Tatiana Fedosseeva v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3216
T ATIANA F EDOSSEEVA ,
Petitioner-Appellant,
v.
A LBERTO R. G ONZALES ,
Respondent-Appellee.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A75 314 733.
____________
A RGUED J UNE 13, 2007—D ECIDED J ULY 5, 2007
____________
Before C OFFEY , F LAUM , and W ILLIAMS , Circuit Judges.
F LAUM , Circuit Judge. Tatiana Fedosseeva claims that
she is “stateless” and thus entitled to asylum in the
United States. Born and raised in Russia during the
Soviet era, she moved to Latvia as an adult and stayed
there after the Soviet Union dissolved. She argues that
she is stateless because in 1993 she used her Soviet
passport to depart Latvia for the United States without
acquiring citizenship in either Latvia or Russia. An
Immigration Judge (“IJ”) denied Fedosseeva’s request for
asylum and withholding of removal; the IJ found her not
credible and held that she failed to establish past persecu-
tion or a well-founded fear of future persecution. The IJ
ordered Fedosseeva removed to Latvia or, alternatively, to

-- 1 of 14 --

2 No. 06-3216
Russia, see 8 C.F.R. § 1240.12(c), and the Board of Im-
migration Appeals affirmed the IJ’s decision. For the
following reasons, we deny her petition for review.
I. B ACKGROUND
Fedosseeva entered the United States as a visitor for
pleasure and was authorized to stay until March 1994. She
overstayed her visa, however, and in 1997 applied for
asylum and withholding of removal. Because Fedosseeva’s
initial application is not included in the record, we do not
know why she first sought asylum. In 1998, she amended
her application to claim asylum, not on any of the statu-
tory grounds, see 8 U.S.C. § 1101(a)(42)(A), but because
she purportedly cannot return to Latvia or Russia, and
thus is “stateless.” Fedosseeva asserted that she could
not return to Russia because she never became a Russian
citizen after the collapse of the Soviet Union, and that she
could not return to Latvia because she no longer had a
“residence permit.”
Fedosseeva attached a translated statement to her
amended application, noting that she is not fluent in
English. In her application, Fedosseeva stated that she
moved with her husband from Russia to Latvia in 1984
and remained there with her daughter after the couple
divorced. She found employment at a hotel that served
many Russians and eventually was promoted to a manage-
ment position. Around 1990, when Latvia began moving
towards liberation from the Soviet Union, native Latvians
became hostile towards ethnic Russians. Fedosseeva said
that in April 1991, an employee’s boyfriend, who was a
member of the “zemessardze,” a volunteer organization of
military reservists similar to a national guard, threatened
and assaulted her because she had disciplined the em-
ployee. Fedosseeva suffered a nervous breakdown and a

-- 2 of 14 --

No. 06-3216 3
broken wrist as a result of the altercation. Fedosseeva also
described a second beating two years later by three men,
one dressed as a police officer, who repeatedly kicked
her until a nearby bus driver intervened. Approximately
a month after the second attack, Latvian police shut off
the electricity, gas, and water to her apartment building,
and when she tried to turn the gas back on, the police
arrested her and fined her the equivalent of $300 for
“resisting authority.”
In her statement, Fedosseeva also wrote that in 1993, a
group of Latvian teenagers harassed and beat her nine-
year-old daughter because she is Russian, that the police
took no action to assist, and that a Latvian doctor re-
fused to treat her. Fedosseeva eventually decided to
leave her daughter with her mother in the Republic of
Chechnya in the Russian Federation so she could seek
asylum in the United States. At her hearing, Fedosseeva
said that her daughter gained citizenship in Russia
because she was a minor before the collapse of the Soviet
Union. By contrast, Fedosseeva was not eligible for
Russian citizenship because she was not a minor and was
not residing in Russia during the fall of the Soviet Union.
In 2003, Fedosseeva hired a new lawyer and filed a third
“supplemental” application, attaching a new “Sworn
Statement” in English. On this asylum application
Fedosseeva marked that she is fluent in English. This
application said that Fedosseeva moved to Latvia from
Russia when she was “very young” because her father
was stationed in the Soviet military there. She said that,
since the fall of the Soviet Union, anti-Russian sentiment
in Latvia against Soviet military families had grown. She
stated that she was married in Latvia but stayed behind
with their daughter when her husband emigrated to
Germany because her father would not let her leave. She
also wrote that when she was a manager at the hotel she
was attacked by “some members” of the Latvian home

