ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

< Go back to Immigration Daily

Office of the Circuit Executive 
U.S. Court of Appeals for the Ninth Circuit 
Case Number:	Date Filed:
98-70687	07/20/00




KONDRATIEVA,                                          No. 98-70687
                                                     INS Nos.
v.                                                    A73-940-062
SERVICE,                                              OPINION

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

Argued and Submitted
February 8, 2000--Pasadena, California

Filed July 20, 2000

Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Milton I. Shadur, District Judge.1

Opinion by Judge Shadur


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


Arielle N. Bases, Law Office of Enrique Arevalo, South Pasa-
dena, California, for the petitioners.

Frank W. Hunger, Assistant Attorney General, Ronald E.
LeFevre, Chief Legal Officer, David V. Bernal, Assistant


Director, Office of Immigration Litigation and Hugh G. Mul-
lane (argued), Office of Immigration Litigation, Washington
D.C., for the respondent.



SHADUR, District Judge:

Alexei Chouchkov ("Chouchkov") and his wife Natalia
Kondratieva ("Kondratieva") are Russian citizens. They peti-
tion for review of a final decision of the Board of Immigration
Appeals ("BIA") affirming the denial by an immigration
judge ("IJ") of their applications for asylum and withholding
of deportation. We have jurisdiction under 8 U.S.C.S1105a.2

Chouchkov claims that he suffered persecution in Russia on
account of his political opinion and that he has a well-founded
fear of persecution both for that reason and because he is Jew-
ish. Because Kondratieva's application is dependent on
Chouchkov's, her petition is controlled by his under Section
1158. For the reasons given below, we grant the petitions
based on the political opinion issue, making it unnecessary to
address Chouchkov's second contention, and remand for fur-
ther proceedings consistent with this opinion.
2 All further citations to Title 8 provisions will take the form "Section
--," omitting 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 Chouchkov and Kondratieva whose depor-
tation proceedings commenced before April 1, 1997. Instead, because a
final order of deportation was entered after October 30, 1996, the Reform
Act's transitional rules apply (see Reform Act S309(c)(1)). Hence we still
have jurisdiction under Section 1105a.


Eligibility for Asylum

[1] Under Section 1158 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 "unable or unwilling" to return to the alien's
home country "because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion."
While "[a]n alien who establishes past persecution is pre-
sumed to have a well-founded fear of persecution, " that "pre-
sumption may be rebutted where the conditions in the country
have significantly changed" (Pitcherskaia v. INS, 118 F.3d
641, 646 (9th Cir. 1997)). It is the INS' burden to rebut that
presumption by a preponderance of the evidence (id.).

[2] In terms of Chouchkov's claim based on assertedly
political-opinion-motivated past persecution, Sangha v. INS,
103 F.3d 1482, 1487 (9th Cir. 1997) teaches:

      After [INS v.] Elias-Zacarias,[502 U.S. 478 (1992),]
      an asylum seeker claiming to have been a victim of
      persecution on account of his or her political opinion
      must establish, by evidence, four facts: (1) that he or
      she has been a victim of persecution; (2) that he or
      she holds a political opinion; (3) that this political
      opinion is known to or imputed by the persecutors;
      and (4) the ensuing persecution of the victim has
      been or will be on account of this opinion.

Because we do not reach Chouchkov's claim of his fear of
future persecution based on a pattern or practice of persecu-
tion targeting members of his religion, we need not explore
the different formulation that this Court has established for
dealing with such contentions (see Kotasz v. INS , 31 F.3d 847,
851-54 (9th Cir. 1994)).


Standard of Review

Adverse BIA asylum decisions are upheld if supported by
"substantial evidence" (Singh v. INS, 134 F.3d 962, 966 (9th
Cir. 1998)). Under that deferential standard "a petitioner con-
tending that the Board's findings are erroneous must establish
that the evidence not only supports that conclusion, but com-
pels it" (Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)(in-
ternal quotation marks omitted and emphasis in original)).3
Finally, 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)).


