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Case Number:	Date Filed:
98-70547	06/26/00




MAYA AVETOVA-ELISSEVA,                                No. 98-70547
Petitioner,                                           INS No.
v.                                                    A74-795-951
SERVICE,                                              AMENDED
Respondent.                                           OPINION

Petition for Review of an Order
of the Board of Immigration Appeals

Submitted February 7, 20001
Pasadena, California

Filed May 15, 2000
Amended June 26, 2000

Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Milton I. Shadur, District Judge.2

Opinion by Judge Shadur;
Dissent by Judge Wardlaw

1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

2 Honorable Milton I. Shadur, United States District Judge for the North-
ern District of Illinois, sitting by designation.


S. Austin Johnson, Bradford, Brady & Johnson, Provo, Utah,
for the petitioner.

Marshall Tamor Golding, Office of Immigration Litigation,
United States Department of Justice, Washington, D.C., for
the respondent.



The panel hereby amends the opinion as filed on May 15,
2000 by revising footnote 21, appearing at page 5149 of the
slip opinion, to read:

      On that score, a converse determination that past
      persecution had been proved would not necessarily
      resolve a petitioner's claim. In such event, the INS
      may still argue that current country conditions do not
      carry the prospect that such past persecution will
      continue in the future (8 C.F.R. S208.13(b)(1)(i); and
      see, e.g., Reyes-Guerrero v. INS, 192 F.3d 1241,
      1244-45 (9th Cir. 1999)).




SHADUR, District Judge:

Maya Avetova-Elisseva ("Avetova"), a 62 year-old Arme-
nian native and citizen of both Azerbaijan and Russia, peti-
tions for review of a final decision of the Board of
Immigration Appeals ("BIA") affirming the denial by an
immigration judge ("IJ") of her application for asylum and
withholding of deportation. Avetova claims that she suffered
persecution in Russia on account of her Armenian ethnicity
and Mormon faith and that she has a well-founded fear of
future persecution if she were returned to that country.3 We
have jurisdiction under 8 U.S.C. S 1105a(a) 4 and, for the rea-
sons given below, we grant Avetova's petition.

Eligibility for Asylum

Under Section 1158(b) the Attorney General has discretion
to grant asylum to aliens who qualify as statutory "refugees."
In turn, Section 1101(a)(42)(A) defines a "refugee" as an
alien who is "unwilling or unable" to return to the alien's
home country "because of [past] persecution or a well-
founded fear of persecution on account of race, religion,
3 In view of her dual citizenship, the IJ separately considered deportation
to Azerbaijan and to Russia. Because the IJ granted Avetova's petition to
withhold deportation to Azerbaijan and the Immigration and Naturaliza-
tion Service ("INS") has not sought to review that decision, the issue is
not before us.
4 All citations to Title 8 provisions will take the form "Section--," omit-
ting the prefatory "8 U.S.C." Although the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("Reform Act") has replaced
Section 1105a with Section 1252, the new review provision does not apply
to petitioners such as Avetova whose deportation proceedings commenced
before April 1, 1997. Instead, because a final order of deportation was
entered against her after October 30, 1996, the Reform Act's transitional
rules apply (see Reform Act S 309(c)(1)). Hence we still have jurisdiction
under Section 1105a(a).


nationality, membership in a particular social group, or politi-
cal opinion." While "[a]n alien who establishes past persecu-
tion is presumed to have a well-founded fear of persecution
. . . . [that] presumption may be rebutted where the conditions
in the country have significantly changed" (Pitcherskaia v.
INS, 118 F.3d 641, 646 (9th Cir. 1997)(citation omitted)).

[1] Any alien who premises an asylum claim on a well-
founded fear of persecution must demonstrate a subjectively
genuine and objectively reasonable fear (Arriaga-Barrientos
v. INS, 937 F.2d 411, 413 (9th Cir. 1991)). While the subjec-
tive component is satisfied by "showing that the alien's fear
is genuine" (id.), the objective component requires "credible,
direct, and specific evidence in the record that would support
a reasonable fear of persecution" (Singh v. INS, 134 F.3d 962,
966 (9th Cir. 1998) (internal punctuation and source reference

[2] For a sustainable showing of past persecution, a
"[p]etitioner must establish that the mistreatment she suffered
. . . was substantially more grievous in kind or degree than the
general manifestation of hostility between . . . competing eth-
nic and religious groups . . ." (id. at 967). But as to the requi-
site fear of future persecution, Mgoian v. INS , 184 F.3d 1029,
1035 (9th Cir. 1999)(internal quotation marks, punctuation
and citations omitted) teaches:

      [T]he applicant is not required to show that she
      would be singled out individually for persecution if
      there is a pattern or practice of persecution of groups
      of persons similarly situated and she can establish
      her own inclusion in the group such that her fear of
      persecution upon return is reasonable. Thus, if[an
      applicant] is able to show a "pattern or practice" of
      persecution against a group of which she is a mem-
      ber, then she will be eligible for asylum.

