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Belarus Religious Persecution Cases In The Circuit Courts Of Appeals - Case Study

by Alex Berd and Patrick Klauss

The totalitarian nature of the Belarus regime is often described as the last dictatorship in Europe. According to the Department of State International Religious Freedom Report 2007,1 the Belarus Constitution provides for freedom of religion; however, the Government restricted this right in practice. The Government restricted religious freedom both actively and indirectly. Respect for religious freedom worsened during the period covered by the 2007 report. The Government continued to restrict religious freedom in accordance with the provisions of the much criticized 2002 Law on Religion.2 Authorities also harassed and fined members of certain religious groups, especially those that the authorities appeared to regard as bearers of foreign cultural influence or as having a political agenda.

This case study is based on analysis of four reported Circuit Courts' cases discussing religious persecution in Belarus. The cases deal with alleged persecution of practicing Mormon, Greek Catholic, Roman Catholic and Baptist believers.3 The Petitioners sought both asylum and withholding of removal.4

A Mormon believer, Maryia V. Simonchyk5 conceded in her Petition to the Second Circuit that her past experiences did not amount to persecution. Therefore, the Court had to consider only whether substantial evidence supported the IJ's finding that Simonchyk did not establish a well-founded fear of future persecution. Simonchyk testified that the way people treated her in the past - including losing non-Mormon friends, being fired from jobs, and being treated rudely - made her believe that she might be harmed in the future. She also testified that police interrupted a meeting of her congregation and detained members of her church for several hours. She did not state that members of her congregation were otherwise harmed or threatened with harm. Additionally, the Court found that the IJ did not err in relying on the fact that Simonchyk's congregation continued to operate as further support for the denial of her claim. The Court held that the IJ properly found that Simonchyk's alleged fear was not objectively reasonable where it was not based on any specific threats against her or any other person similarly situated to her. Moreover, the Court held that the IJ appropriately found that the evidence of country conditions in the record, including United States Department of State reports, did not establish that Mormons were persecuted in Belarus. The evidence indicated that although the government impeded the practice of minority religions by denying permission to obtain facilities or distribute literature, it did not persecute members of non-traditional churches. While the record described some incidents in which such individuals were detained for several hours, viewed as a whole, the evidence showed a pattern of harassment against minority religious groups, which did not rise to the level of persecution. The Court mentioned another frequent reason for denial of asylum applications - return to the country of past persecution. Simonchyk's return to Belarus after her first trip to the United States undermined her claim that she feared persecution. It was a significant factor that much of the Simonchyk's mistreatment occurred before her first trip to the U.S.

In another case, a Greek Catholic believer, Evgueni Pojilenko6 presented a claim of past persecution before the IJ on the ground of religion. He testified that he and his family practiced their faith by gathering periodically on weekends and major holidays at friends' homes for group prayer and worship. He stated that when he was seven years old, his teachers in Belarus would use anti-Greek Orthodox slurs at school. Pojilenko also claimed that around that time Belarus militia ransacked his family home and in the process pushed and battered him and his mother, and that his family then fled to Poland because they believed they could not have a "normal . . . life in Belarus." After approximately three years in Poland,7 they returned to Belarus, but when they returned, they were required to have the strangers who were living in their home evicted. Within a month they themselves were evicted by the militia who injured Pojilenko and his mother so severely that both required hospitalization. His mother suffered a concussion and Pojilenko's hands were seriously beaten with a baton. Thereafter, they stayed with friends for a night or a period of nights at a time until they fled to the United States.