Chouchkov, now 43 years old, is a Russian of Jewish
descent. He worked in his homeland as a nuclear engineer,
first for a government-sponsored organization and then begin-
ning in the summer of 1992 as the Commercial Director for
a branch of the Institute of Power and Technology called
"Atom Kor." Atom Kor is a research organization for state
agencies and ministries that is two-thirds funded by the Rus-
sian government.4 As a precondition to Chouchkov's hiring
by Atom Kor, a background check by the KGB was required.5
3 As Singh, 134 F.3d at 966 (internal quotation marks and citations omit-
ted) states:
      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.
4 Chouchkov testified that the Institute of Power and Technology was
completely government funded but that Atom Kor received about one-
third of its funding from private investors.
5 Chouchkov testified that the "KGB" supervised all deals involving
nuclear power. While the KGB is no longer the official title of Russia's
intelligence service, that term is used throughout the record and is appar-
ently still the term used by many Russians. We will similarly use the term
"KGB" for the sake of consistency.


Chouchkov, whose supervisor was the head of Atom Kor,
handled the company's finances and had the right of signature
on all financial documents.

In January 1993 Atom Kor became involved in a deal to
provide nuclear materials and technology to Iran. Chouchkov,
who testified that the deal was approved by the Russian govern-
ment,6 strenuously objected to the deal and told his supervisor
that he would attempt to keep the deal from being realized.
According to Chouchkov, he did not take any affirmative
steps against the deal, such as talking to the media, because
subsequent threats and intimidation made him feel that his life
was in danger.

In terms of Chouchkov's reasons for opposing the proposed
deal, he said that Iran was a "terrorist country " and that such
a deal was in violation of international agreements. As
Chouchkov put it during his hearing, "I am sort of Jewish ori-
gin, my mother is Jewish, I didn't want that technology be
possibility [sic] used against other countries, the state of Israel
included." Chouchkov's supervisor reacted by telling him that
"you'll be very sorry about this." Evidently Chouchkov's
cooperation was important because he was needed to sign the
contract and bring nuclear samples to Iran.7

Thereafter until he left Russia in March 1993, Chouchkov
encountered a series of distressing incidents that he views as
tactics of intimidation intended to get his cooperation to
enable the Iran deal to proceed. Chouchkov's testimony about
those incidents was found to be credible by the IJ. 8
6 Several newspaper articles from 1995 that are in the record confirm
that Russia was negotiating that type of a deal with Iran and that the high-
est levels of the Russian government were involved.
7 Chouchkov also testified that Atom Kor would have needed four to
five months to give anybody else the authority he had.
8 At the same time, the IJ found Chouchkov's "claims regarding prob-
lems because he is Jewish [to] have less credibility . . . ."


First, Chouchkov received threatening telephone calls from
unknown persons, sometimes twice a day, telling him among
other things that "if you'll not change your mind either your
close relatives or yourself will suffer" and that"[y]ou're [sic]
wife can disappear certainly and you'll look for her." Chouch-
kov believed the calls were from the KGB, because only the
people at his office and the KGB knew that he was opposed
to the Iran deal. Those callers also said that they knew about
his Jewish faith. Chouchkov also testified that he was consis-
tently followed by several cars and often saw those vehicles
parked behind his building.

Then in February 1993 Chouchkov's car was stolen. On the
night of the theft Chouchkov received a phone call asking
him, "so have you change [sic] your mind? " While the police
soon found the vehicle and the person who had stolen it, the
thief was never prosecuted for the crime. Later that month
Chouchkov's father was hit by a car that swerved onto "the
walking part of the street" and then sped away. Although the
father's "left arm was injured and his face and head were trau-
matized," the police refused to pursue the matter. Another
phone call ensued:

      See what we can do. And why you don't want [sic]
      to change your decision.

Next month, in March 1993, the Chouchkov-Kondratieva
car was rear-ended while parked in a supermarket just after
they had walked away from it. Police arrived and identified
the driver responsible, but again no criminal charges were filed.9
And another call came that same evening:

      [Y]ou see how many unpleasant things are happen-
      ing to you. Have you changed your mind?
9 It is apparently customary in Russia to file criminal charges in such


Chouchkov believes that all three just-described incidents
--the car theft, his father's accident and the car accident--
were tactics of intimidation related to the Iran deal.10 Again it
should be recalled that the IJ credited Chouchkov's testimony.
And as for the BIA's position, its opinion did not question
that the events Chouchkov described took place, but rather
whether Chouchkov's testimony implicated the government.

Around the same time, Chouchkov's supervisor again tried
to convince him to change his mind, but Chouchkov said his
feelings were unchanged. Later Chouchkov was approached
by two people, claiming to be from the KGB, who showed
him their identification and told him to come with them and
sit in their car, ostensibly to "take you to an organization that
will talk to you" about the Iran deal. When Chouchkov
refused the men attempted to use force, but Chouchkov
escaped by spraying them with CS5000 gas.

