*1 AVETOVA-ELISSEVA, Maya
Petitioner, AND IMMIGRATION SERVICE,
NATURALIZATION
Respondent.
No. 98-70547. Appeals, Court States
United Circuit.
Ninth 7, 2000.1 Feb.
Submitted May
Filed 26, 2000. June Amended
As 34(a)(2). R.App. P. Fed. case suit- unanimously this finds panel 1. The argument. See oral able for without decision
H93 *3 H95 SHADUR, Judge: District Maya (“Avetova”), Avetova-Elisseva year-old Armenian native and citizen of Azerbaijan Russia, both petitions for review of a final decision of the Board of (“BIA”) Immigration Appeals affirming (“IJ”) the denial immigration judge application asylum and withhold- ing deportation. Avetova claims that suffered in Russia on ac- count of her ethnicity Armenian and Mor- *4 mon faith and that she has a well-founded fear of future if she were re- turned to that country.3 jurisdic- We have 1105a(a)4 tion and, § under 8 U.S.C. for given below, the reasons grant we Aveto- petition. va’s
Eligibility Asylum for 1158(b) Under Section Attorney General grant has discretion to asylum to Johnson, Bradford, Austin Brady S. & aliens qualify who as statutory “refugees.” Johnson, Provo, Utah, petitioner. for the turn, 1101(a)(42)(A) Section defines a “refugee” as an alien who “unwilling Golding, Marshall Tamor Office of Im- unable” to return to the migration Litigation, alien’s home coun- United States De- try “because of Justice, [past] persecution partment D.C., or a Washington, well-founded fear of persecution respondent. on ac- race,
count religion, nationality, mem- bership particular in a group, social political opinion.” “[a]n While alien who past persecution establishes is presumed to have a well-founded fear of Before: PREGERSON and .... presumption may [that] be rebutted WARDLAW, Judges, Circuit where the country conditions have SHADUR, Judge.2 District significantly changed” Pitcherskaia v. Opinion by SHADUR; INS, (9th Judge Cir.1997) by 641, (cita- Dissent 118 F.3d 646 Judge omitted). WARDLAW. Shadur,
2. Honorable Milton I. Although United States Illegal Immigration U.S.C.” Re- Judge District for the Northern District of Immigrant form Responsibility Act of Illinois, sitting by designation. (“Reform Act”) 1996 replaced Section 1252, 1105a with Section the new review 3. citizenship, In view of her dual sepa- the IJ provision apply petitioners does not rately deportation Azerbaijan considered deportation as Avetova proceedings whose granted and to Russia. Because the IJ Aveto- 1, Instead, April commenced before 1997. petition deportation va’s to withhold to Azer- deportation because a final order of was en- baijan Immigration and the and Naturaliza- 30, 1996, against tered her after October (“INS”) sought tion Service has not to review (see apply Reform Act’s transitional rules Re- decision, the issue is not before us. 309(c)(1)). § form Act Hence still have provisions 4. All 1105a(a). citations Title 8 jurisdiction will take under Section "Section-,” omitting prefatory the form “8 1196 partic- targeting” society responsible asy premises
Any alien who id. of individuals ular class perse fear a well-founded claim on lum subjectively demonstrate must cution Review Standard of fear objectively reasonable genuine asylum decisions BIA Adverse INS, F.2d v. Arriaga-Barrientos “substantial supported if upheld Cir.1991). subjective (9th While the 966). (see F.3d at Singh, 134 evidence” “showing that is satisfied component peti “a that deferential standard Under id., objec genuine” fear alien’s findings Board’s contending “credible, direct, tioner requires component tive evi that the must establish are erroneous in the record evidence specific conclusion, supports perse dence fear a reasonable support would INS, Ghaly compels it” 966 but Singh v. cution” Cir.l995)(internal (9th quotation 1425, 1431 (internal Cir.1998) punctuation original).5 omitted). emphasis omitted marks reference source reviewing the adminis limited Though showing of a sustainable For the record record, we consider trative must es “[p]etitioner past that contra including entirety, its suffered mistreatment she tablish findings Velarde v. dicts the BIA’s substantially grievous more ... was *5 Cir.1998). (9th 1305, 1309 F.3d manifesta general than the degree or kind competing ... hostility between of tion Background at 967. ...” id. groups religious and ethnic Baku, Azerbaijan. was born Avetova per future fear of requisite as to the But family fled Baku her In 1990 she and 1029, secution, Mgoian Az- to cleanse escape campaign the Azeri Cir.1999)(internal quotation and Russians.6 of Armenians erbaijan omitted) citations marks, punctuation and they troops of Soviet the help With teaches: ulti- and were Caspian Sea crossed to show required not is applicant [T]he But Russia to Moscow. mately evacuated individual- singled out be that she would hospitable only slightly more proved to be pattern is or a if persecution for ly were Avetova, and her friends for she per- of groups of persecution of practice harass- incidents of of numerous victims can es- and she similarly situated sons ethnicity and to their Armenian ment due group inclusion own tablish her faith. Mormon upon persecution fear that her such entered the Thus, appli- if 1993 Avetova [an In December reasonable. return is ill with her prac- or to be “pattern legally a to show States United cant] able group a after her against month persecution April one tice” of sister. member, will she be deportability a then conceded expired, which she visa asylum. withholding of asylum for and eligible for applied but IJ, 30, 1996 the On October deportation. nec- action is not