-- 3 of 14 --

4 No. 06-3216
guard—not the boyfriend of the employee she described
earlier—because she tried to fire a couple of Latvian
employees. She explained that on March 8, 1993, she “was
jumped by three men; one was dressed as a Latvian police
officer,” who beat and kicked her. She attached a tran-
script of a medical record that stated that she was hospi-
talized for a week beginning March 8, 1993. She then
described an event in which the government shut off the
utilities to her building. She defied the government by
turning the utilities back on and trying to block officials
from coming near, but was subsequently arrested, detained
for six hours, and fined the equivalent of $300.
In March 2005, Fedosseeva appeared with counsel at her
asylum hearing. Though her counsel said at an earlier
hearing that Fedosseeva spoke English, she used a trans-
lator at the asylum hearing. Fedosseeva conceded
removability, but refused to designate a country of re-
moval because she claimed to be stateless. As the only
witness at the hearing, Fedosseeva said that she would
not seek asylum from Russia because she believed that
Russia would not accept her given that she is not a citizen.
She testified that she was not a Russian citizen because
only people residing in Russia at the time of the fall of
the Soviet Union automatically became citizens. She
said that she came to the United States using a Soviet
passport that was issued in Latvia in 1993, but she did
not explain why Latvia was issuing Soviet passports
two years after the collapse of the Soviet Union. She
explained—consistent with her first sworn statement but
not her second—that she moved to Latvia in 1984 with her
daughter and husband for his job. She also said that
Latvian residency laws and her father’s connection to
the Soviet military prevented her from becoming a
Latvian citizen. Fedosseeva offered no documentary evid-
ence about the residency or citizenship criteria for either
Russia or Latvia.

-- 4 of 14 --

No. 06-3216 5
Fedosseeva also testified that she feared for her life
if returned to Latvia because she is an ethnic Russian,
and she had “several unpleasant incidents” when she last
lived there in the early 1990s. She described one such
incident that she said took place in 1992 when several men
wearing Latvian home guard uniforms approached her
and one of them struck her. She testified that she fell and
hit her head, but that because she is Russian, when an
ambulance arrived the medics refused to do anything
more than bandage her shoulder. She said that because
the medics in the ambulance did not “really help,” she
was forced to get treatment in a nearby “militia station”
with medical facilities. Contrary to her 2003 written
statement and supporting documents, she testified that
she was never hospitalized and returned home after a
few hours of treatment. When confronted with her incon-
sistent statements and supporting documents, she said
that she was confused and that maybe the medical re-
ports were for her daughter. However, the medical records
listed Fedosseeva’s name.
Fedosseeva testified about several other incidents.
Specifically, she testified that in 1991 or 1992 the gas,
electricity, and water were turned off in her apartment
building because, she asserts, the Latvian government
did not like that Russians lived there. She said that she
turned the gas and electricity back on and guarded the
gas pipe with a dog, and had a “very unpleasant dispute”
with the police. She said that the police arrested her and
fined her the equivalent of $150. Fedosseeva next testified
that she was fired from her job at the hotel because she
was not fluent in Latvian and because her father was in
the Soviet military. The government pointed out, however,
that she submitted written documents stating that she
consented to being laid off. She did not mention the
assault at the hotel that she had described in her earlier
applications.

-- 5 of 14 --

6 No. 06-3216
After the hearing, the IJ found Fedosseeva’s testimony
not credible, reasoning that it was “not sufficiently de-
tailed,” “internally inconsistent,” and inconsistent “with
the facts she set forth in her first application.” The IJ
noted Fedosseeva’s inability to identify consistently when
the key events she recounted took place. The IJ also
mentioned that her testimony about the beating by
Latvian home guard members was not consistent with
her application.
The IJ further held that Fedosseeva “failed to present
the requisite specific, detailed facts” to establish past
persecution or a well-founded fear of future persecution
in Latvia. The IJ concluded that the attack that she
described seemed to be “the act of a rogue national guard
member, not the result of any act perpetrated and con-
doned by the Latvian government.” The IJ also ruled that
all of the events that Fedosseeva described amounted only
to “harassment by private actors or lawful sanctions
imposed by the government for civil disobedience.” Finally,
the IJ concluded that Fedosseeva did not have an objec-
tively reasonable fear of future persecution because the
events occurred more than a decade earlier and the State
Department’s 2004 country report for Latvia noted that,
while discrimination against ethnic Russians still exists,
the government does not condone it. The IJ commented
that Latvian animosity towards Russians was partic-
ularly high in the early 1990s because of the Soviet
occupation, but the Latvian government has since tried to
accommodate different ethnic groups. The IJ noted that
according to the 2004 State Department report, fifteen
percent of the members of the Latvian Parliament were
ethnic Russians, although the general population consists
of 28.5% ethnic Russians. See U.S. Dep’t of State, Back-
ground Note: Latvia (Dec. 2006), available at http://www.
state.gov/r/pa/ei/bgn/5378.htm (last visited June 14, 2007)).
Moreover, the IJ emphasized the fact that the govern-

