F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A T A L L I A V A L E R

I E V N A R U S A K , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-70746

Ag ency No. A095-878-063

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted J anuary 7, 2013—Pasadena, California

F iled Aug ust 22, 2013

B e fore: W illiam A. F letcher and J ohnnie B . Rawlinson, Circuit J udg es, and Edward R. Korman, * Senior District

J udg e.
Opinion by

J udg e Korman; D issent by

J u dg e Rawlinson

* T h e Ho n o rab l e Ed w ard R. Ko rm an , Sen io r Un ited States D i strict J u dg e f o r th e Eastern District o f

New Yo rk , sittin g b y

d esig n atio n

.R U S A K V

. H O L D E R 2

SUMMARY * *

Im m igration

The panel g ranted a petition for review o f the B oard o f I mmig r a tion A ppeals’ decision deny ing asy lum, withholding of removal, a

nd protection under the Convention A ga inst Torture to a citiz en of B e larus because petitioner e stablished past p ersecution based o n the abuses her Seventh Day Adventist parents suff

er e d w h ile she w as a child and the
g overnment failed to rebut the presumption of future persecution.

The p anel h eld that the B oard e rred b y failing to take into
account the harm petitioner’s family endured whil e she was

a child in assessing past persecution. The p anel c oncl uded that petitioner was entitled to asy lum because the g overnment failed to r ebut the presumption of f uture persecu tion. The panel r emanded for further consideration of petit i o n er’s claims for withholding of removal and CAT protection.

Dissenting
, J udg e Rawlinson w ro t e that the record does
not compel the conclusion that the harm petitioner’s family suffered w as closely tied to h e r s e lf, and that the majority ig nored substantial evidence in the record that Seventh Day Adventists are not currently persecuted in B e larus.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R U S A K V

. H O L D E R 3

COUNSEL

Serg e i Shevchenko ( arg ued), B arshev, P.C., B everly H ills, California, for Petitioner.

A s hley Young Martin ( arg ued), Reg an Hildebrand, Kiley L

. Kane, a nd J ennifer L

. L ig h tbody
, United States Department of J ustice, W ashing ton, D.C., for Respondent.

OP INION

KORMAN, District J udg e:

Natallia Rusak, a twenty -eig h t y e ar old native and citiz en of B elarus currently residing in California, peti t ions for review of an order of the B oard o f I mmig ration Appeals ( “ B IA ” ) a f

f i r m i n g a n I m m i gr a t i o n J u d g e ’ s ( “ IJ ” ) determination that she is not entitled to asy lum, withholding of removal, o r relief under the Convention Ag a i n s t Torture. W e have jurisdiction under 8 U.S.C. § 1 252(a). W e r eview the B I A’s decision for substantial evide n ce 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 (199 2 ) (quoting 8 U .S.C. § 1105a(a)(4)).

Ms. Rusak has been deaf since infancy
, a c o ndition that she claims subjected her to persecution in B elarus due to widespread hostility to persons with disabilities. Ms. Rusak’s family also belong s to the Seventh D ay Adventist Church, a relig ion disfavored in B elarus. According to the testimony o f Ms. Rusak and her mother, Ms. Rusak’s mother was arrested, beaten, and raped by the police on a c c o u nt of her c hurchR U S A K V

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m e m b ership. She also lost her job a s a schoolteacher as a consequence of her relig ious affiliation. Ms. Rusak’s father

was sev e r e l y b eaten b y the police and d ied of a heart attack related to the assault. At the time of these events, Ms. Rusak

was approx imately eleven y ears old. Ms. Rusak h erself claims to have suffered phy sical abuse a nd harassment as a child from h er teachers and peers on account of her deafness and her family ’s relig ion.