state Finally, affirmative decision, testi- in an oral found fear of well-founded a essary to establish but, granting while mony to be credible unwilling “is government if the withholding deporta- for application her its those elements control or unable to has not find Petitioner (internal could quota- factfinder at 966 Singh, 134 F.3d 5. As asylum. eligibility for omitted) puts established it: and citations tion marks reviewing (pogroms) court multiple bars a standard movements This led strict Azeris weighing “foreigners.” evidence As the BIA Azerbaijan all independently rid from found, eligible pogrom Azeris petitioner is involved the holding the 1990 homes, beating, evicting compelling entering "private where except in cases asylum, Thus, killing Russians.” deny even we must is shown. suf- husband had Russian In 1988 Avetova's presented evi- unless Petitioner Petition injuries pogrom. a permanent fered reasonable compelling that no dence so
H97 (1) Azerbaijan, from denied it as to Rus- she was harassed pushed by Rus- a timely sia. Avetova filed administrative (2) sian officers because of her ethnicity;8 appeal that the April BIA denied on she could get job not even though she petition 1998. This followed. diploma had a because jobs “there were no (3) Armenians”; friend’s Avetova’s Fear Future Persecution (who Armenian) daughter was raped was by police issue is beaten At whether the record compels Although officials. finding experiences may Avetova has a certainly well-founded contribute (to petitioner’s fear of future to a because of her state of mind satisfy ethnicity.7 subjective and, Armenian On that component) score the if ade- simply BIA quately stated: supported, provide also required showing of an objectively reason- respondent While testified to inci- able fear future agree dents of harm suffered Mormons and with the Russia, BIA that Armenians in these the record incidents of hostil- does ity not alone not “persecution” reflect that there exists in do amount to (that is, past persecution) pattern practice within the mean- per- ing of sons on the basis of Armenian statute. ethnicity membership in the Mormon faith. In terms of the fear of future Although the opinion BIA’s persecution, there is no question that Ave does expressly not state whether or it tova subjective satisfies the component of conducting review, a de novo its two-part test. As the IJ said after phrasing seems in part suggest it listening to and witnessing her testimony, did conduct an independent review of the “high Avetova demonstrates a degree of case, If that record. were the be would fear and ... emotionalness [sic].” Sum (see the BIA’s decision that we review marizing “background *6 materials” Vongsakdy v. 171 F.3d 1206 case, the the IJ said objective that the (9th Cir.1999)). the lack of analysis But evidence established this: opinion that the BIA devoted to the issue harassment, [T]here is discrimination, at simple hand-its statement of a conclu and mistreatment people of of Armenian suggests sion-also that the BIA gave sig Russia; descent in in particular, Mos- weight nificant to the IJ’s In findings. cow, problems because of the that that light of that ambiguity, we will also to look city has encountered after the fall of the n the IJ’s oral decision as guide to what However, Soviet Union. the back- lay behind the BIA’s conclusion. ground materials indicate that the ina- bility Any police petitioner in to po sometimes deal with may problems, sition create a rebuttable these is not due to the presumption objective of fact an fear of that persecution police future the is participating [sic] by demonstrating in past persecution (see, but, the or harassment e.g., rather, Marcu v. 1081 because of lack of resources and (9th Cir.1998)). In support very rate, of her high claim of crime which leads the past persecution police because she is Ar only prosecute to those cases menian, Avetova recites several incidents: where the evidence abundantly is ultimately 7. Because hold that a the reasonableness of her of fear exists, well-founded fear Armenian, we need not resolve provides as an support also like question the whether such a fear also exists regarding Mormon her faith. because of Avetova's Mormon faith. It is adding, though, worth that Avetova’s "outsid- Specifically, 8. pushed Avetova was around er” status as an Armenian can be wors- passport, was asked for her internal by membership minority ened group in a second when it discovered that she was Ar- (this religious)-and one expert the same menian was told that soldiers were the supports who directly required witness the "sick and of "all tired” these invaders.” objective component ethnicity, as to Avetova’s 1198 perse- of ethnic elements stop to inability one that is not The evidence clear.... the is that instead matters What cution. systemat- is government the that shows con- to unwilling or unable “is government tolerat- acts these in ically engaging society” commit- itsof those elements trol acts in of engage do that people ing the Mgoian, of acts ting the harassment, deliber- discrimination added).12 Indeed, 1036(emphasis of because persecute ately aas labeled might be funding of any lack they are Armenian. that the fact (contrast the current choice governmental that conceded words, the IJ In other Chechnya). campaign in military Russian discrimination, and harassment, is9 “there ina- solely on the not rest But we need de- Armenian people
