Smolniakova v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GALINA IVANOVNA SMOLNIAKOVA, 

Petitioner, No. 03-71600

v.

 Agency No.

A72-401-421

ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 6, 2004—Seattle, Washington

Filed September 7, 2005

Before: Dorothy W. Nelson, Stephen Reinhardt, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge D.W. Nelson

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2).

12517

SMOLNIAKOVA v. GONZALES 12521

COUNSEL

Robert O. Wells, Jr., Mikkelborg, Broz, Wells & Fryer,

PLLC, Seattle, Washington, for the petitioner.

Peter D. Keisler, Mark C. Walters, and Margaret Perry (on the

briefs) and Jeffrey Bernstein (argued), United States Depart-

ment of Justice, Civil Division, Office of Immigration Litiga-

tion, Washington, D.C., for the respondent.

OPINION

D.W. NELSON, Circuit Judge:

Petitioner Galina Smolniakova, a native and citizen of Rus-

sia, seeks review of the order of the Board of Immigration

Appeals (“BIA”), denying her requests for asylum, withhold-

ing of removal, and review of the termination of her condi-

tional permanent resident status. The Immigration Judge

(“IJ”) dismissed Smolniakova’s asylum claim based on find-

ings that she lacked credibility, failed to establish past perse-

cution on account of an enumerated ground, and did not have

a well-founded fear of future persecution. The IJ denied

Smolniakova’s request to review the termination of her condi-

tional resident status on the ground that Smolniakova had not

met her “heavy burden” of proving that her marriage in 1993

to a United States citizen was genuine, and found her deport-

able. The IJ granted Smolniakova voluntary departure in lieu

of removal. The BIA affirmed the decision without opinion.

We hold that substantial evidence does not support the IJ’s

adverse credibility finding in the asylum context and that

Smolniakova is statutorily eligible for asylum. We remand for

an exercise of discretion on Smolniakova’s asylum claim and

for a review of her claim of withholding of removal. We also

reverse and remand the IJ’s denial of Smolniakova’s petition

12522 SMOLNIAKOVA v. GONZALES

for review of the termination of her conditional resident sta-

tus. Accordingly, we reverse the IJ’s holding that because

Smolniakova’s conditional resident status was validly termi-

nated, she was deportable. The BIA is instructed to grant

Smolniakova a new hearing in which she has a full and fair

opportunity to establish her credibility in the qualifying mar-

riage context. On remand, the IJ shall also determine whether

the government has met its burden of establishing by a pre-

ponderance of the evidence that Smolniakova did not intend

to establish a life together with Roberto Quitevis at the time

of their marriage.

I. Factual and Procedural Background

A. Smolniakova’s Experiences in Russia

Smolniakova, a 39-year-old woman, was born in Kalinin-

grad, formerly Konigsberg, a city on the Baltic coast. She is

the daughter of a Jewish mother and a non-Jewish father.

In her asylum application, Smolniakova recounted numer-

ous instances of harassment and discrimination on account of

her Jewish identity, including anti-Semitic profanities scrib-

bled on the walls of her apartment entryway, human feces

smeared on her mailbox, fires set in her mailbox, and repeated

slashings of her front door. While instances of harassment and

discrimination do not themselves rise to the level of persecu-

tion for purposes of asylum, Nagoulko v. INS, 333 F.3d 1012,

1016-17 (9th Cir. 2003), in Smolniakova’s case they were

foreboding harbingers of things to come.

Before the IJ, Smolniakova testified that she lived in an

environment that was not only inhospitable to Jews, but one

in which practicing Judaism openly was very difficult. From

1988 to 1991, Smolniakova participated in a Jewish commu-

nity organization that met secretly. Smolniakova testified that

the Berenshteyns, close family friends of Smolniakova, were

very active in the group. Smolniakova testified that one sum-

SMOLNIAKOVA v. GONZALES 12523

mer night in 1990 she received a call while with her sister,

Regina, in their parents’ apartment, where they both lived.

