United States v. 2005-08-04 | 04-70806 | KROTOVA VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LIOUDMILA G. KROTOVA; ANASTASIA No. 04-70806
KROTOVA; ALEKSANDRA KROTOVA, Agency Nos. Petitioners, A76-853-686
v.  A76-853-817
ALBERTO R. GONZALES, Attorney A76-853-818
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 17, 2005—Seattle, Washington
Filed August 4, 2005
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Graber
10085

-- 1 of 13 --

COUNSEL
Angela Bortel and Christopher A. Kerosky, Kerosky & Asso-
ciates, San Francisco, California, for the petitioners.
Jennifer Keeney, United States Department of Justice, Wash-
ington, D.C., for the respondent.
OPINION
GRABER, Circuit Judge:
Lead Petitioner Lioudmila Krotova and her daughters,
Anastasia Krotova and Aleksandra Krotova, who are all
natives and citizens of Russia, petition for review of a final
order of removal by the Board of Immigration Appeals
(“BIA”). The BIA denied their applications for asylum and
withholding of removal because it concluded that Petitioners
had failed to demonstrate that the harassment, discrimination,
and violence experienced by the lead Petitioner on account of
her being Jewish rose to the level of persecution. We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition
for review.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioners entered the United States in 1994. They first
applied for asylum and withholding of removal in 1998. In
2002, they were charged with removability for overstaying
10088 KROTOVA v. GONZALES

-- 2 of 13 --

their visas. They conceded removability and requested asy-
lum, withholding of removal, relief under the Convention
Against Torture and, in the alternative, voluntary departure.
At the hearing before the immigration judge (“IJ”), the lead
Petitioner was the only witness. She is a 54-year-old woman
from the far eastern regions of Russia, specifically the Amur-
skaya, Primorskiy, and Magadon areas. Her mother was Jew-
ish, so her Russian birth certificate lists her “nationality” as
Jewish.
Petitioner testified to a history of economic discrimination
because of being Jewish. Although she was trained as a mete-
orologist at a technical college, she was placed in unskilled
positions because the best jobs were reserved for ethnic Rus-
sians. She was sexually harassed by a supervisor and, when
she complained to another supervisor, he told her that “when-
ever there is Jews in the company, there always is some prob-
lem [that] arise[s]” and that she should resolve the situation
by herself. At a different job, she learned from coworkers that
her supervisor had denied her promotions and salary increases
because she is Jewish.
Similarly, her children were denied spaces in state-
sponsored day care. The president of the workers’ union told
her that the vacancies would be taken instead by ethnic Rus-
sians.
Although there were few Jews in the areas of Russia where
she lived, Petitioner tried to practice her religion. When she
lived in the Amurskaya region, she and some other Jews
found an abandoned building, minimally restored it, and used
it as a synagogue where they could worship together. On sev-
eral occasions, “the walls of [the] synagogue were painted
with sentences such as kikes mugs get out of here.” Another
time, when Petitioner and fourteen others had gathered at the
synagogue, a group of people dressed entirely in black (a uni-
form that Petitioner recognized as common to “skinheads or
10089 KROTOVA v. GONZALES

-- 3 of 13 --

nazis”) burst in with “baseball bats and other objects and
started breaking windows.” Petitioner and six other members
of the congregation were able to escape, but the rest were
beaten.
The attack was reported to the police. The police first attri-
buted it to “hooligans” and detained two people. Ultimately,
however, the police told Petitioner’s group “that it is our
problems and we should sort them out on our own.” After the
attack, the synagogue closed and “nobody gathered any more
because it was very scary,” especially for those who brought
their children.1
Petitioner was targeted personally on two occasions. In
December 1993, she was walking her 9-year-old daughter
home from school at six in the evening, in the dark. When
Petitioner and her daughter approached their apartment build-
ing, a group of people surrounded them and began yelling “zit
mug” (which translates as “kike”) and “you’re still not out of
here.” When the people began to assault Petitioner by pulling
at her clothes, she told her daughter to run for help. This move
made her assailants angry and they started to push Petitioner.
One person kicked her, leaving a large bruise.
The incident terrified Petitioner, and she began to have
nightmares. She reported the incident to the police, but they
would not accept her complaint because she did not recognize
her attackers nor, because of the dark, could she describe
them with particularity.
Then, in 1994, just before Petitioners left Russia, some
friends of a skinhead neighbor surrounded her at the entrance
to her building:
[T]hey started telling me so you’re still here kike
mug. The whole entrance is stinking with your kike
1Petitioner now attends a synagogue in the United States.
10090 KROTOVA v. GONZALES