mistreatment is com- concept, for bility-to-control that Russia,” but scent govern- tacit at least that pelling that stop powerless is government is involved sponsorship ment harassment.10 part of Armenians. harassment13 exactly what not clear is Though on coun- report Department’s State upon, IJ relied materials” “background says that in in Russia try conditions weight was significant appear it would security forces members “[s]ome Claims Asylum given to Profile abus- rights human commit continued (1995) prepared Conditions Country es,” say: toon going Asylum Office Department’s the State support, law enforce- public wide With most mirrors which report, That Affairs. with targeted people authorities ment unequivocally sentiments, states of the IJ’s harassment, ar- complexions dark ethnic harassment from protection cen- from urban rest, deportations because in Russia unavailable generally crisis. periods domestic during ters clearly [sic] ... police “Russian Human continued This trend the situation” with coping incapable law enforce- reported Rights Watch supplied).11 (emphasis de- “routinely agents Moscow ment money extorted tained, intimidated that financial not matter It does color, mainly people beat from and such an account considerations complaint and the seriousness employs tied consistently also opinion 9. This be perpetrator will in Rus- likelihood situation to describe present tense religious ethnicity, because to the than apprehended, of course recognize *7 sia. We views, the situ- place in the victim.” hearing affiliations of political took or is changed. While it by question have since called ation unfortunate that conclusion is into But processes cause law’s the country condi- later Department’s State the than three more be rendered to this decision below. report discussed hearing, we must initial years Avetova's after record in the administrative the facts consider Singh example, in 12. For In- situation. circumstances speak the current they to as if deed, Cir.1996) Indo-Fijian fam- an in such any remand by gangs of harassed ily was threatened litigants, poten- extremely to unfair would be nothing police did the Fijians, and ethnic multiple determinations triggering tially Noting reported. were those incidents when any to appeals as whether repeated by groups that out "[pjersecution meted sort of Zeno’s Para- persecution-a "current” unwilling con- government is unable the reach never arrow could dox which the Act," under constitutes trol a determination from target. This differs by authorities the "failure we said that necessary remand is where past persecution, clearly family indicates Singh protect and his country conditions in determine whether not or would could police either changed. have Fijians threatened who ethnic control that Avetova question no there is 10. Because added). (emphasis family” id. Singh and his Armenian, merely to demonstrate per- systematically being that Armenians toas our discussion until later 13. We reserve 1035). (see, e.g., Mgoian, secuted "per- equates to "harassment” whether such the statute. under secution” "action says that the report also 11. That closely appears police] more [of inaction
H99 people from the Caucasus and Mormons, Central I can affirm that she would Asia....”14 face a strong likelihood of persecution, possibly resulting in physical quoted harm or report That from Rights Human death, if she were forced to return Watch, to the based group’s on that investigation Russian Federation.... It is a sign of racist attacks Moscow law enforce- the breakdown of civil society in the ment personnel, also states: Russian Federation and of the govern- [L]aw enforcement authorities in Mos- ment’s inability, or unwillingness, pro- ... cow only are not failing to uphold tect its citizens that some Armenians in obligations Russia’s to fight racial dis- the Russian experience Federation indeed, crimination but for approximate- discrimination, mild while others face ly past years, three have been con- life-threatening persecution without ducting a campaign of harassment and there being any distinction between the brutality against people. dark-skinned activities individuals con- State-sponsored abuse includes restric- cerned .... The personal incidents tion of movement, freedom of including which Maya Eliseeva describes in her arbitrary detention, arbitrary house affidavit are entirely consistent with the searches and invasion of privacy, extor- extreme experienced abuses by many tion, and physical Although assault.... in the Russian Federa- no reliable available, statistics are ap- tion- I see nothing in the near fu- pears that frequent the most victims of ture which would suggest persecu- state-sponsored, ethnically motivated at- tion of some Armenians and all almost tacks others,] are [among people from Mormons be ameliorated, will due to the Caucasus (Armenians, Mountains religious antagonism, the instability of Azerbaijanis, Chechens, Georgians, the Russian government, the present others).15 Kurds and struggle for power, the prejudice natural Avetova also the testimony introduced against Russians dark-skinned Dr. Dennis Papazian, expert Ar- on people, the persistence regional menians in Russia.16 While it was undis- and ethnic conflicts in the Russian Fed- puted that Papazian Dr. was extremely eration and its neighboring successor well informed about the current plight of states. The arbitrary local regional Armenians in Russian, the IJ imposition limited his propiska system17 con- submission to affidavit form because the IJ tinues to result labeled testimony live specific as “cumulative.” groups, such Armenians, as Papazian’s Dr. affidavit in part: specific individuals, stated such as Maya Eli- seeva.
