2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-13-2009

Garder v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2972

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2972

SERGEY VIADIMIROVICH GARDER,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A97-478-667

(U.S. Immigration Judge: Honorable David W. Crosland)

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 5, 2009

Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

(Filed: August 13, 2009)

OPINION OF THE COURT

PER CURIAM.

Petitioner Sergey Viadimirovich Garder, a native and citizen of Russia, petitions

for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision

of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of
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removal, and protection under the United Nations Convention Against Torture (“CAT”). 

For the following reasons, we will grant Garder’s petition for review.

I.

Garder entered the United States on a non-immigrant visa in 2002. He filed an

application for asylum, withholding of removal, and CAT relief, asserting that he had

been persecuted because of his Baptist faith. His application stated that he and members

of his religious community were repeatedly attacked by Cossacks and Russian neo-Nazis

for proselytizing. 

At his removal proceedings, Garder testified that he was attacked at least nine

times from 1996 through 2002 due to his religion by Cossacks and the Russian National

Unity (“RNU”). He did not claim to know much about the groups and their relationship

with the government but described the Cossacks as a “free organization” that consider

themselves a “volunteer guard.” (A.R. 91.) He also stated that they behaved like the

police and “guarded order.” (A.R. 100.) He described the RNU as nationalists. (A.R.

96.)

Garder testified that he was injured during many of the attacks and that he sought

medical attention after three of the Cossack attacks and one of the RNU attacks. He

stated that after a 1996 incident in a park in which he suffered a wrist injury, bruises, and

bloody knees, he was turned away from a medical center because they did not have gauze

or bandages. In March 1999, Garder attended a youth meeting at the home of a religious
3

community member, Brother Georgy. Cossacks entered the house, accused the Baptists

of brainwashing young people, dragged them to the street and whipped them. Garder’s

leg was injured, and he and others were taken by ambulance to the hospital, where he was

treated on an outpatient basis for several days. In December 2001, Garder was stabbed by

someone to whom he was proselytizing and was given a bandage at a trauma center. 

Finally, in February 2002, he stated that he was treated by a chiropractor—who was a

member of his religious community—after he was slammed to the ground by the RNU

and suffered three dislocated vertebrae. Garder did not, however, submit any medical

documentation in his removal proceedings. Nor did Garder seek medical attention after

any of the other attacks, including those in which he: (1) was struck in the cheek with a

whip (1998), (2) fainted after a Cossack hit him in the head (2000), and (3) was beaten

with whips and sticks (2001). He explained that he did not seek medical help because

there were no treatment centers nearby, it was easier to go home, or because other people

helped him. 

Garder also largely avoided reporting the attacks to the police. He stated that after

the 1996 attack, he told the police who were patrolling the park what had happened, but

that they just told him to go home. (A.R. 94.) Brother Georgy’s parents reported to the

police the incident which sent Garder to the hospital, but Garder does not believe that the

police followed up on the complaint. (A.R. 100-01.) Additionally, when a Baptist priest

was attacked by Cossacks, several people (including Garder) signed a police report. 
4

(A.R. 103-04.) Garder stated that there was “no result” to this police complaint, either. 

(A.R. 104.) He testified that he did not report the other incidents to the police for various

reasons, including the time of day that the attack occurred, the particular town where the

attacks occurred, and the unavailability of a telephone. Additionally, he stated the police

would not help because they treated Baptists poorly, and because he often could not

identify his attackers. He did not submit any of the police reports as

evidence—explaining that he did not obtain them because he did not think he would need

them. 

In the summer of 2001, after he had already been attacked several times, Garder

traveled to the United States and worked in Ocean City, Maryland. He did not apply for

asylum at that time because he was unaware that he could do so and because he hoped the

situation in Russia would improve. So, he returned to Russia at the end of the summer. 

After he returned to Russia, he was attacked at least two more times and left his

university. He testified that his family finally convinced him that he needed to leave

Russia, and that he thus came back to the United States in 2002. Although Garder settled

in southern New Jersey, he joined the Maryland church that he had attended the previous

summer. Garder submitted a letter from the church’s preacher stating that he had been a

member since fall 2003 (although the letter was dated March 2003). Garder testified that

he attends church as often as possible but that he does not participate in evangelical

activities in the United States. 
5

Igor Kotler testified as an expert regarding the Cossacks and RNU and the

treatment of Baptists in Russia. He stated that the Cossacks are an “ethnographic group

of the Russian people” who are “very nationalistic, very, very pro-government, and prochurch people.” (A.R. 168, 170.) When asked if there was any connection between the

Cossacks and the Russian government, Kotler stated that the Cossacks are “considered to

be close allies of the government,” and that there are several areas—including the

Stavapol region where Garder is from—where “they are allowed to patrol areas even

without police to maintain order and they are allowed . . . to carry their weapon and they

experience full support of the government.” (A.R. 170.) When asked what “patrol”

meant, he answered: “to maintain order . . . stop and catching rebels.” (A.R. 171.) 