-- 4 of 13 --

smell. I tried to ask them what did I do to you and
it ended with them pushing me, one just struck me
over the face and actually broke my lip.
Again, Petitioner reported the incident to the police. This time
she described the assailants, but even so the police never
responded.
Petitioner testified that when she and her then-husband and
daughters came to the United States in 1994, she considered
the move temporary and hoped to rejoin her family in Russia
if conditions improved. She decided to apply for asylum in
1997, after her mother told her that a close friend of the fam-
ily had been beaten to death in his store after having being
assaulted by people who screamed that “this is not a place for
Jews [and] that they should get out.” Other bad news contin-
ued to come from her family in Russia. In 2000, Petitioner’s
brother was beaten severely by skinheads, and his car was
burned; he required surgery to correct damage to his hip that
was caused by the beating. Petitioner’s sister told her that
anti-Semitic flyers commonly are left in the lobby of her
apartment building. And, in 2002, Petitioner’s sister reported
that skinheads had attacked a Jewish school in her city.
Documentary evidence in the record provided a context for
Petitioner’s testimony. For example, the 2001 Country Report
noted that “Jews continued to face prejudice and social dis-
crimination.” The Report described numerous incidents in
which “unknown persons vandalized Jewish synagogues,
cemeteries, and memorials.” Very few of the incidents
resulted in arrests by the Russian police.2 The Country Report
also referred to “numerous other anti-Semitic incidents”
across the country and described, as an example, three violent
assaults in a single month by skinheads against Jews.
2The November 1997 Profile of Asylum Claims noted that, in all but
one of the incidents of vandalism against Jewish institutions in 1996 and
early 1997, no suspects had been identified.
10091 KROTOVA v. GONZALES

-- 5 of 13 --

The IJ denied relief, finding Petitioner “generally credible
as to her education and background” but not credible “con-
cerning her persecution on account of her ethnic background,
that of being Jewish.” The IJ based her adverse credibility
determination on Petitioner’s failure to mention two incidents
of harassment in her application and during her interview with
the asylum officer, even though the incidents in fact were
described in the declaration that she filed in support of the
application. The IJ also found, in the alternative, (1) that the
harm experienced by Petitioner did not rise to the level of per-
secution; and (2) that there was “no evidence that the govern-
ment could not control or has not tried to control these
criminals.” For those three reasons, the IJ denied Petitioners’
applications for asylum and found that they also failed to meet
the higher burdens for withholding of deportation and relief
under the Convention Against Torture.3
The BIA affirmed on the sole ground that “[t]he incidents
described by [Petitioner], including episodes of verbal insults
and slurs, an attempted attack consisting of a slap in the face,
are consistent with incidents of discrimination, but have not
been shown to rise to the level of persecution.” This timely
petition for review followed.
STANDARD OF REVIEW
When the BIA conducts an independent review of the IJ’s
findings, as it apparently did here, we review the BIA’s deci-
sion and not that of the IJ. Kankamalage v. INS, 335 F.3d 858,
861 (9th Cir. 2003). We review the BIA’s denial of asylum
for substantial evidence, and we may grant the petition only
if the record compels a contrary result. See Nagoulko v. INS,
333 F.3d 1012, 1015-16 (9th Cir. 2003).
3Petitioners do not appeal the denial of their application for relief under
the Convention Against Torture.
10092 KROTOVA v. GONZALES

