FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATALLIA VALERIEVNA RUSAK,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General,

Respondent.

No. 08-70746

Agency No.

A095-878-063

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 7, 2013—Pasadena, California

Filed August 22, 2013

Before: William A. Fletcher and Johnnie B. Rawlinson,

Circuit Judges, and Edward R. Korman,* Senior District

Judge.

Opinion by Judge Korman;

Dissent by Judge Rawlinson

* The Honorable Edward R. Korman, Senior United States District Judge

for the Eastern District of New York, sitting by designation.
2 RUSAK V. HOLDER

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ decision denying asylum, withholding

of removal, and protection under the Convention Against

Torture to a citizen of Belarus because petitioner established

past persecution based on the abuses her Seventh Day

Adventist parents suffered while she was a child and the

government failed to rebut the presumption of future

persecution.

The panel held that the Board erred by failing to take into

account the harm petitioner’s family endured while she was

a child in assessing past persecution. The panel concluded

that petitioner was entitled to asylum because the government

failed to rebut the presumption of future persecution. The

panel remanded for further consideration of petitioner’s

claims for withholding of removal and CAT protection.

Dissenting, Judge Rawlinson wrote that the record does

not compel the conclusion that the harm petitioner’s family

suffered was closely tied to herself, and that the majority

ignored substantial evidence in the record that Seventh Day

Adventists are not currently persecuted in Belarus. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RUSAK V. HOLDER 3

COUNSEL

Sergei Shevchenko (argued), Barshev, P.C., Beverly Hills,

California, for Petitioner.

Ashley Young Martin (argued), Regan Hildebrand, Kiley L.

Kane, and Jennifer L. Lightbody, United States Department

of Justice, Washington, D.C., for Respondent.

OPINION

KORMAN, District Judge:

Natallia Rusak, a twenty-eight year old native and citizen

of Belarus currently residing in California, petitions for

review of an order of the Board of Immigration Appeals

(“BIA”) affirming an Immigration Judge’s (“IJ”)

determination that she is not entitled to asylum, withholding

of removal, or relief under the Convention Against Torture. 

We have jurisdiction under 8 U.S.C. § 1252(a). We review

the BIA’s decision for substantial evidence and must affirm

if it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” INS v. EliasZacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.

§ 1105a(a)(4)).

Ms. Rusak has been deaf since infancy, a condition that

she claims subjected her to persecution in Belarus due to

widespread hostility to persons with disabilities. Ms. Rusak’s

family also belongs to the Seventh Day Adventist Church, a

religion disfavored in Belarus. According to the testimony of

Ms. Rusak and her mother, Ms. Rusak’s mother was arrested,

beaten, and raped by the police on account of her church
4 RUSAK V. HOLDER

membership. She also lost her job as a schoolteacher as a

consequence of her religious affiliation. Ms. Rusak’s father

was severely beaten by the police and died of a heart attack

related to the assault. At the time of these events, Ms. Rusak

was approximately eleven years old. Ms. Rusak herself

claims to have suffered physical abuse and harassment as a

child from her teachers and peers on account of her deafness

and her family’s religion.

In 2000, Ms. Rusak and her mother left Belarus for

Argentina, where they lived for several months until legally

entering the United States so that Ms. Rusak could undergo

testing for a cochlear implant. Their authorization to remain

in the country expired in June 2002. Initially, Ms. Rusak’s

mother filed an asylum application on her own behalf and

listed Ms. Rusak as a derivative applicant. However, in 2004,

Ms. Rusak’s mother married a United States citizen and

withdrew her application; Ms. Rusak then submitted the

independent asylum application under review here. Both Ms.

Rusak and her mother gave testimony before the IJ in support

of her application, and neither was subject to an adverse

credibility finding. Ms. Rusak has lived with family, most of

whom now reside in California, for her entire life, and has no

independent means of support.

The Department of Justice attorney acknowledged at oral

argument that other options may be available to deal with the

unfortunate circumstances in which Ms. Rusak finds herself. 

Ms. Rusak may be eligible for a visa based on her mother’s

new status. This would allow her to apply for an adjustment

of status. The Department of Homeland Security could

exercise prosecutorial discretion in determining not to seek

Ms. Rusak’s removal. Nevertheless, because these two

options must be explored through avenues other than this
RUSAK V. HOLDER 5

litigation, we address the merits of Ms. Rusak’s asylum

claim.

