United States Court of Appeals

For the First Circuit

No. 11-1814

PAVEL IVANOV; IRINA KOZOCHKINA,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Kayatta, 

Circuit Judges.

Randy Olen, with whom Robert D. Watt, Jr. was on brief, for

petitioners.

Andrew Nathan O'Malley, with whom Stuart F. Delery, Acting

Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr.,

Assistant Director, Office of Immigration Litigation, and D.

Nicholas Harling, Attorney, Office of Immigration Litigation, were

on brief, for respondent.

November 15, 2013
THOMPSON, Circuit Judge. Petitioners Pavel Ivanov and

Irina Kozochkina seek review of a final order of removal. They say

the immigration courts erred by finding that the persecution Ivanov

experienced in Russia was not "on account of" his Pentecostal

faith. We agree. After careful consideration of the decision and

the record, we vacate and remand for additional proceedings.

Facts and Procedural History

Petitioners are natives and citizens of Russia. Ivanov

is a long-standing member of the Pentecostal Church, which

Kozochkina, a Baptist, now attends.1

Petitioners entered the United States in May 2003 on

five-month educational exchange visas.2 Having heard from family

and fellow Pentecostals in Russia of ongoing threats and violence

against persons of their faith, Petitioners overstayed their visas

and applied for asylum, withholding of removal, and relief under

1 Petitioners' claims derive from Ivanov's experiences as a

Pentecostal in Russia in the 1990s and early 2000s. Given that

Kozochkina's claims are derivative of Ivanov's, we will discuss

only Ivanov's entitlement to relief.

2

 Petitioners' visas list September 2003 as their expiration

date. However, because Petitioners never entered the educational

programs for which their visas were issued, the government asserts

that their status actually expired in June 2003, thirty days after

their entry. This discrepancy is not relevant to this appeal.

-2-
the Convention Against Torture (CAT) in September 2004.3

Petitioners were married in Newport, Rhode Island in October 2004.

In August 2005, the Department of Homeland Security (DHS)

served Petitioners with Notices to Appear, charging them with

removability under the Immigration and Nationality Act. See 8

U.S.C. § 1227(a)(1)(B). Petitioners filed amended applications for

asylum, withholding of removal, and CAT relief in June 2007. They

appeared before an Immigration Judge (IJ) in a series of hearings

between 2006 and 2009. Because the IJ found Ivanov credible, we

recount the facts here as Ivanov presented them in his

documentation and testimony.

Ivanov was born in Chelyabinsk, Russia on November 21,

1983. His parents raised him in the Pentecostal faith, practicing

in secret during the anti-religious Soviet regime, then joining a

church in 1995 as Russia began to open up to religion after the

fall of communism.

Pentecostals represent a religious minority in Russia.4

Though the Russian Constitution provides for freedom of religion,

"[m]any citizens firmly believe that adherence to the Russian

3

 Because Petitioners missed the one-year filing deadline for

asylum by only three months, the Immigration Judge gave Petitioners

"the benefit of the doubt" and treated their claim as timely.

4

 United States Department of State, Bureau of Democracy,

Human Rights and Labor, Russia: Country Reports on Human Rights

Practices 20 (Mar. 2007), available at

http://www.state.gov/j/drl/rls/hrrpt/2006/78835.htm [hereinafter

2006 Country Report].

-3-
Orthodox Church . . . is at the heart of their national identity,"5

and "members of minority and 'non-traditional' religions,"

including Pentecostals, "continue to encounter prejudice, societal

discrimination, and in some cases physical attacks."6 Local

authorities reportedly do not adequately respond to such attacks.7

For example, prior to 2005, Evangelicals and Pentecostals in

various regions reported the vandalizing and burning of prayer

houses, including in Ivanov's hometown of Chelyabinsk, where

authorities made no arrests.8

Ivanov's memories of problems for his church date back to

March 1996, when he learned that members of the Russian Orthodox

Church intercepted Pentecostal literature sent from France. Then,

on January 7, 1997 (Orthodox Christmas), he heard that a group of

"Barkashovtsy" — Russian nationalist, neo-Nazi "skinheads"9 — had

burned his church's office and beat up the night watchman. Later,

on May 30, 1999, while Ivanov and his parents were visiting their

5

 United States Department of State, Bureau of Democracy,

Human Rights and Labor, Russia: International Religious Freedom

Report 1 (Sept. 2006), available at

http://www.state.gov/j/drl/rls/irf/2006/71403.htm [hereinafter 2006

Religious Freedom Report].

6

 2006 Country Report at 1.

7 United States Commission on International Religious Freedom,

Policy Focus on Russia 14 (Fall 2006) [hereinafter Policy Focus].

8

 2006 Religious Freedom Report at 15.

9

 Henceforth, "skinheads," for ease of reference.

-4-
pastor's home for Pentecost, a mob led by a disgraced Russian

Orthodox priest attacked the home, beating the pastor's wife,

looting the premises, and burning religious literature.

Ivanov testified that he was personally mistreated

because of his religious beliefs on several occasions. First, on

November 21, 1999, during Ivanov's baptism into the Pentecostal

faith on his sixteenth birthday, bystanders heckled and threw

bottles at celebrants during the initial ceremony at a public pool. 

That evening, while rites continued at the prayer house, skinheads

burst in, shot rubber bullets, confiscated literature, and

ransacked the house.

Second, on April 20, 2002, the anniversary of Hitler's

birth, skinheads attacked Ivanov as he left the church-run drug

rehabilitation center where he volunteered.10 His church operated

the center as part of its mission of public service. Patients

10 Ivanov recounts that the skinheads were often more

aggressive around the time of "Hitler's Birthday." He cites April

20, 2000, as another example of when skinheads attacked a

Pentecostal prayer house. They wreaked havoc and covered the walls

with insulting slurs and swastika graffiti. Luckily, no

parishioners were present or harmed.

