OPINION
Lilia Stserba and her son, Anton, are Estonian citizens who are ethnically Russian. Stserba’s husband, Igor Anatolievich Pabo, is a Russian citizen. All three petitioners came to the United States legally and sought asylum and withholding of removal. They alleged past persecution on account of their Russian ethnicity and fear of future persecution. The alleged persecution centers around four issues: (1) revocation of Stserba’s Estonian citizenship after Estonia regained indepen
The immigration judge (“13”) found the petitioners credible but deemed their allegations insufficient to justify asylum or withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed. Stserba and the derivative petitioners 1 claim that insubstantial evidence supports the BIA’s decision and that the BIA failed to consider Artjom’s harassment. We conclude that the BIA did not consider whether revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked substantial evidence to support its conclusion that Stserba’s job limitations were neither persecution nor on account of ethnicity. We GRANT the petition for review and VACATE the BIA’s order. We REMAND the case for the BIA to consider: (1) whether ethnically motivated citizenship revocation that results in statelessness is persecution, and whether Stserba was persecuted on this basis; (2) whether the petitioners are entitled to a discretionary grant of asylum given our conclusion that Stserba endured past persecution when Estonia refused to recognize her medical degree; and (3) whether the petitioners are entitled to withholding of removal.
I. BACKGROUND
In 1991, Estonia regained independence from the Soviet Union. With anti-Soviet sentiments running high, Estonia denationalized residents unless they or their ancestors were Estonian citizens prior to 1940. Stserba and Artjom, both ethnic Russians born in Estonia, were denationalized and became stateless. They regained citizenship in 1993 “by complete chance” in exchange for Stserba’s vote in an election. A.R. 316 (Stserba Aff. ¶ 8). Anton, who had been born in 1992, also became a citizen at that time.
Tensions with Russia persisted and, in 1998, Estonia “unilaterally stop[ped] the Estonian-Russian agreement regarding the mutual acceptance of the equivalency of educational and scientific degrees documents.” R. 456 (“Russian Diplomas Are Not Valid In Estonia” article). Stserba had earned a medical degree from Leningrad Pediatric School in St. Petersburg and had previously worked as a pediatrician at an Estonian hospital. The new policy meant that, in Estonia, practicing “medicine was no longer a career option” for Stserba. A.R. 317 (Stserba Aff. ¶ 15). In 1998 or 1999, she obtained employment as a doctor at a private Russian-language school, where the Russian hiring official overlooked her officially invalid degree. In 2003, she left that job to come to the United States.
Prompting Stserba’s move was Anton’s medical condition. Anton has phenylketonuria (“PKU”), a genetic defect that prevents the patient from metabolizing the amino acid phenylalanine. PKU can damage the brain and central nervous system. Newborns in Estonia are tested for PKU.
2
Either Anton was not tested or Stserba
Stserba and Anton entered the United States on July 28, 2003 as nonimmigrant visitors authorized to stay for eleven months. Pabo had entered the United States seven months earlier. They lived in Cleveland, Ohio. Stserba applied for asylum before her authorization expired, but her application was denied. Stserba, Pabo, and Anton were charged as removable under 8 U.S.C. § 1227(a)(1)(B) for overstaying their valid entry authorization. All three petitioners conceded removability but requested asylum and withholding of removal. 3
At their hearing before the IJ, Stserba testified about her citizenship revocation and restoration, her employment troubles, and Anton’s medical condition. She also testified about assorted acts of discrimination and harassment. For example, in 1993, an Estonian woman poured water on Stserba’s head while Stserba was having her hair cut and said “you Russian [are] supposed to get out of here.” A.R. 126-27 (2/21/08 Hr’g Tr., Stserba). In 1996, an Estonian sicced his dog on Artjom, causing an injury that required sixteen stitches, and rumor had it that the motivation was Artjom’s Russian ethnicity. Stserba’s apartment was burglarized in 1999. Artjom has faced more harassment since the rest of his family came to the United States: his car was set on fire, someone called him a “Russian Pig” while beating him and stabbing his hand with a knife, A.R. 560 (Egorova letter), and police struck him with a stick during the 2007 riots at the relocation of the Bronze Soldier of Tallinn, a Soviet-era statue of a Russian World War II soldier.