The caller announced that Mr. and Mrs. Berenstheyn had been

killed and warned that the same fate lay in store for the rest

of the Jews in Kaliningrad. Smolniakova was horrified to

learn the following morning, when the news first became pub-

lic, that the Berenstheyns had indeed been brutally murdered.

They were discovered bound in their home with numerous

stab wounds. See A Crime on Bankovsky Street (translated

Russian newspaper article reporting the murder), reprinted in

the Administrative Record (“AR”) at 1453. Smolniakova tes-

tified that while the authorities claimed to make solving the

case a top priority, the case was never resolved. She also testi-

fied that the lead investigator in the case mysteriously disap-

peared a month after the murders. Yuliya Berenshteyn, the

surviving daughter of the slain Berenshteyns, testified that

since the murder of her parents, Tolik Payrkov, another mem-

ber of their Jewish organization, had also been killed.

Smolniakova testified that in May 1991, after the Beren-

shteyns’ murder, she was attacked by two men while walking

home from a town celebration. The men grabbed her from the

street and began to strangle her behind some bushes along the

side of the road. She testified that one of the assailants whis-

pered in her ear, “Jewish Bitch.” The attackers dispersed

when a witness, who heard the scuffle, yelled out and threat-

ened to call the police. Smolniakova testified that the men

slowly walked away, promising that they would be back and

that she would not get away alive next time. Regina, who

cared for Smolniakova after the attack and to whom both

Smolniakova and the good Samaritan stranger recounted the

assault, substantially corroborated her sister’s testimony.

Smolniakova testified that one evening, six months after

the attack, two men began pounding on her door, threatening

to kill her if she did not let them in and referring to her home

as a “Jewish snake nest.” Smolniakova and Regina called the

police, but they refused to help. Smolniakova and Regina

12524 SMOLNIAKOVA v. GONZALES

explained that when they called to report this and other inci-

dents, the police were unresponsive and dismissive, even to

the point of laughing at them.

In September 1991, Smolniakova married her Russian boy-

friend of several years, Alexey. As soon as they were married,

she moved in with him and his family in order to change her

address. After a few weeks, Alexey, a seaman, left for a five-

month assignment abroad. Shortly thereafter, Smolniakova

was forced to return to live with her parents because she was

no longer welcome in her in-laws’ home. Smolniakova testi-

fied that Alexey’s mother unabashedly expressed her displea-

sure at her son’s choice of a wife, who she feared would taint

her grandchildren with “Jewish blood.” Soon after leaving her

in-laws, Smolniakova obtained a six-month visitor’s visa to

the United States. She and her husband agreed that she would

be safe there until Alexey returned and she could rejoin him,

hopefully in Germany, where he had the prospect of perma-

nent employment.

Smolniakova left Russia in early December 1991. She testi-

fied that her husband had still not called for her after four

months, that her mother told her of rumors that he was seeing

other women, and that she believed his disapproving mother

had been “working on him.” At this point, Smolniakova

decided to seek political asylum in the United States.

Without the benefit of counsel, Smolniakova filled out an

asylum application, which was filed with the Immigration and

Naturalization Service (“INS”)1 on April 17, 1992. While the

INS officer who interviewed Smolniakova deemed her credi-

ble, the Service sent her a letter of intent to deny asylum on

October 15, 1992 for failure to meet the requirement of a

well-founded fear of persecution on account of one of the five

1

On March 1, 2003, the INS was abolished as an agency within the

Department of Justice and its functions were transferred to the newly cre-

ated Department of Homeland Security.

SMOLNIAKOVA v. GONZALES 12525

enumerated grounds. Her application was subsequently

denied on March 11, 1993.

B. Smolniakova’s Marriage to an American Citizen

Around November 1992, Smolniakova enlisted Regina’s

help in divorcing Alexey. The divorce was finalized in Febru-

ary 1993. Smolniakova testified that she met her second hus-

band, Roberto Quitevis, through a mutual friend, Richard

White, at a New Year’s party in December 1992. She testified

that they dated for a few months until she confided in him

about the denial of her asylum application and her pending

appeal, and he, in turn, proposed because, according to Smol-

niakova, he expressed strong feelings for her and could not

bear the thought of losing her. She testified that they began

having sexual relations that evening and continued to do so

over the course of their marriage, which began in June 1993.