Finally, affirmative state action is not necessary to establish
a well-founded fear of persecution if the government "is


unwilling or unable to control those elements of its society
responsible for targeting" a particular class of individuals (id.
at 1036).

Standard of Review

Adverse BIA asylum decisions are upheld if supported by
"substantial evidence" (see Singh, 134 F.3d at 966). Under
that deferential standard "a petitioner contending that the
Board's findings are erroneous must establish that the evi-
dence not only supports that conclusion, but compels it"
(Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)(internal
quotation marks omitted and emphasis in original)). 5 Though
limited to reviewing the administrative record, we consider
the record in its entirety, including evidence that contradicts
the BIA's findings (Velarde v. INS, 140 F.3d 1305, 1309 (9th
Cir. 1998)).


Avetova was born in Baku, Azerbaijan. In 1990 she and her
family fled Baku to escape the Azeri campaign to cleanse
Azerbaijan of Armenians and Russians.6  With the help of
Soviet troops they crossed the Caspian Sea and were ulti-
mately evacuated to Moscow. But Russia proved to be only
5 As Singh, 134 F.3d at 966 (internal quotation marks and citations omit-
ted) puts it:

      This strict standard bars a reviewing court from independently
      weighing the evidence and holding that petitioner is eligible for
      asylum, except in cases where compelling evidence is shown.
      Thus, we must deny the Petition unless Petitioner presented evi-
      dence so compelling that no reasonable factfinder could find that
      Petitioner has not established eligibility for asylum.
6 Azeris led multiple movements (pogroms) to rid Azerbaijan of all "for-
eigners." As the BIA found, the 1990 pogrom involved the Azeris entering
"private homes, beating, evicting and even killing Armenians and Rus-
sians." In 1988 Avetova's Russian husband had suffered permanent inju-
ries in a pogrom.


slightly more hospitable to Avetova, for she and her friends
were victims of numerous incidents of harassment due to their
Armenian ethnicity and Mormon faith.

In December 1993 Avetova entered the United States
legally to be with her ill sister. In April 1996, one month after
her visa expired, she conceded deportability but applied for
asylum and withholding of deportation. On October 30, 1996
the IJ, in an oral decision, found Avetova's testimony to be
credible but, while granting her application for withholding of
deportation from Azerbaijan, denied it as to Russia. Avetova
filed a timely administrative appeal that the BIA denied on
April 22, 1998. This petition followed.

Avetova's Fear of Future Persecution

At issue is whether the record compels a finding that Ave-
tova has a well-founded fear of future persecution because of
her Armenian ethnicity.7 On that score the BIA simply stated:

      While the respondent testified to incidents of harm
      suffered by Mormons and Armenians in Russia, the
      record does not reflect that there exists in Russian a
      pattern or practice of persecution of persons on the
      basis of Armenian ethnicity or membership in the
      Mormon faith.

Although the BIA's opinion does not expressly state
whether or not it was conducting a de novo review, its phras-
ing seems in part to suggest that it did conduct an independent
7 Because we ultimately hold that a such well-founded fear exists, we
need not resolve the question whether such a fear also exists because of
Avetova's Mormon faith. It is worth adding, though, that Avetova's "out-
sider" status as an Armenian can only be worsened by her membership in
a second minority group (this one religious)--and the same expert witness
who directly supports the required objective component as to Avetova's
ethnicity, the reasonableness of her fear of persecution as an Armenian,
also provides like support regarding her Mormon faith.


review of the record. If that were the case, it would be the
BIA's decision that we review (see Vongsakdy v. INS, 171
F.3d 1203, 1206 (9th Cir. 1999)). But the lack of analysis that
the BIA opinion devoted to the issue at hand--its simple
statement of a conclusion--also suggests that the BIA gave
significant weight to the IJ's findings. In light of that ambigu-
ity, we will also look to the IJ's oral decision as a guide to
what lay behind the BIA's conclusion.

[3] Any petitioner in Avetova's position may create a
rebuttable presumption of an objective fear of future persecu-
tion by demonstrating past persecution (see, e.g., Marcu v.
INS, 147 F.3d 1078, 1081 (9th Cir. 1998)). In support of her
claim of past persecution because she is an Armenian, Ave-
tova recites several incidents: (1) she was harassed and
pushed by Russian officers because of her ethnicity; 8 (2) she
could not get a job even though she had a diploma because
"there were no jobs for Armenians"; and (3) her friend's
daughter (who was Armenian) was raped and beaten by police
officials. Although such experiences may certainly contribute
to a petitioner's state of mind (to satisfy the subjective com-
ponent) and, if adequately supported, may also provide the
required showing of an objectively reasonable fear of future
persecution, we agree with the BIA that these incidents of
hostility alone do not amount to "persecution " (that is, past
persecution) within the meaning of the statute.