Although Chouchkov then moved to another apartment
because he feared for his safety, he then noticed the same two
cars following him wherever he went. One night he received
a call telling him to leave the apartment because his mailbox
was on fire. Because he found the call suspicious (and indeed,
it turned out there was no such fire), he stayed inside--and he
observed nearby one of the cars that had been following him.
Chouchkov thus felt that he had "escaped another accident or

Chouchkov and Kondratieva left Russia in late April 1993
and went to Germany on a tourist visa. Even there they
received another phone call:
10 According to Chouchkov:

      [T]he authorities took no action. . . . There were no cases against
      those people who committed [those crimes]. As far as I under-
      stand, this was organized and that was done in order to influence


      You can't run away. You have to come with us to
      Iran and make a deal.

Chouchkov and Kondratieva then fled Germany and stayed in
Argentina for approximately two years. In Argentina Chouch-
kov learned of the "strange death" of his supervisor from
Atom Kor. At some point unclear from the record, he learned
that two other persons who were involved in the Iran deal had
also died.11 Then in the fall of 1994 he received a threatening
fax at work and a threatening phone call at home. 12

Chouchkov and Kondratieva came to the United States
about March 23, 1995. Seven months later, in October 1995,
Chouchkov's mother-in-law was attacked in Russia by men
demanding to know about her "Jewish relatives " and demand-
ing Chouchkov's address. She was hospitalized for several
weeks as the result of a concussion sustained from being hit
on the head.

After staying in this country longer than permitted,
Chouchkov and Kondratieva conceded deportability but
applied for asylum and withholding of deportation. On Janu-
ary 23, 1997 the IJ's oral decision denied their applications
for withholding of deportation and asylum. Next Chouchkov
and Kondratieva filed a timely administrative appeal, which
was denied by the BIA on May 26, 1998. This timely petition

Persecution on Account of Chouchkov's Political Opinion

Chouchkov first lays claim to refugee status based on past
11 Nothing in the record sheds light on the circumstances surrounding
those three deaths.
12 Chouchkov testified that both the fax and phone call said that he could
not run away and that he would be found wherever he went.


persecution by reason of his actual or imputed political
beliefs. On that score the BIA said:13 

      [T]he respondents did not meet their burden of prov-
      ing that either the government of Russia or those the
      government was unwilling or unable to control
      sought to persecute them on account of the lead
      respondent's [Chouchkov's] actual or imputed politi-
      cal opinion.

Specifically the BIA noted evidence that was said to cast
doubt on any involvement by the Russian government: the
police assisted Chouchkov after both incidents with his car;
the harassing callers never identified themselves; Chouchkov
was not arrested for repelling government agents with gas;
and the identities of the persons assaulting Chouchkov's
mother-in-law were not known.14

But the BIA's decision was not supported by substantial
13 It appears from the BIA's opinion that it conducted a de novo review
of the record. That being the case, we review the BIA's decision rather
than that of the IJ (see Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir.
14 Chouchkov's credibility was also called into question by the BIA,
without explicitly overturning the IJ's credibility finding, by highlighting
two inconsistencies between Chouchkov's testimony and his written state-
ments. But the BIA was in error in thus casting doubt on the IJ's credibil-
ity determination, because the record discloses that Chouchkov was not
afforded an opportunity to explain the perceived inconsistencies (see
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999), requiring the
BIA to provide a reasonable opportunity to explain inconsistencies that
form the basis of a denial of asylum when credibility had not earlier been
at issue). If on remand the BIA were to persist in its expression of doubt,
it must conform to the directive in Campos-Sanchez, id. at 450-51 & n.1.
And relatedly, we must repeat once more the message delivered earlier
this year in Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir. 2000):

      Once again, we strongly encourage the BIA to discuss or
      expressly adopt, rather than ignore, the IJ's credibility findings in
      an asylum case.


evidence. Before we discuss the primary basis for that ruling,
we note that the BIA made several empirical assumptions that
lack evidentiary support.15 For example, the BIA found it
peculiar, if what was at work was a plot targeting Chouchkov,
that the police captured both the person who stole his car and
the person who later rammed it. But that presupposes (without
evidence) that Russian officialdom are all on the same page
and operate with seamless efficiency. It also assumes (against
all likelihood) that information regarding a secret deal with
Iran would be spread to the police in Moscow. Further, even
if it were to be assumed that the police and the KGB were
operating in tandem, the BIA's statement that it was odd that
Chouchkov "never reported the [threatening ] calls to the
police" loses its logical force because Chouchkov certainly
believed the KGB was behind those events. In their totality
the BIA's assumptions amount to little more than conjecture,
which "is not a substitute for substantial evidence" (Lopez-
Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996)).