Quitevis filed an immediate relative visa on Smolniakova’s

behalf, which the INS approved, and on January 24, 1994, the

INS granted Smolniakova two-year conditional permanent

resident status as the spouse of a United States citizen.

Smolniakova returned to Russia in July 1994 for three

months to tend to her gravely ill mother. This was the first of

three such trips. Smolniakova testified that Quitevis came to

resent her prolonged absence and was sullen and detached

when she returned home. She testified that while they contin-

ued to have conjugal relations, he became emotionally with-

drawn, “like a stranger to [her].” By the time of her next trip

to Russia in December 1994, the marriage had deteriorated

significantly. Regina testified that when her sister came home

to Russia the second time, she was “blue,” “very nervous,”

and had lost a lot of weight, and confided in her that Quitevis

had begun to sleep elsewhere.

On June 1, 1995, the INS revoked Smolniakova’s condi-

tional resident status pursuant to Immigration and Nationality

Act (“INA”) § 216(b), 8 U.S.C. § 1186a(b), based on a find-

12526 SMOLNIAKOVA v. GONZALES

ing — the culmination of an investigation precipitated by an

anonymous tip — that her marriage to Quitevis was a sham.

Deportation proceedings commenced in December 1995.

In the deportation proceedings, Smolniakova introduced

various pieces of documentary evidence, including wedding

pictures, a joint tax return, a marriage certificate, checks from

a joint checking account, joint phone bills, and a lease in both

her and Quitevis’ names. Sixteen witnesses submitted affida-

vits, declarations, letters, and testimony stating generally that

Smolniakova and Quitevis had been married since the sum-

mer of 1993, that they had lived together as husband and wife,

and that they had suffered some marital problems during the

course of their relationship, culminating in their divorce in

November 1995. The affidavits and testimony substantiate her

claims that she and Quitevis cohabited, shopped together, had

conjugal relations, entertained together, bought furniture

together, commingled assets, and generally lived as husband

and wife. See 8 C.F.R. § 216.4(a)(5) (enumerating these and

other indicia of a good faith marriage).

Quitevis presented a markedly different story. He testified

that Smolniakova had approached him through their mutual

friend, Richard White, about a business proposition, offering

to pay him $5,000 to marry her and help her secure permanent

resident status. He explained that Smolniakova paid him

between $500 and $1,000 up front in cash and then another

$1,500 to $2,500 in subsequent installments. He testified that

he had been at Smolniakova’s apartment a few times in order

to further the illusion that they were married, and even spent

the night at her place on at least one occasion, although he

denied that they ever had sexual relations. Richard White cor-

roborated Quitevis’ testimony.

Quitevis also introduced various pieces of documentary

evidence, including copies of checks made out to his aunt,

whose house he claimed to rent with a few friends, along with

various bill payments written from checks with the same

SMOLNIAKOVA v. GONZALES 12527

address, ranging in dates from March to August 1994.

Quitevis’ close friend, Edgar Franada, testified that Quitevis

had confided in him that he had entered into a “paper mar-

riage” with a Russian woman named Galina. Franada never

responded to INS counsel’s question about when Quitevis

actually confided this to him. Franada also testified that he

lived with Quitevis, along with another roommate, in

Quitevis’ aunt’s house from June 1993 to the end of 1994, a

time period that spans the duration of Smolniakova’s marriage

to Quitevis.

At the time of her separation from Quitevis, Smolniakova

began a relationship with Tony Roland, who accompanied her

on her final visit to Russia in the summer of 1995. Roland and

Smolniakova were wed in December 1995 and profess to be

happily married.

On March 4, 1996, Roland filed a Form I-130 Petition for

an Alien Relative visa on behalf of Smolniakova, which was

denied based on the marriage-fraud bar for such petitions. See

INA § 204(c)(1), 8 U.S.C. § 1154(c)(1). Smolniakova sought

review of the INS’s determination that her marriage to

Quitevis was a sham pursuant to INA § 216(b)(2), 8 U.S.C.