-- 6 of 13 --

The BIA did not address the IJ’s negative credibility find-
ing. When the BIA’s decision is silent on the issue of credibil-
ity, despite an IJ’s explicit adverse credibility finding, we may
presume that the BIA found the petitioner to be credible,
Maldonado-Cruz v. INS, 883 F.2d 788, 792 (9th Cir. 1989);
Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986), and
we so presume here. That presumption is particularly reason-
able here, because the IJ’s adverse credibility finding is not
supported by substantial evidence.
DISCUSSION
[1] In concluding that the lead Petitioner had suffered only
discrimination, the BIA summed up her experience as “in-
cluding episodes of verbal insults and slurs [and] an attempted
attack consisting of a slap in the face.” That description inac-
curately minimizes Petitioner’s experience. Against a back-
ground of anti-Semitic harassment and economic and social
discrimination against her, and in Russia generally, Petitioner
experienced three violent assaults (one occurring at a syna-
gogue and one involving her 9-year-old daughter), the murder
of a close family friend, and the severe beating of her brother
—all perpetrated by anti-Semitic groups. Those experiences
are not consistent with mere discrimination but, instead, com-
pel a finding of past persecution.
[2] Persecution is “the infliction of suffering or harm upon
those who differ (in race, religion or political opinion) in a
way regarded as offensive.” Korablina v. INS, 158 F.3d 1038,
1043 (9th Cir. 1998) (internal quotation marks omitted). It is
“an extreme concept that does not include every sort of treat-
ment our society regards as offensive.” Id. at 1044 (internal
quotation marks omitted). Even when a single incident does
not rise to the level of persecution, “the cumulative effect of
several incidents may constitute persecution.” Surita v. INS,
95 F.3d 814, 819 (9th Cir. 1996); see also Korablina, 158
F.3d at 1044 (“The key question is whether, looking at the
10093 KROTOVA v. GONZALES

-- 7 of 13 --

cumulative effect of all the incidents a petitioner has suffered,
the treatment she received rises to the level of persecution.”).
[3] We assessed the cumulative effects of mistreatment on
religious grounds in Korablina and in Nagoulko. Cf. Singh v.
INS, 134 F.3d 962, 967-68 (9th Cir. 1998) (noting that com-
paring similar cases is “perhaps [the] best” way to answer the
heavily fact-dependent question whether mistreatment rises to
the level of persecution). In Korablina, we held that the
cumulative effect of economic disadvantage and the severe
anti-Semitic violence and threats that a Ukranian woman had
experienced and witnessed, with increasing frequency in the
time before her flight, compelled a finding of past persecu-
tion. 158 F.3d at 1044-45. In Nagoulko, by contrast, we dis-
tinguished Korablina and held that, although a Ukrainian
woman had been “teased, bothered, discriminated against and
harassed because of her Pentecostal religious beliefs,” the
record did not compel a finding of past persecution.
Nagoulko, 333 F.3d at 1016. Similarly, in Halaim v. INS, 358
F.3d 1128, 1132 (9th Cir. 2004), we held that a finding of past
persecution was not compelled where the petitioners had suf-
fered repeated insults from private parties and disruptions of
worship by police, but had been able to secure long-term
employment and were not bothered at all during the last
decade of their residence in the Ukraine.
[4] Unlike in Nagoulko and Halaim, we cannot meaning-
fully distinguish the cumulative effect of Petitioner’s experi-
ences from that in Korablina. The sustained economic
pressure that Petitioner suffered, the nature and extent of the
physical violence that she experienced, and the effect of that
violence on restricting Petitioner’s ability to practice her reli-
gion are the keys to our decision. We need not decide whether
any one of those factors, alone, rises to the level of persecu-
tion, because their cumulative effect persuades us that a find-
ing of past persecution is compelled.
In Korablina and Nagoulko, we noted the presence of eco-
nomic disadvantages that the petitioners experienced because
10094 KROTOVA v. GONZALES

