Rusak, et al v. Holder

Filing

FILED OPINION (WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON and EDWARD R. KORMAN) GRANTED. Judge: WAF , Judge: JBR Dissenting, Judge: ERK Authoring. FILED AND ENTERED JUDGMENT. [8752208]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATALLIA VALERIEVNA RUSAK,
Petitioner,

No. 08-70746

v.

Agency No.
A095-878-063

ERIC H. HOLDER, JR.,
Attorney General,

OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 7, 2013—Pasadena, California
Filed August 22, 2013
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Edward R. Korman,* Senior District
Judge.
Opinion by Judge Korman;
Dissent by Judge Rawlinson

*

The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.

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RUSAK V. HOLDER
SUMMARY**

Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision denying asylum, withholding
of removal, and protection under the Convention Against
Torture to a citizen of Belarus because petitioner established
past persecution based on the abuses her Seventh Day
Adventist parents suffered while she was a child and the
government failed to rebut the presumption of future
persecution.
The panel held that the Board erred by failing to take into
account the harm petitioner’s family endured while she was
a child in assessing past persecution. The panel concluded
that petitioner was entitled to asylum because the government
failed to rebut the presumption of future persecution. The
panel remanded for further consideration of petitioner’s
claims for withholding of removal and CAT protection.
Dissenting, Judge Rawlinson wrote that the record does
not compel the conclusion that the harm petitioner’s family
suffered was closely tied to herself, and that the majority
ignored substantial evidence in the record that Seventh Day
Adventists are not currently persecuted in Belarus.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Sergei Shevchenko (argued), Barshev, P.C., Beverly Hills,
California, for Petitioner.
Ashley Young Martin (argued), Regan Hildebrand, Kiley L.
Kane, and Jennifer L. Lightbody, United States Department
of Justice, Washington, D.C., for Respondent.

OPINION
KORMAN, District Judge:
Natallia Rusak, a twenty-eight year old native and citizen
of Belarus currently residing in California, petitions for
review of an order of the Board of Immigration Appeals
(“BIA”) affirming an Immigration Judge’s (“IJ”)
determination that she is not entitled to asylum, withholding
of removal, or relief under the Convention Against Torture.
We have jurisdiction under 8 U.S.C. § 1252(a). We review
the BIA’s decision for substantial evidence and must affirm
if it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” INS v. EliasZacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.
§ 1105a(a)(4)).
Ms. Rusak has been deaf since infancy, a condition that
she claims subjected her to persecution in Belarus due to
widespread hostility to persons with disabilities. Ms. Rusak’s
family also belongs to the Seventh Day Adventist Church, a
religion disfavored in Belarus. According to the testimony of
Ms. Rusak and her mother, Ms. Rusak’s mother was arrested,
beaten, and raped by the police on account of her church

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membership. She also lost her job as a schoolteacher as a
consequence of her religious affiliation. Ms. Rusak’s father
was severely beaten by the police and died of a heart attack
related to the assault. At the time of these events, Ms. Rusak
was approximately eleven years old. Ms. Rusak herself
claims to have suffered physical abuse and harassment as a
child from her teachers and peers on account of her deafness
and her family’s religion.
In 2000, Ms. Rusak and her mother left Belarus for
Argentina, where they lived for several months until legally
entering the United States so that Ms. Rusak could undergo
testing for a cochlear implant. Their authorization to remain
in the country expired in June 2002. Initially, Ms. Rusak’s
mother filed an asylum application on her own behalf and
listed Ms. Rusak as a derivative applicant. However, in 2004,
Ms. Rusak’s mother married a United States citizen and
withdrew her application; Ms. Rusak then submitted the
independent asylum application under review here. Both Ms.
Rusak and her mother gave testimony before the IJ in support
of her application, and neither was subject to an adverse
credibility finding. Ms. Rusak has lived with family, most of
whom now reside in California, for her entire life, and has no
independent means of support.
The Department of Justice attorney acknowledged at oral
argument that other options may be available to deal with the
unfortunate circumstances in which Ms. Rusak finds herself.
Ms. Rusak may be eligible for a visa based on her mother’s
new status. This would allow her to apply for an adjustment
of status. The Department of Homeland Security could
exercise prosecutorial discretion in determining not to seek
Ms. Rusak’s removal. Nevertheless, because these two
options must be explored through avenues other than this