Ivanov's assertion that skinheads commemorate "Hitler's

Birthday" is confirmed by the 2006 Country Report, which

highlighted a display of Nazi posters on April 20, 2005 as

occurring "on the anniversary of Hitler's birth." 2006 Country

Report at 21. It also reported the firebombing of a Baptist church

in Chelyabinsk and the arson of an Adventist church in another

region during that same month (though it did not specify whether

those events also occurred on April 20). Id. at 20.

-5-
received medical treatment and followed a strict regimen of daily

bible study.

That night, as Ivanov left the center, four young

skinheads "knocked [him] down and dragged [him] 3 blocks" to a

basement where he was "chained and beaten with full plastic water

bottles." They handcuffed him, then applied an electric shock to

one hand and put cigarettes out on the other. They told him he had

two days to figure out how to close the church's "'satanic'

dispensary." The skinheads then left Ivanov for nearly three days

without food and water. His parents filed a police report, but to

their knowledge no action was taken. Fortunately, the skinheads

released Ivanov of their own accord a few days later. It was only

after Ivanov's release that he realized the drug rehabilitation

center's work interfered with the skinheads' lucrative drug trade.

Third, in February 2003, Ivanov "was summoned to the

local police department." There, a federal security service

officer identified as Major Kozlov ordered Ivanov to provide false

testimony in the prosecution of his pastor. Prosecutors accused

the pastor of using hypnosis to extort a ten-percent tithe from

congregants. Major Kozlov told Ivanov he "would be sorry for not

cooperating" with the prosecution.

A few days later, in early March 2003, four skinheads

attacked Ivanov in the lobby of his apartment building. They beat

him with batons while wearing rubber gloves, bruising his legs so

-6-
severely that he missed school for a week. Although they wore no

uniforms, Ivanov knew they were skinheads by the weapons they used. 

Because the beating occurred shortly after Ivanov's conversation

with Major Kozlov, Ivanov believes the skinheads were retaliating

against him for his refusal to testify against his pastor. Ivanov

called the police when he got back to his apartment, but no one

ever came. Ivanov did not seek further police assistance or

medical attention because he thought it would be futile.

Fourth, on April 22, 2003, unknown assailants threw

Molotov cocktails at Ivanov's home in the middle of the night. 

Ivanov, his father, and his mother were home. Fortunately,

Ivanov's mother was awake and the family was able to put out the

resulting fire. That same night, the church's drug rehabilitation

center also was set on fire. Ivanov did not see the people who

threw the Molotov cocktails, but based on the perpetrators'

precision and the familiar timing of the attacks — almost exactly

one year after skinheads accosted him as he left the center and

just two days after "Hitler's Birthday" — he believes the skinheads

were again responsible. Petitioners left Russia and came to the

United States roughly one month after this incident.

In his asylum application, Ivanov stated that he feared

if he returned to Russia, skinheads would "sever[e]ly harm[] or

kill[]" him, or the federal security service would imprison him on

"trumped-up" charges or confine him to a mental facility under a

-7-
false diagnosis, because of his membership in a "non-traditional"

sect and his refusal to testify falsely against his pastor. At a

hearing before the IJ in July 2007, after recounting his past

mistreatment, Ivanov said he feared if he returned to Russia, "the

same thing would [happen]." He also said he would "continue to be

[subject] to the same lawlessness that [he] felt before."

When Ivanov's attorney asked if he had any fear of the

government, Ivanov explained that it was "a well-known and

established fact that . . . the skinheads . . . are connected to

the government structure." He elaborated that because he "look[ed]

like [a] Russian" and his religious beliefs were not outwardly

apparent, the only way the "young kids" who attacked him would know

that he did not fit their view of a "pure nation [or] pure race in

Russia" is by the guidance or influence of "somebody from above."

In July 2009, the IJ delivered an oral decision denying

Petitioners relief. Although the IJ found Ivanov's testimony to be

credible and generally consistent, he determined that Ivanov "fell

short of credibility" where he drew "conclusions . . . from the

facts" and engaged in "speculation . . . with regard to the abusive

activity of the skinheads." Accepting for the sake of discussion

that Ivanov's experiences amounted to past persecution, the IJ

dismissed Ivanov's assertion that the skinheads were connected to

government authorities as mere supposition without record support. 

He further concluded that Ivanov's admission that "the skinheads

-8-
wanted to close the [church's] drug rehabilitation center because

it was having a negative effect on their drug trade" meant that

"[t]he motivation of the skinheads was an intention to profit by

criminal activity, rather than to punish [Ivanov] and others for

engaging in the Pentecostal faith." Finally, he found that

Ivanov's fear of return to Russia was based on "the general

lawlessness of the place," rather than abuse due to his religion.

As a result, the IJ found that Ivanov had not shown he

experienced persecution "on account of" a protected ground, and 

thus he failed to qualify for asylum. Ivanov therefore also fell

short of the more stringent standard for withholding of removal. 

Finally, Ivanov's claim for CAT relief failed because there was no

evidence that Ivanov had been or would be tortured at the hands of

public officials or with the government's acquiescence if he

returned to Russia. The IJ consequently denied Petitioners'

applications but granted them voluntary departure.

Petitioners appealed. On review, the Board of

Immigration Appeals (BIA) affirmed the IJ's decision without

opinion. This appeal followed.

Standard of Review

Ordinarily, we review decisions of the BIA, not the IJ. 

Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010). However,

where, as here, "the BIA summarily affirms the IJ's asylum

-9-
determination, . . . we review the IJ's decision as if it were the

decision of the BIA." Id.

We review an IJ's findings of fact, including the

determination of whether persecution occurred on account of a

protected ground, under the familiar and deferential substantial

evidence standard. Lopez de Hincapie v. Gonzales, 494 F.3d 213,

217 (1st Cir. 2007). Under this rule, we respect the IJ's findings

if "supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Larios, 608 F.3d at 107

(quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502

U.S. 478, 481 (1992)). However, "our deference is not unlimited,"

and "we may not affirm [the IJ's findings]" if "we cannot

conscientiously find that the evidence supporting [them] is

substantial, when viewed in the light that the record in its

entirety furnishes, including the body of evidence opposed to the

[IJ's] view." Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir.