-- 6 of 14 --

No. 06-3216 7
ment investigates all claims of human-rights violations.
Id. Consequently, the IJ ruled that Fedosseeva did not
qualify for asylum or withholding of removal and that she
should be removed either to Latvia or Russia.
Fedosseeva appealed to the BIA, which affirmed the IJ’s
conclusions in a brief order.
II. A NALYSIS
Fedosseeva petitions this Court for review. Because the
BIA’s decision supplements the IJ’s opinion, we review
both. Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005).
In her petition for review, Fedosseeva asserts that neither
Latvia nor Russia will accept her, and that it was error
for the IJ to order her removed to either country. We
disagree. Fedosseeva’s factual premise has no support in
the record, and her corresponding legal conclusion is not
grounded in any authority. Fedosseeva does not contend
that Russia will refuse her citizenship; rather, she testi-
fied that she can only apply for Russian citizenship while
residing in Latvia, and does not want to return there. In
fact, Fedosseeva probably qualifies for a simplified natu-
ralization process in Russia because her mother already
is a citizen of the Russian Federation. See Federal Law
No. 62-FZ on Russian Federation Citizenship (May 31,
2002, as amended 2004), available at http://www.
legislationline.org/legislation.php?tid=11&lid=591. Nothing
in the record, and nothing in the legal authorities cited
in her brief, supports her assertion that she must return
to Latvia to apply for Russian citizenship.
In any event, Fedosseeva’s argument is irrelevant
because, even assuming that she is stateless, that fact is
not a ground for asylum. See Zahren v. Gonzales, No.
06-1301, 2007 WL 1437469, at *3 (7th Cir. May 17, 2007).
To be eligible for asylum, Fedosseeva must demonstrate

-- 7 of 14 --

8 No. 06-3216
that she is a “refugee.” 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1). Refugees include a “person having no national-
ity, [who] is outside any country in which such person last
habitually resided” and cannot return because of “persecu-
tion or a well-founded fear of future-persecution” on
account of nationality. Id. § 1101(a)(42)(A). Thus, the
statute is explicit that even a stateless person must show
persecution to be granted asylum.
Once an alien has been denied asylum, the alien can
designate a country of removal. 8 U.S.C. § 1231(b)(2)(A);
Zahren, 2007 WL 1437469, at *2. When the alien does
not designate a country of removal, the Attorney General
is required by statute to remove the alien to any country
where the alien is a “subject, national, or citizen” unless
the government of the country refuses to accept the alien.
8 U.S.C. § 1231(b)(2)(D)(ii); see Jama v. Immigration &
Customs Enforcement, 543 U.S. 335, 339 (2005); Zahren,
2007 WL 1437469, at *2. When the alien cannot be re-
moved to the country of nationality or citizenship, then
the Attorney General is required to designate a country
that falls into one of seven categories listed in 8 U.S.C.
§ 1231(b)(2)(E). See Pavlovich v. Gonzales, 476 F.3d 613,
616 (8th Cir. 2007). Here, the Attorney General was
permitted to designate Russia as Fedosseeva’s country of
removal because she was born there. 8 U.S.C.
§ 1231(b)(2)(E)(iv). Likewise, the Attorney General could
have designated Latvia as the country of removal be-
cause Fedosseeva entered the United States from Latvia.
Id. § 1231(b)(2)(E)(I). Fedosseeva may be ordered removed
to these countries regardless of whether they have ac-
cepted her. Jama, 543 U.S. at 342; Zahren, 2007 WL
1437469, at *3. Questions about whether the designated
country will accept the alien are to be dealt with by the
Attorney General after, and independent of, the asylum
case. 8 U.S.C. § 1231(b); see also Zahren, 2007 WL
1437469, at *3.