The IJ first found dubious Pojilenko's testimony of the anti-Greek Catholic taunting by his elementary school teachers, stating that it was difficult to believe not only that an elementary school teacher would engage in such behavior8 but that Pojilenko would be able to comprehend such treatment at age seven and to recall the experience so many years later. The IJ found Pojilenko's story credible that his parents needed to worship clandestinely in friends' homes during the regime of the Soviet Union, but there was no evidence that either Pojilenko or his parents suffered job loss or were beaten on the basis of their religion. The IJ found that Pojilenko's testimony alone did not establish persecution, as it was not clear that the militia acted with anti-religious animus. The IJ determined that although the circumstances surrounding the ransacking of Pojilenko's home, its initial abandonment prior to the flight to Poland, and the eviction that followed the family's return to Belarus, may have been a result of religious persecution, such a determination would have been speculative, as Pojilenko provided insufficient detail about these events. The IJ found that Pojilenko's submission of court documents chronicling the family's final ejection from their home were just as inconclusive, as they did not indicate any discriminatory animus for the evictions.9 The IJ found that the documents could reflect eviction for a number of lawful reasons, including failure to pay taxes or abide by building codes. The IJ further found that even if Pojilenko had established a well-founded fear of future persecution on the basis of his Greek Catholic faith, the INS had sufficiently rebutted10 Pojilenko's case.

In affirming the IJ's decision, the Third Circuit concluded that there was substantial evidence to support the IJ's determination that Pojilenko did not fulfill his burden of proof on the issue of past persecution or a well founded fear of future persecution. Neither the teacher's conduct nor even the ransacking by militia prior to Pojilenko's family's flight to Poland and the eventual eviction from their family home (including the physical abuse of Pojilenko and his mother) rose to the high standard of persecution without viable proof of anti-religious animus to qualify these events as religious persecution.

In the next example, a Roman Catholic believer, Guennadi Mikhailevitch11 stated on his asylum application:

"My father is Russian and Eastern Orthodox catholic and my mother is Byelorussian and Roman Catholic. They were persecuted because of their mixed background. My mother has always been very religious and so were her parents and her brothers. They suffered persecution because they are Roman Catholic. Because of my religious beliefs and activities, the KGB, and later after the government changed in the former Soviet Union, the Security Police, have detained, harassed, interrogated and threatened me."

Mikhailevitch further stated that if he returned to Belarus, he "would suffer harassment, threats, detention and interrogation by the government authorities and the police. They would put me in prison and my life would be in danger." The Petitioner listed various instances of purported persecution which he suffered while living in Belarus, including the following: (1) the KGB interrogated him and threatened him on several occasions regarding his religious activities, and (2) the KGB searched his home and place of work because of his religious activities. Mikhailevitch admitted, however, that he had never been arrested, imprisoned, or physically harmed in Belarus on account of his religious activities.

The Office of Asylum Affairs of the Department of State stated in an advisory opinion:

"Under the Communists, believers of all faiths were oppressed in Belarus. However, post-independence Belarus has generally been tolerant of most religious practices, including that of Roman Catholics. There are some instances of prejudice, however, primarily because Roman Catholics are often suspect of being close to Poland, a historic foe of Belarus. In the past year, the President of Belarus has implied that the loyalty of such people is in question and there are limits on the activities of foreign Catholic Priests, most of whom are, in fact, Polish nationals. These forces do not contribute to a climate of ethnic and religious tolerance. At the same time, the Roman Catholic Churches flourish in Belarus. Scores of Church buildings earlier confiscated by the Communists have been returned. We have no indication that ordinary individuals are prohibited, or inhibited, from practicing their religion. Thus, while these developments have been criticized, for example, in the most recent edition of our Country Reports on Human Rights Practices they do not constitute a pattern of abuse."

Although finding that Mikhailevitch was "essentially credible" and that his fears of persecution in Belarus were "subjectively genuine," the IJ determined that Mikhailevitch failed to satisfy his burden of proving either that he suffered past persecution in Belarus or that he had a well-founded fear of suffering future prosecution if he were returned to Belarus. The IJ stated that the evidence would certainly compel a determination that Mikhailevitch was "harassed" by the KGB because of his religious activities. Harassment alone, however, does not rise to the level of persecution.12 The Sixth Circuit held that a reasonable factfinder would not be compelled to conclude that Mikhailevitch suffered physical punishment, infliction of harm, or a significant deprivation of liberty on account of his religious activities and therefore denied the Petition. The Court addressed the difficulty of distinguishing between persecution and harassment in one of its cases13 and stated that "the line between persecution and mere harassment is frequently difficult to perceive."