2009) (citations omitted) (internal quotation marks omitted). 

Indeed, we are obligated to reject the IJ's findings if a

"reasonable adjudicator would be compelled to conclude to the

contrary." Precetaj v. Holder, 649 F.3d 72, 75 (1st Cir. 2011)

(quoting 8 U.S.C. § 1252(b)(4)(b)).

Discussion

We begin with a brief overview of pertinent asylum law. 

To qualify for asylum, an alien must establish that he is a

-10-
refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is

unable or unwilling to return to his homeland "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). Proof of

past persecution creates a presumption of a well-founded fear of

future persecution that the government may rebut. Harutyunyan v.

Gonzales, 421 F.3d 64, 67 (1st Cir. 2005); see also 8 C.F.R. §

1208.13(b)(1).

Persecution is not defined by statute, but we know that

it requires "more than ordinary harassment, mistreatment, or

suffering." Lopez de Hincapie, 494 F.3d at 217. To constitute

persecution, abuse "must have reached a fairly high threshold of

seriousness, as well as some regularity and frequency." Rebenko v.

Holder, 693 F.3d 87, 92 (1st Cir. 2012) (quoting Alibeaj v.

Gonzales, 469 F.3d 188, 191 (1st Cir. 2006)) (internal quotation

marks omitted).

Persecution also "always implies some connection to

government action or inaction," whether in the form of direct

government action, "government-supported action, or government's

unwillingness or inability to control private conduct." Sok v.

Mukasey, 526 F.3d 48, 54 (1st Cir. 2008) (citations omitted)

(internal quotation marks omitted); see also Burbiene v. Holder,

568 F.3d 251, 255 (1st Cir. 2009). Local authorities' failure to

-11-
respond to prior persecution may demonstrate a government's

unwillingness or inability to control persecutors. Cf. OrtizAraniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (quoting

Harutyunyan, 421 F.3d at 68) ("In determining whether a government

is willing and able to control persecutors, . . . a prompt response

by local authorities to prior incidents is 'the most telling

datum.'").

For purposes of asylum, an alien must also demonstrate

that the persecution he experienced occurred "on account of" a

statutorily-protected ground. Lopez de Hincapie, 494 F.3d at 217. 

To meet this "nexus" requirement, an alien must provide sufficient

evidence of an actual connection between the harm he suffered and

his protected trait. Id. at 217-18. This does not require him "to

identify [his] antagonists with absolute certainty," id. at 219, or

"to show that the impermissible motivation was the sole motivation

for the persecution," Sompotan v. Mukasey, 533 F.3d 63, 69 (1st

Cir. 2008) (citing In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996))

(emphasis added). Rather, he must demonstrate only "that the

persecution was based, 'at least in part,' on an impermissible

motivation." Id. (quoting Sanchez Jimenez v. U.S. Att'y Gen., 492

F.3d 1223, 1232-33 (11th Cir. 2007)).

In many asylum cases, the central issue is whether the

applicant's story of past abuse is credible. Precetaj, 649 F.3d at

-12-
76. The IJ has "considerable latitude in evaluating credibility,"

and its assessment receives substantial weight. Id.

In this case, the IJ found that Ivanov's testimony about

the mistreatment he experienced was credible, generally internally

consistent, and consistent with the record. Based on this

testimony, the IJ observed it was "a close question" as to whether

Ivanov established past persecution, but assumed for the purpose of

discussion that he had done so. Relying on the IJ's credibility

determination, we find that Ivanov met the past persecution

threshold.

As outlined above, Ivanov testified about four specific

occasions of mistreatment because of his Pentecostal faith within

a four-year period: (1) when skinheads violently interrupted his

baptism ceremony at a prayer house in November 1999; (2) when

skinheads attacked him as he left the church-run drug

rehabilitation center where he volunteered, beat him up, handcuffed

and shocked him, and left him in a basement for three days without

food and water in April 2002; (3) when skinheads attacked him in

his apartment lobby a few days after he refused to comply with a

federal security officer's forceful request that he testify against

his pastor in March 2003; and (4) when unidentified assailants

launched Molotov cocktails at his home in April 2003. 

Ivanov also testified to a history of mistreatment of his

congregation reaching back to his youth, including the repeated

-13-
confiscation of religious literature, looting and burning of prayer

houses, and violence against church members. Ivanov's testimony

was consistent with U.S. State Department human rights reports

describing the mistreatment of Pentecostals and persons of other

minority religions in Russia, including incidents occurring on or

around the anniversary of Hitler's birth.11

Considered together, these events suggest a pattern of

escalating abuse directed at Ivanov beginning the day he was

baptized and continuing until he left the country. The harm Ivanov

suffered, particularly during his three-day detention in April

2002, rose above "ordinary harassment, mistreatment, or suffering." 

See Sok, 526 F.3d at 54 (six events occurring over the course of

four years, considered together, suggested a pattern of abuse,

where the most serious incident involved a three-day detention). 

Ivanov's mistreatment occurred regularly and with some frequency

for four years. Viewed within the broader context of intolerance

and abuse of Pentecostals in Russia as documented in the U.S. State

Department human rights reports, these incidents reach the "fairly

high threshold of seriousness" required of persecution. See

Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir. 2008) ("Common

sense suggests that larger social, cultural, and political forces

can lend valuable context to particular incidents and, thus, can

11 See 2006 Country Report at 1, 18-22; 2006 Religious Freedom

Report at 9-15.

-14-
influence the weight that a factfinder may assign to those

incidents.").

