Stserba v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0138p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LILIA STSERBA; IGOR ANATOLIEVICH PABO;

Petitioners, --

ANTON STSERBA,

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No. 09-4312

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v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review from the Board of Immigration Appeals.

Nos. A098 152 318; A098 152 319; A098 0152 320.

Decided and Filed: May 20, 2011

Before: MOORE and WHITE, Circuit Judges; VARLAN, District Judge.*

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COUNSEL

ON BRIEF: Anna Markovich, LAW OFFICE OF ANNA MARKOVICH, LLC,

Cleveland, Ohio, for Petitioners. Stefanie A. Svoren, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Lilia Stserba and her son, Anton,

are Estonian citizens who are ethnically Russian. Stserba’s husband, Igor Anatolievich

Pabo, is a Russian citizen. All three petitioners came to the United States legally and

sought asylum and withholding of removal. They alleged past persecution on account

of their Russian ethnicity and fear of future persecution. The alleged persecution centers

*

The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

1

No. 09-4312 Stserba et al. v. Holder Page 2

around four issues: (1) revocation of Stserba’s Estonian citizenship after Estonia

regained independence from the USSR; (2) Estonia’s invalidation of Russian medical

degrees and attendant job limitations for Stserba; (3) delayed diagnosis of Anton’s

medical condition and inferior health care that he received on account of his ethnicity;

and (4) and maltreatment of Stserba’s older son, Artjom, who resides in Estonia.

The immigration judge (“IJ”) found the petitioners credible but deemed their

allegations insufficient to justify asylum or withholding of removal. The Board of

Immigration Appeals (“BIA”) affirmed. Stserba and the derivative petitioners1 claim

that insubstantial evidence supports the BIA’s decision and that the BIA failed to

consider Artjom’s harassment. We conclude that the BIA did not consider whether

revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked

substantial evidence to support its conclusion that Stserba’s job limitations were neither

persecution nor on account of ethnicity. We GRANT the petition for review and

VACATE the BIA’s order. We REMAND the case for the BIA to consider:

(1) whether ethnically motivated citizenship revocation that results in statelessness is

persecution, and whether Stserba was persecuted on this basis; (2) whether the

petitioners are entitled to a discretionary grant of asylum given our conclusion that

Stserba endured past persecution when Estonia refused to recognize her medical degree;

and (3) whether the petitioners are entitled to withholding of removal.

I. BACKGROUND

In 1991, Estonia regained independence from the Soviet Union. With anti-Soviet

sentiments running high, Estonia denationalized residents unless they or their ancestors

were Estonian citizens prior to 1940. Stserba and Artjom, both ethnic Russians born in

Estonia, were denationalized and became stateless. They regained citizenship in 1993

“by complete chance” in exchange for Stserba’s vote in an election. A.R. 316 (Stserba

Aff. ¶ 8). Anton, who had been born in 1992, also became a citizen at that time.

1

See 8 U.S.C. § 1158(b)(3) (“A spouse or child . . . of an alien who is granted asylum . . . may

. . . be granted the same status as the alien if accompanying, or following to join, such alien.”). We

therefore focus our attention on Stserba’s petition.

No. 09-4312 Stserba et al. v. Holder Page 3

Tensions with Russia persisted and, in 1998, Estonia “unilaterally stop[ped] the

Estonian–Russian agreement regarding the mutual acceptance of the equivalency of

educational and scientific degrees documents.” R. 456 (“Russian Diplomas Are Not

Valid In Estonia” article). Stserba had earned a medical degree from Leningrad

Pediatric School in St. Petersburg and had previously worked as a pediatrician at an

Estonian hospital. The new policy meant that, in Estonia, practicing “medicine was no

longer a career option” for Stserba. A.R. 317 (Stserba Aff. ¶ 15). In 1998 or 1999, she

obtained employment as a doctor at a private Russian-language school, where the

Russian hiring official overlooked her officially invalid degree. In 2003, she left that job

to come to the United States.

Prompting Stserba’s move was Anton’s medical condition. Anton has

phenylketonuria (“PKU”), a genetic defect that prevents the patient from metabolizing

the amino acid phenylalanine. PKU can damage the brain and central nervous system.

Newborns in Estonia are tested for PKU.2 Either Anton was not tested or Stserba was

not notified that Anton tested positive, which Stserba attributes to ethnic discrimination.

