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Case Name:KOZULIN V INS
Case Number:	Date Filed:
99-70162	07/14/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANATOLY MICHAELOVICH KOZULIN;
LIOUDMILA NIKOLAEVNA LARINA,                          No. 99-70162
Petitioner,
                                                     I.N.S. No.
v.                                                    A71 945 750
                                                     A72 116 300
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

Petition to Review a Decision of the
Board of Immigration Appeals

Argued and Submitted
June 9, 2000--Seattle, Washington

Filed July 14, 2000

Before: Procter Hug, Jr., Chief Judge, and
Alfred T. Goodwin and Melvin Brunetti, Circuit Judges.

Opinion by Judge Goodwin

_________________________________________________________________



COUNSEL

Daniel M. Kowalski, Ryan, Swanson & Cleveland, Seattle,
Washington, for the petitioners.

Richard M. Evans, James Hunolt, United States Department
of Justice, Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

GOODWIN, Circuit Judge:

Anatoly Michaelovich Kozulin petitions for review of the
denial by the Board of Immigration Appeals ("BIA") of his
application for asylum and withholding of deportation under
8 U.S.C. SS 1158(a), 1253(h) (1994). We deny the petition,
because substantial evidence supports the conclusion that
Kozulin failed to prove: (1) that any mistreatment he suffered
was on account of his political opinion, or (2) that upon his
return to Russia he risks disproportionately severe punishment
for his illegal departure to the United States.

BACKGROUND

Kozulin, a native and citizen of Russia, entered the United
States in April of 1991 and applied for asylum on June 26, 1991.1
At his hearing before the Immigration Judge ("IJ") in July
_________________________________________________________________
1 Kozulin's wife, Lioudmila Nikolaevna Larina, is named in the appeal
but raises no claims separate from those derivative of her husband's.

                               8210


1997, Kozulin conceded deportability but contended that he
was eligible for asylum and withholding due to: (1) an alleged
attack he suffered at the hands of two unknown men, and (2)
his fear of reprisals for illegally departing Russia.

At his hearing, Kozulin testified to the following account.
Kozulin worked as a mechanic on a merchant marine vessel.
Sometime before the winter of 1990-91, seven crew members,
including Kozulin, addressed a letter to their ship's company
accusing their captain of stealing provisions from the ship and
selling them on the black market. After the captain discovered
the letter, he fired the other six signatories to the letter and left
them in Vladivostok, but retained Kozulin because the assis-
tant mechanic was ill.

Some time after leaving Vladivostok, the captain's assistant
approached Kozulin and demanded that Kozulin remove his
signature from the letter and, in return for the removal, the
captain's assistant offered to obtain Communist party mem-
bership for Kozulin. Subsequently, the captain himself
repeated the demand that Kozulin retract the letter. Kozulin
refused to remove his name from the letter, but he did not tes-
tify that he gave any reason for his refusal.

Approximately three weeks later, according to his story,
two or three men attacked and beat him. He did not know who
his assailants were, and he did not testify that they said any-
thing to him. Kozulin told the IJ of no maltreatment subse-
quent to the one attack. He was granted a week off to
recuperate from his injuries, and ship's personnel provided
him with medical care. Then, a month after the incident, the
ship docked at Kodiak, Alaska. Upon docking, Kozulin was
granted liberty, at which time he fled the ship and opted to
seek asylum.

Kozulin testified that he did not have any problems in the
former Soviet Union until he signed the letter. Kozulin was
never arrested or detained or mistreated by that government,

                               8211


he was never a member of any political group or party, and
he was issued a passport and allowed to travel to the United
States.

After hearing the testimony, the IJ concluded that,"assum-
ing arguendo that everything should be accepted as true,"
Kozulin did not prove as a factual matter that the alleged
attack was on account of Kozulin's political opinion. The BIA
affirmed and agreed with the IJ's conclusion that Kozulin had
failed to show that any persecution had occurred on account
of his political opinion. From the BIA's dismissal, Kozulin
petitioned the Ninth Circuit.