I n 2000, Ms. Rusak a

nd her mother left B elarus for Arg e ntina, where they lived f o r several months until leg ally entering the United States so that Ms. Rusak co u l d u n derg o testing for a c ochlear implant. Their authoriz ation to remain in the count r y e x p i r ed in J une 2002. I nitially
, Ms. Rusak’s mother filed an asy lum appl i c ation on her own behalf a nd listed Ms. Rusak as a derivative applicant. However, in 2004, Ms. Rusak’s mother married a Unit e d S t ates citiz en a nd withdrew her application; Ms. Rusak then s ubmitted the independent asy lum a

pplication u nder review h ere. B o th Ms. Rusak a nd her mother g ave testimony before the I J in support of her application, and neither was subj e c t t o an adverse credibility finding

. Ms. Rusak has lived with family
, most o f whom now reside in California, for her e ntire life, and has no independent means of support.

The Department of J ustice attorney acknowledg ed a t oral
arg ument that other options may be available to deal with the unfortunate c ircumstances in which Ms. Rusak finds herself. Ms. Rusak may b e elig ible for a v i s a based on her mother’s

new status. T his would a llow her to apply for an adjustment of status. The Department o f Homeland S e curity could

ex e r cise prosecutorial d iscretion in d eter m i n i ng not to seek Ms. Rusak’s removal. N e v e rtheless, because these two options must be ex plored thr oug h a v enues other than thisR U S A K V

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litig at i o n , w e address the merits of Ms. Rusak’s asy lum claim.

Title 8 U.S.C. § 1 158 provides that the Attorney General and Secretary of Homeland Security h a v e discretion to g rant political asy lum to alien s t h e y determine to be refug ees. Under 8 U.S.C. § 1101(a)(42)(A), a “ r efug ee” is “any person who is o u t s i d e any country of such person’s nationality

. . . who is unable or unwilling to return to

. . . tha t c ountry because o f persecution or a w ell-founded fear of persecution

on a ccount o f race, relig ion, nationality
, memb e r s hip in a particular social g roup, or p olitical opinion. ” A n asy lum applicant bears the burden o f proving that sh e h as a wellfounded fear o f future persecution based on one of the enumerated g rounds. G haly v. INS
, 58 F .3d 1 425, 1428 (9th Cir. 1 995). A well-founded fear of future persecution “must be both subjectively g enuine and o bj ectively reasonable.” Duarte de Guinac v. INS
, 179 F .3d 1156, 1 1 5 9 (9th Cir. 1999). An asy lum applicant’s credible tes t i m ony that he o r she g enuinely fears persecution suffices to establish the subject i v e element. Id. The objective element may be established either b y the presentation of “credible, direct, a nd specific evidence in the r e c o r d of facts that w ould support a reasonable fear of persecut i o n , ” o r throug h a showing by an asy lum applicant that he o r she has suffered persecution in the past. Id. A showing of past persecution shifts the burden to the g o vernment to prove, by a preponderance of the evidence, that conditions in the applicant’s country have chang ed such that the applicant “no long er has a well-founded fear that he would be persecuted if he were to return.” Id.

Ms. Rusak’s testimony before the I J established a subjective fear of persecution if she were to return to B elarus. The key disputed issue is whet h e r M s. Rusak’s fear o fR U S A K V

. H O L D E R 6

persecution is objectively reasonable. M s

. Rusak c laims
asy lum on the g round that she has been d eaf since childhood in a country in w hich persons with disabilities are treated with hostility

. She also claims asy lum based on her f a m ily ’s relig ion. We ag ree with the B I A’s conclusion that Ms. Rusak d i d n ot suffer persecution o n a ccount of her deafness in B elarus. W hile her testimony e stablishes that she w as treated badly by her teachers a nd classma tes in school, her

ex p eriences did not rise to the level of p ersecution, which is “an ex treme concept that does not include every sort o f
treatme nt our society reg ards as offensive.” Ghaly v. INS
, 58 F .3d 1425, 1431 (9th Cir. 1995).