I have read the affidavit Maya Elisee- va [sic].... on my Based expert knowl- That statement strongly reinforces edge of conditions affecting Armenians record evidence of Armenian harassment in the Federation, Russian as well elements government.18 *8 14. Armenians are from the Caucasus. system 17. That involves the use of residence permits that determine where citizens 15. report While necessary that reside and get that that legal jobs noted "the to Govern- housing. ment of the and permits Those classify Russian Federation has shown citizens sensitivity by to race ethnicity increases and in ethnic and also serve hostilities the osten- steps purpose and has taken to tracking people this sible of dangerous combat for law en- trend,” government the puiposes. federal forcement and some mu- nicipalities adopted legislation "have has that the formed basis for police's the Moscow ra- 18. While the IJ seemed Papa- discount to Dr. cially motivated attacks.” zian's regarding Azerbaijan comments be- they “highly cause were conclusory in na- (the Papazian ture,” Dr. “Dr.” denotes a Ph.D. the IJ made no mention at all of his degree) is the Director of the Armenian Re- statements as to the of Armenians search Center University the at of Michigan at in Russia. is particularly troubling It to find Dearborn. Papazian's Dr. opinions, which were the most also contrain- things these ofAll a menians. of claim rejecting Avetova’s to meaningful significance ascribing persecution, dicate future of fear
well-founded a Russian several received noted Avetova that the BIA the fact IJ the both way: Russia’s the other to cut passport. said factors Ar and other Avetova army rescued husband Further, fact that Avetova’s the hus Azerbaijan; Avetova’s from menians en- not is pension a government receives Russian from the a pension receives band aall native is after all-he at lightening injuries suffered he because government though Finally, Russia, Armenia. not Russian a received Azerbaijan; she in States to the United initially came Avetova come to to passport that and used passport to flee not ill sister her to assist persecution, flee from not to country this us to simply enables that persecution, not this It is ill sister.19 to assist but petitioner’s a look deep a at to take pause course, the evi weigh role, to Court’s com- discount not a reason to It claim. is this, do not and we as' in cases dence instance, Papa- Dr. this evidence-in pelling Instead, fear because here. so do persecution. evidence-of already ex zian’s issue, have at is future evidence uncontroverted why the plained odds not at here is said been What trump perforce must Papazian Dr. from Singh, in the statement with past. the from inferences attenuated more “under- claim petitioner’s that a terms, the other own on their even But the to came fact she that the cut” lose paragraph in this to referred factors alleged the years after five United States scrutiny. closer under force to file and decided began army First, just because de- it here and liked “she asylum because other Armenians Avetova rescued reasoned, id., Singh, stay.” As cided Azerbaijan does not likely death a from truly if Petitioner expect would “[o]ne of future prospect negate would persecution, experienced had even life-threatening-or than is less would country earlier left have from elements life-threatening persecution once But to return.” not have intended It control. cannot government on the not focusing here we are again record from apparent also past Avetova’s as to sufficiency proof toward government the Russian .of views situa- the total on but rather as the over time changed have persecution. fear as to the future have altered refugees Armenian flood demonstrating respect, while in that And land- political, social, turn the and in a create rebuttable does past persecution record Finally, on the scape.20 persecu- of future of a fear presumption entity is not government the Russian tion, presumption on such reliance Armenians. toward single attitude with travel. petitioner for a only path reveals, was officials the record As test for statuto- true litmus officials) Rather (in national contrast Moscow persecution-is concept fear future ry Ar- persecutors primary were who in- is somehow ethnicity.” If that Armenian record in the particularized current credibility of on the cast