But all this is only a preface to three points that compel the
conclusion that the several incidents amounted to
government-sponsored persecution. We turn next to those

[3] First, all of the incidents before Chouchkov left Russia
occurred in a span of 2-1/2 months. While one such incident
that essentially coincided with Chouchkov's opposition to the
15 It must be stressed that what sounds peculiar in one country may be
the norm in another. Consequently, non-evidence-based assumptions
about conduct in the context of other cultures must be closely scrutinized.
See, e.g., Perez-Alvarez v. INS, 857 F.2d 23, 24 (1st Cir. 1988), incorpo-
rating by reference and adopting a dissenting BIA member's opinion that
said in part:

      As a general rule, in considering claims of persecution I think it
      is highly advisable to avoid assumptions regarding the way other
      societies operate. Time and again this Board has considered
      appeals in which assumptions of this nature have been proven to
      be totally wrong. . . .


Iran deal might perhaps be discounted as mere coincidence,
surely all of them cannot. It is like multiplying fractions: If for
example a 50-50 chance exists that a single incident is purely
accidental, those odds become exponentially greater with the
occurrence of each ensuing incident. And when the other
more than-suspicious surrounding circumstances reviewed
hereafter are factored into the calculation, making the likeli-
hood of sheer chance of each incident a long shot, the odds
resulting from multiplying those much smaller fractions tend
to become extraordinarily high.

[4] Second, and closely related, are the numerous other
undisputed incidents in the record that cannot be labeled as
mere chance misfortune: Chouchkov continuously received
threatening phone calls regarding the Iran deal--many
strongly implying that the "accidents" were not at all acciden-
tal; he was routinely followed by unknown persons; he was
approached about the Iran deal by two persons claiming to be
KGB agents; and his mother-in-law was attacked in her home
after Chouchkov had fled Russia. When those events are also
built into the calculation, there are astronomically high odds
against the entire series of incidents having been aleatory in
nature. It is truly extraordinary for the BIA to have ascribed
no significance to those later events, which were part of
Chouchkov's undisputed testimony that the IJ found entirely
credible. To the BIA those other incidents were viewed as
simply part of a work-related dispute, lacking the requisite
nexus with the Russian government.

[5] That leads into the final point: that the record compels
the conclusion that Atom Kor is an arm of the Russian gov-
ernment. It is undisputed (1) that Atom Kor is two-thirds gov-
ernment funded, (2) that Atom Kor's parent company is
completely government funded, (3) that Chouchkov had to be
and was investigated by the KGB in order to obtain his job
with Atom Kor, (4) that the KGB supervised the proposed
Iran deal and all deals involving nuclear power and (5) that
the deal with Iran had the attention of the highest levels of the


Russian government. After all, Atom Kor was not selling
agricultural products to Canada--it was distributing nuclear
technology to Iran. It is scarcely a surprise that, as Chouchkov
attested, the agreement with the Iranians "was approved on
the governmental level between the governments of Russia
and Iran."16 Those factors were not even discussed by the
BIA, which appears to have assumed that Atom Kor was a
non-governmental entity.

[6] In sum, any reasonable finder of fact would have to
conclude that there was a concerted governmentally-linked (at
a minimum) effort to intimidate Chouchkov into cooperating
with the Iran deal.17 Substantial evidence does not support any
contrary determination by the BIA.

[7] It is equally evident that the intimidation was on
account of Chouchkov's political opinion or an imputed polit-
ical opinion. Here the opinion at issue is Chouchkov's belief
that the Russian government should not be selling nuclear
technology to Iran.18 Not only was that a known belief on his
16 Chouchkov relatedly testified:
      Well, I don't think, I'm positive about it. Because all the deals,
      all the operations, all the work in the field of nuclear power are
      conducted under the supervision of intelligent [sic] service. I
      know this very well just from my previous position when they
      [sic] worked for the Ministry of Power. Well, the more so if the
      deal is of international character.
17 We do not exclude the possibility that any of the described incidents
was merely a random accident. But when the record is viewed in its total-
ity, it is obvious that Chouchkov was a target of intimidation. In that
respect, Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999)(en banc) teaches
that Chouchkov need only have presented "evidence from which it is rea-
sonable to believe that the harm was motivated, at least in part, by an
actual or implied protected ground"--and he has surely done that and
18 As Chouchkov testified:
      My opinion is and my actions in my life were, well, I tried to do
      my best to prevent the filtration of Soviet technology in the
      nuclear area to other countries mostly harassed[sic] countries
      such as Iran and others.


part, but on the uncontroverted record it was the only explana-
tion for the harassment of Chouchkov and his family.