Ms. Rusak’s claim of persecution on the basis of relig ion is more compelling

. W hile Ms. Rus a k ’s o wn direct

ex p eriences in B elarus may not rise to the level of persecution

on this g round as well, she is not required to demonstrate that she individually suffered persecution if she can est a blish a

“ p attern or practice

. . . of persecution o f g roups of persons similarly situated” and that she is a member of the g roup “such that [ her] fear of persecution upon return i s reasonable.” Kotasz v. INS
, 31 F. 3 d 847, 8 5 3 n.8 ( 9 th Cir. 1994). This similarly situated g roup may be the community of Seventh Day Adventists in B elarus or Ms. Rusak’s immediate family

. See Mgoian v. INS
, 184 F .3d 1029, 1036 (9th Cir. 1999) ( “[ A ] n i ndividual applicant may be elig ible for asy lum, even in the absence o f direct persecution ag ainst he r p e rsonally
, if she is a ble to d emonstrate a w ell-founded fear of persecution b ased on acts of violence aga i n st her friends or f

amily members.”). Thus, Ms. Rusak’s relig ious
persec u t i o n c laim need not be judg ed solely on the b asis o f her own ex periences.R U S A K V

. H O L D E R 7

Moreover, because Ms. Rusak was a c hild when the
events underly ing her a sy lum claim t o o k place, the injuries suffered by her f

amily members a r e d i rectly relevant to her claim of past p ersecution. W e p reviously held in HernandezOrtiz v. G onz a les that “injuries to a family must be considered in an asy lum 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). W hile Hernandez-Ortiz was decided a fter the I J ’s ruling
, it predated the B I A ’s review of Ms. Rusak’s appeal. Nevertheless, the B I A did not consider it. This was

error.

The B I A acknowledg e d the abuses s u ffered by Ms. Rusak’s parents, and it did not question th a t t h e se abuses

were d ue to their relig ious affiliation. N e v e r t heless, it h eld that “althoug h condemnable, the actions taken ag ainst [ them] due to their relig ion, including the res p ondent’s mother’s
arrests and her father’s beating and subsequent death, do not constitute persecution of the respondent .” (emphasis added). T his h olding c annot be reconciled with Hernandez-Ort i z

. The abuses e ndured by Ms. Ru s ak’s parents constituted persecution of them, and Ms. Rusak was entitled to rely on these events to establish h e r o w n claim of past persecution b e c a u s e she was a child at the time. A s Hernandez-Ortiz held, “a child’s reaction to injuries to his family is diffe rent from an adult’s. The child is part of the family
, the wound to the f amily is personal, the trauma apt to be lasting .” 496 F .3d at 1045.

W h ile it is true that, unlike Hernandez-Ortiz
, the record here contains no testimony by Ms. Rusak or other ev idence directly linking the abuses suffered by her parents to her o wn psy cholog ical state, the result in H ernandez-Ortiz does notR U S A K V

. H O L D E R 8

t u r n on the presence of such evidence. I ndeed, additiona l evidence is not necessary to e stablish that an eleven or twelve
y ear old g irl would be traumatiz ed when her father is beaten and killed and her mother ar r e s t e d and raped by the police. No other conclusion seems p ossible if w e take seriously the admonition that “[ w] hen w e take our seats on the bench we

are not struck with blindness, and fo r b i d d en to know a s judg es wh a t we see a s men [ and women] .” Ho Ah Kow v

. Nunan
, 12 F

. Cas. 252, 2 55 ( C

. C

. D

. Cal. 1879) (No. 6 546);

s e e a l so W atts v. Indiana
, 338 U.S. 49, 52 (194 9 ) (F rankfurter, J .).

O n the current record, it is c lear that Ms. Rusak h as established a claim of past persecution based on the abus e s endured by her parents w hile she was a chil d

. N or has the
g overnment successfully proven that c onditions in B elarus have chang ed sufficiently that Ms

. Rusak no long er has a well-founded fear of persecution were she to return. Contrary
to the B I A’ s c o n clusion, the B elarus country reports contained in the Administrative Record d o n o t indicate that the status of minority relig ious g roups has improved in recent y ears. I n fact, they sug g est th e o p p osite – that members o f minority r elig ions still fa ce attack by the g overnment. The B I A’s conclusion on this issue is unsupported by substantial evidence.