a cloud tended Aveto- as to salient evidence hence the most (rather reveal- than subjective fears Russia, discounted potential va’s future mindset), it is something the IJ’s big about really as concerns If there were that fashion. observation nature,” the IJ’s really undercut Dr. "conclusory ... to the affidavit's fear and "high degree of Avetova exhibited a live wit- readily available Papazian was *9 testimony. during her ... emotionalness” ness. exactly Indeed, what appears that this record, it 20. the IJ the any support in Without 19. brief own United As the States’ happened. notes, asylum only "after Avetova filed for states that resentment Russian "substantial seeing the kind and being United States in ... has Caucasians hostility against all country to enjoyed in this she freedom refugees by the influx been exacerbated religion the lack practice her Mormon conflicts.” various ethnic from the of her any problems because or harassment subjective objective two-pronged personal stan- plainly satisfy future risk discussing quoted dard that we have been here. standard. “pattern As for the practice” it does not for the To that end suffice itself, alternative do not view it as advance the
government “substantial (cid:127) ,a requiring showing universality-a appeal evidence” standard on as an at- showing every in individual tempted against any bulwark and all at- group vulnerable must face such seri- standard, Despite height tack. of that persecution. ous Here the evidence of it for a expla- cannot substitute reasoned substantial group persecution (again re- why overwhelming nation as evi- affidavit), in Papazian’s flected Dr. cou- and, dence of Armenian harassment at the pled with Avetova’s special circum- least, very governmental Russian indiffer- stances (including past individual prevail. ence does not entitle Avetova to experiences), Indeed, suffices. Under those cir- tmpersuasive United States is cumstances we cannot justify subjecting in rely solely its effort to on Avetova’s Avetova to testimony, gamble with the serious coupled the standard of that she review, might perhaps escape at the it the fate while same time fails to that the expert opinion counter that evidence of Armenian evaluates a “strong harass- governmental ment and Russian likelihood.” involve-
ment. In both of those respects, we be lieve entirely that it is consistent to deter sum, In having given the United mine, on petitioner’s the one hand that a required States benefit of the in doubt past during harassment a closed peri time record, construing the we are nonetheless od legal had not reached the “past level of credible, compelled by specific direct and persecution,” so as to defeat relief on the evidence to conclude that elements of the ground alone,21 past persecution of that government supporting are either yet to determine that although such or are unwilling stop pattern unable to past experiences did not themselves reach practice of Armenian harassment level, that legal they sufficiently proba Russia-one for Avetova herself would tive of a out of singling petitioner so strong create “a likelihood of pattern that an established current per possibly resulting physical harm or death, group secution of members of the if to which she were forced to return to (Dr. belongs personalized carries the Russian Federation” threat Papazian’s un view). (once of her expert again controverted future in the We are of 208.13(b)(2) sense) § of 8 if legal course mindful C.F.R. she were sent back to the explication and of place its Kotasz v. where such practiced. (9th Cir.1994), F.3d 847 Suppose relied on example another Armenian view, In dissent. our two factors expatriate demon from Russia past whose exis inapplicability strate the of those refer country tence in that had wholly been un ences to defeat Avetova’s claim: person eventful-such a would fall into the Dr. category Papazian of what re regulation,