Due to the delay in diagnosis until Anton was eight months old, Anton suffered

neurological damage. Treatment for PKU involves dietary formulas that limit

phenylalanine intake. After Anton’s diagnosis, Stserba obtained formulas for Anton for

no cost through a research group at the University of Tartu, although she discovered that

program through her own legwork and without referrals from Anton’s doctors. When

Anton was eight, the university began providing a different formula “[p]robably because

this new formula was cheaper.” A.R. 129 (2/21/08 Hr’g Tr., Stserba). For Anton,

however, the formula was less effective. His condition worsened and he displayed new

autistic symptoms. From then until Anton moved to the United States at age eleven,

Stserba paid for his formula. During this time, Anton was attending a school for

mentally disabled students. Stserba testified that Anton is mildly developmentally

delayed but is not mentally disabled, although a letter from a doctor in the United States

says that Anton has “mild mental retardation.” A.R. 478 (Dr. Swales Letter). Stserba

2

Anton’s doctor in the United States disagrees, but the IJ credited Stserba’s testimony on this

point due to her personal experience as a pediatrician in Estonia.

No. 09-4312 Stserba et al. v. Holder Page 4

believes that “only one reason” explains Anton’s school placement in Estonia: his

Russian ethnicity. A.R. 131 (2/21/08 Hr’g Tr., Stserba). All of the other 29 children in

the PKU research group were ethnically Estonian and attended regular schools. Estonia

does not have special-education programs that integrate special-needs children into

standard schools. Anton’s condition will require life-long treatment, but it has improved

during his time in the United States, where he attends special-education classes at a

public school.

Stserba and Anton entered the United States on July 28, 2003 as nonimmigrant

visitors authorized to stay for eleven months. Pabo had entered the United States seven

months earlier. They lived in Cleveland, Ohio. Stserba applied for asylum before her

authorization expired, but her application was denied. Stserba, Pabo, and Anton were

charged as removable under 8 U.S.C. § 1227(a)(1)(B) for overstaying their valid entry

authorization. All three petitioners conceded removability but requested asylum and

withholding of removal.3

At their hearing before the IJ, Stserba testified about her citizenship revocation

and restoration, her employment troubles, and Anton’s medical condition. She also

testified about assorted acts of discrimination and harassment. For example, in 1993, an

Estonian woman poured water on Stserba’s head while Stserba was having her hair cut

and said “you Russian [are] supposed to get out of here.” A.R. 126–27 (2/21/08 Hr’g

Tr., Stserba). In 1996, an Estonian sicced his dog on Artjom, causing an injury that

required sixteen stitches, and rumor had it that the motivation was Artjom’s Russian

ethnicity. Stserba’s apartment was burglarized in 1999. Artjom has faced more

harassment since the rest of his family came to the United States: his car was set on fire,

someone called him a “Russian Pig” while beating him and stabbing his hand with a

knife, A.R. 560 (Egorova letter), and police struck him with a stick during the 2007 riots

at the relocation of the Bronze Soldier of Tallinn, a Soviet-era statue of a Russian World

War II soldier.

3

Initially, the petitioners also sought voluntary departure and protection under the Convention

Against Torture Treaty. They abandoned these forms of relief when their case was before the BIA.

No. 09-4312 Stserba et al. v. Holder Page 5

Should they return to Estonia, Stserba fears that Anton’s life will be in danger

because she will not be able to buy the formula that Anton needs. Estonia, she says,

provides health care to citizens, but not to those who are ethnically Russian. Stserba

suspects that her employment opportunities in Estonia will be limited to babysitting and

cleaning. Pabo fears that his family will be beaten or killed in Estonia. Pabo has also

had trouble obtaining Estonian resident status and has been mistakenly detained by

police.

Although the IJ found each petitioner’s testimony to be credible, he determined

that their testimony did not demonstrate past persecution. The IJ noted that Stserba

regained citizenship quickly and did not suffer “any adverse consequences” from the

years that she spent stateless. A.R. 69 (IJ Op.). As for Stserba’s job prospects, the IJ

found that voiding diplomas from Russian universities affected Estonian citizens of all

ethnic backgrounds. The IJ also noted that Stserba can still obtain work as a babysitter

or as a pediatrician at a private Russian school. Finally, the IJ agreed that Anton “is

more likely to get the best medical treatment for his condition in the United States,” and

the State of Ohio has provided his dietary supplements free of charge, whereas the

treatment was expensive in Estonia. Id. at 77. Nevertheless, Anton’s past treatment

evidences that treatment options exist in Estonia, and “the fact that a higher quality of

medical care is available in the United States is not a basis for asylum.” Id. The IJ also

determined that mistake—not the family’s persecution—could account for the hospital’s

failure to provide PKU test results at birth, and that the decision not to integrate

developmentally delayed students into regular schools is also not a result of ethnic

persecution. Therefore, the IJ ordered that Stserba and Anton be removed to Estonia and

Pabo to Russia.