Seen in this context, these abuses also demonstrate the

requisite nexus to government action or inaction. Here, Ivanov

testified that his parents contacted the police when skinheads

kidnapped him for three days in April 2002, but no follow-up action

was taken. There is nothing in the record to suggest that Ivanov's

abusers were ever apprehended, punished, or even looked for, in

spite of having severely beaten and detained him for three days.12

This is consistent with reports that local authorities do not

adequately respond to attacks against members of minority religious

communities, including Pentecostals.13

12 We do not, as the dissent suggests, fault the police for not

finding Ivanov during the days he was detained. We are certainly

aware that even the best police work will not always enable police

to halt a criminal in the act. However, here, there is no evidence

of the police either seeking Ivanov while he was kidnapped or

contacting Ivanov after he was released to try to find his

attackers or to ensure his protection from future violence. We

consider this to be the very definition of police inaction.

13 Policy Focus at 14 (citing, inter alia, an attack by youths

following a Pentecostal service in 2006 where authorities failed to

act). Indeed, one of the U.S. Commission on Religious Freedom's

key concerns about Russia is "[t]he rise in xenophobia and ethnic

and religious intolerance, resulting in an increased number of

violent attacks and hate crimes, and the government's failure to

address this serious problem adequately." Id. at 3. Their report

details a range of attacks motivated by religious or ethnic hatred

and the authorities' lackluster responses, such as classifying hate

crimes as mere "hooliganism." Id. at 3-6. The 2006 Country Report

likewise noted that while "[a]uthorities usually investigated

incidents of religious vandalism and violence, . . . arrests of

suspects were extremely infrequent and convictions were rare." 

2006 Country Report at 20. 

-15-
Furthermore, skinheads attacked Ivanov in March 2003 only

days after a federal security officer tried to intimidate him into

testifying against his pastor. This fits with accounts that

members of the federal security service "increasingly treat[] the

leadership of some minority religious groups as security threats."14

It also aligns with religious leaders' apprehensions "that Russian

government officials provide tacit or active support to a view held

by many ethnic Russians that Orthodoxy is the country's so-called

'true religion.'"15 Moreover, it shows that local authorities have

significant opportunities to restrict individuals' religious

freedoms, leading to great variation between the laws on the books

and national policies on the one hand, and the on-the-ground

reality on the other.16

Ivanov contacted the police immediately after the March

2003 attack, but again no one came to his aid. As in April 2002,

there is no evidence that the police made any efforts to apprehend

or punish Ivanov's attackers. It is no wonder Ivanov thought

further attempts to elicit police assistance would be "futile."

Although the IJ did not credit Ivanov's assertion that

skinheads were "used by the police as surrogates" or "aided and

abetted by the authorities," Ivanov was not required to make such

14 2006 Religious Freedom Report at 1.

15 Policy Focus at 4.

16 2006 Country Report at 18-19.

-16-
a showing to qualify for asylum. Ivanov had only to establish that

the government was unable or unwilling to control the skinheads'

actions, see Sok, 526 F.3d at 53, and it appears clear from the

record that this is the case. Local authorities either failed to

take action against, or perhaps even supported, Ivanov's

persecutors. Their failure to respond signals their unwillingness

or inability to control Ivanov's persecutors.17 Cf. Ortiz-Araniba,

505 F.3d at 42. Accordingly, we make explicit what the IJ assumed

and hold that Ivanov demonstrated past persecution linked to

government action or inaction.

We next turn to the question of nexus to a protected

ground. Although the IJ was willing to accept that Ivanov proved

past persecution, he found that Ivanov did not establish a

sufficient connection between the abuse he suffered and his

religion. As set out above, the IJ provided two reasons for his

finding: (1) he interpreted Ivanov's admission that skinheads

opposed the drug rehabilitation center because of its negative

impact on their drug trade as an indication that they were not

punishing Ivanov for engaging in his Pentecostal faith; and (2) he

17 The dissent goes out of its way and far beyond the record

to say we are assuming that only actual arrests by government

authorities — in Russia or the United States — demonstrate their

willingness or ability to control religious persecutors. We said

no such thing. The evidence here not only shows a failure to

arrest, but a total failure to investigate or follow up with Ivanov

on any of the occasions he was attacked. This utter lack of

intervention or action compels us to conclude Ivanov cannot live

safely in Russia without facing persecution.

-17-
concluded that Ivanov's fear of return to Russia was based on "the

general lawlessness of the place, rather than mistreatment on

account of" his religion. Considering the record as a whole, we

are unable to find that either of these rationales or the IJ's

ultimate determination was "supported by reasonable, substantial,

and probative evidence."18

First, the IJ's fixation on the skinheads' drug trade to

the exclusion of any other motivation is misguided on principle and

on fact. As a matter of principle, we do not require an alien to

show that an impermissible motivation was the sole motivation for

his persecution. Sompotan, 533 F.3d at 69. We have noted that

aliens "seldom know the 'exact motivation[s]' of their persecutors

and, of course, persecutors may often have more than one

motivation." Id. (alteration in original) (quoting In re S-P-, 21

I. & N. at 490). Our sister circuits agree. See, e.g., Menghesha

v. Gonzales, 450 F.3d 142, 148 (4th Cir. 2006); Mohideen v.

Gonzales, 416 F.3d 567, 570 (7th Cir. 2005); Lukwago v. Ashcroft,

329 F.3d 157, 170 (3d Cir. 2003); Girma v. Immigration &

Naturalization Serv., 283 F.3d 664, 667 (5th Cir. 2002); Borja v.

18 Though the IJ did not point this out as a concern, we note

preliminarily that Ivanov identified his antagonists with

sufficient certainty. Ivanov's use of the term "skinheads" to

describe his attackers implies that they shared the common

appearance symbolic of their group membership. Though they did not

wear uniforms, Ivanov could also identify them by their choice of

weapons: rubber batons and gloves in March 2003 and Molotov

cocktails in April 2003. 

-18-
Immigration & Naturalization Serv., 175 F.3d 732, 735-36 (9th Cir.

1999) (en banc); Osorio v. Immigration & Naturalization Serv., 18

F.3d 1017, 1028 (2d Cir. 1994).

