FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORIA TCHOUKHROVA; DMITRI 

TCHOUKHROV; EVGUENI No. 03-71129 TCHOUKHROV,

Petitioners, Agency Nos.

A75-772-599

v.  A75-772-600

ALBERTO R. GONZALES, Attorney A75-772-601

General; TOM RIDGE, Secretary of ORDER Homeland Security,

Respondents. 

Filed December 5, 2005

Before: Stephen Reinhardt, A. Wallace Tashima, and

Kim McLane Wardlaw, Circuit Judges.

Order;

Dissent by Judge Kozinski

ORDER

The panel has voted to deny the petition for panel rehearing

and petition for rehearing en banc. 

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

reconsideration. FED. R. APP. P. 35. 

The petition for rehearing en banc is DENIED. 

15623
KOZINSKI, Circuit Judge, with whom Judges

O’SCANNLAIN, TALLMAN, RAWLINSON, BYBEE,

CALLAHAN and BEA join, dissenting from denial of rehearing en banc: 

This case presents a question of exceptional importance

with profound implications for our nation’s immigration laws.

The panel permits an applicant to claim asylum based on the

harms suffered by her child. See Tchoukhrova v. Gonzales,

404 F.3d 1181, 1190 (9th Cir. 2005) (“[T]he harms suffered

by a disabled child [may] be taken into account when determining whether to grant his parent’s asylum application.”).

By allowing the harms suffered by a child to be imputed to

the parent, the panel in effect creates a reverse derivative asylum claim—something expressly barred by 8 C.F.R.

§ 207.7(b)(6), which provides that “[t]he following relatives

of refugees are ineligible for accompanying or following-tojoin benefits . . . [a] parent, sister, brother, grandparent,

grandchild, nephew, niece, uncle, aunt, cousin or in-law.” Id.

(emphasis added). 

This exotic reading of the immigration statute was never

discussed by the IJ, the BIA or even the parties—rather, it is

something the panel comes up with on its own. Whatever the

merits of such an approach, the panel concedes that neither

the IJ nor the BIA “discuss[ed] the question expressly.”

Tchoukhrova, 404 F.3d at 1190. It strains credulity to suggest

that the IJ and the BIA would have adopted such a sweeping

change to the interpretation of the immigration statute without

thinking long and hard about what they were doing. In INS v.

Ventura, 537 U.S. 12, 15-17 (2002) (per curiam) (summary

reversal), the Supreme Court told us in no uncertain terms that

the agency charged with administering the statute gets first

crack at ruling on its construction. It has taken us less than

three years to work our way around this rule. 

The facts of the case are, indeed, sad and compelling.

Evgueni Tchoukhrov was born in 1991 in Vladivostok, Rus15624 TCHOUKHROVA v. GONZALES
sia, with cerebral palsy. He was treated badly in his first two

months of life. Although his parents, Victoria and Dmitri,

tried to provide for him, they encountered hostility from

neighbors and indifference from the Russian government.

Their government doctor recommended that Evgueni be institutionalized, or at the very least “isolated at home.” Evgueni

also suffered other injuries that the government failed to correct or investigate. Tchoukhrova, 404 F.3d at 1184-85.1

As a result of the government’s indifference and hostility,

Evgueni’s parents joined with others and sought to raise public awareness of the plight of disabled children in Russia. The

Tchoukhrovs endured minor harassment and their car was

vandalized. Later, Dmitri was fired from his job and told during subsequent job interviews that he should stop advocating

for rights for the disabled. Tchoukhrova, 404 F.3d at 1186. 

Victoria filed an application for asylum and withholding of

removal, and listed both Evgueni and Dmitri as derivative

applicants. Id. at 1187; see also 8 U.S.C. § 1158(b)(3)(A)

(spouse and children of principal applicant may be granted

asylum if accompanying, or following to join, principal appli1The government disputes key parts of the panel’s factual summary,

noting that the panel accepts as true certain allegations not presented at the

hearing and that the IJ had no opportunity to adjudicate. For example, the

government argues that the panel’s finding that Evgueni was treated as

“medical waste,” id. at 1184, was not part of the IJ’s findings and is an

unexhausted claim on which the panel engages in original factfinding, see

Respondent’s Petition for Rehearing En Banc at 9 & n.3. The government

also disputes the panel’s finding that Evgueni was placed in an “internaty”

during his first few months of life. See Tchoukhrova, 404 F.3d at 1193.