The BIA affirmed, adding that, although the IJ did not expressly mention the

events involving Artjom, “they do not, either individually or cumulatively with the other

No. 09-4312 Stserba et al. v. Holder Page 6

evidence of record, warrant a remand for further consideration.” A.R. 4 (BIA Op.).4 A

panel of this court denied Stserba’s motion to stay removal.

II. DISCUSSION

A. Standard of Review

We review de novo the BIA’s resolution of “[q]uestions of law and constitutional

questions.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009). At the same time, “[w]e

generally accord Chevron deference to the BIA’s decisions construing ambiguous

statutory terms in the [Immigration and Nationality Act (“INA”)], and we must uphold

the BIA’s construction unless it is ‘arbitrary, capricious, or manifestly contrary to the

statute.’” Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir. 2010) (quoting Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).

When the BIA denies asylum or withholding of deportation, we review its

findings of fact to determine whether substantial evidence supported the decision.

Daneshvar v. Ashcroft, 355 F.3d 615, 624 (6th Cir. 2004). “We . . . may reverse only

if the decision was ‘manifestly contrary to law,’ 8 U.S.C. § 1252(b)(4)(C), that is, if the

evidence not only supports a contrary conclusion, but indeed compels it.” Haider v.

Holder, 595 F.3d 276, 281 (6th Cir. 2010) (internal quotation marks omitted). Because

the IJ found all three petitioners credible, “we must accept the representations [that the

petitioners] made in the application and their testimony as true.” Gilaj v. Gonzales, 408

F.3d 275, 285–86 (6th Cir. 2005).

B. Asylum

To obtain asylum, the petitioner must be a refugee, which means that the

petitioner must be unwilling to return to his or her home country “because of persecution

or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

4

The BIA also concluded that Stserba did not establish that her family would be separated, and

stated that, in any event, family separation would not provide a basis for asylum. Stserba has not raised

that issue on appeal.

No. 09-4312 Stserba et al. v. Holder Page 7

§ 1101(a)(42)(A). Moreover, the petitioner “bears the burden of establishing” that his

or her application “merits a favorable exercise of discretion by the Attorney General.”

Cruz-Samayoa v. Holder, 607 F.3d 1145, 1150 (6th Cir. 2010) (internal quotation marks

omitted).

If the petitioner demonstrates past persecution, then we presume, subject to

rebuttal, that he or she has a well-founded fear of future persecution. 8 C.F.R.

§ 208.13(b)(1). “A well-founded fear must be both subjectively genuine and objectively

reasonable.” Daneshvar, 355 F.3d at 623. “[O]ne can certainly have a well-founded

fear of an event happening when there is less than a 50% chance of the occurrence taking

place.” Id. at 624 (internal quotation marks omitted).

Neither the INA nor the BIA has defined the term “persecution,” Japarkulova v.

Holder, 615 F.3d 696, 699 (6th Cir. 2010), and the term is ambiguous, Mirzoyan v.

Gonzales, 457 F.3d 217, 220–21 (2d Cir. 2006); Chen v. Ashcroft, 381 F.3d 221, 222 (3d

Cir. 2004) (Alito, J.); Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc). It is

well established, however, that physical harm is not an essential feature of persecution.

Haider, 595 F.3d at 286. Nonphysical persecution can take various forms, including

“‘the deliberate imposition of severe economic disadvantage or the deprivation of

liberty, food, housing, employment[,] or other essentials of life.’” In re T-Z-, 24 I. & N.

Dec. 163, 171 (B.I.A. 2007) (quoting H.R. Rep. No. 95-1452). Persecution requires

“more than a few isolated incidents of verbal harassment or intimidation, unaccompanied

by any physical punishment, infliction of harm, or significant deprivation of liberty.”

Ouda v. INS, 324 F.3d 445, 452 (6th Cir. 2003) (internal quotation marks omitted).

“Typically, . . . the types of actions that might cross the line from harassment to

persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal

searches, confiscation of property, surveillance, beatings, or torture.” Haider, 595 F.3d

at 286–87 (internal quotation marks and alteration marks omitted). Although

persecution is an “extreme concept,” persecution does not require “a total deprivation

of livelihood or a total withdrawal of all economic opportunity.” In re T-Z-, 24 I. & N.

at 172–73. “The IJ (and this court) must evaluate [evidence of] past persecution . . . in

No. 09-4312 Stserba et al. v. Holder Page 8

the aggregate, as a collection of harmful events” because, “even though [the events] may

not qualify individually as persecution,” they may qualify as persecution when “taken

together.” Haider, 595 F.3d at 287 (internal quotation marks omitted).

