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tortappealtestimonyasylum
tortappealtestimonyasylum

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Rusak v. Holder

Facts

Natallia Rusak, a twenty-eight year old native and citizen of Belarus currently residing in California, petitions for review of an order of the Board of Immigration Appeals ('BIA') affirming an Immigration Judge's ('IJ') determination that she is not entitled to asylum, withholding of removal, or relief under the Convention Against Torture. Ms. Rusak has been deaf since infancy, a condition that she claims subjected her to persecution in Belarus due to widespread hostility to persons with disabilities. Ms. Rusak's family also belongs to the Seventh Day Adventist Church, a religion disfavored in Belarus. According to the testimony of Ms. Rusak and her mother, Ms. Rusak's mother was arrested, beaten, and raped by the police on account of her church membership. She also lost her job as a schoolteacher as a consequence of her religious affiliation. Ms. Rusak's father was severely beaten by the police and died of a heart attack related to the assault. At the time of these events, Ms. Rusak was approximately eleven years old.

Natallia Rusak, a twenty-eight year old native and citizen of Belarus currently residing in California, petitions for review of an order of the Board of Immigration Appeals ('BIA') affirming an Immigration Judge's ('IJ') determination that she is not entitled to asylum, withholding of removal, or relief under the Convention Against Torture. Ms. Rusak has been deaf since infancy, a condition that she claims subjected her to persecution in Belarus due to widespread hostility to persons with disabilities. Ms. Rusak's family also belongs to the Seventh Day Adventist Church, a religion disfavored in Belarus. According to the testimony of Ms. Rusak and her mother, Ms. Rusak's mother was arrested, beaten, and raped by the police on account of her church membership. She also lost her job as a schoolteacher as a consequence of her religious affiliation. Ms. Rusak's father was severely beaten by the police and died of a heart attack related to the assault. At the time of these events, Ms. Rusak was approximately eleven years old.

Issue

Whether the BIA erred in its assessment of past persecution and the presumption of future persecution regarding Ms. Rusak's asylum claim.

Whether the BIA erred in its assessment of past persecution and the presumption of future persecution regarding Ms. Rusak's asylum claim.

Rule

An asylum applicant bears the burden of proving that she has a well-founded fear of future persecution based on one of the enumerated grounds. A showing of past persecution shifts the burden to the government to prove, by a preponderance of the evidence, that conditions in the applicant's country have changed such that the applicant 'no longer has a well-founded fear that he would be persecuted if he were to return.'

An asylum applicant bears the burden of proving that she has a well-founded fear of future persecution based on one of the enumerated grounds. A showing of past persecution shifts the burden to the government to prove, by a preponderance of the evidence, that conditions in the applicant's country have changed such that the applicant 'no longer has a well-founded fear that he would be persecuted if he were to return.'

Analysis

The court found that Ms. Rusak established a claim of past persecution based on the abuses endured by her parents while she was a child. The BIA's failure to consider the harm her family suffered was deemed an error, as the injuries to her family were directly relevant to her claim. The court noted that the government did not successfully prove that conditions in Belarus had changed sufficiently to eliminate her well-founded fear of persecution.

The court found that Ms. Rusak established a claim of past persecution based on the abuses endured by her parents while she was a child. The BIA's failure to consider the harm her family suffered was deemed an error, as the injuries to her family were directly relevant to her claim. The court noted that the government did not successfully prove that conditions in Belarus had changed sufficiently to eliminate her well-founded fear of persecution.

Conclusion

The court granted the petition for review, concluding that Ms. Rusak was entitled to asylum based on her established past persecution and the government's failure to rebut the presumption of future persecution.

The court granted the petition for review, concluding that Ms. Rusak was entitled to asylum based on her established past persecution and the government's failure to rebut the presumption of future persecution.

Who won?

Natallia Rusak prevailed in the case because she successfully established past persecution based on her family's experiences and the government failed to rebut her well-founded fear of future persecution.

Natallia Rusak prevailed in the case because she successfully established past persecution based on her family's experiences and the government failed to rebut her well-founded fear of future persecution.

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