[4] In terms of the fear of future persecution, there is no
question that Avetova satisfies the subjective component of
the two-part test. As the IJ said after listening to and witness-
ing her testimony, Avetova demonstrates a "high degree of
fear and . . . emotionalness [sic]." Summarizing the "back-
ground materials" in the case, the IJ said that the objective
evidence established this:
8 Specifically, Avetova was pushed around and was asked for her inter-
nal passport, and when it was discovered that she was Armenian she was
told that the soldiers were "sick and tired" of "all these invaders."


      [T]here is harassment, discrimination, and mistreat-
      ment of people of Armenian descent in Russia; in
      particular, Moscow, because of the problems that
      that city has encountered after the fall of the Soviet
      Union. However, the background materials indicate
      that the inability of the police to sometimes deal with
      these problems, is not due to the fact that the police
      is [sic] participating in the persecution or harassment
      but, rather, because of lack of resources and a very
      high crime rate, which leads the police to only prose-
      cute those cases where the evidence is abundantly
      clear . . . . The evidence is not one that shows that
      the government is systematically engaging in these
      acts or tolerating the people that do engage in acts of
      discrimination and harassment, deliberately to perse-
      cute Armenians because of the fact that they are

In other words, the IJ conceded that "there is 9 harassment, dis-
crimination, and mistreatment of people of Armenian descent
in Russia," but that the Russian government is powerless to
stop that harassment.10
9 This opinion also consistently employs the present tense to describe the
situation in Russia. We recognize of course that because Avetova's hear-
ing took place in 1996, the situation may since have changed. While it is
unfortunate that the law's processes cause this decision to be rendered
more than three years after Avetova's initial hearing, we must consider the
facts in the administrative record as if they speak to the current situation.
Indeed, any remand in such circumstances would be extremely unfair to
litigants, potentially triggering multiple determinations and repeated
appeals as to whether there is any "current" persecution--a sort of Zeno's
Paradox in which the arrow could never reach the target. This differs from
a determination of past persecution, where remand is necessary to deter-
mine whether conditions in a country have changed.
10 Because there is no question that Avetova is Armenian, she merely
has to demonstrate that Armenians are being systematically persecuted
(see, e.g., Mgoian, 184 F.3d at 1035).


Though it is not clear exactly what "background materials"
the IJ relied upon, it would appear that significant weight was
given to the Profile of Asylum Claims and Country Conditions
(1995) prepared by the State Department's Office of Asylum
Affairs. That report, which mirrors most of the IJ's senti-
ments, states unequivocally that protection from ethnic
harassment is generally unavailable in Russia because the
"Russian police . . . is [sic] clearly incapable of coping with
the situation" (emphasis supplied).11 

It does not matter that financial considerations may account
for such an inability to stop elements of ethnic persecution.
What matters instead is that the government "is unwilling or
unable to control those elements of its society" committing
the acts of persecution (Mgoian, 184 F.3d at 1036)(emphasis
added).12 Indeed, any lack of funding might be labeled as a
governmental choice (contrast the current Russian military
campaign in Chechnya).

But we need not rest solely on the inability-to-control con-
cept, for there is compelling evidence that at least tacit gov-
ernment sponsorship is involved in the harassment 13 of
Armenians. In part the State Department's 1996 report on
11 That report also says that the "action or inaction [of the police]
appears more closely tied to the seriousness of the complaint and the like-
lihood that the perpetrator will be apprehended, than to the ethnicity, reli-
gious views, or political affiliations of the victim." But that conclusion is
called into question by the State Department's later country condition
report discussed below.
12 For example, in Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) an
Indo-Fijian family was threatened and harassed by gangs of ethnic Fijians,
and the police did nothing when those incidents were reported. Noting that
"[p]ersecution meted out by groups that the government is unable or
unwilling to control constitutes persecution under the Act," we said that
the "failure by the authorities to protect Singh and his family clearly indi-
cates that the police either could not or would not control the ethnic Fiji-
ans who threatened Singh and his family" (id .) (emphasis added).
13 We reserve until later our discussion as to whether such "harassment"
equates to "persecution" under the statute.


country conditions in Russia says that in 1995 "[s]ome mem-
bers of the security forces continued to commit human rights
abuses," going on to say:

      With wide public support, law enforcement authori-
      ties targeted people with dark complexions for
      harassment, arrest, and deportations from urban cen-
      ters during periods of domestic crisis. This trend
      continued in 1995. Human Rights Watch reported
      that law enforcement agents in Moscow "routinely
      detained, intimidated and extorted money from and
      beat people of color, mainly people from the Cauca-
      sus and Central Asia . . . ."14

That quoted report from Human Rights Watch, based on that
group's investigation of racist attacks by Moscow law
enforcement personnel, also states:

      [L]aw enforcement authorities in Moscow . . . are
      not only failing to uphold Russia's obligations to
      fight racial discrimination but indeed, for approxi-
      mately the past three years, have been conducting a
      campaign of harassment and brutality against dark-
      skinned people. State-sponsored abuse includes
      restriction of freedom of movement, including arbi-
      trary detention, arbitrary house searches and inva-
      sion of privacy, extortion, and physical assault . .. .
      Although no reliable statistics are available, it
      appears that the most frequent victims of state-
      sponsored, ethnically motivated attacks are [among
      others,] people from the Caucasus Mountains
      (Armenians, Azerbaijanis, Chechens, Georgians,
      Kurds and others).15
14 Armenians are from the Caucasus.
15 While that report noted that "the Government of the Russian Federa-
tion has shown sensitivity to increases in ethnic hostilities and has taken
steps to combat this dangerous trend," the federal government and some
municipalities "have adopted legislation that has formed the basis for the
Moscow police's racially motivated attacks."


Avetova also introduced the testimony of Dr. Dennis
Papazian, an expert on Armenians in Russia.16 While it was
undisputed that Dr. Papazian was extremely well informed
about the current plight of Armenians in Russian, the IJ lim-
ited his submission to affidavit form because the IJ labeled
live testimony as "cumulative." Dr. Papazian's affidavit stated
in part:

      I have read the affidavit of Maya Eliseeva [sic ] . . . .
      Based on my expert knowledge of conditions affect-
      ing Armenians in the Russian Federation, as well as
      Mormons, I can affirm that she would face a strong
      likelihood of persecution, possibly resulting in phys-
      ical harm or death, if she were forced to return to the
      Russian Federation. . . . It is a sign of the breakdown
      of civil society in the Russian Federation and of the
      government's inability, or unwillingness, to protect
      its citizens that some Armenians in the Russian Fed-
      eration experience only mild discrimination, while
      others face life-threatening persecution without there
      being any distinction between the activities of the
      individuals concerned . . . . The personal incidents
      which Maya Eliseeva describes in her affidavit are
      entirely consistent with the extreme abuses experi-
      enced by many Armenians in the Russian Federation
      . . . . I see nothing in the near future which would
      suggest that persecution of some Armenians and
      almost all Mormons will be ameliorated, due to reli-
      gious antagonism, the instability of the Russian gov-
      ernment, the present struggle for power, the natural
      prejudice of the Russians against dark-skinned peo-
      ple, and the persistence of regional and ethnic con-
      flicts in the Russian Federation and its neighboring
      successor states. The arbitrary local and regional
16 Dr. Papazian (the "Dr." denotes a Ph.D. degree) is the Director of the
Armenian Research Center at the University of Michigan at Dearborn.


      imposition of the propiska system17 continues to
      result in the persecution of specific groups, such as
      Armenians, and specific individuals, such as Maya

That statement strongly reinforces the record evidence of
Armenian harassment by elements of the Russian government.18

In rejecting Avetova's claim of a well-founded fear of
future persecution, both the IJ and the BIA noted several fac-
tors said to cut the other way: Russia's army rescued Avetova
and other Armenians from Azerbaijan; Avetova's husband
receives a pension from the Russian government because of
injuries he suffered in Azerbaijan; she received a Russian
passport and used that passport to come to this country not to
flee from persecution, but to assist her ill sister. 19 It is not this
Court's role, of course, to weigh the evidence in cases such
as this, and we do not do so here. Instead, because fear of the
17 That system involves the use of residence permits that determine
where citizens may reside and that are necessary to get legal jobs and
housing. Those permits classify citizens by race and ethnicity and also
serve the ostensible purpose of tracking people for law enforcement pur-
18 While the IJ seemed to discount Dr. Papazian's comments regarding
Azerbaijan because they were "highly conclusory in nature," the IJ made
no mention at all of his statements as to the persecution of Armenians in
Russia. It is particularly troubling to find Dr. Papazian's opinions, which
were the most current and particularized in the record and hence the most
salient evidence as to Avetova's potential future in Russia, discounted in
that fashion. If there were really concerns as to the affidavit's "conclusory
. . . nature," Dr. Papazian was readily available as a live witness.
19 Without any support in the record, the IJ states that Avetova filed for
asylum only "after being in the United States and seeing the kind of free-
dom she enjoyed in this country to practice her Mormon religion and the
lack of any harassment or problems because of her Armenian ethnicity."
If that is somehow intended to cast a cloud on the credibility of Avetova's
subjective fears (rather than revealing something about the IJ's mindset),
it is really undercut by the IJ's observation that Avetova exhibited a "high
degree of fear and . . . emotionalness" during her testimony.


future is at issue, we have already explained why the uncon-
troverted evidence from Dr. Papazian must perforce trump
more attenuated inferences from the past. But even on their
own terms, the other factors referred to in this paragraph lose
force under closer scrutiny.