Should they return to Estonia, Stserba fears that Anton’s life will be in danger because she will not be able to buy the
Although the IJ found each petitioner’s testimony to be credible, he determined that their testimony did not demonstrate past persecution. The IJ noted that Stserba regained citizenship quickly and did not suffer “any adverse consequences” from the years that she spent stateless. A.R. 69 (IJ Op.). As for Stserba’s job prospects, the IJ found that voiding diplomas from Russian universities affected Estonian citizens of all ethnic backgrounds. The IJ also noted that Stserba can still obtain work as a babysitter or as a pediatrician at a private Russian school. Finally, the IJ agreed that Anton “is more likely to get the best medical treatment for his condition in the United States,” and the State of Ohio has provided his dietary supplements free of charge, whereas the treatment was expensive in Estonia. Id. at 77. Nevertheless, Anton’s past treatment evidences that treatment options exist in Estonia, and “the fact that a higher quality of medical care is available in the United States is not a basis for asylum.” Id. The IJ also determined that mistake — not the family’s persecution — could account for the hospital’s failure to provide PKU test results at birth, and that the decision not to integrate developmentally delayed students into regular schools is also not a result of ethnic persecution. Therefore, the IJ ordered that Stserba and Anton be removed to Estonia and Pabo to Russia.
The BIA affirmed, adding that, although the IJ did not expressly mention the events involving Artjom, “they do not, either individually or cumulatively with the other evidence of record, warrant a remand for further consideration.” A.R. 4 (BIA Op.). 4 A panel of this court denied Stserba’s motion to stay removal.
II. DISCUSSION
A. Standard of Review
We review de novo the BIA’s resolution of “[questions of law and constitutional questions.”
Lin v. Holder,
When the BIA denies asylum or withholding of deportation, we review its findings of fact to determine whether substantial evidence supported the decision.
Daneshvar v. Ashcroft,
B. Asylum
To obtain asylum, the petitioner must be a refugee, which means that the petitioner must be unwilling to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Moreover, the petitioner “bears the burden of establishing” that his or her application “merits a favorable exercise of discretion by the Attorney General.”
Cruz-Samayoa v. Holder,
If the petitioner demonstrates past persecution, then we presume, subject to rebuttal, that he or she has a well-founded fear of future persecution. 8 C. F.R. § 208.13(b)(1). “A well-founded fear must be both subjectively genuine and objectively reasonable.”
Daneshvar,
Neither the INA nor the BIA has defined the term “persecution,”
Japarkulova v. Holder,
Moreover, the “on account of’ language in § 1101(a)(42)(A) requires a link between the acts of persecution and the petitioner’s protected-group identity. Petitioners must have been “specifically targeted by the government for abuse based on a statutorily protected ground,” not merely victimized “by indiscriminate mistreatment” or “random crime.”
Gilaj,
1. Revocation of Citizenship
Although not every revocation of citizenship is persecution, ethnically targeted denationalization of people who do not have dual citizenship may be persecution.
“The basic rule under international law is that it is within each state’s domestic jurisdiction to decide who are its nationals.” Richard C. Visek,
Creating the Ethnic Electorate through Legal Restorationism: Citizenship Rights in Estonia,
38 Harv. Int’l L.J. 315, 346 (1997). In recognition of each state’s sovereign right, denying citizenship to a noncitizen applicant is not necessarily persecution. There is, however, a “fundamental distinction between
denying
someone citizenship and
divesting
someone of citizenship.”
Haile v. Gonzales (Haile I),
Practical consequences of denationalization vary. Sometimes denationalized citizens face immediate turmoil, such as when Ethiopia “rounded up and expelled” ethnic Eritreans whom Ethiopia denationalized during a war with Eritrea,
Haile II,
Regardless of the practical ramifications that befall a denationalized person, the inherent qualities of denationalization are troubling when a country denationalizes a person who is not a dual national, thereby making him or her stateless. Statelessness is “a condition deplored in the international community of democracies.”
Trop v. Dulles,
Neither the IJ nor the BIA considered whether Estonia’s citizenship law amounted to ethnically targeted denationalization, but there is reason to suspect that it did. By limiting citizenship to pre1940 citizens and their descendants, Estonia manipulated its citizenship rules to exclude ethnic Russians who immigrated during the Soviet occupation. This limit even applied to residents such as Stserba
Stserba was a victim of Estonia’s policy. The IJ found that Stserba had “lost [Estoman] citizenship” after Estonia regained independence. A.R. 68 (IJ Op.); see also Reply Br. at 5 (“She was a citizen of Estonia when it was one of the Soviet Union republics.”). In other words, Stserba did not switch citizenship due to the dissolution of her country of prior citizenship or as an incident of changed boundaries. Rather, she was an Estonian citizen 6 who was stripped of citizenship and became stateless 7 for several years on account of her ethnicity. A.R. 119 (2/21/08 Hr’g Tr., Stserba) (“People like me, Russians, we didn’t have any citizenship.”). Even though the IJ did not believe that Stserba had shown “any adverse consequences which arose or which affected her as a consequence of her two year[s] or less of lost citizenship,” A.R. 69 (IJ Op.), Stserba may have suffered past persecution simply because she became stateless due to her ethnicity. 8
After a petitioner demonstrates past persecution, the government may rebut the presumption that the petitioner fears future persecution by showing a change in circumstance. The “fundamental change in circumstance” language in 8 C.F.R.