(“[A]n internaty is an orphanage for abandoned orphans from 5 to 17 years

old who have been diagnosed as uneducable because of severe mental

impairment.” Respondent’s Petition for Rehearing En Banc at 10 n.4

(internal quotation marks omitted).) As the government points out in its

Petition for Rehearing En Banc, the IJ found, and Victoria testified, that

Evgueni was placed in a hospital, not an internaty. Id. (citing Certified

Administrative Record at 56, 95). Because the facts included by the panel

have no bearing on my dissent, I accept the panel’s factual recitation. 

TCHOUKHROVA v. GONZALES 15625
cant). The IJ found Victoria’s testimony credible and determined that her family belonged to a particular social group,

“namely, ‘a family whose child is severely disabled.’ ”

Tchoukhrova, 404 F.3d at 1187. The IJ also found that the

harms suffered by the family were on account of their membership in that group and that the government of Russia was

responsible for the harms the group suffered because “Russia

wishes to isolate handicapped children.” Id. However, the IJ

found that the harms suffered by the social group did not

amount to persecution. See Certified Administrative Record at

61. The BIA, in a summary ruling, adopted the IJ’s decision

and denied relief, citing Matter of Burbano, 20 I. & N. Dec.

872 (BIA 1994), “which holds that ‘the Board’s final decision

may be rendered in a summary fashion,’ and that, in such

cases ‘the Board’s conclusions upon review of the record

coincide with those which the immigration judge articulated

in his or her decision.’ ” Tchoukhrova, 404 F.3d at 1188

(quoting Burbano, 20 I. & N. Dec. at 874). 

The panel overrules the BIA and rejects its finding of no

past persecution of the social group, holding that the finding

was not supported by substantial evidence. See id. But finding

that a group was persecuted doesn’t mean that every member

of the group was persecuted. Rather, once an asylum petitioner has shown that he is a member of a persecuted group,

he must still show that he himself has suffered or is likely to

suffer persecution. See, e.g., Hoxha v. Ashcroft, 319 F.3d

1179, 1182 (9th Cir. 2003) (holding that “[asylee’s] fear must

be based on an individualized rather than generalized risk of

persecution”); Avetova-Elisseva v. INS, 213 F.3d 1192, 1201

(9th Cir. 2000) (finding a well-founded fear of future persecution based on “a singling out of the petitioner so that an established current pattern of persecution of members of the group

to which she belongs carries the personalized threat of her

future persecution”). 

After finding that the Tchoukhrovs were members of a persecuted group, therefore, the panel was required to consider

15626 TCHOUKHROVA v. GONZALES
whether the asylum petitioner—here, Victoria—had herself

suffered persecution. Instead of focusing on the harms suffered by Victoria, the panel holds that “the harms inflicted on

the family members [must be treated] cumulatively,” and thus

“the harms suffered by a disabled child [may] be taken into

account when determining whether to grant his parent’s asylum application.” Tchoukhrova, 404 F.3d at 1190. Although

the panel admits that the agency never expressly discussed the

issue, id., the panel goes on to decide that “a parent of a disabled child may file as a principal applicant in order to prevent the child’s forced return to the family’s home country

and may establish her asylum claim on the basis of the persecution inflicted on or feared by the child,” id. at 1192. 

Asylum claims are normally individual petitions, i.e., for

the benefit of the petitioner. See, e.g., 8 U.S.C.

§ 1158(a)(2)(D) (“An application for asylum of an alien may

be considered . . . if the alien demonstrates . . . the existence

of changed circumstances which materially affect the applicant’s eligibility for asylum . . . .”) (emphasis added). The

asylum statute does permit the filing of a derivative claim,

that is, a claim based on another person’s eligibility, in narrowly delimited circumstances: Derivative asylum claims may

be filed on behalf of an eligible petitioner’s spouse and children. See id. § 1158(b)(3). However, the regulations governing the admission of refugees expressly provide that “[t]he

following relatives of refugees are ineligible for accompanying or following-to-join benefits . . . [a] parent, sister, brother,

grandparent, grandchild, nephew, niece, uncle, aunt, cousin or

in-law.” 8 C.F.R. § 207.7(b)(6) (emphasis added). The regulatory scheme unmistakably provides than an asylum seeker

may include his spouse and children as derivative applicants,

but may not include his parents or other relatives. 