Our dissenting colleag ue accuses u s of ig noring “the substantial evidence in the record tha t S eventh Day Adventists a

re not currently

persecuted in B elarus.” W e a re

unaware of any document in the record that say s that Seventh Day Ad v en t ists are not currently persecuted in B elarus, nor do they c o n tain a list o f relig ious g roups that are or are not subject to persec u t i o n

. I ndeed, in the contex t of describing relig ious persecution, the repo r ts that the dissent relies uponR U S A K V

. H O L D E R 9

simply c ite ex amples of some r elig ious communities that a re persec uted. See Annual Report of the United States Commission on I nternational Relig ious F reed om: B elarus (May 2 005); United States Department of State, Cou n t ry Report on Hum an Rig hts Practices 2005: B elarus. The

r e p o r ts do, however, accuse the B elarusian g overnment of attacking “the persons and p roperty of minority relig ious
g roups.” I ndeed, the 2010 I nternational Relig ious Freedom Report for B elarus, p ublished by the State Department, o f which w e may take judicial notice for these limited purposes, observes that the “g overnment c ontinued to use te xt b o o ks that
p r o m o t e r e l i g i o u s i n t o l e r a n c e , e s p e c i a l l y t o w a r d nontraditional relig i o u s g roups.” These tex tbooks label
g roups, including Seventh-Day Adv e n tists, as sects – in a chapter titled “B eware of Sects.” M oreover, althoug h our decision is n ot based solely on Ms. Rusak’s own ex periences

as a Seventh Day Adventist, we do not acc e p t the dissent’s characteriz ation of Ms. Rusak a s “a non-membe r o f t he Seventh D ay Adventists.” Ms. Rusak testified t h at she attends services reg ularly with her mother. W hile she stay ed in a separate room during some services in the United States and B elarus, she attributed that separation to the church’s lack of sig n lang uag e interpretation services, not her disinterest o r disbelief in the relig ion.

I n s um, Ms. Rusak has made a showing of p ast persecution on the basis of relig ion, and she is thus e ntitled to

a presumption of well-founded fear of future pe rsecution. B ecause the g overnment has failed to rebut this presumption, Ms. Rusak is elig ible for asy lum on this claim. The matter is remanded to the B I A for further consideration of Ms. Rusak’sR U S A K V

. H O L D E R 10

additional claims for withholding of removal and relief under the Conve n t i on Ag ainst Torture based on relig ious persecution in lig ht of Hernandez-Ortiz

.

P ETITION F OR REVIEW G RANTED.

RAW L I NSON, Circuit J udg e, dissenting :

I r esp e c tfully dissent from the majority ’s decision to remand this c ase to the B oard of I mmig ration Appeals (B I A) for further proceeding s.

I t is important to k eep in mind our standard of review for B I A d ecisions. W e must a f firm B I A ruling s u n less the

e vidence compels a different outcome. See Nagou l k o v. I.N.S
., 333 F .3d 1012, 1 018 (9th Cir. 2003) (“This case like

ma n y others turns on the standard of review. Perhaps the I J could have found p a st persecution on this record, b u t

. . . the I J was not compelled to find past persecution . . . .”).

The lang uag e of the majority opinion underscores the lack of compu l s ion. A fter conceding that Petitioner’s o wn

ex p eriences in B e larus d id not rise to the level of persecution, the majority speculates that Petitioner may on remand be able
to “establish ‘a patte r n or p ractice

. . . of persecution o f
g roups of persons similarly situated’ and that she is a member

o f the g roup such that h er fear of p ersecution upon return i s reasonable.” M

ajority Opinion
, p. 6 (quoting Kotsaz v. INS
, 31 F .3d 847, 853 n.8 (9th Cir. 1 994)) (alteration omitted). W ithout c iting to any evidence in the rec ord, the majority

muses that “ [ t] his similarly situated g roup may be t he community o f Seventh D ay Adve n t ists in B elarus o rR U S A K V