The facts of this case illustrate the need for this

principle. The IJ's determination that the skinheads were

motivated only by their "intention to profit by criminal activity"

ignores both the skinheads' overarching mission and the greater

pattern of religiously-motivated abuse that Ivanov suffered. As

Ivanov noted, the skinheads' raison d'etre is to "purify the

Russian nation." They are notoriously xenophobic, racist, antiMuslim, anti-Semitic, and, most relevantly here, intolerant of

"adherents of 'foreign' religions."19 The skinheads who attacked

Ivanov in April 2002 may indeed have had an economic interest in

closing the church's drug rehabilitation center. But they also, at

their core, undoubtedly opposed the center's religious mission and

methods. The center's religious message was inseparable from the

service it performed: church volunteers operated the center and 

rigorous bible study was integral to patients' treatment. Indeed,

it appears that Ivanov's skinhead assailants recognized this and

gave voice to their anti-religious motivation when they told Ivanov

to find a way to close the "satanic" center. That those skinheads

may have had an additional motive for attacking Ivanov cannot

19 See 2006 Country Report at 33.

-19-
reasonably be read to refute that they were also acting upon the

central motive underlying their group identity.

This is especially true given the other abuse that Ivanov

suffered. Remember, the April 2002 attack is only one of four

events supporting Ivanov's asylum claim. In the other instances,

Ivanov provided specific evidence of his attackers' antiPentecostal motivation. For example, in November 1999, skinheads

attacked his baptism ceremony at a prayer house. In March 2003,

skinheads attacked him a few days after he refused to testify

against his pastor. In April 2003, unknown assailants threw

Molotov cocktails at his house the same night that someone attacked

the church's drug rehabilitation center. Considered in view of the

history of attacks against members of his church community and

religious intolerance in Russia at-large, a reasonable adjudicator

would be compelled to conclude that each of the attacks, including

the attack in April 2002, was based, "at least in part," on the

impermissible motivation of Ivanov's Pentecostal faith. See

Sompotan, 533 F.3d at 69.

Second, the IJ's interpretation of Ivanov's testimony

that he feared "the same lawlessness" if he returned to Russia to

mean that Ivanov feared "general lawlessness" in Russia runs

counter to the record. The IJ appears to have construed Ivanov's

statement out of context: Ivanov said he feared "the same

lawlessness" immediately after he described the specific instances

-20-
of abuse discussed above, but the IJ took him to mean he feared

"lawlessness" in Russia generally. To the contrary, Ivanov

consistently maintained in his application and testimony that he

feared if he returned to Russia skinheads or government authorities

would harm him due to his religious beliefs.20 The IJ's monocular

focus on Ivanov's remark, to the exclusion of the balance of

Ivanov's statements alleging specific fears of targeted

persecution, is not supported by the record as a whole.

In sum, viewing the record in its entirety, including the

evidence the IJ ignored or misconstrued, and relying on the IJ's

own finding that Ivanov's testimony was generally credible, we

cannot conscientiously find the IJ's determination that Ivanov did

not establish the requisite nexus between the persecution he

suffered and his Pentecostal faith is supported by substantial

evidence. While we are mindful of the deferential nature of our

standard of review, we are also cognizant of our obligation to

reject the IJ's findings if, as here, a "reasonable adjudicator

20 There is also nothing in the record to indicate that Russia

is awash in the type of general civil strife or violence that we

have held would not qualify an applicant for asylum. See, e.g.,

López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009) ("A

country-wide risk of victimization through economic terrorism is

not the functional equivalent of a statutorily protected ground .

. . ."); Aguilar-Solis v. Immigration & Naturalization Serv., 168

F.3d 565, 572 (1st Cir. 1999) ("Danger resulting from participation

in general civil strife, without more, does not constitute

persecution.").

-21-
would be compelled to conclude to the contrary." See Precetaj, 649

F.3d at 75 (quoting 8 U.S.C. § 1252(b)(4)(b)). It is not the first

time we have rejected an IJ's findings under this standard. See,

e.g., id. at 76; Kartasheva, 582 F.3d at 105-06; Sok, 526 F.3d at

56, 58; Heng v. Gonzales, 493 F.3d 46, 49 (1st Cir. 2007);

Mukamusoni v. Ashcroft, 390 F.3d 110, 126 (1st Cir. 2004). And so

long as our review is not "a hollow exercise in rubber-stamping,"

we doubt it will be the last. See Cuko v. Mukasey, 522 F.3d 32, 41

(1st Cir. 2008) (Cyr, J., dissenting).

We therefore find that Ivanov has established his

eligibility for asylum. Accordingly, we have no need to proceed to

Petitioners' requests for withholding of removal or relief under

CAT, and we do not reach them here.

Conclusion

The order of the BIA affirming the IJ's decision is

vacated and the matter is remanded for proceedings consistent with

this decision.

-Dissenting Opinion Follows-

-22-
KAYATTA, Circuit Judge, dissenting. I respectfully

dissent because the record does not compel us to reject the factual

findings of the immigration judge. The immigration judge found

that the serious abuse and harassment to which Ivanov credibly

established he was subjected was not "on account of" his religion. 

Rather, the immigration judge concluded, Ivanov faced persecution

on account of his association with a drug rehab center that posed

a threat to the skinheads' illicit drug trade. The immigration

judge also found that Ivanov failed to establish the required nexus

to government acquiescence manifest through its action or inaction. 

Either of these findings, unless reversed, means that Ivanov has

failed to establish an entitlement to asylum. See López de

Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) ("[S]howing

a linkage to one of the five statutorily protected grounds

[including religion] is 'critical' to a successful asylum claim."

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)));

Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005)

("[P]ersecution always implies some connection to government action

or inaction.").

As we have previously held, the question of the

persecutor's motivation generates a "fact-specific" inquiry. López

de Hincapie, 494 F.3d at 218. Similarly, the question of whether

Ivanov established a connection between the government and his

-23-
abuse is also a finding of fact. See Harutyunyan, 421 F.3d at

68. Our review of both findings is therefore limited by the

"highly deferential" substantial evidence test. Larios v. Holder,

608 F.3d 105, 107 (1st Cir. 2010). That test requires that we

defer to the immigration judge's findings of fact as long as those

findings are "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." Id. (quoting EliasZacarias, 502 U.S. at 481). As we observed more recently, in

practical terms, the test turns on whether we are "compelled to

conclude to the contrary." Precetaj v. Holder, 649 F.3d 72, 75

(1st Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).