[5] First, just because the Russian army rescued Avetova
and other Armenians from a likely death in Azerbaijan does
not negate the prospect of future persecution that is less than
life-threatening--or even of life-threatening persecution from
elements that the government cannot control. It is also appar-
ent from the record that the views of the Russian government
toward Armenians have changed over time as the flood of
Armenian refugees have altered the social, and in turn the
political, landscape.20 Finally, on the record evidence the Rus-
sian government is not an entity with a single attitude toward
Armenians. As the record reveals, it was officials in Moscow
(in contrast to national officials) who were the primary perse-
cutors of Armenians. All of these things also contraindicate
ascribing meaningful significance to the fact that Avetova
received a Russian passport.

[6] Further, the fact that Avetova's husband receives a gov-
ernment pension is not enlightening at all--he is after all a
native of Russia, not Armenia. Finally, though Avetova ini-
tially came to the United States to assist her ill sister and not
to flee persecution, that simply enables us to pause to take a
deep look at a petitioner's claim. It is not a reason to discount
compelling evidence--in this instance, Dr. Papazian's
evidence--of persecution.

[7] What has been said here is not at odds with the state-
ment in Singh, 134 F.3d at 969 that a petitioner's claim was
20 Indeed, it appears that this is exactly what happened. As the United
States' own brief notes, the "substantial Russian resentment of and hostil-
ity against all Caucasians . . . has been exacerbated by the influx of refu-
gees from the various ethnic conflicts."


"undercut" by the fact that she came to the United States five
years after the alleged persecution began and decided to file
for asylum because "she liked it here and decided to stay." As
Singh, id., reasoned, "[o]ne would expect that if Petitioner
truly had experienced persecution, she would have left the
country earlier and would have not intended to return." But
once again we are focusing here not on the sufficiency of
proof as to Avetova's past persecution, but rather on the total
situation as to the fear of future persecution. And in that
respect, while demonstrating past persecution does create a
rebuttable presumption of a fear of future persecution, reli-
ance on such a presumption is not the only path for a peti-
tioner to travel. Rather the true litmus test for the statutory
concept-- fear of future persecution--is the two-pronged sub-
jective and objective standard that we have been discussing

[8] To that end it does not suffice for the government to
advance the "substantial evidence" standard on appeal as an
attempted bulwark against any and all attack. Despite the
height of that standard, it cannot substitute for a reasoned
explanation as to why the overwhelming evidence of Arme-
nian harassment and, at the very least, Russian governmental
indifference does not entitle Avetova to prevail. Indeed, the
United States is unpersuasive in its effort to rely solely on
Avetova's testimony, coupled with the standard of review,
while at the same time it fails to counter that evidence of
Armenian harassment and Russian governmental involve-

[9] In sum, having given the United States the required
benefit of the doubt in construing the record, we are nonethe-
less compelled by credible, direct and specific evidence to
conclude that elements of the Russian government are either
supporting or are unwilling or unable to stop a pattern and
practice of Armenian harassment in Russia--one that for
Avetova herself would create "a strong likelihood of persecu-
tion, possibly resulting in physical harm or death, if she were


forced to return to the Russian Federation" (Dr. Papazian's
uncontroverted expert view). We are of course mindful of 8
C.F.R. S 208.13(b)(2) and of its explication in Kotasz v. INS,
31 F.3d 847 (9th Cir. 1994), relied on by the dissent. In our
view, two factors demonstrate the inapplicability of those ref-
erences to defeat Avetova's claim:

      1. As for the regulation, it brings the "pattern or
      practice" requirement into play only as an alternative
      to an applicant's showing "that he or she would be
      singled out individually for persecution." Here Ave-
      tova's past experiences and Dr. Papazian's express
      affirmance as to her personal future risk plainly sat-
      isfy the quoted standard.

      2. As for the "pattern or practice" alternative
      itself, we do not view it as requiring a showing of
      universality--a showing that every individual in the
      vulnerable group must face such serious persecution.
      Here the evidence of substantial group persecution
      (again reflected in Dr. Papazian's affidavit), coupled
      with Avetova's special circumstances (including her
      past individual experiences), suffices. Under those
      circumstances we cannot justify subjecting Avetova
      to the serious gamble that she might perhaps escape
      the fate that the expert opinion evaluates as a "strong

[10] In both of those respects, we believe that it is entirely
consistent to determine on the one hand that a petitioner's past
harassment during a closed time period had not reached the
legal level of "past persecution," so as to defeat relief on the
ground of that past persecution alone,21  and yet to determine
21 On that score, a converse determination that past persecution had been
proved would not necessarily resolve a petitioner's claim. In such event,
the INS may still argue that current country conditions do not carry the
prospect that such past persecution will continue in the future (8 C.F.R.
S208.13(b)(1)(i); and see, e.g., Reyes-Guerrero v. INS, 192 F.3d 1241,
1244-45 (9th Cir. 1999)).