In our last analyzed case, a Baptist believer, Viktor Valioukevitch14 claimed that the Baptist faith required him to proselytize to the Belarussian public, a largely Russian Orthodox or Catholic. He asserted in his asylum claim that he was attacked and subjected to name-calling by numerous individuals as a result of his proselytizing attempts. He claimed that he feared religious persecution in Belarus. The IJ found Valioukevitch was not eligible for asylum because the assaults Valioukevitch allegedly suffered in Belarus were not a result of his religious beliefs, were not sanctioned by the government or organized groups, and did not rise to the level of persecution. The Eighth Circuit concluded that the Petitioner has not shown that the Belarusian government either persecuted him or was unwilling or unable to control the Orthodox Christian majority. The Court noted the Department of State reports indicating that the Belarusian government respected its constitution's guarantee of religious freedom,15 and that citizens of Belarus were not prohibited from proselytizing.16

While the reviewed four federal cases cannot objectively represent the numerous issues pertaining to such cases filed with the Asylum Offices,17 the Immigration Courts18 and the BIA, many of which are successful, they provide a snapshot of the symptomatic factual and legal questions encountered by the above adjudicating agencies and legal practitioners. Moreover, the U.S. Department of State and other international agencies clearly recognize the active and indirect restrictions on religious freedom in Belarus. As discussed above, many of these cases turn on the court's determination whether the facts support a finding of persecution, rather than mere harassment. However, as the Sixth Circuit stated in Kacaj, "the line between persecution and mere harassment is frequently difficult to perceive." In countries that are determined to actively restrict religious freedom, such as Belarus, the line between persecution and harassment becomes even more indiscernible.


End Notes

1The Department of State International Religious Freedom Report on Belarus 2007: http://www.state.gov/g/drl/rls/irf/2007/90165.htm

2Id 2: The law contains a number of restrictive elements that increase the Government's control of the activities of religious groups. The law requires all religious groups to receive prior governmental approval to import and distribute literature, prevents foreigners from leading religious organizations, and denies religious communities the right to establish schools to train their own clergy. In addition, the law confines the activity of religious communities to areas where they are registered and establishes complex registration requirements that some communities, both "traditional" and "nontraditional," have difficulty fulfilling. The law also required all previously registered groups to reregister by 2004 and bans all religious activity by unregistered groups.
In January 2007 the Office of the Plenipotentiary Representative for Religious and Nationality Affairs (OPRRNA) reported 3,103 religious organizations of 25 religious confessions and denominations in the country, including 2,953 registered religious communities and 150 national and confessional organizations (monasteries, brotherhoods, missionaries, etc.). This included 1,399 Belarusian Orthodox, 493 Evangelical Christian, 440 Roman Catholic, 267 Evangelical Christian Baptist, 74 Seventh-day Adventist, 54 Full Gospel Christians, 33 Old Believer, 29 Jewish, 27 Lutheran, 26 Jehovah's Witness, 24 Muslim, 21 New Apostolic Church, 17 Progressive Judaism, 13 Greek Catholic, 9 Apostolic Christians, 6 Hare Krishnas, 5 Baha'i, 5 Christ's Church, 4 Mormon, 2 Messianic, 1 Reform Church, 1 Presbyterian, 1 Armenian Apostolic, 1 Latin Catholic, and 1 St. Jogan Church communities.

3The authors have decided to include in the analysis 'pure' religious persecution cases and to exclude the following 'Jewish' cases due to their mixed religion/ethnicity nature of anti-Semitism (according to the above mentioned DOS International Religious Freedom Report on Belarus 2007, most Jews in Belarus were not religiously active): Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005); Zheliazouski v. Gonzales, No. 06-5006-ag, (2nd Cir. 2007); Kaputskiy v. Keisler, No. 04-1063-ag (L), (2d Cir. 2007)

4For a discussion on withholding of removal application in case of a failed asylum claim in the Second Circuit, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)

5Simonchyk v. Keisler, No. 04-5636-ag, (2nd Cir. 2007)

6Pojilenko v. Elwood, No. 02-3445, (3rd Cir. 2007)

7It is noteworthy to mention that the Government or the Court did not raise the "firm resettlement" argument against the Petitioner's asylum claim.