-- 8 of 13 --

of their religions, although those disadvantages did not con-
trol our decisions. Cf. Zhang v. Gonzales, 408 F.3d 1239,
1247 (9th Cir. 2005) (“Our case law clearly establishes that
deliberate imposition of substantial economic disadvantage
can amount to persecution.”). In Korablina, although we
relied mainly on the anti-Semitic threats and violence that the
petitioner suffered, we also commented that the petitioner was
“refused admission to the institute of her choice, encountered
obstacles to career advancement,” and was fired from one job
because she was Jewish. 158 F.3d at 1045. By contrast, the
economic disadvantages suffered by the petitioner in
Nagoulko were not sufficient to support her claim of persecu-
tion. See 333 F.3d at 1016 (finding the economic deprivation
caused by being fired from one job insufficient, because the
petitioner later found long-term employment, including a
position performing religious work that she “embraced and
enjoyed”). Here, the lead Petitioner was able to secure educa-
tion and employment, but it consistently was of a lower qual-
ity, and her advancement was purposefully impeded, because
she is Jewish. Moreover, in addition to testifying that she was
denied raises and promotions and subjected to sexual harass-
ment without recourse, she testified that her husband consis-
tently had trouble finding employment, and advancing in it,
because of her religion. Denial of childcare because she is
Jewish also contributed to the economic disadvantages that
Petitioner suffered over a period of many years. Under
Korablina, this sustained economic pressure is a factor to con-
sider in combination with the other hardships that Petitioner
suffered, most notably physical violence and threats.
In terms of physical severity alone, the violence suffered by
Petitioner—a kick, a punch, and some pushing—falls some-
where in between that found in Korablina and Nagoulko. In
Korablina, the petitioner was targeted personally only once,
in a horrific incident in which two men attacked her, tied her
to a chair, and put a noose around her neck, causing her to
suffer a concussion. 158 F.3d at 1042. In Nagoulko, the peti-
10095 KROTOVA v. GONZALES

-- 9 of 13 --

tioner twice was pushed, along with other congregants, when
police interrupted a worship session. 333 F.3d at 1014.
[5] When we consider the context of the assaults on Peti-
tioner, however, they are much more similar to the assault in
Korablina. Twice, Petitioner was surrounded by groups of
people yelling slurs and threats at her, then pushing and kick-
ing or hitting her. Once she was alone, and another time her
young daughter was accosted along with her. Twice she was
injured, once in the face. The individualized nature of the
assaults and the danger to Petitioner’s daughter are relevant to
the seriousness of the attacks and the level of fear and mental
suffering that they caused.4
Moreover, as in Korablina, the attacks were occurring with
increasing frequency during the time before Petitioner left
Russia. See 158 F.3d at 1045. The petitioners in Halaim, by
contrast, had not experienced any harassment for ten years
before coming to the United States. 358 F.3d at 1132. And,
even more significantly, as in Korablina, 158 F.3d at 1045,
people close to Petitioner experienced increasingly violent
4Parallels also can be drawn between Petitioner’s case and In re O-Z &
I-Z, 22 I. & N. Dec. 23, 24-26 (B.I.A. 1998). In that case, the BIA found
that a father and son had been persecuted, and not merely subjected to dis-
crimination and harassment, by anti-Semitic groups in Ukraine. The father
had been beaten twice—once requiring stitches in his face and another
time causing a rib injury. The attackers shouted that he should leave
Ukraine and began to send anti-Semitic leaflets to his home. Once, they
vandalized his home. In a final incident, he was insulted and pushed to the
ground while waiting for a bus; when his young son came to his aid, the
son was picked up and dropped on the pavement, injuring his knee badly
enough to require surgery. The son was tormented at school. Although the
father reported the beatings and the vandalism to the police, no action was
taken.
Again, in purely physical terms, the violence against the father was
more severe than that against Petitioner. Also, the son was significantly
implicated, having been injured by one set of attackers and beaten by his
classmates. But the ongoing pattern of anti-Semitic violence and harass-
ment strikes us as very close to that experienced by Petitioner.
10096 KROTOVA v. GONZALES