Moreover, the “on account of” language in § 1101(a)(42)(A) requires a link

between the acts of persecution and the petitioner’s protected-group identity. Petitioners

must have been “specifically targeted by the government for abuse based on a statutorily

protected ground,” not merely victimized “by indiscriminate mistreatment” or “random

crime.” Gilaj, 408 F.3d at 285. However, in a case of mixed motives, the petitioner “is

eligible for asylum or the withholding of removal so long as one of th[e] factors

[motivating the persecution] is a protected ground under the INA.” Al-Ghorbani v.

Holder, 585 F.3d 980, 997 (6th Cir. 2009) (emphasis added).

1. Revocation of Citizenship

Although not every revocation of citizenship is persecution, ethnically targeted

denationalization of people who do not have dual citizenship may be persecution.

“The basic rule under international law is that it is within each state’s domestic

jurisdiction to decide who are its nationals.” Richard C. Visek, Creating the Ethnic

Electorate through Legal Restorationism: Citizenship Rights in Estonia, 38 Harv. Int’l

L. J. 315, 346 (1997). In recognition of each state’s sovereign right, denying citizenship

to a noncitizen applicant is not necessarily persecution. There is, however, a

“fundamental distinction between denying someone citizenship and divesting someone

of citizenship.” Haile v. Holder (Haile I), 421 F.3d 493, 496 (7th Cir. 2005); see also

United States v. Mandycz, 447 F.3d 951, 956–57 (6th Cir.) (recognizing that, although

“naturalization [is] a privilege to be given or withheld on such conditions as Congress

sees fit,” the government “faces a rigorous burden of proof” in denaturalization

proceedings (emphasis added)), cert. denied, 549 U.S. 956 (2006). Even divestiture of

citizenship is not persecution when, “as a result of altered boundaries, a person finds

himself a citizen of a different country. For example, when Czechoslovakia divided into

two countries, the Czech Republic and Slovakia, each former citizen of Czechoslovakia

was told to choose between becoming a citizen of the Czech Republic or of Slovakia.”

No. 09-4312 Stserba et al. v. Holder Page 9

Haile v. Holder (Haile II), 591 F.3d 572, 573–74 (7th Cir. 2010) (Posner, J.). The

“affected individuals” did not “become stateless; they simply became citizens of a

new[ly created] state.” Id. at 573. Because the choice that citizens of former

Czechoslovakia faced was a necessary consequence of Czechoslovakia ceasing to exist,

posing that choice did not persecute any group. See Timothy William Waters, The

Blessing of Departure: Acceptable and Unacceptable State Support for Demographic

Transformation: The Lieberman Plan to Exchange Populated Territories in Cisjordan,

2 Law & Ethics Hum. Rts. 9, 26 (2008) (asserting that “it is generally legitimate to

redefine—revoke—citizenship when states change their frontiers. The affected

individuals cannot be left stateless, but so long as they are assigned to a new sovereign,

then there is evidently no objection in principle” (footnote omitted)).

Practical consequences of denationalization vary. Sometimes denationalized

citizens face immediate turmoil, such as when Ethiopia “rounded up and expelled”

ethnic Eritreans whom Ethiopia denationalized during a war with Eritrea, Haile II, 591

F.3d at 573, or when Nazi Germany enacted the Nuremberg Laws, which denationalized

Jewish citizens as part of the Holocaust, id. at 574. In contrast, ethnic Russians in the

early 1990s could remain in Estonia and even become naturalized citizens of Estonia if

they demonstrated “high level” knowledge of the Estonian language. A.R. 400 (Aksel

Kirch, Russians in Contemporary Estonia – Different Strategies of the Integration in to

the Nation-State, (Oct. 15, 2000), available at www.ies.ee/15102000.htm) (“During the

years 1992–2000[,] Estonian citizenship [was] given through naturalisation to about 125

thousand people and about one half (65 thousand) of them [were] Russians.”). The

country also provided noncitizen residents with documents for “foreign travel,

emigration, [and] repatriation.” A.R. 385 (Estonia: Country Reports on Human Rights

Practices – 2003). During that same time, however, Estonia extended some rights and

privileges only to citizens: the rights to vote in nationwide elections and to join political

parties, id. at 386,5 protection for members of minority groups, id. at 388, and the right

to purchase land, A.R. 372 (Open Society Institute Report, Minority Protection in

5

In local elections, noncitizens may vote but not run for office.

No. 09-4312 Stserba et al. v. Holder Page 10

Estonia (2001)). See also Lowell W. Barrington, The Making of Citizenship Policy in

the Baltic States, 13 Geo. Immigr. L. J. 159, 162 (1999) (documenting differences

between the rights of Estonian citizens and noncitizens, including “protect[ion] from

deportation and extradition,” assurance of “the opportunity to resettle in the country”

after leaving temporarily, and the ability to “hold[] national or local political office”).