-- 8 of 14 --

No. 06-3216 9
The Eighth Circuit recently came to the same conclusion
in a nearly identical case. See Pavlovich, 476 F.3d at 616.
In Pavlovich, the petitioners were born in what is now
considered Russia but moved to Latvia before the collapse
of the Soviet Union. Id. at 615. The petitioners argued that
the IJ improperly ordered them removed to Russia or,
alternatively, Latvia because neither country would ac-
cept them. Id. In concluding that both countries were
proper for removal, the court noted that “the designation
of a country of removal necessarily comes after the deter-
mination that an alien is not eligible for asylum.” Id.; see
also Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d Cir. 2003)
(holding that “statelessness alone does not warrant asy-
lum”); Najjar v. Ashcroft, 257 F.3d 1262, 1291-92 (11th
Cir. 2001) (upholding BIA denial of asylum where the
petitioner did not establish that the country designated
for removal would refuse her entrance because of her
nationality).
Arguably, if the IJ had designated Russia as the country
of removal, that would end our inquiry because Fedosseeva
has never contended that she cannot safely return to
Russia, and her contention that Russia will not accept
her is irrelevant at this stage. See Zahren, 2007 WL
1437469, at *3. Nevertheless, the IJ designated Latvia as
the first choice for removal, and Fedosseeva has argued
that she will be persecuted in Latvia. Accordingly, we
proceed to analyze her claim.
Substantial evidence supports the IJ’s ruling that
Fedosseeva did not suffer past persecution in Latvia. An
IJ’s adverse credibility determination is entitled to defer-
ential review and will be overturned only under extraordi-
nary circumstances. Sina v. Gonzales, 476 F.3d 459, 461
(7th Cir. 2007); Oforji v. Ashcroft, 354 F.3d 609, 613 (7th
Cir. 2003). We will overturn an IJ’s adverse credibility
determination if it is not supported by “specific, cogent

-- 9 of 14 --

10 No. 06-3216
reasons” that “bear a legitimate nexus to the finding.”
Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006)
(internal citations and quotations omitted). When an IJ
finds an alien’s testimony not credible, the alien must
provide a convincing explanation for the discrepancies or
introduce credible corroborating evidence. Boyanivskyy v.
Gonzales, 450 F.3d 286, 293 (7th Cir. 2006).
The IJ identified three inconsistencies between
Fedosseeva’s testimony, written statements, and documen-
tary evidence, which all go to the heart of her claims.
Adekpe v. Gonzales, 480 F.3d 525, 530 (7th Cir. 2007);
Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir. 2004). First,
the IJ noted that Fedosseeva testified that a Latvian
home guard member punched her in 1992 and that she
was treated by militia and released. The IJ pointed out
that her written statement was inconsistent with this
account because it did not mention that she received any
treatment after the assault, but did mention that the
attack took place in 1993, that it involved three guardsmen
who kicked her, and that it was stopped by a bus driver.
Next, the IJ noted that Fedosseeva testified that authori-
ties turned off the gas, electricity, and water to her
apartment building in 1991, though her written state-
ment said that this incident took place two years later
in 1993. Finally, the IJ mentioned that Fedosseeva testi-
fied that she was fired in 1992 from her position at the
hotel because of her ethnicity, but she presented docu-
ments that stated that she was actually laid off from the
hotel in 1991 “with her written consent.” Fedosseeva’s
explanation for these inconsistencies was that she was
“confused” and “unable to recall” the correct dates for
these events. The IJ did not credit her explanation, a
decision to which we defer when the explanation was not
so persuasive that “a reasonable factfinder would have
been compelled to accept” it. See Chen v. Gonzales, 457
F.3d 670, 673 (7th Cir. 2006).