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litigation, we address the merits of Ms. Rusak’s asylum
claim.
Title 8 U.S.C. § 1158 provides that the Attorney General
and Secretary of Homeland Security have discretion to grant
political asylum to aliens they determine to be refugees.
Under 8 U.S.C. § 1101(a)(42)(A), a “refugee” is “any person
who is outside any country of such person’s nationality . . .
who is unable or unwilling to return to . . . that 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.” An asylum
applicant bears the burden of proving that she has a wellfounded fear of future persecution based on one of the
enumerated grounds. Ghaly v. INS, 58 F.3d 1425, 1428 (9th
Cir. 1995). A well-founded fear of future persecution “must
be both subjectively genuine and objectively reasonable.”
Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.
1999). An asylum applicant’s credible testimony that he or
she genuinely fears persecution suffices to establish the
subjective element. Id. The objective element may be
established either by the presentation of “credible, direct, and
specific evidence in the record of facts that would support a
reasonable fear of persecution,” or through a showing by an
asylum applicant that he or she has suffered persecution in the
past. Id. A showing of past persecution shifts the burden to
the government to prove, by a preponderance of the evidence,
that conditions in the applicant’s country have changed such
that the applicant “no longer has a well-founded fear that he
would be persecuted if he were to return.” Id.
Ms. Rusak’s testimony before the IJ established a
subjective fear of persecution if she were to return to Belarus.
The key disputed issue is whether Ms. Rusak’s fear of

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persecution is objectively reasonable. Ms. Rusak claims
asylum on the ground that she has been deaf since childhood
in a country in which persons with disabilities are treated with
hostility. She also claims asylum based on her family’s
religion. We agree with the BIA’s conclusion that Ms. Rusak
did not suffer persecution on account of her deafness in
Belarus. While her testimony establishes that she was treated
badly by her teachers and classmates in school, her
experiences did not rise to the level of persecution, which is
“an extreme concept that does not include every sort of
treatment our society regards as offensive.” Ghaly v. INS,
58 F.3d 1425, 1431 (9th Cir. 1995).
Ms. Rusak’s claim of persecution on the basis of religion
is more compelling. While Ms. Rusak’s own direct
experiences in Belarus may not rise to the level of persecution
on this ground as well, she is not required to demonstrate that
she individually suffered persecution if she can establish a
“pattern or practice . . . of persecution of groups of persons
similarly situated” and that she is a member of the group
“such that [her] fear of persecution upon return is
reasonable.” Kotasz v. INS, 31 F.3d 847, 853 n.8 (9th Cir.
1994). This similarly situated group may be the community
of Seventh Day Adventists in Belarus or Ms. Rusak’s
immediate family. See Mgoian v. INS, 184 F.3d 1029, 1036
(9th Cir. 1999) (“[A]n individual applicant may be eligible
for asylum, even in the absence of direct persecution against
her personally, if she is able to demonstrate a well-founded
fear of persecution based on acts of violence against her
friends or family members.”). Thus, Ms. Rusak’s religious
persecution claim need not be judged solely on the basis of
her own experiences.

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Moreover, because Ms. Rusak was a child when the
events underlying her asylum claim took place, the injuries
suffered by her family members are directly relevant to her
claim of past persecution. We previously held in HernandezOrtiz v. Gonzales that “injuries to a family must be
considered in an asylum case where the events that form the
basis of the past persecution claim were perceived when the
petitioner was a child.” 496 F.3d 1042, 1046 (9th Cir. 2007)
(emphasis added). While Hernandez-Ortiz was decided after
the IJ’s ruling, it predated the BIA’s review of Ms. Rusak’s
appeal. Nevertheless, the BIA did not consider it. This was
error.
The BIA acknowledged the abuses suffered by Ms.
Rusak’s parents, and it did not question that these abuses
were due to their religious affiliation. Nevertheless, it held
that “although condemnable, the actions taken against [them]
due to their religion, including the respondent’s mother’s
arrests and her father’s beating and subsequent death, do not
constitute persecution of the respondent.” (emphasis added).
This holding cannot be reconciled with Hernandez-Ortiz.
The abuses endured by Ms. Rusak’s parents constituted
persecution of them, and Ms. Rusak was entitled to rely on
these events to establish her own claim of past persecution
because she was a child at the time. As Hernandez-Ortiz
held, “a child’s reaction to injuries to his family is different
from an adult’s. The child is part of the family, the wound to
the family is personal, the trauma apt to be lasting.” 496 F.3d
at 1045.
While it is true that, unlike Hernandez-Ortiz, the record
here contains no testimony by Ms. Rusak or other evidence
directly linking the abuses suffered by her parents to her own
psychological state, the result in Hernandez-Ortiz does not