Regardless of the practical ramifications that befall a denationalized person, the

inherent qualities of denationalization are troubling when a country denationalizes a

person who is not a dual national, thereby making him or her stateless. Statelessness is

“a condition deplored in the international community of democracies.” Trop v. Dulles,

356 U.S. 86, 102 (1958) (plurality op.); see also Kennedy v. Mendoza-Martinez, 372

U.S. 144, 161 n.16 (1963) (“The drastic consequences of statelessness have led to

reaffirmation in the United Nations Universal Declaration of Human Rights, Article 15,

of the right of every individual to retain a nationality.”). The essence of

denationalization is “the total destruction of the individual’s status in organized society”

because, “[i]n short, the expatriate has lost the right to have rights.” Trop, 356 U.S. at

101–02. “While any one country may accord [a denationalized person] some rights, . . .

no country need do so because he is stateless.” Id. at 101. “The calamity is ‘not the loss

of specific rights, then, but the loss of a community willing and able to guarantee any

rights whatsoever.’” Mendoza-Martinez, 372 U.S. at 161 (quoting Hannah Arendt, The

Origins of Totalitarianism 294 (1951)) (internal alteration marks removed). The United

States Supreme Court has described denationalization as “a form of punishment more

primitive than torture.” Trop, 356 U.S. at 101. Accordingly, because denationalization

that results in statelessness is an extreme sanction, denationalization may be per se

persecution when it occurs on account of a protected status such as ethnicity. Although

the status of “[s]tatelessness . . . does not entitle an applicant to asylum,” Maksimova v.

Holder, 361 F. App’x 690, 693 (6th Cir. 2010) (citing 8 U.S.C. 1101(a)(42)(A)), a

person who is made stateless due to his or her membership in a protected group may

have demonstrated persecution, even without proving that he or she has suffered

collateral damage from the act of denationalization. Haile II, 591 F.3d at 574

(remanding for the BIA to decide in the first instance whether denationalization that

No. 09-4312 Stserba et al. v. Holder Page 11

leaves the applicant stateless is persecution); Mengstu v. Holder, 560 F.3d 1055, 1059

(9th Cir. 2009) (same).

Neither the IJ nor the BIA considered whether Estonia’s citizenship law

amounted to ethnically targeted denationalization, but there is reason to suspect that it

did. By limiting citizenship to pre-1940 citizens and their descendants, Estonia

manipulated its citizenship rules to exclude ethnic Russians who immigrated during the

Soviet occupation. This limit even applied to residents such as Stserba who were born

in Estonia. Although Estonia’s policy of rolling back citizenship to 1940 did not

mention ethnicity, the citizenship policy contained “an irreducible ethnic element”

because it “base[d] citizenship for those who had become resident[s] during the Soviet

era on language ability or knowledge of history—stratagems that effectively

denationalized most Russians.” Waters, The Blessing of Departure, supra, at 31; A.R.

348 (Open Society Institute Report) (“‘[I]t was a desire to obtain or at least to

approximate ethnic purity, . . . not consideration of legal consistency, that led to such an

approach towards the citizenship question in Estonia.’” (quoting Rein Müllerson, former

Deputy Foreign Minister of Estonia) (ellipses in original)); A.R. 332 (Pabo Letter)

(“Basically, [the affected residents] were Russians and citizens of other republics of

former USSR.”); cf. Mengstu, 560 F.3d at 1059 (finding a nexus between a protected

ground and Ethiopia’s deportation and denationalization of Eritreans because Ethiopia

targeted Eritreans during an “ethnically tinged” civil war).

Stserba was a victim of Estonia’s policy. The IJ found that Stserba had “lost

[Estonian] citizenship” after Estonia regained independence. A.R. 68 (IJ Op.); see also

Reply Br. at 5 (“She was a citizen of Estonia when it was one of the Soviet Union

republics.”). In other words, Stserba did not switch citizenship due to the dissolution of

her country of prior citizenship or as an incident of changed boundaries. Rather, she was

an Estonian citizen6 who was stripped of citizenship and became stateless7 for several

6

Although the administrative record is thin on this point, the IJ’s statement adopting Stserba’s

description of how citizenship functioned in the Estonian Soviet Socialist Republic (“SSR”) seems to have

some basis in fact. Estonian SSR residents “had been Soviet citizens” during the occupation, but “[t]he

citizenship of the Republic of Estonia never ceased to exist.” Citizenship - Estonia.eu,

http://estonia.eu/about-estonia/society/citizenship.html (Feb. 2, 2011). “During the years of occupation,

No. 09-4312 Stserba et al. v. Holder Page 12

years on account of her ethnicity. A.R. 119 (2/21/08 Hr’g Tr., Stserba) (“People like me,

Russians, we didn’t have any citizenship.”). Even though the IJ did not believe that

Stserba had shown “any adverse consequences which arose or which affected her as a

consequence of her two year[s] or less of lost citizenship,” A.R. 69 (IJ Op.), Stserba may

have suffered past persecution simply because she became stateless due to her ethnicity.8

After a petitioner demonstrates past persecution, the government may rebut the

presumption that the petitioner fears future persecution by showing a change in

circumstance. The “fundamental change in circumstance” language in 8 C.F.R.