-- 10 of 14 --

No. 06-3216 11
Moreover, none the incidents involving government
actors qualified as persecution. First, Fedosseeva alleged
that she was arrested and spent several hours in custody,
but not because of any of the five statutory reasons
for granting asylum. See 8 U.S.C. § 1101(a)(42)(A);
Tamas-Mercea v. Reno, 222 F.3d 417, 425-26 (7th Cir.
2000). Rather, she said she was arrested because she tried
to turn the utilities on for her building in defiance of the
government’s actions and then confronted the police
with a “big dog.” Second, Fedosseeva said that home
guardsmen attacked her because she is Russian. But
substantial evidence supported the IJ’s conclusion that
this single event, consisting of three men allegedly kick-
ing her, rose only to the level of harassment, not persecu-
tion. See, e.g., Prela, 394 F.3d at 518 (upholding a find-
ing that several interrogations by the police, 24-hour
detainment, harassment for money, and beating causing
injury to an alien’s hands was not persecution); Dandan v.
Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (stating
that a single episode of detainment, beating, and depriva-
tion of food for three days did not compel a finding of
persecution).
The other incidents Fedosseeva described were not
performed or condoned by the Latvian government. See
Hor v. Gonzales, 421 F.3d 497, 501-02 (7th Cir. 2005) (“You
cannot even claim asylum on the basis of persecution by
a private group unless the government either condones
it or is helpless to prevent it.”). For instance, Fedosseeva
alleged in her application that an employee’s boyfriend
threatened and pushed her, but she also said that this
was because of a fight she had with the employee—not
because of government policy. She also claimed that her
employer fired her because of her nationality, but the loss
of one job—even if due to ethnicity—is discrimination, not
persecution. Medhin v. Ashcroft, 350 F.3d 685, 689 (7th
Cir. 2003).

-- 11 of 14 --

12 No. 06-3216
Finally, the IJ’s conclusion that Fedosseeva does not
have an objectively reasonable fear of future persecution
is likewise supported by substantial evidence. Without
evidence of past persecution, Fedosseeva had to demon-
strate that she genuinely fears persecution on account of
her nationality and that her fear is objectively reason-
able. See Boci v. Gonzales, 473 F.3d 762, 767 (7th Cir.
2007). The IJ assumed that Fedosseeva genuinely feared
a return to Latvia, but concluded that the fear was not
reasonable. The IJ relied on a 2004 State Department
report, which stated that fifteen ethnic Russians were
sitting in Latvia’s 100-member parliament and that the
Latvian government was committed to protecting human
rights. Moreover, the most recent reports from the State
Department, of which we may take notice, see Giday v.
Gonzales, 434 F.3d 543, 556 n.6 (7th Cir. 2006), state that
Latvia has joined the European Union and the North
Atlantic Treaty Organization (NATO). See U.S. Dep’t of
State, Background Note: Latvia (Dec. 2006), available at
http://www.state.gov/r/pa/ei/bgn/5378.htm (last visited
June 14, 2007). The reports note that of the 400,000 people
in the country who are classified as non-citizens, fewer
than 1,000 were considered “stateless” and thus ineligible
for naturalization. U.S. Dep’t of State, Country Reports on
Human Rights Practices-2006, available at http://www.
state.gov/g/drl/rls/hrrpt/2006/78822.htm (last visited June
14, 2007). And a 2003 report states that after Latvia voted
by referendum to join the European Union and lowered the
requirements for naturalization, 95% of applicants have
passed the citizenship test on the first attempt. U.S. Dep’t
of State, Country Reports on Human Rights Practices-
2003, available at http://www.state.gov/g/drl/rls/hrrpt/
2003/27847.htm (last visited June 14, 2007). Fedosseeva
argues generally that the reports may not be reliable, but
she has not presented the requisite specific, detailed facts
demonstrating that she has good reason to fear that she

-- 12 of 14 --

No. 06-3216 13
will be singled out for persecution. See Ahmed v. Ashcroft,
348 F.3d 611, 618 (7th Cir. 2003).
Fedosseeva argues that this case is identical to Galina
v. INS, 213 F.3d 955 (7th Cir. 2000), in which we ruled
that the BIA improperly relied on a State Department
country report to determine that conditions in Latvia had
improved between 1994 and 1998. In Galina, the BIA
concluded that the petitioner suffered past persecution in
Latvia, and we held that the BIA could not conclude that
conditions had improved based only on country reports
that recounted conditions that were substantially the same
as when the petitioner left Latvia. Id. at 958. Here, unlike
Galina, there is substantial evidence to support the IJ’s
finding that Fedosseeva was not persecuted in the past,
so it was not necessary for the IJ to determine whether
the conditions in Latvia had improved to the point that
her fear of persecution was no longer well founded.
8 C.F.R. § 208.13(b)(1)(i)(A). Moreover, the most recent
country reports state that significant changes have
occurred in Latvia, including its admission to the Euro-
pean Union and NATO and an increase in the number
of Russian members of the Latvian parliament. See U.S.
Dep’t of State, Background Note: Latvia (Dec. 2006),
available at http://www.state.gov/r/pa/ei/bgn/5378.htm.
III. C ONCLUSION
For the above reasons, we D ENY Fedosseeva’s petition for
review.

-- 13 of 14 --

14 No. 06-3216
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-07

-- 14 of 14 --