1. As for the brings the “pattern or ferred to as “some Armenians in the Rus practice” requirement into experience sian Federation play only appli- [who] as an alternative to an mild showing cant’s “that he or she discrimination” and who therefore face no would be singled individually persecution.” justifying asy out demonstrable future threat contrast, past experiences By Here Avetova’s and Dr. lum the United States. Papazian’s express past affirmance as to her Avetova’s unpleasant experiences cou- score, prospect past persecution 21. On that a converse determination that such will con past proved (8’ had been would 208.13(b)(l)(i); § tinue in the future C.F.R. necessarily petitioner’s resolve a see, claim. e.g., Reyes-Guerrero event, argue the INS still 1999)). 1244-45 Cir. country carry' current conditions do not *10 just by what suggested As Papazi- Dr. risks overall with the pled demon the said, also hold been to- contradiction without identified an had in Rus of harassment that she strated “affirmation] his justify tally Sec under “persecution” to sia amounts persecu- of strong likelihood face a would 1101(a)(42)(A).22 Again no harm or physical resulting tion, possibly suggest the to by the INS proffered to the was to forced return death, if she were of Ar hostile treatment added). of such absence (emphasis Federation” not all harass While in Russia. menians seamlessly not meshes analysis This “perse statutory level of to the rises ment statement post-Notasz with the detention, intimidation cution,” the here but opinion in this earlier quoted Mgoian Armenians because beatings and explication alternative Mgoian’s with also record, described the as ethnicity, their omitted) at 184 (citations Kotasz itself to or harm suffering “the infliction of involves 4: 1035 n. (in race, religion or differ who those upon aof is a member applicant the [I]f way as regarded in a opinion) political is not the group but group, “disfavored” (quota F.3d at 1431 Ghaly, 58 offensive” this persecution, systematic subject to omitted). To the citation tion marks (1) the level to risk look will court be might the IJ BIA or that the extent (i.e., the extent in the membership group (a differently having as decided perceived suffered severity of n.20), could not see premise, doubtful (2) individ- the alien’s group) by the evi by substantial supported as be viewed (i.e., alien has whether risk level ual dence. or is more group in the special role the attention to likely to come Conclusion likely him a more making persecutors not to decision the BIA’s hold that We relation- The persecution). for target to deportation or to withhold asylum grant is corre- two factors these between ship evi- of substantial support lacks the Russia serious the more lational; say, is to of fact finder Any reasonable dence. persecu- threat widespread that Ave- compelled to conclude would be less individualized group, tion to the per- fear of future has well-founded tova to needs be. the threat being of her because in Russia secution Kotasz, as does view do not We therefore Aveto- therefore GRANT Armenian. We on the casting any cloud dissent, as case to this and REMAND petition va’s reached here. conclusions grant to with directions the BIA evidence to short, only scant In deportation withholding of for petition gov- of actual possibility on cast doubt Attorney to this matter present to of harassment support ernmental discretion of her the exercise General physi- likelihood” “strong pose would 1158(b). Section under more to Avetova-and or death cal harm GRANTED. PETITION contra- in the record nothing importantly, un- governmental the conclusion dicts dissenting: WARDLAW, Judge, Circuit stop inability to such harass- willingness or Maya Avetova-Elisseva finding has demonstrated Avetova ment. Hence (“Avetova”) asylum eligible both reasonable, as sub- as well objectively deportation, withholding of entitled jective, fear. or harass "persecution opine nexus with on ment did not regard the BIA In that though Consequently, was shown. ment” Armenians rises the harassment whether Cir. IJ, though Fisher persecution. As for level banc) 1996)(en is owed deference teaches that sum of Armenians the treatment he labeled acts to whether rise determination to a BIA "per materials as background in the marized appears that no harassment,” the level of seems his decision secution this case. made in such determination govern that no notion rest on mistaken
1203
majority
pattern
that
“a
holds
there is
and
her fear of
upon return is
of Armenian harassment
in
practice
Rus-
reasonable.
sia,” [maj. op.
(emphasis
at 1201-02
add-
208.13(b)(2);
§
8 C.F.R.
accord
id.
ed) ],
...
this
“harassment
208.16(b)(3)
§
(withholding
deportation).
”
1202],
‘persecution,’
amounts to
at
I
[id.