Title 8 U.S.C. § 1158 provides that the Attorney General

and Secretary of Homeland Security have discretion to grant

political asylum to aliens they determine to be refugees. 

Under 8 U.S.C. § 1101(a)(42)(A), a “refugee” is “any person

who is outside any country of such person’s nationality . . .

who is unable or unwilling to return to . . . that country

because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a

particular social group, or political opinion.” An asylum

applicant bears the burden of proving that she has a wellfounded fear of future persecution based on one of the

enumerated grounds. Ghaly v. INS, 58 F.3d 1425, 1428 (9th

Cir. 1995). A well-founded fear of future persecution “must

be both subjectively genuine and objectively reasonable.” 

Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.

1999). An asylum applicant’s credible testimony that he or

she genuinely fears persecution suffices to establish the

subjective element. Id. The objective element may be

established either by the presentation of “credible, direct, and

specific evidence in the record of facts that would support a

reasonable fear of persecution,” or through a showing by an

asylum applicant that he or she has suffered persecution in the

past. Id. A showing of past persecution shifts the burden to

the government to prove, by a preponderance of the evidence,

that conditions in the applicant’s country have changed such

that the applicant “no longer has a well-founded fear that he

would be persecuted if he were to return.” Id.

Ms. Rusak’s testimony before the IJ established a

subjective fear of persecution if she were to return to Belarus. 

The key disputed issue is whether Ms. Rusak’s fear of
6 RUSAK V. HOLDER

persecution is objectively reasonable. Ms. Rusak claims

asylum on the ground that she has been deaf since childhood

in a country in which persons with disabilities are treated with

hostility. She also claims asylum based on her family’s

religion. We agree with the BIA’s conclusion that Ms. Rusak

did not suffer persecution on account of her deafness in

Belarus. While her testimony establishes that she was treated

badly by her teachers and classmates in school, her

experiences did not rise to the level of persecution, which is

“an extreme concept that does not include every sort of

treatment our society regards as offensive.” Ghaly v. INS,

58 F.3d 1425, 1431 (9th Cir. 1995).

Ms. Rusak’s claim of persecution on the basis of religion

is more compelling. While Ms. Rusak’s own direct

experiences in Belarus may not rise to the level of persecution

on this ground as well, she is not required to demonstrate that

she individually suffered persecution if she can establish a

“pattern or practice . . . of persecution of groups of persons

similarly situated” and that she is a member of the group

“such that [her] fear of persecution upon return is

reasonable.” Kotasz v. INS, 31 F.3d 847, 853 n.8 (9th Cir.

1994). This similarly situated group may be the community

of Seventh Day Adventists in Belarus or Ms. Rusak’s

immediate family. See Mgoian v. INS, 184 F.3d 1029, 1036

(9th Cir. 1999) (“[A]n individual applicant may be eligible

for asylum, even in the absence of direct persecution against

her personally, if she is able to demonstrate a well-founded

fear of persecution based on acts of violence against her

friends or family members.”). Thus, Ms. Rusak’s religious

persecution claim need not be judged solely on the basis of

her own experiences.
RUSAK V. HOLDER 7

Moreover, because Ms. Rusak was a child when the

events underlying her asylum claim took place, the injuries

suffered by her family members are directly relevant to her

claim of past persecution. We previously held in HernandezOrtiz v. Gonzales that “injuries to a family must be

considered in an asylum case where the events that form the

basis of the past persecution claim were perceived when the

petitioner was a child.” 496 F.3d 1042, 1046 (9th Cir. 2007)

(emphasis added). While Hernandez-Ortiz was decided after

the IJ’s ruling, it predated the BIA’s review of Ms. Rusak’s

appeal. Nevertheless, the BIA did not consider it. This was

error.

The BIA acknowledged the abuses suffered by Ms.

Rusak’s parents, and it did not question that these abuses

were due to their religious affiliation. Nevertheless, it held

that “although condemnable, the actions taken against [them]

due to their religion, including the respondent’s mother’s

arrests and her father’s beating and subsequent death, do not

constitute persecution of the respondent.” (emphasis added). 

This holding cannot be reconciled with Hernandez-Ortiz. 

The abuses endured by Ms. Rusak’s parents constituted

persecution of them, and Ms. Rusak was entitled to rely on

these events to establish her own claim of past persecution

because she was a child at the time. As Hernandez-Ortiz

held, “a child’s reaction to injuries to his family is different

from an adult’s. The child is part of the family, the wound to

the family is personal, the trauma apt to be lasting.” 496 F.3d

at 1045.