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turn on the presence of such evidence. Indeed, additional
evidence is not necessary to establish that an eleven or twelve
year old girl would be traumatized when her father is beaten
and killed and her mother arrested and raped by the police.
No other conclusion seems possible if we take seriously the
admonition that “[w]hen we take our seats on the bench we
are not struck with blindness, and forbidden to know as
judges what we see as men [and women].” Ho Ah Kow v.
Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879) (No. 6546);
see also Watts v. Indiana, 338 U.S. 49, 52 (1949)
(Frankfurter, J.).
On the current record, it is clear that Ms. Rusak has
established a claim of past persecution based on the abuses
endured by her parents while she was a child. Nor has the
government successfully proven that conditions in Belarus
have changed sufficiently that Ms. Rusak no longer has a
well-founded fear of persecution were she to return. Contrary
to the BIA’s conclusion, the Belarus country reports
contained in the Administrative Record do not indicate that
the status of minority religious groups has improved in recent
years. In fact, they suggest the opposite – that members of
minority religions still face attack by the government. The
BIA’s conclusion on this issue is unsupported by substantial
evidence.
Our dissenting colleague accuses us of ignoring “the
substantial evidence in the record that Seventh Day
Adventists are not currently persecuted in Belarus.” We are
unaware of any document in the record that says that Seventh
Day Adventists are not currently persecuted in Belarus, nor
do they contain a list of religious groups that are or are not
subject to persecution. Indeed, in the context of describing
religious persecution, the reports that the dissent relies upon

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simply cite examples of some religious communities that are
persecuted. See Annual Report of the United States
Commission on International Religious Freedom: Belarus
(May 2005); United States Department of State, Country
Report on Human Rights Practices 2005: Belarus. The
reports do, however, accuse the Belarusian government of
attacking “the persons and property of minority religious
groups.” Indeed, the 2010 International Religious Freedom
Report for Belarus, published by the State Department, of
which we may take judicial notice for these limited purposes,
observes that the “government continued to use textbooks that
promote religious intolerance, especially toward
nontraditional religious groups.” These textbooks label
groups, including Seventh-Day Adventists, as sects – in a
chapter titled “Beware of Sects.” Moreover, although our
decision is not based solely on Ms. Rusak’s own experiences
as a Seventh Day Adventist, we do not accept the dissent’s
characterization of Ms. Rusak as “a non-member of the
Seventh Day Adventists.” Ms. Rusak testified that she
attends services regularly with her mother. While she stayed
in a separate room during some services in the United States
and Belarus, she attributed that separation to the church’s lack
of sign language interpretation services, not her disinterest or
disbelief in the religion.
In sum, Ms. Rusak has made a showing of past
persecution on the basis of religion, and she is thus entitled to
a presumption of well-founded fear of future persecution.
Because the government has failed to rebut this presumption,
Ms. Rusak is eligible for asylum on this claim. The matter is
remanded to the BIA for further consideration of Ms. Rusak’s

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additional claims for withholding of removal and relief under
the Convention Against Torture based on religious
persecution in light of Hernandez-Ortiz.
PETITION FOR REVIEW GRANTED.

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision to
remand this case to the Board of Immigration Appeals (BIA)
for further proceedings.
It is important to keep in mind our standard of review for
BIA decisions. We must affirm BIA rulings unless the
evidence compels a different outcome. See Nagoulko v.
I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003) (“This case like
many others turns on the standard of review. Perhaps the IJ
could have found past persecution on this record, but . . . the
IJ was not compelled to find past persecution . . . .”).
The language of the majority opinion underscores the lack
of compulsion. After conceding that Petitioner’s own
experiences in Belarus did not rise to the level of persecution,
the majority speculates that Petitioner may on remand be able
to “establish ‘a pattern or practice . . . of persecution of
groups of persons similarly situated’ and that she is a member
of the group such that her fear of persecution upon return is
reasonable.” Majority Opinion, p. 6 (quoting Kotsaz v. INS,
31 F.3d 847, 853 n.8 (9th Cir. 1994)) (alteration omitted).
Without citing to any evidence in the record, the majority
muses that “[t]his similarly situated group may be the
community of Seventh Day Adventists in Belarus or