§ 208.13(b)(1)(i)(A) encompasses “a fundamental change in personal circumstances.”

65 Fed. Reg. 76,121, 76,127 (Dec. 6, 2000). Reinstatement of her citizenship may be

a change in Stserba’s circumstances that rebuts the presumption that she fears future

persecution. The IJ, however, did not consider changed circumstances as a basis for

denying asylum because the IJ did not find that Stserba had endured past persecution.

Although the IJ mentioned that “clearly, [Stserba] was able to regain her citizenship

within a relatively short time,” A.R. 69 (IJ Op.), the IJ was describing the limited

ramifications of losing citizenship, not whether regaining citizenship rebutted a

presumption that Stserba fears future persecution. In fact, the IJ described this case as

“very sympathetic” and “a case in which the Court would prefer to be able to grant

asylum.” Id. at 77.

the Estonian diplomatic service in exile issued Estonian passports, which were recognised as travel

documents by many countries of the world, eventually even by the Russian Federation.” Id. In particular,

the United States “refused de jure recognition of the Soviet annexation of the Baltic States.” Visek,

Creating the Ethnic Electorate through Legal Restorationism, supra, at 326 (describing actions that the

United States took, including “fr[ee]z[ing] assets belonging to the Baltic States in order to protect such

assets from Soviet seizure; allow[ing] the diplomatic representatives of the deposed Baltic governments

to continue to represent the interests of their respective countries; and repeatedly denounc[ing] the Soviet

annexation as illegal”).

7

To avoid being stateless, Stserba could have “register[ed]” herself as a Russian citizen,

Citizenship - Estonia.eu, supra note 6, but she “was born in [Estonia],” “was living in Estonia,” and did

not “know where to go in Russia,” A.R. 145 (2/21/08 Hr’g Tr., Stserba).

8

Because Stserba did indeed become stateless upon her denationalization, we have no need to

consider or determine at this time whether denationalization that does not result in statelessness can

constitute persecution.

No. 09-4312 Stserba et al. v. Holder Page 13

When the BIA has “failed to consider a legal issue central to resolution of the

petitioner’s claims, the appropriate remedy is remand to the agency for further

consideration.” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007) (internal

quotation marks omitted). We therefore REMAND the case to the BIA to determine

(1) whether ethnically motivated revocation of citizenship that leaves a petitioner

stateless qualifies as “persecution” within the meaning of 8 U.S.C. § 1101(a)(42)(A).

If the answer to that legal question is yes, then the BIA must determine, as a factual

matter, (2) whether Estonia denationalized Stserba on account of her ethnicity, and if so,

(3) whether reinstatement of Stserba’s citizenship is a changed circumstance that rebuts

the presumption that Stserba fears future persecution. On this last point, we note that

“[n]othing in the regulation suggests that the future threats to life or freedom must come

in the same form or be the same act as the past persecution.” Bah v. Mukasey, 529 F.3d

99, 115 (2d Cir. 2008). The government cannot rebut the presumption that the petitioner

fears future persecution “solely by showing that the particular act of persecution suffered

by the victim in the past will not recur.” Id. Thus, Stserba may have a well-founded fear

of persecution due to Russian ethnicity that is premised partly on her prior loss of

citizenship, even if she does not have a well-founded fear of again losing citizenship.

2. Stserba’s Job Opportunities

The record compels the conclusion that invalidation of Stserba’s medical degree

was persecution on account of her ethnicity.

a. Persecution

“Economic deprivation constitutes persecution only when the resulting

conditions are sufficiently severe.” Daneshvar, 355 F.3d at 624 n.9; see also In re J-H-

S-, 24 I. & N. Dec. 196, 200 (B.I.A. 2007) (“Enforcement efforts resulting in moderate

economic impact would not, in general, prove a well-founded fear of future

persecution.”). Destitution or total deprivation of livelihood, however, is not required.

“Government sanctions that reduce an applicant to an impoverished existence may

amount to persecution even if the victim retains the ability to afford the bare essentials

No. 09-4312 Stserba et al. v. Holder Page 14

of life.” In re T-Z-, 24 I. & N. Dec. at 174. For example, “a sweeping limitation of

opportunities to continue to work in an established profession or business may amount

to persecution even though the applicant could otherwise survive,” although it “is le[ss]

likely to qualify as persecution by itself” than is a “particularly onerous fine” or “large-

scale confiscation of property.” Id. (emphasis added); cf. In re Acosta, 19 I. & N. Dec.