A. There Is Substantial Evidence to Support the Finding of Fact

That Ivanov Was Not Persecuted on Account of His Religion and

Has Not Established a Realistic Risk of Such Persecution in

the Future.

I begin by reviewing Ivanov's testimony, which supports

the factual finding that the abuse visited on (or feared by) him

was not on account of his religion. I then address the arguments

advanced by the majority for finding this evidence insubstantial.

1. Ivanov's Own Testimony Directly Supports the Finding.

This is not a case in which the immigration judge

stretched to draw inferences to support a conclusion in the face of

direct evidence to the contrary. Instead, this is a case in which

the direct evidence substantially and heavily supported the finding

-24-
that Ivanov was not persecuted on account of his religion. That

evidence is as follows:

The skinheads who assaulted Ivanov in 2002 and 2003 were

in the illegal drug trade, while Ivanov worked at a drug rehab

center that, he claims, possessed evidence of the skinheads'

illegal activity and, in any event, cut into their business. When

the skinheads kidnapped Ivanov in April of 2002 they did so as he

left the rehab center. They never demanded that he change his

religion, or stop going to his church. To the contrary, their

demands focused exclusively on the rehab center.

On direct exam, Ivanov volunteered the following

explanation of why the skinheads locked him up: "they wanted me to

shut down the operation of this rehab and because of that they

locked me up in the basement." On cross, Ivanov both reinforced

his testimony that the skinheads wanted the drug rehab center

closed because it hurt their business, and unreservedly agreed that

the center's Pentecostal affiliation was not what garnered the

skinheads' opposition:

Q: Sir, you testified that the skinheads that you say

assaulted you when you were leaving the rehabilitation

center wanted you to close the clinic or the center and

you say in your asylum application that these skinheads

had a very lucrative drug business, drug sale business

and you also testified today that these skinheads were

losing money because of the drug rehabilitation center. 

That was because the goal of the center was to try and

help people get off drugs. Is that correct?

A: Yes.

-25-
Q: So they didn't want the center shut down because it

was a Pentecostal center. They wanted it shut down

because they were losing drug sales, correct?

A: That is absolutely correct because these people have

not a single notion about religion, but any church

whether it be Protestant or Catholic it will also be on

opposite side against the drugs.

2. The Evidence Relied on by the Majority is Either

Conjectural or, In Any Event, Insufficient to Compel

Reversal.

The foregoing evidence should be enough by itself to

support the decision of the immigration judge, even if the evidence

to the contrary cited by the majority were as substantial as

described. In fact, for the following reasons, much of that

contrary evidence is based on conjecture and is otherwise

reasonably viewed as not especially substantial. 

The majority points to a second attack on Ivanov that

occurred almost a year after the skinheads delivered their

narrowly-focused demand that the rehab center be shut down. There

is no evidence (much less compelling evidence) that the attack was

on account of Ivanov's religion. The majority nevertheless guesses

that the attack was at the behest of the police, who had told

Ivanov "days"21 previously that he would regret not providing

testimony to support charges that his pastor was hypnotizing his

parishioners into tithing ten percent of their income to the

Pentecostal church.

21 Ivanov spoke with the police officer in the "end of

February" and was beaten on March 1st. 

-26-
This conjecture falters on two levels. First, if

conjecture is the game, then it would be equally plausible to

suggest that the skinheads attacked Ivanov when they did because it

was almost one year after they delivered their own unmet demand

that he close the rehab center. In short, the skinheads had--and

expressed--their own reasons and there is no need to imagine that

the police put them up to their crime. Additionally, even if one

were to assume that the police officer and the skinheads were in

cahoots, there is no reason that one must also assume that

religious animus played any role in the relationship. Certainly

the gains of an illicit drug trade would provide an equally if not

more customary and plausible motivation. The pastor, after all,

actually ran the rehab center. Ivanov himself plainly implied such

a drug-centered nexus:

[I]t's a well-known and established fact that, you know,

all the skinheads and similar organizations are connected

to the government structure. For example, you know, our

attempt to run this rehab for drug addicts, you know, was

met with such resistence on their part and it's a wellknown fact also that, you know, they profit from selling

drugs . . . .

While Ivanov's statement is not dispositive, it leans towards

suggesting that money, rather than religious animus, was a common

interest shared by the skinheads and the police. Certainly the

immigration judge was not required to speculate to the contrary. 

The majority also points to the final attack on Ivanov,

the 2003 firebombing of the apartment he shared with his parents. 

-27-
There is nothing about this attack to compel the conclusion that it

was motivated by religious animus. It actually coincided with an

attack on the rehab center that same day. The rehab center and

Ivanov (the person the skinheads knew worked there) were therefore

again the common factor in the skinheads' selection of targets. 

This is not to say that there was no evidence at all in

Ivanov's favor. The majority notes that the skinheads once

referred to the rehab center as "satanic" when they held him

prisoner. But a single use of a religiously-charged word does not,

on these facts, compel us to find the skinheads' abuse of Ivanov

was on account of his religion. See Sompotan v. Mukasey, 533 F.3d

63, 70 (1st Cir. 2008). In Sompotan we rejected the argument that

the immigration judge was compelled to conclude that "hooligans"

who robbed the petitioners and their restaurant yelling "Chinese

bastard, crazy Christian, crazy Chinese" were motivated by

religious and racial animus rather than by a desire to rob, noting

that "[t]he fact that hooligans would stoop to the level of using

racial slurs is, unfortunately, not surprising." Id. at 70. 

Indeed, as noted above, Ivanov himself did not regard his

kidnapping as religiously motivated. How then can a court say that

the immigration judge was compelled to disagree?

