount to persecution | DHS/IJ: incidents reflect criminal/financial motives of skinheads and general lawlessness, not religion-based persecution | Court: Past persecution established (IJ had assumed it; court agrees given record and credibility) |
| Nexus — was persecution "on account of" religion | Ivanov: attackers targeted church activities (baptism, prayer house, rehab center) and used religious slurs; pattern and country reports show anti-Pentecostal animus | DHS/IJ: attackers’ demands focused on shutting the rehab center to protect drug trade; testimony indicates attackers ‘‘had not a single notion about religion’’ | Court: Nexus satisfied — harm was at least partly motivated by religion; IJ erred in treating economic motive as exclusive |
| Government action/inaction (acquiescence or inability to control persecutors) | Ivanov: police failed to investigate or protect him after multiple incidents; some evidence links security officers to pressure against him | DHS/IJ: lack of direct proof government aided attackers; sporadic police non-action in a large country is not dispositive | Court: Government unwilling/unable to control persecutors shown by repeated failure to act; supports asylum nexus requirement |
| Whether record compels denial under substantial-evidence review | Ivanov: record (testimony + country reports) compels contrary conclusion to IJ | DHS/IJ: IJ’s factual inferences (economic motive, no gov’t nexus) are supported and entitled to deference | Court: Under substantial-evidence standard, reasonable adjudicator compelled to conclude nexus to religion; vacated and remanded. Dissent: would defer to IJ. |
Key Cases Cited
- Larios v. Holder, 608 F.3d 105 (1st Cir. 2010) (review of BIA summary affirmance — treat IJ decision as BIA's)
- Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (nexus requirement and persecution analysis)
- Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (substantial-evidence standard for asylum factfinding)
- Sok v. Mukasey, 526 F.3d 48 (1st Cir. 2008) (government action/inaction and nexus to persecution)
- Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008) (impermissible motivation need only be a partial motivation)
- Precetaj v. Holder, 649 F.3d 72 (1st Cir. 2011) (review standard: reverse if reasonable adjudicator compelled to conclude otherwise)
- Kartasheva v. Holder, 582 F.3d 96 (1st Cir. 2009) (substantial-evidence review limits)
- Harutyunyan v. Gonzales, 421 F.3d 64 (1st Cir. 2005) (past persecution creates rebuttable presumption of future fear)
- Rebenko v. Holder, 693 F.3d 87 (1st Cir. 2012) (severity and regularity required for persecution)
- Pulisir v. Mukasey, 524 F.3d 302 (1st Cir. 2008) (contextual weight of country conditions to incidents)