211, 234 (B.I.A. 1985) (requiring an unskilled taxi driver to change jobs or cooperate

with guerrillas to avoid persecution because persecution was on account of his

profession, not membership in a protected social group), overruled on other grounds by

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Generally applicable laws can be the

source of a petitioner’s persecution. Beskovic v. Gonzales, 467 F.3d 223, 226–27 (2d

Cir. 2006).

The IJ found that Stserba was not persecuted when her diploma was invalidated

for two reasons, neither of which is supported by substantial evidence. First, the IJ

stated that “the respondent testified that from the time of the birth of her son, Anton,

until she got the job in the Russian school, she worked as a babysitter. That’s precisely

the employment that she holds in the United States today,” and she likely could find

similar employment in Estonia. A.R. 70 (I.J. Op.). Given the BIA’s construction of

economic persecution in In re T-Z-, the IJ’s delineation of Stserba’s field of employment

is not supported by substantial evidence. Babysitting is not Stserba’s established

profession. After her maternity leave ended and Stserba attempted to resume

employment as a doctor, she was forced to babysit and perform other housework because

she “had to survive somehow.” A.R. 317 (Stserba Aff. ¶ 15). The discrimination against

ethnic Russians in the medical field culminated in the invalidation of Russian diplomas,

which made it nearly impossible for Stserba to work as a pediatrician. Even if jobs in

other fields are available, a petitioner has been persecuted if he or she has been subject

to “sweeping limitations” on his or her chosen profession, particularly if that profession

is a highly skilled one in which the person invested education or training.

The IJ’s second reason also lacks support in the record. According to the IJ,

Stserba, despite her invalid diploma, “was able to obtain employment as a doctor

No. 09-4312 Stserba et al. v. Holder Page 15

eventually in a private Russian school,” and “there is no evidence to suggest that she

could not once again obtain employment as a physician at a Russian school in Estonia.”

A.R. 70, 76 (IJ Op.). Even if Stserba might find a private Russian school willing to

employ her, Estonia still instituted a “sweeping limitation” of job opportunities that are

otherwise available to pediatricians. Moreover, the IJ ignored the evidence in the record

suggesting that Stserba may not find a job at a Russian school. Stserba testified that the

school where she once worked has replaced her, A.R. 180, and that “state laws are

changing and scruples [are] changing too,” leaving fewer Russian schools and less

independence for those that remain, id.; see also A.R. 362–63 (Open Society Institute

Report) (describing laws “that may reduce the number of Russian language educational

institutions in Estonia” and that will require 60% of instruction to occur in the Estonian

language); A.R. 418 (Delfi Article) (“In Russian schools Estonians become Directors

more often, while more Russian teachers without enough training teach the Estonian

language.”).

Substantial evidence does not support the IJ’s conclusion that invalidation of

Stserba’s diploma was not persecution.

b. On Account Of Ethnicity

The IJ determined that Estonia’s policy was not based on ethnicity because the

policy invalidated diplomas that anyone, regardless of ethnicity, earned at Russian

schools. This conclusion fails to take into account that it seems inevitable that the policy

disproportionately impacted ethnic Russians, who are more likely than other Estonians

to have the language skills to attend and the interest in attending a Russian school.

Critically, the IJ acknowledged that Estonia’s policy of diploma invalidation probably

was the result of “pent-up frustration resulting from years of Soviet rule.” A.R. 69 (IJ

Op.). That finding shows that the persecution was “motivated . . . , at least in part, on

account of an enumerated ground.” Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir.

2010). Even if other motives—for example, an unlikely but conceivable determination

that Russian schools are systemically inadequate—also could have motivated the policy,

ethnicity was one motivating factor.

No. 09-4312 Stserba et al. v. Holder Page 16

The only evidence about Estonia’s policy for schools outside Estonia and Russia

is that Stserba, when asked whether the policy “appl[ied] to all foreign diplomas,”

responded “Not at all. It’s only for Russians received in Soviet Union.” A.R. 129

(2/21/08 Hr’g Tr., Stserba). It is possible that Stserba was testifying about the particular

policy that affected Russians; there may be other policies that invalidate diplomas from

other countries. The evidence about Estonia’s general practice is sparse, but its policy

with regard to Russia is clear. The evidence compels the conclusion that Estonia

invalidated Russian diplomas, at least in part, on account of ethnicity.