§ 1186a(b)(2), and review of her asylum and withholding of

removal claims. The IJ found Smolniakova incredible as to all

claims and denied her petition in its entirety. On March 19,

2003, the BIA affirmed the decision without opinion pursuant

to 8 C.F.R. § 1003.1(e)(4). Smolniakova timely appealed.

II. Standard of Review

Whether Smolniakova married Quitevis in good faith is an

intrinsically fact-specific question reviewed under the highly

deferential substantial evidence standard. “Under this stan-

dard, we must affirm unless the evidence is so compelling that

no reasonable fact-finder could fail to find the facts were as

[Smolniakova] alleged.” Damon v. Ashcroft, 360 F.3d 1084,

1088 (9th Cir. 2004). We also review the BIA’s decision as

12528 SMOLNIAKOVA v. GONZALES

to whether Smolniakova has established eligibility for asylum

under the substantial evidence standard. Cordon-Garcia v.

INS, 204 F.3d 985, 990 (9th Cir. 2000).

Where, as here, the BIA adopts the decision of the IJ and

affirms without opinion, we review the decision of the IJ as

the final agency determination under the substantial evidence

standard set forth above. 8 C.F.R. § 1003.1(e)(4); see also

Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.

2003).

Because Smolniakova was first placed in deportation pro-

ceedings before the effective date of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, and a final

order of deportation was entered after October 30, 1996, her

appeal is governed by the transitional rules of IIRIRA. See

Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).

III. Discussion

A. Asylum

1. The Adverse Credibility Determination

[1] Adverse credibility determinations must be “based on

specific, cogent reasons that bear a legitimate nexus to the

finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000);

see also de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.

1997). The inconsistencies that an IJ adduces to establish a

lack of credibility must therefore be specific and concrete, and

“must go to the heart of [the] asylum claim.” Singh v. Ash-

croft, 301 F.3d 1109, 1111 (9th Cir. 2002) (internal quotation

omitted).

[2] The perceived contradictions that the IJ attributed to

Smolniakova in support of her adverse credibility finding are

based on a misconstruction of the record, insufficient evi-

SMOLNIAKOVA v. GONZALES 12529

dence and improper speculation and conjecture. See Ge v.

Ashcroft, 367 F.3d 1121, 1124 (9th Cir. 2004) (stating that

adverse credibility determinations cannot be justified by spec-

ulation or conjecture). Moreover, many of the putative incon-

sistencies fail to “go to the heart” of the asylum claim.

[3] In support of her adverse credibility finding, the IJ first

pointed to discrepancies between Smolniakova’s asylum

application, completed without the assistance of counsel, and

her testimony at the merits hearing. The IJ noted that

“[r]espondent testified at the merits hearing that her wrist was

slashed by a man, but yet respondent did not mention this in

her asylum application.” In her first asylum application,

Smolniakova explained that she had been “mistreated and

threatened a lot of times” and that she “want[ed] to specify

one of the terrible incidents.” This court has recognized that

“an applicant’s testimony is not per se lacking in credibility

simply because it includes details that are not set forth in the

asylum application.” Lopez-Reyes v. INS, 79 F.3d 908, 911

(9th Cir. 1996) (citing Aguilera-Cota v. INS, 914 F.2d 1375,

1382 (9th Cir. 1990)). This court has also found that asylum

forms “filled out by . . . people who . . . are unable to retain

counsel” should be read charitably, especially when it comes

to the absence of a comprehensive and thorough account of all

past instances of persecution. Aguilera-Cota, 914 F.2d at

1382 (“Under these circumstances, the IJs cannot expect the

answers provided in the applications to be as comprehensive

or as thorough as they would be if set forth in a legal brief.”).