. H O L D E R 11

Ms. Rusak’s immediate f amily

. ” I

d

. (citation omitted) (emphasis added). B ut does the record compel us to so hold? I t appears n ot. I ndeed, the record more strong ly supports the B I A d ecision. Petitioner testified that when the p o l i c e attacked her f

ather, she w as i n a

nother room and the police

never arrested her bec ause she was a child. Petitioner was

unaware of h er f

ather’s arrest until she was informed some time later. The same is true of when her mother was arrested. I n addition, Petitioner was not a Seventh Day Adventist a nd did not a t t e n d services in B elarus. Notably
, the r ecord is absolutely void of any effects upon P e titioner o f the persecution inflicted u p o n Petitioner’s parents. Petitioner

s i m p l y failed to establish that the persecution ag ainst 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 c ompl e t ely ig nores the substantia l e v idence in the record that Seventh Day Adventists are not currently persecuted in B elarus. The majority professes to be “unaware of any d o cu m e n t in the record that say s that Seventh Day A dventists are not currently persecuted in B elarus, nor do they c o ntain a list of relig ious
g roups that are or are not s u b j e c t to p e r secution.” Majority Opinion
, p. 8. I refer the m a j o r i t y to pag e 8 4 of the 2005 Annual Report of the United States Commission on I nternational Relig ious F reedom. The report observes that officia l s i n B elarus “continue to harass, fine or detain adherents of various denominatio n s” including the Greek Catholic Church, the B elarusian Orthodox Autocephalous Church, Evang elical Protestants, Hare Krishnas, those of the J ewish faith and Hindus. The Seventh Day Adventists are not

once mentioned among the disfavored relig ious g roups listed in the annual report. Similarly
, p ag e s 13–14 of the 2 0 0 5 B elarus Country Report named v arious relig iousR U S A K V

. H O L D E R 12

org aniz ations that w ere “hindered” by the B elarusian laws restricting the practice of relig ion. T hese org a niz atio ns included the “Moon Church,” the Church of S ci entolog y , Muslims, L ig h t of the W or l d
, the New L ife Church, the B e l a r u s i a n E v a n g e l i c a l C h u r c h
, t h e B e l a r u s i a n Autocephalous Orthodox Church, and the Hare Krishnas. Once ag ain, no mention of Seventh Day A d v e n tists can be found. Surely this e vidence (or lack of evidence) d i d n ot compel a finding that Ms. Rusak established a fear of future persecution as a p utative devotee of the Seventh Day Adventist denomination.

The majority also references the 2010 I nternational Relig ious F reedom Report f or B elarus wherein the Seventh Day Adventist deno m i nation is labeled as a sect. See Majority O

pinion
, p. 9. However, labeling an org aniz ation a sect is a far cry from subjecting the org aniz ation’s memb e rs to persecution. S

e e Fisher v. I.N.S
., 79 F .3d 955, 961 (9th Cir. 1996) (en banc) (“Persecution is an ex treme concept, which o rdinarily does not include discrimination on the basis of race or relig ion, as morally reprehen s ible as it may b e.”) (citation, alteration and intern a l quotation marks omitted). The lack of evidence o f a n objective fear of future
p e r s e cution dooms Petitioner’s petition for review. S e e Halim v. Holder
, 590 F

. 3d 9 71, 976 (9th Cir. 2009) (requiring presentation of facts that would support a reasonable fear o f persecution). This is particularly true of Petitioner as a nonmember of the Seventh Day Adventists, who failed to present evidence that she “faced a un i q u e r isk of persecution upon return that was d i s t inct f rom

. . . mere membership in a disfavored g r oup . . . .” Id . at 979 (citation omitted).

The majority seeks to salvag e Ms. Rusak’s assertion that she faces future persecution in B e larus with a reference to herR U S A K V

. H O L D E R 13

testimony “that she attends [ Seventh Day Adventist] services
reg ularly w ith her mother.” B u t att en dance d o es n ot a member make. I ndeed, Ms. Rusak never testified t hat she

was a member of the Seventh Day Adventist denomination o r that attendance is all that is required to establish membership. See e.g ., The Official Site of the Seventh-day Adven t i s t s , w w w

. ad v e n t i s t

. o r g / b e l i e f s / f u n d a m e n t a l / i n d e x

. h t m l ( l a s t visited Aug ust 7, 2013) (requiring baptism to be received a s a member).

B e cause the evidence i n this case does not compel a different outcome, I would upho l d the decision of the B I A deny ing asy lum and withholding of removal. I r espectfully dissent from the majority ’s deviation from t h e appropriate standard of review.