When the BIA has “failed to consider a legal issue central to resolution of the petitioner’s claims, the appropriate remedy is remand to the agency for further consideration.”
Mapouya v. Gonzales,
2. Stserba’s Job Opportunities
The record compels the conclusion that invalidation of Stserba’s medical degree was persecution on account of her ethnicity.
a. Persecution
“Economic deprivation constitutes persecution only when the resulting conditions are sufficiently severe.”
Daneshvar,
The IJ found that Stserba was not persecuted when her diploma was invalidated for two reasons, neither of which is supported by substantial evidence. First, the IJ stated that “the respondent testified that from the time of the birth of her son, Anton, until she got the job in the Russian school, she worked as a babysitter. That’s precisely the employment that she holds in the United States today,” and she likely could find similar employment in Estonia. A.R. 70 (I.J.Op.). Given the BIA’s construction of economic persecution in In re T-Z-, the IJ’s delineation of Stserba’s field of employment is not supported by substantial evidence. Babysitting is not Stserba’s established profession. After her maternity leave ended and Stserba attempted to resume employment as a doctor, she was forced to babysit and perform other housework because she “had to survive somehow.” A.R. 317 (Stserba Aff. ¶ 15). The discrimination against ethnic Russians in the medical field culminated in the invalidation of Russian diplomas, which made it nearly impossible for Stserba to work as a pediatrician. Even if jobs in other fields are available, a petitioner has been persecuted if he or she has been subject to “sweeping limitations” on his or her chosen profession, particularly if that profession is a highly skilled one in which the person invested education or training.
The IJ’s second reason also lacks support in the record. According to the IJ, Stserba, despite her invalid diploma, “was able to obtain employment as a doctor eventually in a private Russian school,” and “there is no evidence to suggest that she could not once again obtain employment as a physician at a Russian school in Estonia.” A.R. 70, 76 (IJ Op.). Even if Stserba might find a private Russian school willing to employ her, Estonia still instituted a “sweeping limitation” of job opportunities that are otherwise available to pediatricians. Moreover, the IJ ignored the evidence in the record suggesting that Stserba may not find a job at a Russian school. Stserba testified that the school where she once worked has replaced her, A.R. 180, and that “state laws are changing and scruples [are] changing too,” leaving fewer Russian schools and less independence for those that remain, id.; see also A.R. 362-63 (Open Society Institute Report) (describing laws “that may reduce the number of Russian language educational institutions in Estonia” and that will require 60% of instruction to occur in the Estonian language); A.R. 418 (Delfi Article) (“In Russian schools Estonians become Directors more often, while more Russian teachers without enough training teach the Estonian language.”).
Substantial evidence does not support the IJ’s conclusion that invalidation of Stserba’s diploma was not persecution.
b. On Account Of Ethnicity
The IJ determined that Estonia’s policy was not based on ethnicity because the policy invalidated diplomas that anyone, regardless of ethnicity, earned at Russian schools. This conclusion fails to take into account that it seems inevitable that the policy disproportionately impacted ethnic Russians, who are more likely than other Estonians to have the language skills to attend and the interest in attending a Russian school. Critically, the IJ acknowledged that Estonia’s policy of diploma in
The only evidence about Estonia’s policy for schools outside Estonia and Russia is that Stserba, when asked whether the policy “applied] to all foreign diplomas,” responded “Not at all. It’s only for Russians received in Soviet Union.” A.R. 129 (2/21/08 Hr’g Tr., Stserba). It is possible that Stserba was testifying about the particular policy that affected Russians; there may be other policies that invalidate diplomas from other countries. The evidence about Estonia’s general practice is sparse, but its policy with regard to Russia is clear. The evidence compels the conclusion that Estonia invalidated Russian diplomas, at least in part, on account of ethnicity.
In sum, Stserba’s job limitations amount to past persecution on account of ethnicity. Because we conclude that Stserba suffered past persecution, we REMAND to the BIA for further proceedings and to determine in the first instance “whether petitioners are entitled to a discretionary grant of asylum.”