-- 10 of 13 --

anti-Semitic attacks after she left Russia, including the death
of a close friend and the severe beating of her brother.
[6] In addition to the economic pressure and physical vio-
lence against Petitioner, her inability to practice her religion
is significant. In Nagoulko, the petitioner’s continued ability
to worship was one of our principal reasons for concluding
that a finding of religious persecution was not compelled. See
333 F.3d at 1016 (noting that the petitioner attended weekly
church services in private residences and later worked full-
time at a Christian mission and authored a Christian maga-
zine). Here, by contrast, an attack by baseball bat-wielding
skinheads destroyed the makeshift synagogue at which Peti-
tioner worshiped and left her small congregation too fright-
ened to continue to gather. The police failed to hold the
attackers responsible or to take any meaningful steps to pre-
vent similar incidents from occurring in the future. This result
amounts to a serious restriction on Petitioner’s ability to prac-
tice her religion, even though the practice was not officially
outlawed. Cf. Zhang v. Ashcroft, 388 F.3d 713, 720 (9th Cir.
2004) (per curiam) (finding a clear probability of religious
persecution where a Chinese man demonstrated that he would
be unable to practice Falun Gong, which is outlawed in China,
without harm);5 Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996)
(noting that an arrest at a church could have formed a basis
for past persecution had the petitioner not testified that he and
his family continued to worship in the church after the arrest);
Bucur v. INS, 109 F.3d 399, 405 (7th Cir. 1997) (“If a person
is forbidden to practice his religion, the fact that he is not
imprisoned, tortured, or banished, and is even allowed to
5In Zhang, we recognized the relevance of the analysis of persecution
set forth in the Office of the United Nations High Commissioner for Refu-
gees, Handbook on Procedures and Criteria for Determining Refugee Sta-
tus, U.N. Doc. HCR/IP/4/Eng./REV.2 (ed. 1992) (1979) (“UNHCR
Handbook”). 388 F.3d at 720. Paragraph 54 of the UNHCR Handbook
states that discrimination may amount to persecution when it results in,
among other things, serious restrictions on a person’s right to practice his
or her religion.
10097 KROTOVA v. GONZALES

-- 11 of 13 --

attend school, does not mean that he is not a victim of reli-
gious persecution.”). This factor is significant in evaluating
the cumulative effect of Petitioner’s experiences.
Contrary to the BIA’s conclusion, the record viewed as a
whole compels a finding that Petitioner experienced persecu-
tion, and not merely discrimination, at the hands of anti-
Semitic groups in Russia. The combination of sustained eco-
nomic pressure, physical violence and threats against Peti-
tioner and her close associates, and the restrictions on
Petitioner’s ability to practice her religion cumulatively
amount to persecution.
[7] Finally, as we said in Korablina, “[p]ersecution may be
found by cumulative, specific instances of violence and
harassment toward an individual and her family members not
only by the government, but also by a group the government
declines to control.” 158 F.3d at 1044. The fact that Petition-
er’s repeated requests for police intervention went ignored,
along with corroborating documentary evidence that the Rus-
sian authorities have been extremely slow to respond to inci-
dents of anti-Semitic vandalism, compels a finding that the
government was unwilling or unable to control the anti-
Semitic groups responsible for Petitioner’s mistreatment. Cf.
id. at 1045 (holding that the petitioner’s testimony about the
futility and danger in reporting violence against Jews to the
Ukrainian authorities, along with corroborating documentary
evidence, was sufficient to conclude that the government was
unwilling or unable to control ultra-nationalist and anti-
Semitic groups); Surita, 95 F.3d at 814 (holding that the fail-
ure of the police to investigate the robbery of the petitioner or
to protect her family compelled a conclusion that the police
were unwilling or unable to control the persecutors); Singh v.
INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (“Th[e] failure by the
authorities to protect Singh and his family clearly indicates
that the police either could not or would not control the ethnic
Fijians who threatened Singh and his family.”).
10098 KROTOVA v. GONZALES

-- 12 of 13 --

CONCLUSION
[8] We grant the petition for review because we conclude
that the record compels a finding that Petitioner suffered past
persecution, entitling her to a presumption of a well-founded
fear of future persecution under 8 C.F.R. § 208.13(b)(1). As
the parties agree that we must under INS v. Ventura, 537 U.S.
12, 15-16 (2002) (per curiam), we remand for the agency to
determine whether the government can rebut that presumption
by a preponderance of the evidence.
PETITION GRANTED; REMANDED.
10099 KROTOVA v. GONZALES

-- 13 of 13 --