(9th
In
Kotasz
must dissent. 1994), explained we this regulation to mean “that where given members of a group are I. systematically persecuted ... proof of 208.13(b)(2) § provides 8 C.F.R. that: group membership suffices to establish a evaluating applicant In whether the ‘well-founded fear.’” Id. at 852.1 As an proving sustained his or her burden of example, pointed systematic to “the that he or she has well-founded fear of attempt to annihilate the Jews in Nazi asylum officer or immi- Germany.” (“Certainly, Id. it would not gration judge require appli- shall not necessary have been for each individual provide cant to evidence that he or she Jew to await a personal visit to his door singled
would be individually out for Nazi storm troopers in order to show a persecution if: well persecution.”). founded fear of (i) applicant The establishes that contrast, we during noted that the period pattern practice is a or in his or her of “widespread political violence” El Sal country nationality or last habitual vador, “neither all Salvadorans nor all reb residence of a group sympathizers el systematically were perse persons similarly appli- situated to the cuted.” Id. “pattern We confined viable or race, cant on account of religion, nation- practice ... of persecution” claims to ality, membership particular ain social Id.; “more extreme situations.” see also group, political opinion; or id. at (stating problem 863 that “the (ii) applicant The establishes his her non-pattern practice persecution ... common”). own inclusion in Moreover, and identification with far more it appears group persons such that his or only there have been two successful majority parts The states 8 C.F.R. majority's opinion Other of the are 208.13(b)(2) express explication § not consistent its and "its with disavowal of Kotasz ” any 208.13(b)(2) § reliance on 8 C.F.R. "inapplicable] v. INS are ... to defeat Ave- " ‘pattern practice' its requirement.” [Id. past experi- tova's claim” because "Avetova’s example, point, at For at one 1201]. Papazian’s express ences and Dr. affirmance that, majority states for Avetova to succeed on personal plainly" as to her future risk show review, .petition merely “she has to singled individually that "she would be out being sys demonstrate Armenians are (internal persecution.” [Maj. op. at 1201 tematically persecuted,” at n. 10 [id. 1198 omitted)]; quotation marks see Part II infra (citing Mgoian v. 184 F.3d 1035 (finding that requi- Avetova has not made the 1999))]. Systematic persecution Cir. is a showing persecution). site of individualized requirement claims, pattern-or-practice heavy "past experi- This reliance on Avetova’s governed by which 8 C.F.R. is a bit majority's ences” inconsistent with-the 208.13(b)(2). Kotasz, § See at 852- holding past experi- earlier that these same addition, Mgoian 53. In the section of v. INS is, (that ‘persecution’ ences "do not amount favorably by majority entirely cited rests past persecution) meaning within the 208.13(b)(2) § on 8 C.F.R. [See Kotasz. [Maj. op. statute.” at As for Dr. Pa- 1197]. maj. op. (citing Mgoian, at n.10 affirmance,” pazian’s "express it is of course 1035)]. Finally, places F.3d. at at several Papazian Dr. true that concludes that Avetova opinion, majority appears its to conclude strong "would face likelihood of pattern that there is "an established current ... if she were forced to to the return persecution” against Armenians in Russia. affidavit, Federation.” In his Dr. 1201]; however. (stating [Id. id. at 1201 [accord Papazian does not focus Avetova’s on individ- pattern practice there is "a of Armenian circumstances, ual but rather what Russia”) ]; discusses (stating harassment in at 1202 [id. “pattern persecution experi- he detention, views as a beatings that “the intimidation and enced Armenians ... ation,” Russian Feder- ethnicity” of Armenians because of their added). (emphasis persecution) ]. amounts *12 of practice or pattern in Russia a regula ist[ ] cases since the pattern-or-practice the basis of Ar- Mgoi persons of on years ago. See persecution ten was enacted tion (9th 1029, INS, Cir. 1036 ethnicity.” 184 F.3d an v. menian 1999) persecu pattern “that a of (finding a family plays that given a targeting
tion II. that is minority group in a role prominent Kotasz, if that even we also noted treatment hostile object widespread of are groups of the disfavored members persecu fear of a well-founded supports persecu- by systematic threatened members”); v. surviving Osorio by tion its membership, entire group’s of the tion Cir.1994) (con (2d INS, 1017, 1031 18 F.3d nonethe- membership group fact of are like Osorio “that leaders cluding union That risk. risk places them at less some persecution risk of Guatemalan grave at required for estab- to the level rise can INS, F.3d authorities”); v. 195 Chen cf. persecu- fear of Cir.1999) lishing a well-founded (4th that Chi 198, (holding 204 a of an individual’s either as result not amount to policy does child” na’s “one or group, of the persecution). support practice of activities pattern a or a is a member of the individual because case, in the record evidence In this that is it- group element of certain that there conclusion compel the does not than is at risk greater self of of practice pattern is a a membership group as whole. affida- in Russia.2 The Armenians against which the ma- Papazian, vit of Dr. Dennis Mgoian, 853; F.3d at 184 Id. at accord “the evi- most salient jority points to n. 4. 