Tetyana Lomtyeva v. Jefferson Sessions, 704 F. App'x 677

Background

Lomtyeva, a Ukrainian Seventh Day Adventist (SDA), entered the U.S. on a temporary visa in 2008 and applied for asylum in 2009; DHS charged removal for visa overstay.
IJ found Lomtyeva credible but concluded she suffered discrimination, not persecution, and denied asylum, withholding, and CAT relief; BIA adopted IJ's decision.
Reported incidents in Ukraine: rocks thrown through a house used for SDA worship, that house set afire while police did not intervene and made disparaging remarks; a police officer allegedly threatened to kill SDA congregants; episodes of being cursed at, spat upon, fired, denied medical care, pushed (including down stairs), and two instances where police failed to investigate.
Lomtyeva made return trips to Ukraine after visiting her daughter in the U.K.; she testified returns were to avoid jeopardizing her daughter’s immigration status.
Majority held the record compels a finding of past persecution and remanded for asylum and withholding consideration; denied CAT relief. Judge Wallace dissented in part, arguing the record did not compel persecution and that the majority lowered the threshold.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lomtyeva suffered past persecution on account of religion	Repeated assaults, police threats, police acquiescence, and denial of services amount to persecution	Incidents were episodic harassment and discrimination, not severe or frequent enough to compel persecution	Court: Evidence compels finding of past persecution (majority); dissent: record does not compel that conclusion
Whether past persecution presumes a well‑founded fear of future persecution and whether return trips rebut it	Past persecution creates a rebuttable presumption; returns were to protect daughter’s status and do not rebut presumption	Returns undermine fear because petitioner willingly reentered Ukraine during the period of incidents	Court: Returns do not rebut presumption absent other contrary evidence
Withholding of removal (higher standard than asylum)	Entitled to withholding if persecution established	IJ denied withholding after denying asylum	Remanded to BIA to reconsider withholding in light of asylum ruling
CAT relief (torture standard)	Torture risk follows from religion‑based persecution	Substantial evidence shows no past torture and no likelihood of torture on return	Court: CAT denial supported by substantial evidence; relief denied

Key Cases Cited

Tamang v. Holder, 598 F.3d 1083 (9th Cir.) (BIA adoption of IJ decision and standard of review)
INS v. Elias‑Zacarias, 502 U.S. 478 (Sup. Ct.) (substantial‑evidence review and standard for compelling contrary conclusion)
Navas v. INS, 217 F.3d 646 (9th Cir.) (persecution by state or forces government cannot control)
Hanna v. Keisler, 506 F.3d 933 (9th Cir.) (past persecution presumes well‑founded fear)
Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir.) (specific, menacing death threats are strong evidence of persecution)
Wakkary v. Holder, 558 F.3d 1049 (9th Cir.) (distinguishing discrimination from persecution)
Krotova v. Gonzales, 416 F.3d 1080 (9th Cir.) (group assaults and police inaction can compel finding of persecution)
Boer‑Sedano v. Gonzales, 418 F.3d 1082 (9th Cir.) (return trips alone do not rebut presumption of well‑founded fear)
Karouni v. Gonzales, 399 F.3d 1163 (9th Cir.) (same principle regarding return trips)
Cole v. Holder, 659 F.3d 762 (9th Cir.) (standards for CAT relief and torture finding)
Canales‑Vargas v. Gonzales, 441 F.3d 739 (9th Cir.) (death threats can constitute persecution depending on context)
Nagoulko v. INS, 333 F.3d 1012 (9th Cir.) (harassment that does not prevent practice of religion may not compel persecution finding)
Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir.) (context determines weight of threats; reversal requires evidence that compels contrary finding)
Loho v. Mukasey, 531 F.3d 1016 (9th Cir.) (voluntary returns weigh against finding of persecution or well‑founded fear)