that although such past experiences did not themselves reach
that legal level, they are sufficiently probative of 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 (once
again in the legal sense) if she were sent back to the place
where such persecution is practiced. Suppose for example
another Armenian expatriate from Russia whose past exis-
tence in that country had been wholly uneventful--such a per-
son would fall into the category of what Dr. Papazian has
referred to as "some Armenians in the Russian Federation
[who] experience only mild discrimination" and who there-
fore face no demonstrable future threat justifying asylum in
the United States. By contrast, Avetova's past unpleasant
experiences coupled with the overall risks that Dr. Papazian
had identified without contradiction totally justify his "affirm-
[ation] that she would face a strong likelihood of persecution,
possibly resulting in physical harm or death, if she were
forced to return to the Russian Federation" (emphasis added).

This analysis meshes seamlessly not only with the post-
Kotasz statement in Mgoian quoted earlier in this opinion but
also with Mgoian's alternative explication (citations to Kotasz
itself omitted) at 184 F.3d at 1035 n.4:

       [I]f the applicant is a member of a "disfavored"
      group, but the group is not subject to systematic per-
      secution, this court will look to (1) the risk level of
      membership in the group (i.e., the extent and the
      severity of persecution suffered by the group) and
      (2) the alien's individual risk level (i.e., whether the
      alien has a special role in the group or is more likely
      to come to the attention of the persecutors making
      him a more likely target for persecution). The rela-
      tionship between these two factors is correlational;
      that is to say, the more serious and widespread the
      threat of persecution to the group, the less individu-
      alized the threat of persecution needs to be.


We therefore do not view Kotasz, as does the dissent, as cast-
ing any cloud on the conclusions reached here.

[11] In short, there is only scant evidence to cast doubt on
the possibility of actual governmental support of harassment
that would pose a "strong likelihood" of physical harm or
death to Avetova--and more importantly, nothing in the
record contradicts the conclusion of governmental unwilling-
ness or inability to stop such harassment. Hence Avetova has
demonstrated an objectively reasonable, as well as subjective,

[12] As suggested by what has just been said, we also hold
that the demonstrated harassment of Armenians in Russia
amounts to "persecution" under Section 1101(a)(42)(A).22
Again no evidence was proffered by the INS to suggest the
absence of such hostile treatment of Armenians in Russia.
While not all harassment rises to the statutory level of "perse-
cution," here the detention, intimidation and beatings of
Armenians because of their ethnicity, as described in the
record, involves "the infliction of suffering or harm upon
those who differ (in race, religion or political opinion) in a
way regarded as offensive" (Ghaly, 58 F.3d at 1431) (quota-
tion marks and citation omitted). To the extent that the BIA
or the IJ might be perceived as having decided differently (a
doubtful premise, see n.20), that could not be viewed as sup-
ported by substantial evidence.
22 In that regard the BIA did not opine on whether the harassment of
Armenians rises to the level of persecution. As for the IJ, though he
labeled the treatment of Armenians summarized in the background materi-
als as "persecution or harassment," his decision seems to rest on the mis-
taken notion that no government nexus with the "persecution or
harassment" was shown. Consequently, though Fisher v. INS, 79 F.3d 955,
961 (9th Cir. 1996)(en banc) teaches that deference is owed to a BIA
determination as to whether acts rise to the level of persecution, it appears
that no such determination was made in this case.



We hold that the BIA's decision not to grant asylum or to
withhold deportation to Russia lacks the support of substantial
evidence. Any reasonable finder of fact would be compelled
to conclude that Avetova has a well-founded fear of future
persecution in Russia because of her being Armenian. We
therefore GRANT Avetova's petition and REMAND this case
to the BIA with directions to grant Avetova's petition for
withholding of deportation and to present this matter to the
Attorney General for the exercise of her discretion under Sec-
tion 1158(b).



WARDLAW, Circuit Judge, dissenting:

In finding Maya Avetova-Elisseva ("Avetova") both eligi-
ble for asylum and entitled to withholding of deportation, the
majority holds that there is "a pattern and practice of Arme-
nian harassment in Russia," [maj. op. at 6826 (emphasis
added)], and that this "harassment . . . amounts to `persecu-
tion,' " [id. at 6829]. I must respectfully dissent.


8 C.F.R. S 208.13(b)(2) provides that:

      In evaluating whether the applicant has sustained his
      or her burden of proving that he or she has a well-
      founded fear of persecution, the asylum officer or
      immigration judge shall not require the applicant to
      provide evidence that he or she would be singled out
      individually for persecution if:

      (i) The applicant establishes that there is a pattern or
      practice in his or her country of nationality or last


      habitual residence of persecution of a group of per-
      sons similarly situated to the applicant on account of
      race, religion, nationality, membership in a particular
      social group, or political opinion; and

      (ii) The applicant establishes his or her own inclu-
      sion in and identification with such group of persons
      such that his or her fear of persecution upon return
      is reasonable.