In sum, Stserba’s job limitations amount to past persecution on account of

ethnicity. Because we conclude that Stserba suffered past persecution, we REMAND

to the BIA for further proceedings and to determine in the first instance “whether

petitioners are entitled to a discretionary grant of asylum.” Gilaj, 408 F.3d at 290; see

also Mapouya, 487 F.3d at 411.

3. Medical Resources For Anton and Harassment of Artjom

On the other hand, the evidence does not compel the conclusion that Anton’s

difficulty in obtaining medical care was on account of his Russian ethnicity. While his

PKU diagnosis might have been delayed due to the family’s ethnicity, the IJ’s

explanation—that simple mistake may explain the failure to test Anton or to pass the

results on to his mother—is also plausible. The same is true of his school placement.

Anton benefits from his special-education program at a standard public school in the

United States, but the fact that Estonia provides only standard schools and schools

specializing in mental retardation is not evidence of persecution against ethnic Russians.

Because the record does not reveal the mental abilities of any other children in the

University of Tartu program, the evidence does not compel the conclusion that Anton’s

different treatment was on account of his ethnicity. Finally, although Anton may receive

inferior medical care in Estonia, the evidence does not compel the conclusion that the

lower-quality care will be on account of his ethnicity.

No. 09-4312 Stserba et al. v. Holder Page 17

Stserba also argues that the BIA inadequately explained why Artjom’s

harassment, on its own or in combination with the other evidence, did not amount to

persecution. While the BIA “should demonstrate that it has considered [the] evidence”

that a petitioner presents, “the BIA is not required to parse or refute on the record every

individual argument or document offered by the petitioner.” Guo Ping Wu v. Holder,

339 F. App’x 596, 603 (6th Cir. 2009) (unpublished opinion). Here, the BIA concluded

that, “[a]lthough these incidents were not specifically noted by the Immigration Judge,

they do not, either individually or cumulatively with the other evidence of record,

warrant a remand for further consideration.” R. 4 (BIA Op.). That language, while

terse, reflects consideration of the evidence of Artjom’s harassment, and the record does

not compel the opposite result. The incidents involving Artjom are disturbing but

resemble random crime with weak links to ethnicity. An exception is the violent assault

by an assailant who called Artjom a “Russian pig.” However, the evidence does not

suggest that the Estonian government perpetrated or acquiesced to the assault, and we

are bound by circuit precedent holding that being “beaten” and “suffer[ing] some bodily

injuries” from an isolated attack by civilians does not amount to persecution. Lumaj v.

Gonzales, 462 F.3d 574, 577 (6th Cir. 2006). Therefore, the incidents involving Artjom

were not persecution, and they do not compel the conclusion that Stserba has a well-

founded fear of persecution.

With regard to medical resources for Anton and Artjom’s harassment, we hold

only that the BIA did not act contrary to law in concluding that these events, considered

individually, are not persecution. However, on remand, the BIA must consider these

issues “in the aggregate” along with citizenship revocation and diploma invalidation.

Haider, 595 F.3d at 287 (explaining that “a collection of harmful events” may rise to the

level of persecution when considered together).

C. Withholding of Removal

Withholding of removal requires the petitioners to demonstrate a “clear

probability” of persecution. Gilaj, 408 F.3d at 289. The IJ relied on his finding that

Stserba had not demonstrated persecution to conclude that she “has necessarily failed to

No. 09-4312 Stserba et al. v. Holder Page 18

meet the higher standard of proof required to establish a claim for withholding of

removal.” R. 78 (IJ Op.). By relying on a finding that we have held to be erroneous, the

IJ replicated his error when denying withholding of removal. See Abay v. Ashcroft, 368

F.3d 634, 643 (6th Cir. 2004) (“[B]ecause the standard for granting withholding of

deportation is more stringent than the standard for granting asylum, and because the

immigration judge denied the request as an a fortiori conclusion, we also remand the

request for withholding of deportation for further consideration in light of our

conclusions stated above.”). On remand, the BIA should reconsider whether the

petitioners qualify for withholding of removal in light of the issues discussed in this

opinion.

III. CONCLUSION

Revoking citizenship on account of ethnicity may be persecution, and the BIA

should consider that question in the first instance. Moreover, sweeping limitations on

Stserba’s job opportunities as a doctor compel a finding that she was persecuted on

account of her ethnicity. Therefore, we GRANT the petitioners’ petition for review and

VACATE the BIA’s decision. We REMAND the case to the BIA to determine the

following: (1) whether ethnically motivated citizenship revocation that results in

statelessness is persecution and whether Stserba was persecuted on this basis;

(2) whether the petitioners are entitled to a discretionary grant of asylum given our

conclusion that Stserba endured past persecution when Estonia refused to recognize her

medical degree; and (3) whether the petitioners are entitled to withholding of removal.