Here, the harms suffered directly by Victoria are clearly not

enough to amount to persecution; it is only the harms suffered

by Evgueni that could possibly support an asylum claim. But

Evgueni is not the principal applicant; even if he were, he

TCHOUKHROVA v. GONZALES 15627
could not confer derivative status on his parents. The panel

recognizes this, noting that “if the child is the principal applicant and is granted asylum, the child can legally stay in this

country, but his parents will be removed.” Tchoukhrova, 404

F.3d at 1191. The panel avoids this harsh result by inventing

a doctrine of persecution renvoi: It holds that Victoria may

file as the principal applicant and use the harms suffered by

Evgueni to support her persecution claim, and thus enable

Evgueni to file as a derivative applicant. See id. at 1192. The

panel thus permits persecution suffered by a child to be considered in support of his mother’s persecution claim, which

then permits the child (i.e., the only one who has actually suffered persecution) to be treated as a derivative applicant for

asylum on the mother’s application (even if the mother has

personally suffered no persecution). 

This reading of the immigration statute is, to put it mildly,

strained. Congress adopted section 1158(b)(3) to provide for

asylum for a clearly limited class of family members of those

who were persecuted. The statute is quite specific that only

the spouse and children of a principal applicant are entitled to

derivative status. See 8 U.S.C. § 1158(b)(3). Parents are

expressly not. See 8 C.F.R. § 207.7(b)(6). By assessing harms

cumulatively, the panel moots this carefully drawn statutory

scheme, and obviates the need for derivative status in the first

place. Under the panel’s reasoning, section 1158(b)(3)

becomes mere surplusage, since the spouse and children of

the principal applicant will themselves file as principal applicants once familial harms are assessed “cumulatively.” This

is all very new law.2

2We have held that it may be appropriate to consider the harm suffered

by family members in evaluating whether the principal applicant suffered

persecution. For example, persecution suffered by one’s relatives may corroborate an applicant’s claim that he himself was persecuted. See, e.g.,

Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004); Baballah v.

Ashcroft, 367 F.3d 1067, 1074-75 (9th Cir. 2004); Salazar-Paucar v. INS,

281 F.3d 1069, 1071, 1075 (9th Cir.), amended by, 290 F.3d 964 (9th Cir.

15628 TCHOUKHROVA v. GONZALES
Even if this interpretation might ultimately prevail, the BIA

is entitled under Chevron to consider it in the first instance.

See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-45 (1984). The panel claims that the

agency, in fact, has already done this, but it is clear from the

record that the agency did nothing of the sort. The panel

maintains that the agency effected this sea-change in our

2002). Or, the government might target the children of its enemies as a

means of persecuting their parents. Cf. Thomas v. Gonzales, 409 F.3d

1177, 1184, 1189 (9th Cir. 2005) (en banc) (holding that the targeting of

family members “on account of their shared, immutable characteristic,

namely, their familial relationship,” may constitute persecution). But that

is quite different from what we have here. 

The harm suffered by Evgueni is not evidence that Victoria suffered

similar harm. That Evgueni may have received inadequate medical care

for his cerebral palsy says nothing about the quality of medical care that

Victoria—an able-bodied adult—has received or will receive in Russia.

Nor does the fact that strangers may have taunted Evgueni for being disabled help prove that Victoria will be similarly taunted. Nor is there any

allegation that the government targeted Evgueni in a byzantine plot to

punish Victoria. Rather, the panel holds that the mere fact that Evgueni

suffered harm is—without more—sufficient to impute that harm to Victoria for purposes of considering her asylum application. That is a quantum

leap that our cases do not support and the statute prohibits. 

Cases involving forced sterilization are likewise inapposite because

“forced sterilization is a unique kind of persecution” that inflicts a similar

harm—depriving the family of any chance to procreate—on the husband.