Gilaj,
3. Medical Resources For Anton and Harassment of Artjom
On the other hand, the evidence does not compel the conclusion that Anton’s difficulty in obtaining medical care was on account of his Russian ethnicity. While his PKU diagnosis might have been delayed due to the family’s ethnicity, the IJ’s explanation — that simple mistake may explain the failure to test Anton or to pass the results on to his mother — is also plausible. The same is true of his school placement. Anton benefits from his special-education program at a standard public school in the United States, but the fact that Estonia provides only standard schools and schools specializing in mental retardation is not evidence of persecution against ethnic Russians. Because the record does not reveal the mental abilities of any other children in the University of Tartu program, the evidence does not compel the conclusion that Anton’s different treatment was on account of his ethnicity. Finally, although Anton may receive inferi- or medical care in Estonia, the evidence does not compel the conclusion that the lower-quality care will be on account of his ethnicity.
Stserba also argues that the BIA inadequately explained why Artjom’s harassment, on its own or in combination with the other evidence, did not amount to persecution. While the BIA “should demonstrate that it has considered [the] evidence” that a petitioner presents, “the BIA is not required to parse or refute on the record every individual argument or document offered by the petitioner.”
Guo Ping Wu v. Holder,
With regard to medical resources for Anton and Artjom’s harassment, we hold only that the BIA did not act contrary to law in concluding that these events, considered individually, are not persecution. However, on remand, the BIA must consider these issues “in the aggregate” along with citizenship revocation and diploma invalidation.
Haider,
C. Withholding of Removal
Withholding of removal requires the petitioners to demonstrate a “clear probability” of persecution.
Gilaj,
III. CONCLUSION
Revoking citizenship on account of ethnicity may be persecution, and the BIA should consider that question in the first instance. Moreover, sweeping limitations on Stserba’s job opportunities as a doctor compel a finding that she was persecuted on account of her ethnicity. Therefore, we GRANT the petitioners’ petition for review and VACATE the BIA’s decision. We REMAND the case to the BIA to determine the following: (1) whether ethnically motivated citizenship revocation that results in statelessness is persecution and whether Stserba was persecuted on this basis; (2) whether the petitioners are entitled to a discretionary grant of asylum given our conclusion that Stserba endured past persecution when Estonia refused to recognize her medical degree; and (3) whether the petitioners are entitled to withholding of removal.
Notes
. See 8 U.S.C. § 1158(b)(3) ("A spouse or child ... of an alien who is granted asylum ... may ... be granted the same status as the alien if accompanying, or following to join, such alien.”). We therefore focus our attention on Stserba's petition.
. Anton’s doctor in the United States disagrees, but the IJ credited Stserba’s testimony on this point due to her personal experience as a pediatrician in Estonia.
. Initially, the petitioners also sought voluntary departure and protection under the Convention Against Torture Treaty. They abandoned these forms of relief when their case was before the BIA.
. The BIA also concluded that Stserba did not establish that her family would be separated, and stated that, in any event, family separation would not provide a basis for asylum. Stserba has not raised that issue on appeal.
. In local elections, noncitizens may vote but not run for office.
. Although the administrative record is thin on this point, the IJ’s statement adopting Stserba's description of how citizenship functioned in the Estonian Soviet Socialist Republic ("SSR”) seems to have some basis in fact. Estonian SSR residents "had been Soviet citizens” during the occupation, but "[t]he citizenship of the Republic of Estonia never ceased to exist.” Citizenship — Estonia.eu, http://estonia.eu/about-estonia/society/ citizenship.html (Feb. 2, 2011). “During the years of occupation, the Estonian diplomatic service in exile issued Estonian passports, which were recognised as travel documents by many countries of the world, eventually even by the Russian Federation.” Id. In particular, the United States "refused de jure recognition of the Soviet annexation of the Baltic States.” Visek, Creating the Ethnic Electorate through Legal Restorationism, supra, at 326 (describing actions that the United States took, including “fr[ee]z[ing] assets belonging to the Baltic States in order to protect such assets from Soviet seizure; allowing] the diplomatic representatives of the deposed Baltic governments to continue to represent the interests of their respective countries; and repeatedly denouncing] the Soviet annexation as illegal”).
. To avoid being stateless, Stserba could have "register[ed]” herself as a Russian citizen, Citizenship-Estonia.eu, supra note 6, but she "was born in [Estonia],” "was living in Estonia,” and did not "know where to go in Russia,” A.R. 145 (2/21/08 Hr’g Tr., Stserba).
. Because Stserba did indeed become stateless upon her denationalization, we have no need to consider or determine at this time whether denationalization that does not result in statelessness can constitute persecution.