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Ms. Rusak’s immediate family.” Id. (citation omitted)
(emphasis added). But does the record compel us to so hold?
It appears not. Indeed, the record more strongly supports the
BIA decision. Petitioner testified that when the police
attacked her father, she was in another room and the police
never arrested her because she was a child. Petitioner was
unaware of her father’s arrest until she was informed some
time later. The same is true of when her mother was arrested.
In addition, Petitioner was not a Seventh Day Adventist and
did not attend services in Belarus. Notably, the record is
absolutely void of any effects upon Petitioner of the
persecution inflicted upon Petitioner’s parents. Petitioner
simply failed to establish that the persecution against her
family was “closely tied” to her. Jie Lin v. Ashcroft, 377 F.3d
1014, 1029 (9th Cir. 2004) (as amended).
More importantly, the majority completely ignores the
substantial evidence in the record that Seventh Day
Adventists are not currently persecuted in Belarus. The
majority professes to be “unaware of any document in the
record that says that Seventh Day Adventists are not currently
persecuted in Belarus, nor do they contain a list of religious
groups that are or are not subject to persecution.” Majority
Opinion, p. 8. I refer the majority to page 84 of the 2005
Annual Report of the United States Commission on
International Religious Freedom. The report observes that
officials in Belarus “continue to harass, fine or detain
adherents of various denominations” including the Greek
Catholic Church, the Belarusian Orthodox Autocephalous
Church, Evangelical Protestants, Hare Krishnas, those of the
Jewish faith and Hindus. The Seventh Day Adventists are not
once mentioned among the disfavored religious groups listed
in the annual report. Similarly, pages 13–14 of the 2005
Belarus Country Report
named various religious

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organizations that were “hindered” by the Belarusian laws
restricting the practice of religion. These organizations
included the “Moon Church,” the Church of Scientology,
Muslims, Light of the World, the New Life Church, the
Belarusian Evangelical Church, the Belarusian
Autocephalous Orthodox Church, and the Hare Krishnas.
Once again, no mention of Seventh Day Adventists can be
found. Surely this evidence (or lack of evidence) did not
compel a finding that Ms. Rusak established a fear of future
persecution as a putative devotee of the Seventh Day
Adventist denomination.
The majority also references the 2010 International
Religious Freedom Report for Belarus wherein the Seventh
Day Adventist denomination is labeled as a sect. See
Majority Opinion, p. 9. However, labeling an organization a
sect is a far cry from subjecting the organization’s members
to persecution. See Fisher v. I.N.S., 79 F.3d 955, 961 (9th
Cir. 1996) (en banc) (“Persecution is an extreme concept,
which ordinarily does not include discrimination on the basis
of race or religion, as morally reprehensible as it may be.”)
(citation, alteration and internal quotation marks omitted).
The lack of evidence of an objective fear of future
persecution dooms Petitioner’s petition for review. See
Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (requiring
presentation of facts that would support a reasonable fear of
persecution). This is particularly true of Petitioner as a nonmember of the Seventh Day Adventists, who failed to present
evidence that she “faced a unique risk of persecution upon
return that was distinct from . . . mere membership in a
disfavored group . . . .” Id. at 979 (citation omitted).
The majority seeks to salvage Ms. Rusak’s assertion that
she faces future persecution in Belarus with a reference to her

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testimony “that she attends [Seventh Day Adventist] services
regularly with her mother.” But attendance does not a
member make. Indeed, Ms. Rusak never testified that she
was a member of the Seventh Day Adventist denomination or
that attendance is all that is required to establish membership.
See e.g., The Official Site of the Seventh-day Adventists,
www.adventist.org/beliefs/fundamental/index.html (last
visited August 7, 2013) (requiring baptism to be received as
a member).
Because the evidence in this case does not compel a
different outcome, I would uphold the decision of the BIA
denying asylum and withholding of removal. I respectfully
dissent from the majority’s deviation from the appropriate
standard of review.