Rebenko v. Holder
2012 U.S. App. LEXIS 18593
| 1st Cir. | 2012Background
- Rebenko, a Ukrainian Pentecostal, entered the U.S. in 2001 on a J-1 visa and later held an F-1 visa through 2006.
- She filed an affirmative asylum and withholding of removal application on October 12, 2004; DHS issued a notice of intent to deny in 2007 and removal proceedings followed in September 2007.
- An IJ denied asylum, withholding of removal, and CAT relief but granted voluntary departure; the BIA affirmed on September 8, 2011.
- Rebenko testified to four incidents of mistreatment tied to her faith (1999 arrest, threatening calls, 2000 graduation harassment, and a 2000 beating by skinheads).
- Expert testimony from Kotler suggested grave risk on return, but the IJ and BIA relied on country reports showing religious freedom and growth of Protestant churches in Ukraine.
- The court reviews the IJ/BIA decision on a unitary record and grants relief only if findings are supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether past persecution by Ukraine is shown | Rebenko; past incidents amount to persecution. | BIA found incidents not sufficiently severe or systemic to constitute persecution. | Substantial evidence supports no past persecution |
| Whether well-founded fear requires past persecution proof | Fear can be established directly without past persecution. | Objective basis must be shown; past-persecution presumption not satisfied here. | IJ/BIA properly analyzed fear without relying on past persecution; no objective basis shown |
| Whether the CAT analysis must be independently considered | IJ/BIA failed to independently analyze CAT claim. | CAT issue was not challenged on appeal and is forfeited; merits lack. | CAT claim not independently analyzed; issue forfeited and meritless |
Key Cases Cited
- Hussain v. Holder, 576 F.3d 54 (1st Cir. 2009) (review of BIA/IJ as a unit; substantial evidence standard)
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (record review standard; acceptance of factual findings)
- Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005) (evidence-based review; defer to agency findings)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (de novo review of law; substantial evidence for facts)
- Butt v. Keisler, 506 F.3d 86 (1st Cir. 2007) (persecution nexus; government action/inaction required)
- Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (credibility does not prove causal nexus)
- Alibeaj v. Gonzales, 469 F.3d 188 (1st Cir. 2006) (high threshold for persecution; frequency and seriousness)
- Journal v. Keisler, 507 F.3d 9 (1st Cir. 2007) (persecution analysis; government response critical)
- Susanto v. Gonzales, 439 F.3d 57 (1st Cir. 2006) (persecution standards; private conduct with state failure)
- Topalli v. Gonzales, 417 F.3d 128 (1st Cir. 2005) (past persecution; nexus and frequency considerations)