[8] Finally, we hold that the intimidation Chouchkov suf-
fered rises to the level of "persecution" under Section
1101(a)(42)(A) because it involved "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) (quotation marks and citation omitted).19 As the record
reflects, Chouchkov's father and mother-in-law were brutal-
ized and Chouchkov had every reason to fear for his own life.
Chouchkov has thus met the four-point test set forth in
Sangha, 103 F.3d at 1487 and, because he has thus demon-
strated past persecution, has raised a rebuttable presumption
of a well-founded fear of future persecution. And because that
persecution was "such that [Chouchkov's] life or freedom was
threatened" (8 C.F.R. S208.16(b)(2)), he has the benefit of the
further rebuttable presumption that he is entitled to withhold-
ing of deportation (Surita v. INS, 95 F.3d 814, 821 (9th Cir.


For the reasons we have stated, the BIA's determination
that Chouchkov was not previously persecuted on account of
his political opinion lacks the support of substantial evidence.
Any reasonable finder of fact would be compelled to conclude
that Chouchkov was the victim of persecution such that his
life or freedom was threatened on account of his political

Because that gives rise under 8 C.F.R. SS208.13(b)(1)(i)
and 208.16(b)(2) to rebuttable presumptions that the appli-
cant's fear of future persecution is well founded and that the
applicant will face threats to life or freedom if returned to his
19 For a discussion of the very fact-specific process for determining what
constitutes persecution, see Singh, 134 F.3d at 966-68.


country, the INS had the burden to show by a preponderance
of the evidence that conditions had changed to such an extent
as to negate those presumptions. In order to satisfy its burden,
the INS was required to introduce evidence that, on an indi-
vidualized basis, served to rebut the applicant's specific
grounds for his well-founded fear of future persecution (see
Osorio v. INS, 99 F.2d 928, 932-33 (9th cir. 1996). Individu-
alized assessment is particularly important here, where the
evidence shows that Chouchkov continued to be pursued by
harassment and threats (and worse) by reason of his opposi-
tion to the nuclear transaction with Iran long after it might
have been expected to make a difference in practical terms--
after all, it would have seemed easy to replace Chouchkov
with a more complaisant signatory who could have signed off
on the deal, and then just to write Chouchkov off as a tempo-
rary inconvenience. Instead the uncontroverted course of con-
duct shown in the record is consistent only with a pattern of
attempted vengeance and retribution for the very fact of
Chouchkov's being a political dissident.20 

We have previously held that remand is not necessary when
it is apparent from the record that was before the BIA that
country conditions have not changed (see Duarte de Guinac
v. INS, 179 F.3d 1156, 1164 (9th Cir. 1999)). Although that
cannot be said with certainty in this instance, we expect the
INS, when reviewing that record on remand, to take heed of
the substantially heavier burden that it bears to show that
Chouchkov would be truly free of a well-founded fear that his
past persecution would resume and that he would not face
threats to his life or freedom if returned to Russia.
20 In that respect, we recognize that several years have passed since the
last incident adduced by Chouchkov. But there is, we trust, good reason
to regard the United States as a safer haven than others against such tac-
tics, thus discouraging further attempts at retribution while Chouchkov
and Kondratieva have been in this country. Even so, we note that the phys-
ical attack on Kondratieva's mother, attempting to learn petitioners'
whereabouts, occurred after they had moved here.


One final note. Chouchkov has asked that we hold his case
in abeyance pending the BIA's decision on his Motion To
Reopen to enable him to apply for relief based on the United
Nations Convention Against Torture. But if the BIA were to
rule adversely to him after the present remand, he will have
the right to petition this court again--and he could then
request a stay if his Torture Convention motion were to be in
danger of being mooted by his deportation. We therefore deny
his current request for a stay.

We therefore remand for a determination, consistent with
this opinion, whether the presumptions in Chouchkov's favor
have been effectively rebutted by the evidence in the record.
Any further appeal in this action will return to this panel.