8 C.F.R. S 208.13(b)(2); accord id.S 208.16(b)(3) (withhold-
ing of deportation).

In Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994), we explained
this regulation to mean "that where members of a given group
are systematically persecuted . . . proof of group membership
suffices to establish a `well-founded fear.'  " Id. at 852.1 As an
1 The majority states that 8 C.F.R. S 208.13(b)(2) and "its explication in
Kotasz v. INS" are "inapplicab[le] . . . to defeat Avetova's claim" because
"Avetova's past experiences and Dr. Papazian's express affirmance as to
her personal future risk plainly" show that "she would be singled out indi-
vidually for persecution." [Maj. op. at 6827 (internal quotation marks
omitted)]; see infra Part II (finding that Avetova has not made the requi-
site showing of individualized persecution). This heavy reliance on Ave-
tova's "past experiences" is a bit inconsistent with the majority's earlier
holding that these same past experiences "do not amount to `persecution'
(that is, past persecution) within the meaning of the statute." [Maj. op. at
6819]. As for Dr. Papazian's "express affirmance," it is of course true that
Dr. Papazian concludes that Avetova "would face a strong likelihood of
persecution . . . if she were forced to return to the Russian Federation."
In his affidavit, however, Dr. Papazian does not focus on Avetova's indi-
vidual circumstances, but rather discusses what he views as a "pattern of
persecution experienced by Armenians . . . in the Russian Federation,"
(emphasis added).

Other parts of the majority's opinion are not consistent with its express
disavowal of any reliance on 8 C.F.R. S 208.13(b)(2) and its " `pattern or
practice' requirement." [Id. at 6827]. For example, at one point, the major-
ity states that, for Avetova to succeed on her petition for review, "she
merely has to demonstrate that Armenians are being systematically perse-


example, we pointed to "the systematic attempt to annihilate
the Jews in Nazi Germany." Id. ("Certainly, it would not have
been necessary for each individual Jew to await a personal
visit to his door by Nazi storm troopers in order to show a
well founded fear of persecution."). In contrast, we noted that
during the period of "widespread political violence" in El Sal-
vador, "neither all Salvadorans nor all rebel sympathizers
were systematically persecuted." Id. We confined viable "pat-
tern or practice . . . of persecution" claims to "more extreme
situations." Id.; see also id. at 853 (stating that "the problem
of non-pattern and practice persecution . . . is far more com-
mon"). Moreover, it appears that there have been only two
successful pattern-or-practice cases since the regulation was
enacted ten years ago. See Mgoian v. INS, 184 F.3d 1029,
1036 (9th Cir. 1999) (finding "that a pattern of persecution
targeting a given family that plays a prominent role in a
minority group that is the object of widespread hostile treat-
ment supports a well-founded fear of persecution by its sur-
viving members"); Osorio v. INS, 18 F.3d 1017, 1031 (2d Cir.
1994) (concluding "that union leaders like Osorio are at grave
risk of persecution by Guatemalan authorities"); cf. Chen v.
INS, 195 F.3d 198, 204 (4th Cir. 1999) (holding that China's
"one child" policy does not amount to a pattern or practice of
cuted," [id. at 6820 n.10 (citing Mgoian v. INS, 184 F.3d 1029, 1035 (9th
Cir. 1999))]. Systematic persecution is a requirement only of pattern-or-
practice claims, which are governed by 8 C.F.R.S 208.13(b)(2). See
Kotasz, 31 F.3d at 852-53. In addition, the section of Mgoian v. INS cited
favorably by the majority rests entirely on 8 C.F.R.S 208.13(b)(2) and
Kotasz. [See maj. op. at 6820 n.10 (citing Mgoian, 184 F.3d. at 1035)].
Finally, at several places in its opinion, the majority appears to conclude
that there is "an established current pattern of persecution" against Arme-
nians in Russia. [Id. at 6828]; [accord id. at 6826 (stating that there is "a
pattern and practice of Armenian harassment in Russia")]; [id. at 6829
(stating that "the detention, intimidation and beatings of Armenians
because of their ethnicity" amounts to persecution)].


In this case, the evidence in the record does not compel the
conclusion that there is a pattern or practice of persecution
against Armenians in Russia.2 The affidavit of Dr. Dennis
Papazian, which the majority points to as "the most salient
evidence as to Avetova's potential future in Russia, " [maj. op.
at 6824 n.18], admits as much. Dr. Papazian states that "some
Armenians in the Russian Federation experience only mild
discrimination, while others face life-threatening persecution
without there being any distinction between the activities of
the individuals concerned," and that "some Armenians" will
continue to suffer persecution in Russia. In other words, the
sworn statement of Avetova's own expert reveals that,
because some Armenians are persecuted and some are not,
Armenians in Russia do not face one of the "more extreme
situations in which members of an entire group . . . are sys-
tematically persecuted." Kotasz, 31 F.3d at 852.3 Accordingly,
I must conclude that substantial evidence supports the BIA's
finding that there does not "exist[ ] in Russia a pattern or
practice of persecution of persons on the basis of Armenian


