Rusak v. Holder
2013 U.S. App. LEXIS 17583
| 9th Cir. | 2013Background
- Natallia Rusak, a 28-year-old deaf Belarusian, seeks review of BIA denial of asylum, withholding of removal, and CAT relief; Ninth Circuit reviews BIA for substantial evidence.
- Rusak and her mother belonged to the Seventh‑day Adventist Church; her mother was allegedly arrested, beaten, and raped by police, and lost her job; her father was beaten and later died of a heart attack when Rusak was ~11.
- Rusak testified to childhood abuse and harassment at school for her deafness and/or family religion; neither she nor her mother were found not credible by the IJ.
- Rusak entered the U.S. after treatments abroad; her immigration authorization lapsed; her mother later withdrew a prior asylum application after marrying a U.S. citizen, and Rusak filed independently.
- The government conceded alternative nonlitigation remedies (family‑sponsored visa; prosecutorial discretion) but the court addressed the asylum merits.
- The IJ and BIA concluded Rusak did not suffer persecution on account of disability or religion; the Ninth Circuit majority reversed as to religiously based past persecution and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rusak suffered past persecution on account of disability | Rusak: sustained abuse/harassment in school for being deaf constituted persecution | Gov: incidents were unpleasant but not extreme enough to be persecution | Denied — court agreed incidents re disability did not rise to persecution |
| Whether Rusak may rely on family’s mistreatment to show past persecution on account of religion | Rusak: parents’ arrests, assault, rape, and father’s death when she was a child establish past persecution and a well‑founded fear | Gov: abuses against parents do not constitute persecution of Rusak and record lacks direct linkage to her own trauma | Granted — majority held Hernandez‑Ortiz requires considering family injuries to a child and Rusak established past persecution based on parents’ treatment |
| Whether a presumption of future persecution arises and whether government rebutted it | Rusak: past persecution creates a rebuttable presumption of future persecution | Gov: country reports and record show conditions improved and do not compel a fear of future persecution | Held for Rusak — court found country reports did not show meaningful change and government failed to rebut presumption |
| Standard of review for BIA decision | Rusak: errors of law and failure to apply Hernandez‑Ortiz require remand | Gov/BIA: substantial‑evidence supports denial; decision need not be disturbed | Majority: remand; Dissent: would uphold BIA under substantial‑evidence standard |
Key Cases Cited
- INS v. Elias‑Zacarias, 502 U.S. 478 (standard: substantial evidence review of administrative findings)
- Duarte de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999) (well‑founded fear requires subjective and objective elements; past persecution can establish objective fear)
- Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995) (persecution is an "extreme" concept; not all offensive treatment qualifies)
- Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994) (applicant may rely on ‘‘pattern or practice’’ of group persecution and group membership)
- Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999) (family members’ persecution may support claimant’s well‑founded fear)
- Hernandez‑Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) (when applicant was a child, injuries to family must be considered in assessing past persecution)