1035 potential future to Avetova’s dence as incidents, to three majority points The n.18], Russia,” admits as [maj. op. at 1200 amount to “do not that finds incidents that “some Papazian states much. Dr. (that is, past persecution) ‘persecution’ ex- the Russian Armenians in Federation statute,” [maj. meaning of the within discrimination, while only mild perience 1201], “coupled with the overall op. at life-threatening persecution face others identified,” Papazian [id. had that Dr. risks being any distinction be- there without 1197], of Avetova’s compel granting at con- of the individuals the activities tween “(1) was harassed and petition: [Avetova] will cerned,” “some Armenians” and that officers because pushed in Russia. continue suffer (2) get job could not a ethnicity; [Avetova] words, sworn statement In other diploma a because though she had even that, expert reveals because own (3) Armenians’; jobs ‘there were no and some persecuted are Armenians some (who daughter was Ar friend’s [Avetova’s] not, face Russia do not are menian) by police raped and beaten extreme situations one of the “more (footnote officials,” omit at 1197-98 [id. ... group an entire members of which ted) by the The identified ]. harassment Kotasz, 31 persecuted.” systematically required majority “falls far short Accordingly, I must con- at F.3d 852.3 compel finding showing needed to supports clude that substantial INS, Khourassany v. 208 persecution.” not “ex- finding that there does the BIA’s INS, 1378, 1201]; 44 F.3d compel see Makonnen v. the conclu- record also does not 2. The (8th Cir.1995) require (holding "to systematic persecution 1383 sion majority showing persecution of all the against in Russia. As members Mormons argument, maj. op. represents applicant’s group this address unrea- [see does not n.7], reading 'pattern practice' will I. at neither 1196-97 sonable pattern-or-practice language”). A successful claim, however, require showing does correctly a success- majority notes that 3. The Kotasz, persecution,” 31 at "systematic F.3d require pattern-or-practice does not ful claim Makonnen, 853; 44 F.3d showing accord universality-a ev- showing "a showing in such a this ery has not made group must Avetova the vulnerable individual in [Maj. op. at persecution.'' case. face such serious
1205 Cir.2000) (9th 1096, (holding operate 1100 businesses without interference” F.3d harassment was insufficient similar “Khourassany and because retained his or a past persecution establish well-found passport freely and was able to travel Singh v. persecution); ed fear of accord within Israel and to leave Israel without (9th INS, 962, Cir.1998); 134 F.3d 967 hindrance”); INS, Rodriguez-Rivera v. v. 47 F.3d Cir. Prasad (9th Cir.1988) (per cu- 1995); Mendez-Efrain riam) (noting that “Rodriguez-Rivera ob- *13 (9th Cir.1987). 279, majority’s 283 The passport government, tained a from the get that Avetova “could not a assertion family and his continues to in El live Sal- job” testimony, is belied Avetova’s own unmolested,” vador and that fac- “[t]hese which that she in Moscow reveals worked in assessing request tors are relevant a for hotel, babysitter, at as a and as a clean asylum withholding deportation woman, ing getting by” and “was economi Rodriguez-Rivera’s further undercut 102, v. cally. Kovac 407 F.2d 107 Cf. claims of a govern- well-founded fear of (9th Cir.1969) (holding probability that “a persecution”). mental imposition of deliberate substantial eco disadvantage upon nomic alien” III. persecution). Finally,
constitute that Ave- daughter raped, friend’s was al tova’s reasons, foregoing deny For the I would Lopez-Galarza v. though deplorable, see Therefore, Avetova’s for petition review. I (9th Cir.1996) (not dissent. “rape support finding can ing persecution”), “mak[e Avetova] does likely target persecution.” Mgoi
more for
an, Nothing F.3d at 1035 n. 4. in the suggests, nothing majori in the
record
ty’s opinion explains, why rape of Ave- daughter”
tova’s “friend’s on account of daughter[’s]” ethnicity should
the “friend’s Avetova, opposed any
make other Russia, likely Armenian in “more to come America, UNITED STATES Id.; persecutors.” attention of the Plaintiff-Appellee, Kotasz, (ex also see 853-54 plaining targeting the individualized re in quirement non-pattern practice Raymundo MARTINEZ-VITELA, cases). Defendant-Appellant. Rather than demonstrating Avetova No. 98-50440. Russia, targeted (i) troops evidence shows that Soviet res- Appeals, United States Court Azerbaijan brought from cued her Ninth Circuit. (ii) Moscow; residency permit she had a (iii) Moscow; unlike of oth- thousands May Caucasus, expul- ers from the she avoided (iv) 1993; NELSON, Before: capital
sion from the Russian
D. W.
passport
REINHARDT,
TROTT,
she was able to obtain a
to leave
Circuit
(v)
country;
husband
Judges.
receiving
dis-
remains Moscow and is
ability payments
government.
from the
ORDER
Khourassany,
(deny-
ing Khourassany’s petition for review be- documents, the motion filed the Ameri- cause, alia, “some of his inter members family Lawyers and to can Association to Immigration continue live Israel now