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Keywords

discriminationharassmentasylum
tortdiscriminationharassmentasylumvisa

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Krotova v. Gonzales

Facts

Petitioners entered the United States in 1994 and first applied for asylum in 1998. The lead Petitioner, a 54-year-old woman from Russia, testified about a history of economic discrimination and violence due to her Jewish identity. She experienced multiple violent assaults, including one at a synagogue, and her family faced severe anti-Semitic threats and violence. The police failed to protect her or hold the attackers accountable, leading her to seek asylum in the U.S.

Petitioners entered the United States in 1994. They first applied for asylum and withholding of removal in 1998. In 2002, they were charged with removability for overstaying their visas. They conceded removability and requested asylum, withholding of removal, relief under the Convention Against Torture and, in the alternative, voluntary departure.

Issue

Did the BIA err in concluding that the harassment and violence experienced by the lead Petitioner did not rise to the level of persecution?

Did the BIA err in concluding that the harassment and violence experienced by the lead Petitioner did not rise to the level of persecution?

Rule

Persecution is defined as the infliction of suffering or harm upon those who differ in race, religion, or political opinion, and the cumulative effect of several incidents may constitute persecution.

Persecution is 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998) (internal quotation marks omitted). It is 'an extreme concept that does not include every sort of treatment our society regards as offensive.' Id. at 1044 (internal quotation marks omitted). Even when a single incident does not rise to the level of persecution, 'the cumulative effect of several incidents may constitute persecution.' Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996); see also Korablina, 158 F.3d at 1044 ('The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment she received rises to the level of persecution.')

Analysis

The court found that the BIA's characterization of the lead Petitioner's experiences as mere discrimination was inaccurate. The evidence showed a pattern of anti-Semitic violence and harassment that included physical assaults and threats, which collectively compelled a finding of past persecution. The court emphasized the cumulative effect of the Petitioner's experiences, including economic disadvantages and the inability to practice her religion freely.

In concluding that the lead Petitioner had suffered only discrimination, the BIA summed up her experience as 'including episodes of verbal insults and slurs [and] an attempted attack consisting of a slap in the face.' That description inaccurately minimizes Petitioner's experience. Against a background of anti-Semitic harassment and economic and social discrimination against her, and in Russia generally, Petitioner experienced three violent assaults (one occurring at a synagogue and one involving her 9-year-old daughter), the murder of a close family friend, and the severe beating of her brother–all perpetrated by anti-Semitic groups. Those experiences are not consistent with mere discrimination but, instead, compel a finding of past persecution.

Conclusion

The petition for review was granted because the record compelled a finding that the mother suffered past persecution, entitling her to a presumption of a well-founded fear of future persecution.

The petition for review was granted because the record compelled a finding that the mother suffered past persecution, entitling her to a presumption of a well-founded fear of future persecution.

Who won?

The Petitioners prevailed in the case because the court found that the BIA's decision was not supported by substantial evidence and that the lead Petitioner had indeed suffered past persecution.

The Petitioners prevailed in the case because the court found that the BIA's decision was not supported by substantial evidence and that the lead Petitioner had indeed suffered past persecution.

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