JURISDICTION & STANDARD OF REVIEW

Because Kozulin's removal proceedings were pending prior
to April 1, 1997, we continue to exercise jurisdiction pursuant
to 8 U.S.C. S 1105a(a) (1994). See Sebastian-Sebastian v.
INS, 195 F.3d 504, 505 n.2 (9th Cir. 1999). We review for
substantial evidence. See Singh v. INS, 134 F.3d 962, 966 (9th
Cir. 1998). We must uphold the decision of the BIA unless no
reasonable factfinder could find Kozulin ineligible for asy-
lum, so that the evidence compels reversal. See INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992). Where the BIA does
not independently review the record, or where the BIA relies
upon the IJ's opinion as a statement of reasons, we look to the
IJ's oral decision as a guide to what lay behind the BIA's con-
clusion. See Avetova-Elisseva v. INS, _______ F.3d _______, 2000 WL
575243, *2 (9th Cir. May 15, 2000); Alaelua v. INS, 45 F.3d
1379, 1381-82 (9th Cir. 1995).

DISCUSSION

A. Causation of Attack

[1] Under 8 U.S.C. S 1158(a) (1994), Kozulin is eligible for
a discretionary grant of asylum if he is a "refugee," i.e., if he
is unable or unwilling to return to his home country "because

                               8212


of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a partic-
ular social group, or political opinion." 8 U.S.C. S 1101(a)
(42)(A); see Elias-Zacarias, 502 U.S. at 481. Kozulin con-
tends that the alleged beating he suffered after reporting his
ship captain's misconduct constitutes past persecution on
account of Kozulin's anti-Communist views. A finding of
past persecution raises a regulatory presumption that an alien
has a well-founded fear of future persecution, rebuttable by a
showing that conditions have changed sufficiently so as to
overcome that presumption. See 8 C.F.R.S 208.13(b)(1)(i)
(1999); Singh v. Ilchert, 69 F.3d 375, 378 (9th Cir. 1995).

[2] To establish eligibility for asylum on past persecution
grounds, an applicant must prove that: (1) he suffered perse-
cution; (2) he holds a political opinion (actual or imputed); (3)
his political opinion was known to or imputed by the persecu-
tors; and (4) the persecution was on account of his political
opinion. See Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir.
1997). The central issue in Kozulin's appeal is the issue of
causation--that is, whether or not the evidence compels the
conclusion that the attack was "on account of " Kozulin's anti-
Communist views.2

[3] To satisfy the causation requirement, a petitioner "must
prove something more than violence plus disparity of views."
Sangha, 103 F.3d at 1487. We have held often that the mere
presence of some political element does not require the con-
_________________________________________________________________
2 There is no claim that the attackers acted at the behest of the Russian
government, but "persecution cognizable under the[Immigration and
Nationality] Act can emanate from sections of the population that do not
accept the laws of the country at issue, sections that the government of that
country is either unable or unwilling to control. " Borja v. INS, 175 F.3d
732, 735 n.1 (9th Cir. 1999) (citations omitted). We express no opinion
about whether members of a political party aboard a merchant marine ship
constitute such a "section," or whether a single attack effects "persecu-
tion," when that attack is illegal and arguably compensable under the laws
of the fled country.

                               8213


clusion that some maltreatment was on account of political
opinion. For instance, in Florez-de Solis v. INS , 796 F.2d 330,
335 (9th Cir. 1986), we held that, where members of political
movement acted violently to collect a debt, that violence did
not compel a finding of persecution on account of political
opinion. Likewise, in Chanco v. INS, 82 F.3d 298, 302 (9th
Cir. 1996), we rejected the asylum claim of a plotter of a coup
d'etat and held that "the prosecution Chanco faces is not on
account of his political opinion but on account of his illegal
action." Id.

[4] Rather, a petitioner must prove that the alleged persecu-
tion was in fact "because of" the applicant's political opinion.
Elias-Zacarias, 502 U.S. at 482-83 (holding that guerrillas'
forced recruitment is not persecution on account of political
opinion unless the guerrillas acted "because of " the appli-
cant's political opinion). For instance, in Sangha, we upheld
the BIA's denial of asylum where Sangha claimed that he was
forcibly recruited on account of his political opinion, but
where "it [was] equally likely that the[attackers] acted for
other reasons." Sangha, 103 F.3d at 1490.