While it is true that, unlike Hernandez-Ortiz, the record

here contains no testimony by Ms. Rusak or other evidence

directly linking the abuses suffered by her parents to her own

psychological state, the result in Hernandez-Ortiz does not
8 RUSAK V. HOLDER

turn on the presence of such evidence. Indeed, additional

evidence is not necessary to establish that an eleven or twelve

year old girl would be traumatized when her father is beaten

and killed and her mother arrested and raped by the police. 

No other conclusion seems possible if we take seriously the

admonition that “[w]hen we take our seats on the bench we

are not struck with blindness, and forbidden to know as

judges what we see as men [and women].” Ho Ah Kow v.

Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879) (No. 6546);

see also Watts v. Indiana, 338 U.S. 49, 52 (1949)

(Frankfurter, J.).

On the current record, it is clear that Ms. Rusak has

established a claim of past persecution based on the abuses

endured by her parents while she was a child. Nor has the

government successfully proven that conditions in Belarus

have changed sufficiently that Ms. Rusak no longer has a

well-founded fear of persecution were she to return. Contrary

to the BIA’s conclusion, the Belarus country reports

contained in the Administrative Record do not indicate that

the status of minority religious groups has improved in recent

years. In fact, they suggest the opposite – that members of

minority religions still face attack by the government. The

BIA’s conclusion on this issue is unsupported by substantial

evidence.

Our dissenting colleague accuses us of ignoring “the

substantial evidence in the record that Seventh Day

Adventists are not currently persecuted in Belarus.” We are

unaware of any document in the record that says that Seventh

Day Adventists are not currently persecuted in Belarus, nor

do they contain a list of religious groups that are or are not

subject to persecution. Indeed, in the context of describing

religious persecution, the reports that the dissent relies upon
RUSAK V. HOLDER 9

simply cite examples of some religious communities that are

persecuted. See Annual Report of the United States

Commission on International Religious Freedom: Belarus

(May 2005); United States Department of State, Country

Report on Human Rights Practices 2005: Belarus. The

reports do, however, accuse the Belarusian government of

attacking “the persons and property of minority religious

groups.” Indeed, the 2010 International Religious Freedom

Report for Belarus, published by the State Department, of

which we may take judicial notice for these limited purposes,

observes that the “government continued to use textbooks that

promote religious intolerance, especially toward

nontraditional religious groups.” These textbooks label

groups, including Seventh-Day Adventists, as sects – in a

chapter titled “Beware of Sects.” Moreover, although our

decision is not based solely on Ms. Rusak’s own experiences

as a Seventh Day Adventist, we do not accept the dissent’s

characterization of Ms. Rusak as “a non-member of the

Seventh Day Adventists.” Ms. Rusak testified that she

attends services regularly with her mother. While she stayed

in a separate room during some services in the United States

and Belarus, she attributed that separation to the church’s lack

of sign language interpretation services, not her disinterest or

disbelief in the religion.

In sum, Ms. Rusak has made a showing of past

persecution on the basis of religion, and she is thus entitled to

a presumption of well-founded fear of future persecution. 

Because the government has failed to rebut this presumption,

Ms. Rusak is eligible for asylum on this claim. The matter is

remanded to the BIA for further consideration of Ms. Rusak’s
10 RUSAK V. HOLDER

additional claims for withholding of removal and relief under

the Convention Against Torture based on religious

persecution in light of Hernandez-Ortiz.

PETITION FOR REVIEW GRANTED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s decision to

remand this case to the Board of Immigration Appeals (BIA)

for further proceedings.

It is important to keep in mind our standard of review for

BIA decisions. We must affirm BIA rulings unless the

evidence compels a different outcome. See Nagoulko v.

I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003) (“This case like

many others turns on the standard of review. Perhaps the IJ

could have found past persecution on this record, but . . . the

IJ was not compelled to find past persecution . . . .”).