8Despite the IJ's doubts, such a behavior by Belarus teachers is not unheard of. According to the above mentioned DOS International Religious Freedom Report on Belarus 2007: "There were credible reports that local authorities and teachers sought to identify which children attended Baptist Sunday school. According to Forum 18, Baptist pastor Gennady Brutskiy alleged that children identified as having attended Baptist Sunday school were threatened by the head teacher. Similarly, Pastor Yasku claimed State Ideology Officer Bobryk demanded that teachers find out whether their students attended Protestant Sunday school. If children attended such a school, the teachers had to "have a talk" with their parents."

9Arguably, had the Respondent proved the needed anti-religious animus, the IJ would most likely have found sufficient persecution pursuant to Matter of L-K-, 23 I&N Dec. 677, 682-83 (BIA 2004), where an evangelical Christian living in the Ukraine who was seriously injured during a series of home invasions (in the current case, Pojilenko was evicted by the militia from his home, was beaten with a baton and required hospitalization) was persecuted on account of her religious beliefs.

10The Government asserted that it would be unlikely that a Greek Catholic would be subjected to religious persecution in either Belarus or Russia since the fall of the Soviet Union, given the similarity between Pojilenko's faith and Russian Orthodox, the faith more prevalent in that region.

11Guennadi Y. Mikhailevitch v. INS, 1998 FED App. 0183P (6th Cir.)

12Arguably, "harassment" per se by the Belarus KGB (unlike by any other state agency) could amount to "persecution" and if not, could easily and instantly escalate into full-fledged "persecution" with very serious ramifications.

13Kacaj v. Gonzales, No. 04-3054 (6th Cir. 2005). See also Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997)

14Viktor Valioukevitch v INS, 251 F.3d 747 (8th Cir. 2001)

15For recent developments, see the July 2008 article "Baptism banned, a fine and a threat for leading worship" at: http://www.forum18.org/Archive.php?article_id=1163

16Id 2: "By law, citizens are not prohibited from proselytizing and may speak freely about their religious beliefs; however, in practice authorities often interfered with or punished some individuals who proselytized on behalf of registered or unregistered religious groups. Authorities regulated every aspect of proselytizing and literature distribution."

17According to the 2007 DHS Yearbook of Immigration Statistics at http://www.dhs.gov/ximgtn/statistics/publications/YrBk07RA.shtm, 90 Belarus Applicants were affirmatively granted asylum status by Asylum Offices.

18According to the Immigration Courts FY 2007 Statistics at http://www.usdoj.gov/eoir/efoia/FY07AsyStats.pdf, out of 66 Belarus cases which were filed defensively in Immigration Courts, 32 were granted and 23 were denied.


About The Author

Alex Berd, Esq. is a graduate of Liverpool Law School and Columbia Law School, a New York and Israeli Attorney and an English Solicitor, and a partner at Berd & Klauss, PLLC in New York City (www.berdklauss.com). The firm represents corporations and individuals in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, deportation defense and asylum. He has an extensive immigration experience in litigating deportation cases and has appeared in various immigration courts on behalf of his clients. He handled complex corporate, family and deportation related immigration cases.

Patrick Klauss, Esq. received his undergraduate degree from Trinity College in Hartford, CT where he majored in Public Policy. He studied at the University of Maastricht in the Netherlands where he focused on European Policy and Arts & Culture. Mr. Klauss obtained his Juris Doctor Degree from Brooklyn Law School, and a partner at Berd & Klauss, PLLC in New York City (www.berdklauss.com). He has extensive experience in a wide range of Immigration Law areas including family and employment based issues on both individual and corporate levels, and handles H-1B non-immigrant worker visas, O-1 visas for aliens of extraordinary ability, Labor Certification under PERM, E-1 and E-2 treaty and investor visas, multinational corporation transferee working visas (L-1), and all categories of I-140 Immigration Petitions.


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