The majority also correctly notes that there is evidence

in the record of earlier attacks not limited in their apparent

focus to rehab center activities and personnel. These attacks

-28-
occurred in 1997 (on the congregation's office), 1999 (on a

Pentecost service at Ivanov's pastor's house and on Ivanov's

baptism), and 2000 (on a Pentecostal prayer house). The majority's

view presumes that the abuse of Ivanov several years later was a

refocusing of these earlier, religiously-motivated attacks directed

at the church. Under this view, the skinheads attacked the rehab

center because it was both a visible symbol of the church and a

threat to their drug trade. This view is certainly plausible. I

am at a loss, though, to see how it is so compelling that it

requires rejection of the alternative view adopted by the

immigration judge. 

There is no evidence compelling us even to conclude that

the same individuals were behind the earlier and later attacks,

much less that their motivations remained constant. Indeed, there

is no evidence that the "skinheads" involved in these various

incidents are all part of a single group with a unified and

disciplined mission and motivation.22 As chronicled above, those

individuals behind the later attacks expressly limited their

demands to ending the drug rehab activity. And certainly Ivanov's

experience in dealing with those assailants persecuting him

suggested that greed was their monocular focus. As we held before,

22 Indeed, Ivanov described the skinheads who kidnapped him

as "very young kids" and said that "some of them" were "around 16." 

This suggests that they may well not have been personally involved

in incidents several years before. 

-29-
where the evidence suggests a plausible motivation not within the

ambit of the statute's protection, we defer to the choice made by

the immigration judge to deny asylum on that basis. See López de

Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007).

The majority also relies on evidence that skinheads in

Russia often possessed and acted on religious animus and that their

activities often spiked on the anniversary of Hitler's birth. But

if the skinheads who kidnapped and later beat Ivanov shared that

religious animus, for some unknown reason they were remarkably

reluctant to voice such views to Ivanov, while nevertheless making

forcefully clear their strong desire to profit from and protect

their drug trade. The factual finding that the abuse here,

directed at the rehab center and its worker, was motivated only by

the latter desire is a type of choosing among plausible scenarios

that is within the purview of the immigration judge, not a

reviewing court. See Amouri v. Holder, 572 F.3d 29, 34 (1st Cir.

2009) ("The mere fact that the extortionists were associated with

an extremist group [did] not compel" us, on its own, to reverse a

finding that petitioner's persecution was not on account of a

-30-
protected characteristic because "fanaticism and a love of money

are not mutually exclusive.").23

The immigration judge who heard this case was hardly out

to get Ivanov. He expressly found Ivanov credible in his

recounting of events he had witnessed. The immigration judge was

also willing to assume that the instances of abuse to which Ivanov

was subjected over seven years rose to the very high level of

actual persecution. Cf. Topalli v. Gonzales, 417 F.3d 128, 129-32

(1st Cir. 2005) (no persecution where petitioner was arrested,

detained, and beaten over the course of three years but never

required medical attention and was not abused for three years

before leaving the country); Bocova v. Gonzales, 412 F.3d 257, 261-

63 (1st Cir. 2005), superseded in unrelated part by 8 C.F.R.

§ 1240.26(i), as described in Garfias-Rodriguez v. Holder, 702 F.3d

504, 524 (9th Cir. 2012) (two beatings twenty-five months apart,

one of which caused petitioner to lose consciousness and require

hospitalization, insufficient to compel a finding of persecution). 

The majority readily adopts the immigration judge's assumption of

persecution and his finding that Ivanov was credible in relating

23 Nor can the majority's citations to country reports

containing evidence that religious animus sometimes motivates

persecution in Russia compel a finding that it did so in this case,

where the petitioner has described a different motivation. See

Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009) ("Without some

specific, direct, and credible evidence relative to her own

situation, there is an insufficient nexus between the petitioner

and the general unrest depicted in the country conditions

reports."). 

-31-
facts, but then proceeds to criticize the immigration judge's

reasoning simply because he also chose to believe Ivanov's

testimony that the particular people who attacked him "have not a

single notion about religion," and were instead motivated by

protecting their drug trade. The immigration judge witnessed the

testimony, heard Ivanov's tone, saw his facial expressions, and

concluded that the testimony I have quoted above was due great

weight.

Nor can the State Department's Country and Religious

Freedom Reports perform the work assigned to them by the majority. 

One would think from reading the majority's description of the

reports that Pentecostals could live nowhere in Russia without

facing a realistic risk of actual persecution. The majority

presumably proffers such a description because the absence of such

a country-wide hazard could by itself defeat Ivanov's asylum

request. Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007)

(asylum application will be denied "if it is shown by a

preponderance of the evidence that '[t]he applicant could avoid

future persecution by relocating to another part of the applicant's

country . . . and under all the circumstances, it would be

reasonable to expect the applicant to do so.'" (quoting 8 C.F.R.

§ 1208.13(b)(1)(i)(B)) (alteration in original)). 

The 2006 Country Report, however, reports no acts of

actual persecution of Pentecostals throughout all of Russia in the

-32-
previous year. Even reports of lesser degrees of harassment of

Pentecostals decreased during 2006, following the appointment of

Pentecostal Bishop Sergey Ryakhovskiy to Russia's Public Chamber.24

United States Department of State, Bureau of Democracy, Human

Rights, and Labor, Country Report on Human Rights Practices in

Russia at 20 (Mar. 2007), available at http://www.state.gov/j/

drl/rls/hrrpt/2006/78835.htm [hereinafter 2006 Country Report]. 

These reports belie the notion that Ivanov, merely because he is

Pentecostal, cannot live in Russia without a risk of actual

persecution. 

B. There Is Sufficient Evidence to Support the Finding of Fact

That There Was an Insufficient Nexus between the Russian

Government and the Abuse of Ivanov.

The law also requires that Ivanov prove that the persons

who persecuted him were "aligned with the government" or that the

government was "unwilling or unable to control [the violence.]" 

Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir. 2009). The

majority's conclusion that Ivanov made such a showing is based

partly on conjecture, appears to be the product of stereotypical

thinking about Russian law enforcement bereft of any sense of

context, and certainly fails to provide a compelling case for

24 The Public Chamber was established to represent civil

society and to foster tolerance. It was directed by President

Putin. United States Department of State, Bureau of Democracy,

Human Rights, and Labor, International Religious Freedom Report for

Russia at 13 (Sept. 2006), available at http://www.state.gov/

j/drl/rls/irf/2006/71403.htm [hereinafter 2006 Religious Freedom

Report]. 

-33-
rejecting the contrary conclusion of the immigration judge, who

found Ivanov's claims in this regard to rest on "speculation." 

First, the majority implies that the kidnapping of Ivanov

was aided by the police merely because the kidnapping occurred some

uncertain number of days after the police told him that he would be

sorry for refusing to accede to a police officer's demand that he

provide incriminating testimony in an investigation of his pastor. 

I addressed this conjecture in Part A2 of this opinion. 

Second, the majority cites excerpts from State Department

reports recounting other incidents in Russia (a country of roughly

143 million people, 2006 Country Report at 1) where the authorities

were, in the majority's words, "lackluster" in their responses to

reports of religious attacks and that arrests were "extremely

infrequent and convictions rare." 2006 Country Report at 20. The

majority's use of such excerpts is selective, omitting, for

example, the fact that the 2006 and 2007 Religious Freedom Reports

describe in detail only a single incident, in a nation containing

approximately 1,500 Pentecostal groups, 2006 Religious Freedom

Report at 1, of violence against individual Pentecostals which

could plausibly rise to the serious level of abuse sufficient to

support an asylum claim. That incident was an attack by "youths"

in early 2005 on Pentecostals holding a protest in Moscow. 2006

Country Report at 20. There is no indication in the record of

whether this incident was investigated expeditiously. Id. There

-34-
are no reports of individual Evangelicals, or any Christians,

suffering abuse comparable to that which Ivanov described being

directed at him personally, let alone evidence that government

officials acquiesced to such abuse.

The same report also states that in February of 1997

Russian authorities obtained the convictions of five skinheads for

an anti-Semitic murder, and that "[f]ederal and regional officials

participated actively in, and in many cases strongly supported, a

range of government and NGO-organized programs to promote

tolerance." United States Department of State, Bureau Democracy,

Human Rights, and Labor, International Religious Freedom Report for

Russia at 9 (Sept. 2007), available at http://www.state.gov/j/

drl/rls/irf/2007/90196.htm. The same report further relates that

in late 2006 a Russian court ruled in favor of the Pentecostal

Church's ability to register its property, and the group reported

no further harassment. Id.

Third, the majority's heavy reliance on the fact that

Ivanov was unaware of any investigations or arrests arising out of

the crimes he described evidences a lack of perspective and

context. Certainly the failure of the police to interview Ivanov

after he was released by his captors could support a finding that

their investigation after the fact was lackluster. On the other

hand, the actual record is that the police told Ivanov's parents

that they would look for him when his parents reported him missing. 

-35-
The fact that they did not find him within two days in a city of

over one million people, Library of Congress, Russia: A Country

Study (1998), available at http://lcweb2.loc.gov/frd/cs/rutoc.html,

hardly proves anything. And the unstated assumption that Ivanov

would have been aware of investigations concerning the other events

he described is not compelling. All in all, this is not a record

that compels a finding that the police were aligned with the people

who attacked Ivanov or unwilling or unable to do their jobs. 

To put all of the foregoing in perspective and provide

the context missing from the majority's discussion, one need only

look at this country. According to the October 1998 Report of the

National Church Arson Task Force, in less than four years there

were 670 arsons, bombings or attempted bombings of houses of

worship in the United States. National Church Arson Task Force,

Second Year Report for the President (Oct. 1998), available at

http://www.justice.gov/crt/church_arson/arson98.php. Even in the

wake of a nationally coordinated investigative effort, arrests

were made in connection with only 230 of the 670 incidents (a

higher rate than typical for similar crimes, according to the Task

Force). Id.

I do not presume from these facts that churchgoers in the

United States face persecution with government acquiescence. To

the contrary, if Ivanov cited these facts to suggest that he could

not safely live in the United States without facing persecution, I

-36-
hope that we would reject such a suggestion. And when we have a

record reporting no higher rates of bombing or unsolved bombings in

Russia, and an unsolved incident of abuse of a drug rehab worker by

drug dealers in Chelyabinsk (a city of more than 1 million people),

I do not see why an immigration judge cannot find as a matter of

fact that Ivanov does not face the requisite risk of government

related persecution should he return to Russia.

Of course, I am now arguing the weight of the facts,

which I need not do. All I need show is that the facts are not so

hefty and one-sided as to compel the conclusion that they must be

weighed as the majority weighs them.

C. Conclusion

At base, the majority appears to act on a conviction that

if many so-called skinheads possess a strong animus against

Pentecostals as manifest in prior acts of harassment and abuse, and

Pentecostals operate a rehab center for religious reasons using

religious methods, then any skinheads' later abuse of operators of

that center must necessarily be, at least in part, on account of

the skinheads' religious animus. I fear that such a conviction

under-appreciates the complexities of human behavior, and

substitutes stereotypical thinking for allegiance to the actual

facts as described by Ivanov himself. Similarly, the majority

fills holes in Ivanov's case with conjecture about what the police

did and did not do, all resting in part on what seems to be an

-37-
unrealistic assumption about the aims and efficiency of police work 

in Russia. More importantly, even accepting that conviction as

plausible, on this record it is not so compelling as to overbear

the deference due to the amply supported findings of fact by an

immigration judge who decided that Ivanov could practice his faith

in Russia without persecution on account of that faith. I must

therefore conclude that, notwithstanding our shared sympathy for

Ivanov's desire to remain in this country, the record contains

substantial enough evidence to require that we defer to the

findings of the immigration judge.

-38-