Krotova v. Gonzales

United States Court of Appeals for the Ninth Circuit

August 4, 2005

The Petitioners, Lioudmila Krotova and her daughters are natives and citizens of Russia who applied for asylum and withholding of removal in 1998 after arriving in the United States in 1994.  In 2002, the Petitioners conceded to the charge of removability for overstaying their visas and requested asylum, withholding or removal, relief under the Convention Against Torture and, in the alternative, voluntary departure.  After a hearing before an Immigration Judge (“IJ”), the IJ denied all forms of relief based on issues of credibility and lack of grounds for persecution.  The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision on the sole ground that the incidents described by the Petitioner did not rise to the level of persecution.  The Petitioner appealed the decision to the United States Court of Appeals for the Ninth Circuit (“the Court”).  The Court granted petition for review based on its jurisdiction arising from 8 U.S.C. § 1252.

In the individual hearing, the Petitioners testified that she is from an eastern region of Russia comprised of Amurskaya, Promorskiy, and Madagon.  The Petitioner’s mother was born in Russia, but her birth certificate lists her nationality as Jewish.  Since the community identified the Petitioner as Jewish, she suffered from economic discrimination, sexual harassment, violence, and religious discrimination.  The Petitioner is trained as a meteorologist, but could find work only as an unskilled laborer because the best jobs were reserved for ethnic Russians. Her supervisor sexually harassed her, but her complaints were met with cynicism.  She was denied promotions and salary increases because she was Jewish.   She, and the few Jewish members of the community, attempted to practice their faith, but their synagogue was defaced with threatening language. Groups of people dressed in black (a uniform used by skinheads and Nazis) threatened the Jewish community.  Twice the Petitioner was personally attacked by small bands leaving her with bruises and lip wounds.  The Petitioner’s reports to the local police were ignored.  The Petitioner decided to move to the U.S. until conditions approved. After arriving in the U.S., she decided to apply for asylum after learning that a close friend of the family had been beaten to death because he was Jewish and other attacks on the Jewish community were growing worse.  The Petitioner offered US State Department 2001 Country Reports, which noted discrimination and prejudice against the Jewish community, to support her testimony.

After the testimony, the IJ found: (1) the discrimination did not rise to the level of persecution, (2) the government had no control over the criminals committing the discriminatory acts, (3) the Petitioner was not credible on matters concerning the persecution based on her Jewish background.  The BIA affirmed solely on the ground that the incidents of discrimination did not rise to the level of persecution.

The Court, in its review of the BIA’s denial, first held that since the BIA’s opinion was silent on the issues of credibility, then the BIA must have found the Petitioner to be credible.  On the issues of persecution, the Court looked at the cumulative effect of economic disadvantage, severe anti-Semitic violence, the individualized nature of the attacks on the Petitioner which were serious and caused mental suffering, and the fear of practicing her religion.  The Court found the combined effect to cumulatively amount to persecution.  Additionally, the Court held testimony that the local Russian authorities ignored the Petitioner’s reports of violence, along with corroborating evidence in State Department reports, are sufficient evidence that the government is unwilling or unable to control anti-Semitic groups.  For the reasons listed above, the Court granted the petition for review finding the Petitioner suffered past persecution, entitling her to the presumption of a well grounded fear of future persecution under 8 C.F.R. § 208.13(b)(1) and remanded the case for the agency to determine whether the government can rebut the presumption by a preponderance of the evidence.