In Kotasz, we also noted that even if

      members of the disfavored groups are not threatened
2 The record also does not compel the conclusion that there is systematic
persecution against Mormons in Russia. As the majority does not address
this argument, [see maj. op. at 6818-40 n.7], neither will I.
3 The majority correctly notes that a successful pattern-or-practice claim
does not require "a showing of universality--a showing that every individ-
ual in the vulnerable group must face such serious persecution." [Maj. op.
at 6827]; see Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995) (hold-
ing that "to require a showing of persecution of all the members of the
applicant's group represents an unreasonable reading of the `pattern or
practice' language"). A successful pattern-or-practice claim, however,
does require a showing of "systematic persecution," Kotasz, 31 F.3d at
853; accord Makonnen, 44 F.3d at 1383. Avetova has not made such a
showing in this case.


      by systematic persecution of the group's entire mem-
      bership, the fact of group membership nonetheless
      places them at some risk. That risk can rise to the
      level required for establishing a well-founded fear of
      persecution either as a result of an individual's activ-
      ities in support of the group, or because the individ-
      ual is a member of a certain element of the group
      that is itself at greater risk of persecution than is the
      membership of the group as a whole.

Id. at 853; accord Mgoian, 184 F.3d at 1035 n.4.

The majority points to three incidents, incidents that it finds
"do not amount to `persecution' (that is, past persecution)
within the meaning of the statute," [maj. op. at 6819], that
"coupled with the overall risks that Dr. Papazian had identi-
fied," [id. at 6828], compel the granting of Avetova's petition:
"(1) [Avetova] was harassed and pushed by Russian officers
because of her ethnicity; (2) [Avetova] could not get a job
even though she had a diploma because `there were no jobs
for Armenians'; (3) [Avetova's] friend's daughter (who was
Armenian) was raped and beaten by police officials, " [id. at
6819 (footnote omitted)]. The harassment identified by the
majority "falls far short of the required showing needed to
compel a finding of persecution." Khourassany v. INS, No.
99-70020, 2000 WL 347167, at *4 (9th Cir. Apr. 5, 2000)
(holding that similar harassment was insufficient to establish
past persecution or a well-founded fear of persecution);
accord Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998); Pra-
sad v. INS, 47 F.3d 336, 339 (9th Cir. 1995); Mendez-Efrain
v. INS, 813 F.2d 279, 283 (9th Cir. 1987). The majority's
assertion that Avetova "could not get a job" is belied by Ave-
tova's own testimony, which reveals that she worked in Mos-
cow at a hotel, as a babysitter, and as a cleaning woman, and
"was getting by" economically. Cf. Kovac v. INS, 407 F.2d
102, 107 (9th Cir. 1969) (holding that "a probability of delib-
erate imposition of substantial economic disadvantage upon
an alien" may constitute persecution). Finally, that Avetova's


friend's daughter was raped, although deplorable, see Lopez-
Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996) (noting that
"rape can support a finding of persecution"), does not "mak[e
Avetova] a more likely target for persecution. " Mgoian, 184
F.3d at 1035 n.4. Nothing in the record suggests, and nothing
in the majority's opinion explains, why the rape of Avetova's
"friend's daughter" on account of the "friend's daughter['s]"
ethnicity should make Avetova, as opposed to any other
Armenian in Russia, "more likely to come to the attention of
the persecutors." Id.; see also Kotasz, 31 F.3d at 853-54
(explaining the individualized targeting requirement in non-
pattern or practice cases).

Rather than demonstrating that Avetova was targeted for
persecution in Russia, the evidence shows that (i) Soviet
troops rescued her from Azerbaijan and brought her to Mos-
cow; (ii) she had a residency permit for Moscow; (iii) unlike
thousands of others from the Caucasus, she avoided expulsion
from the Russian capital in 1993; (iv) she was able to obtain
a passport to leave the country; and (v) Avetova's husband
remains in Moscow and is receiving disability payments from
the government. Cf. Khourassany, 2000 WL 347167, at *4
(denying Khourassany's petition for review because, inter
alia, "some members of his family continue to live in Israel
now and to operate businesses without interference " and
because "Khourassany retained his passport and was able to
travel freely within Israel and to leave Israel without hin-
drance"); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th
Cir. 1988) (per curiam) (noting that "Rodriguez-Rivera
obtained a passport from the government, and his family con-
tinues to live in El Salvador unmolested," and that "[t]hese
factors are relevant in assessing a request for asylum or with-
holding of deportation and further undercut Rodriguez-
Rivera's claims of a well-founded fear of governmental perse-


For the foregoing reasons, I would deny Avetova's petition
for review. Therefore, I dissent.


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