[5] We hold that substantial evidence supports the conclu-
sion that Kozulin failed to prove that his attack, as wrongful
as it might have been, was in fact motivated by his purported
anti-Communist views. Kozulin's theory that his refusal to
recant the letter caused him to be attacked might have been
a reasonable inference had it actually been drawn by the fact-
finder. We note, though, that some facts weaken that infer-
ence: Kozulin did not identify the men who beat him, no
evidence suggests that the attackers in any way expressed
their motivation, and the attack occurred weeks after the
refusal to recant the letter. In any event, we need not resolve
that factual dispute.

[6] Even if the attack was motivated by Kozulin's refusal
to renounce the letter, the evidence nonetheless does not com-
pel the conclusion that the attack was "on account of"

                               8214


Kozulin's political opinion. Rather, substantial evidence sug-
gests that Kozulin was attacked not for his political beliefs,
but for the same reason that the other six accusers were fired
--because of the threat to the ship's captain. Kozulin did not
testify that his accusation of the captain was motivated by
political beliefs, nor does the evidence compel the conclusion
that an adverse political opinion was imputed to him due to
the accusation. Cf. Elias-Zacarias, 502 U.S. at 482 (noting
that "a person who supports a guerrilla movement might resist
recruitment for a variety of reasons"). At the very least, "it is
equally likely that the [attackers] acted for other reasons" than
for Kozulin's anti-Communist views. Sangha, 103 F.3d at
1490.

The record shows that those who threatened the captain
suffered reprisals--the other six alleged accusers were fired
despite any indication that they were anti-Communist. There
is no evidence that ship's personnel engaged in a course of
harassment of anti-Communists, nor is there any indication
that any other anti-Communists suffered reprisals of any kind.
Kozulin testified to no other incidents of harm or harassment
for his political beliefs before or after the single attack.

Kozulin's direct testimony from his hearing assists our
inquiry.

      Q: Do you know who beat you?

      A: No.

      Q: In your opinion, why were you beaten?

      A: Because I signed a letter which was addressed to
      the captain, and that letter says that he sold illegally
      products which he shouldn't do that because the
      products belonged to all crew and another ship
      which was on that particular trip.

                               8215


Thus, Kozulin's own testimony indicates that his threat to the
captain, independent of Kozulin's political opinion, motivated
the attack. Even Kozulin's brief on this appeal concedes that
Kozulin was beaten because he "threatened the mini-
kleptocracy of the captain of his ship." The captain's endeav-
ors to maintain order within his questionable enterprise, how-
ever unpalatable, do not constitute persecution on account of
political opinion.

[7] Kozulin insists that inclusion of the offer of Communist
party membership in the captain's demand, followed by an
anonymous assault, suffices to compel asylum eligibility. We
disagree. That an attack occurred three weeks after a refusal
to join a political party does not compel a finding of asylum
eligibility if substantial evidence provides another indepen-
dent apolitical motivation for the attack; the law of asylum
does not require the "logical fallacy of post hoc, ergo propter
hoc" (literally, "after this, therefore because of this"). Huskey
v. San Jose, 204 F.3d 893, 899 (9th Cir. 2000); cf. Hardt v.
Heidweyer, 152 U.S. 547, 558 (1894) ("Post hoc, propter hoc,
is not, however, sufficient, and the rule of causation implies
some other sequence than that of time."); cf. Sangha, 103 F.3d
at 1487 ("Applicants can no longer establish that their perse-
cution was `on account of' political opinion by inference
. . . .").

For the proposition that the attack did as a matter of law
occur "on account of" his political opinion, Kozulin relies on
Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc). In
Borja, we made clear that, where the evidence compels the
conclusion that persecutors' conduct was motivated by the
victim's stated political opposition, the presence of possible
"mixed motives," id. at 736, need not defeat an asylum claim.
See id. at 735. Borja was confronted by Communist insur-
gents with "a well-documented history of political violence,"
id. at 734, who engaged in a pattern of extortion to fund their
war machine. See id. at 734-35. The insurgents beat her,
slashed her with a knife, and subsequently engaged in a long

                               8216


pattern of harassment. See id. at 736. When initially
approached by the insurgents, Borja "articulated her political
opposition," and her attackers "acted in direct response to her
statement of political opposition." Id. Because the evidence
compelled the conclusion that the subsequent harm was "trig-
gered by her initial hostile political confrontation," and
because there was "no substantial evidence in the record to
the contrary," we granted Borja's asylum claim. Id. at 737.