Qu v. Gonzales, 399 F.3d 1195, 1202-03 (9th Cir. 2005); see also In re

Y-T-L-, 23 I. & N. Dec. 601, 607 (BIA 2003) (“Coerced sterilization is

better viewed as a permanent and continuing act of persecution that has

deprived a couple of the natural fruits of conjugal life, and the society and

comfort of the child or children that might eventually have been born to

them.” (emphasis added)). Whereas sterilizing a wife in effect sterilizes

her husband, providing Evgueni with inadequate medical care did not in

any way affect his mother’s health. Qu and Y-T-L- did not involve derivative claims or the imputing of harm from one member of a family to

another. Rather, the claims for withholding of removal in Qu and Y-T-Lwere based on the fact that each petitioner had, in effect, been sterilized

by the authorities’ mistreatment of his wife. Unlike here, the harm to the

petitioners in Qu and Y-T-L- was direct, not derivative. 

TCHOUKHROVA v. GONZALES 15629
immigration laws “[w]ithout discussing the question expressly,” Tchoukhrova, 404 F.3d at 1190, pointing to a stray phrase

in the IJ’s oral decision, which it rips out of context and then

claims was adopted chapter and verse by the BIA. Both steps

in its analysis are fatally flawed. 

As to the IJ, it is clear that he treated the harms to the family cumulatively only for purposes of determining whether the

social group in question—here, the family of a disabled child

—was persecuted. In making that determination, it was of

course necessary to consider the harms suffered by the group

cumulatively—just as one would consider the harms suffered

by all Sikhs in a part of India in determining whether Sikhs

as a group are subject to persecution. 

Cumulating all the harms suffered by the Tchoukhrovs, the

IJ found that the group had suffered no persecution. See Certified Administrative Record at 61. Having made that determination, the IJ had no reason to go on to the next step and

figure out whether individuals in the group had been persecuted. His next statement that “there has been no proof that

either the respondent, her husband, or her child, suffered past

persecution on account of any of the grounds stated in the

asylum statute,” id., thus could not, as a matter of either law

or logic, have been a finding as to individual harms; rather,

it was a restatement of his determination that the social group

had not suffered persecution because none of its members had

been persecuted. Restatements or summaries are common in

oral rulings, and it does the IJ an injustice to take his words

wholly out of context and attribute to them a meaning he

could not possibly have intended. 

Nor, of course, did the BIA “adopt” the IJ’s supposed

determination that, in assessing individual harms, persecution

of one family member may be attributed to all others, and vice

versa. Petitioner advanced no such theory before the BIA, and

thus the BIA, in a case in which the IJ had found no group

persecution, had no occasion to consider what the IJ might

15630 TCHOUKHROVA v. GONZALES
have said about how individual harms are to be assessed. In

affirming the IJ under Burbano, the BIA did nothing more

than agree with the IJ that no group persecution had been

established. But a Burbano affirmance signals only that the

BIA has adopted the IJ’s decision with respect to those issues

adequately raised on appeal; it does not equate to an acceptance of the IJ’s entire decision when only parts of that decision are appealed. See Mabugat v. INS, 937 F.2d 426, 430

(9th Cir. 1991) (dismissing arguments petitioner failed to

raise before the BIA). The BIA could not have imagined that

by summarily affirming the IJ’s denial of relief, it was actually cutting a large hole in the fabric of our immigration laws.

As the government warns in its Petition for Rehearing En

Banc, the panel’s opinion has far-reaching implications, and

the issues raised therein are likely to reoccur with increasing

frequency. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 641-42

(6th Cir. 2004) (granting asylum to mother “based on her fear

that her daughter will be subjected to” female circumcision);

Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (holding

in female circumcision case that “an alien parent who has no

legal standing to remain in the United States may not establish

a derivative claim for asylum by pointing to potential hardship to the alien’s United States citizen child in the event of

the alien’s deportation”). Despite the panel’s best efforts to

muddy the waters, the fact is, the IJ and the BIA did nothing

like what the panel attributes to them; they’d surely be

shocked at the suggestion that they did. Ventura requires a

remand so the agency can, in the first instance, rule on the

inventive arguments adopted by the panel, arguments that

were neither raised below nor by any of the parties on appeal.

Because this decision is nothing but a big end-run around

Ventura, we should have taken the case en banc and repaired

the damage ourselves.

TCHOUKHROVA v. GONZALES 15631


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