The language of the majority opinion underscores the lack

of compulsion. After conceding that Petitioner’s own

experiences in Belarus did not rise to the level of persecution,

the majority speculates that Petitioner may on remand be able

to “establish ‘a pattern or practice . . . of persecution of

groups of persons similarly situated’ and that she is a member

of the group such that her fear of persecution upon return is

reasonable.” Majority Opinion, p. 6 (quoting Kotsaz v. INS,

31 F.3d 847, 853 n.8 (9th Cir. 1994)) (alteration omitted). 

Without citing to any evidence in the record, the majority

muses that “[t]his similarly situated group may be the

community of Seventh Day Adventists in Belarus or
RUSAK V. HOLDER 11

Ms. Rusak’s immediate family.” Id. (citation omitted)

(emphasis added). But does the record compel us to so hold?

It appears not. Indeed, the record more strongly supports the

BIA decision. Petitioner testified that when the police

attacked her father, she was in another room and the police

never arrested her because she was a child. Petitioner was

unaware of her father’s arrest until she was informed some

time later. The same is true of when her mother was arrested. 

In addition, Petitioner was not a Seventh Day Adventist and

did not attend services in Belarus. Notably, the record is

absolutely void of any effects upon Petitioner of the

persecution inflicted upon Petitioner’s parents. Petitioner

simply failed to establish that the persecution against her

family was “closely tied” to her. Jie Lin v. Ashcroft, 377 F.3d

1014, 1029 (9th Cir. 2004) (as amended).

More importantly, the majority completely ignores the

substantial evidence in the record that Seventh Day

Adventists are not currently persecuted in Belarus. The

majority professes to be “unaware of any document in the

record that says that Seventh DayAdventists are not currently

persecuted in Belarus, nor do they contain a list of religious

groups that are or are not subject to persecution.” Majority

Opinion, p. 8. I refer the majority to page 84 of the 2005

Annual Report of the United States Commission on

International Religious Freedom. The report observes that

officials in Belarus “continue to harass, fine or detain

adherents of various denominations” including the Greek

Catholic Church, the Belarusian Orthodox Autocephalous

Church, Evangelical Protestants, Hare Krishnas, those of the

Jewish faith and Hindus. The Seventh DayAdventists are not

once mentioned among the disfavored religious groups listed

in the annual report. Similarly, pages 13–14 of the 2005

Belarus Country Report named various religious
12 RUSAK V. HOLDER

organizations that were “hindered” by the Belarusian laws

restricting the practice of religion. These organizations

included the “Moon Church,” the Church of Scientology,

Muslims, Light of the World, the New Life Church, the

Belarusian Evangelical Church, the Belarusian

Autocephalous Orthodox Church, and the Hare Krishnas. 

Once again, no mention of Seventh Day Adventists can be

found. Surely this evidence (or lack of evidence) did not

compel a finding that Ms. Rusak established a fear of future

persecution as a putative devotee of the Seventh Day

Adventist denomination.

The majority also references the 2010 International

Religious Freedom Report for Belarus wherein the Seventh

Day Adventist denomination is labeled as a sect. See

Majority Opinion, p. 9. However, labeling an organization a

sect is a far cry from subjecting the organization’s members

to persecution. See Fisher v. I.N.S., 79 F.3d 955, 961 (9th

Cir. 1996) (en banc) (“Persecution is an extreme concept,

which ordinarily does not include discrimination on the basis

of race or religion, as morally reprehensible as it may be.”)

(citation, alteration and internal quotation marks omitted). 

The lack of evidence of an objective fear of future

persecution dooms Petitioner’s petition for review. See

Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (requiring

presentation of facts that would support a reasonable fear of

persecution). This is particularly true of Petitioner as a nonmember of the Seventh DayAdventists, who failed to present

evidence that she “faced a unique risk of persecution upon

return that was distinct from . . . mere membership in a

disfavored group . . . .” Id. at 979 (citation omitted).

The majority seeks to salvage Ms. Rusak’s assertion that

she faces future persecution in Belarus with a reference to her
RUSAK V. HOLDER 13

testimony “that she attends [Seventh Day Adventist] services

regularly with her mother.” But attendance does not a

member make. Indeed, Ms. Rusak never testified that she

was a member of the Seventh DayAdventist denomination or

that attendance is all that is required to establish membership. 

See e.g., The Official Site of the Seventh-day Adventists,

www.adventist.org/beliefs/fundamental/index.html (last

visited August 7, 2013) (requiring baptism to be received as

a member).

Because the evidence in this case does not compel a

different outcome, I would uphold the decision of the BIA

denying asylum and withholding of removal. I respectfully

dissent from the majority’s deviation from the appropriate

standard of review.