Kozulin's case must be distinguished. Kozulin did not "ar-
ticulate [his] political opposition"; he gave no indication of
political opinion beyond refusing to accept the offer of party
membership. Kozulin alleges no "direct response " to his
refusal; three weeks passed before the anonymous attack.
Kozulin's attackers did not have "a well-documented history
of political violence"; no evidence suggests that any other
anti-Communists were harmed. Most importantly, Kozulin
cannot claim that "no substantial evidence in the record" sup-
ports the BIA's decision; the evidence taken as a whole,
including Kozulin's own testimony, suggests that the attack
was motivated by apolitical revenge for the apolitical accusa-
tion against the captain. For all of the foregoing reasons, we
reject Kozulin's claim.

B. Fear of Severe Punishment for Illegal Departure

Kozulin also contends that his application for asylum itself
triggers asylum eligibility. He contends that his escape to and
application for asylum in the United States constitutes treason
under Article 64 of the Russian Code, and that his fear of pun-
ishment constitutes a well-founded fear of persecution on
account of his political opinion.

[8] For this proposition, Kozulin relies almost exclusively
on Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996), in
which we addressed the petition of a Cuban defector. In
Rodriguez-Roman, we held that "an asylum applicant who left
his country because of his political opinions and who faces

                               8217


severe punishment for the crime of illegal departure has estab-
lished that he is subject to persecution on account of political
opinion." Id. at 430. The "disproportionately severe punish-
ment" rule explained by Rodriguez-Roman and Li v. INS, 92
F.3d 985, 988 (9th Cir. 1996), operates as an exception to the
"general rule" that "[c]riminal prosecution for illegal depar-
ture is generally not considered to be persecution. " Li, 92 F.3d
at 988 (denying petition of Chinese defector) (citations omit-
ted).

[9] Our holding in Rodriguez-Roman  does not support
Kozulin's petition. Kozulin offers insufficient proof that he
will suffer punishment upon return to Russia, much less that
any punishment would be "disproportionately severe." Li, 92
F.3d at 988; see also Rodriguez-Roman, 98 F.3d at 431 (dis-
cussing the severity requirement). Members of Rodriguez-
Roman's family had variously been harassed, arrested, and
interrogated for suspicion of helping the petitioner's flight.
Rodriguez-Roman, 98 F.3d at 419-20. Nothing about
Kozulin's case resembles those facts in Rodriguez-Roman.
Indeed, there is no indication that anyone in Russia has any
interest in Kozulin.

Furthermore, Cuba's political conditions are officially
treated by the United States as different from those of modern
Russia. In Rodriguez-Roman, the IJ made a factual finding
that the petitioner would face "harsh, if not fatal" punishment
upon return to Cuba, and the State Department's report con-
firmed that Cuba severely punished defectors. Id. at 420. In
the instant case, however, the IJ made no such factual finding,
and the State Department reports far more benevolent condi-
tions in Russia.

[10] According to the State Department's 1996 Country
Profile, "[i]t is highly unlikely that an individual returning to
Russia now would face mistreatment because of political
views expressed or actions taken in the late eighties or early
nineties, even if that individual suffered for those actions at

                               8218


that time." See Bureau of Democracy, Human Rights and
Labor, U.S. Dept. of State, Russia--Profile of Asylum Claims
& Country Conditions 5 (April 1996). In another recent
report, the State Department indicated that "[w]e are aware of
no case in which punitive measures were taken against an
individual by the authorities merely for having remained in
the United States longer than planned or for having applied
for asylum." Bureau of Democracy, Human Rights and Labor,
U.S. Dept. of State, Russia--Profile of Asylum Claims &
Country Conditions 33 (May 1995). We emphasize that we do
not hold that conditions have changed so much as to eliminate
the well-founded fear of a petitioner who has suffered perse-
cution in the past. However, under current conditions, a Rus-
sian citizen cannot manufacture asylum eligibility simply by
applying for asylum.

CONCLUSION

We deny the petition. Because Kozulin fails to qualify for
asylum, he necessarily fails to make a claim under the stiffer
standard of withholding of deportation. See Fisher v. INS, 79
F.3d 955, 961 (9th Cir. 1996) (en banc).

PETITION DENIED.

                               8219



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