On October 23, 2006, the IJ denied Garder all requested relief except for voluntary

departure. He made an adverse credibility determination, and found that Garder did not

meet the standard for asylum, withholding of removal, or CAT relief. The BIA affirmed

the IJ’s denial of relief without opinion on June 5, 2008. 

Through counsel, Garder now petitions for review of the BIA’s final order of

removal.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §

1252(a)(1). Where, as here, the BIA affirms the IJ’s decision without opinion, we review

the IJ’s decision directly as the final agency determination. Dia v. Ashcroft, 353 F.3d
6

228, 245 (3d Cir. 2003). We review an IJ’s factual findings under the “substantial

evidence” standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009). Under

this standard, “a factual determination will be upheld if it is supported by ‘reasonable,

substantial, and probative evidence on the record considered as a whole.’” Id. (internal

citation omitted). Alternatively, “where the agency’s determination is based on an

inaccurate perception of the record, omitting potentially significant facts, we may remand

for reconsideration or rehearing, . . . or, if circumstances warrant it, a new hearing.” 

Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004) (internal citations omitted). 

Our review of the agency’s legal conclusions is de novo, and we apply the principles of

deference set forth in Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). Lin-Zheng, 557 F.3d at 155.

 The IJ determined that Garder did not suffer past persecution because he did not

“show that he was previously persecuted at the hands of the government or persons the

government is unwilling or unable to control.” This decision was based largely on the

IJ’s finding that Garder and Kotler described the Cossacks and RNU as “free

organization(s) having no connection to the government.” However, while Garder stated

that he did not believe the Cossacks were affiliated with the government, he also asserted

that they behaved like the police and “guarded order.” Additionally, Kotler testified that

the Cossacks are “considered to be close allies of the government” and that there are

several areas—including the Stavapol region where Garder is from—where “they are
7

allowed to patrol [] even without police to maintain order and they are allowed . . . to

carry their weapon and they experience full support of the government.” (A.R. 170.) 

The IJ thus mischaracterized the testimony by finding that Garder “failed to present any

testimony . . by his own testimony [or] his expert witness” that the government was

“unable or unwilling to control the Cossacks or RNU nationalists who allegedly

persecuted Respondents.” 

 The IJ also determined that Garder’s claim failed in part because, when asked to

do so by the court, he did not provide specific information regarding his assertion that his

family continued to be persecuted, and that affidavits submitted by his mother did not

corroborate this claim. (A.R. 35.) See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.

2001) (An applicant is expected to “corroborate facts which are central to his claim and

easily subject to verification.” (internal citations omitted)). This conclusion is incorrect in

both respects. First, when reviewing the transcript we found neither testimony by Garder

claiming that his family continues to be persecuted nor questioning by the IJ about attacks

on his family. Second, one of Garder’s mother’s affidavits states that their family has

“suffered from the Cossacks” several times since Garder left Russia. (A.R. 193-94.) 

Thus, if Garder is claiming that his family is being persecuted in Russia, he has

introduced evidence supporting that assertion, and if he never testified to such continued

persecution, he need not supply corroboration.
We note that the IJ found Garder to be not credible. The IJ stated, without giving 1

any examples, that Garder’s testimony was riddled with inconsistencies, and he appeared

to base the credibility determination in large part on Garder’s failure to provide medical

records documenting his injuries. Thus, to the extent IJ failed to “follow the BIA’s

avowed policy of considering separately the issues of credibility and failure to provide

corroboration,” the adverse credibility analysis is also unsound. See Chukwu v. Att’y

Gen., 484 F.3d 185, 191 (3d Cir. 2007). 

8

There may be valid reasons for denying Garder’s application for relief.

Nevertheless, the IJ’s mischaracterization of at least two salient issues undermine his

decision and we are unable to adequately consider whether substantial evidence supports

the denial Garder’s application for asylum, withholding of removal, and CAT relief. See 1

Tian-Yong Chen, 359 F.3d at 127-28 (remanding BIA opinion due to its “fundamental

error” of ignoring a significant aspect of the petitioner’s testimony). Because it is unclear

whether the IJ would have reached the same result had he not misconstrued the testimony

and evidence, we will remand the case to the BIA with instructions for it to remand to the

IJ to reevaluate the petitioner’s claim.

For the foregoing reasons, we conclude that the IJ did not adequately consider

Garder’s application for asylum, withholding of removal, and CAT relief. Because of its

errors, we cannot accept its determination that Garder failed to establish past persecution

or a fear of future persecution. Accordingly, we will grant Garder’s petition for review,

vacate the BIA’s decision, and remand the case for further proceedings.