Smolniakova’s asylum application is not inconsistent with her

later, more detailed descriptions of persecution in Russia sim-

ply because she failed to describe all prior incidents of mis-

treatment and persecution in the early stages of her

application process. Smolniakova’s failure to file an applica-

tion that was “not as complete as might be desired cannot,

without more, serve as a basis for a finding of lack of credibil-

ity.” Lopez-Reyes, 79 F.3d at 911 (internal quotation omitted).

Second, the IJ made much over what she claimed was an

inconsistency between Smolniakova’s and Regina’s accounts

12530 SMOLNIAKOVA v. GONZALES

of the attempt on Smolniakova’s life in May 1991. The IJ

pointed out that Smolniakova testified her assailants simply

walked away after a witness to the assault threatened to call

the police, whereas her sister testified they ran away. The IJ

failed to consider, however, that Regina, or perhaps the trans-

lator through whom she was speaking, immediately corrected

her testimony about the manner in which the attackers dis-

persed — “[they did] not exactly run away, just start to walk

away.” Both Smolniakova and Regina, whose testimony the

IJ found “believable as a whole,” testified, then, that the

attackers “walked away.” The IJ found an inconsistency

where none exists. Moreover, this kind of judicial hair-

splitting does not go to the heart of the asylum claim. See

Singh, 301 F.3d at 1111-12. In contrast, the IJ did not cite any

material inconsistencies with respect to the various accounts

of the actual assault, or with respect to the repeated testimony

about anti-Semitic threats, including death threats and ethnic

slurs that others made to Smolniakova.

[4] Third, the IJ questioned the veracity of Smolniakova’s

claim that she came to the United States seeking a safe haven

from the menacing conditions for Jews in Russia. The IJ’s

efforts to discredit Smolniakova’s stated reason for leaving

her homeland betray, at best, inattention to the record and, at

worst, outright bias against Smolniakova.

The IJ opined, “If respondent was afraid in Russia, she

could have gone with her husband, Alexey, to Germany.”

Aside from being impermissibly speculative, the IJ’s pro-

nouncement demonstrates a willful disregard of the facts in

the record. Smolniakova explained that Alexey was away at

sea for five months and that they both believed she should

leave Russia during that period to ensure her safety. Smol-

niakova testified that Alexey’s permanent assignment in Ger-

many was only a “possibility” and that she planned to move

to Germany if Alexey received a permanent assignment there.

The IJ’s opinion that Smolniakova would have gone to Ger-

many had she truly left Russia out of concern for her safety

SMOLNIAKOVA v. GONZALES 12531

is at best mere conjecture. “Because conjecture is not a substi-

tute for substantial evidence, we cannot uphold this finding.”

Lopez-Reyes, 79 F.3d at 912; see also Paramasamy v. Ash-

croft, 295 F.3d 1047, 1052 (9th Cir. 2002).

The IJ, by again grossly misconstruing the record, found

incredible Smolniakova’s claim that she intended to leave the

United States and rejoin her husband when he returned from

his deployment at sea. The IJ stated:

Respondent also testified that she asked her sister to

help her get a divorce in February, 1992, 2 months

after her arrival to the United States. This fact further

proves that respondent is not only not credible,

respondent is lying to this Court as to her intention

when she arrived in the United States. Respondent

had no intention of returning to her Russian husband.

The record is plain; Smolniakova did not seek help from her

sister in divorcing Alexey in February 1992, but rather in

November 1992. She did not in fact divorce him until Febru-

ary 1993, a full 14 months after her arrival in this country.

The IJ culled her damning “fact” about Smolniakova — viz.,

that she sought a divorce only two months after her arrival in

this country — from the early part of a colloquy between

Smolniakova and her lawyer, wherein they try to establish the

date of Smolniakova’s divorce from Alexey. Smolniakova

tries to reconstruct the timeline based upon a mistaken recol-

lection, and it becomes clear that the timeline is off by a year

because of the mistake. When corrected on this point, Smol-

niakova clarifies that the divorce happened in February 1993,

not February 1992. Even a cursory reading of the transcript

makes this clear, and yet the IJ seized upon the obviously mis-

taken timeline initially proffered, and later corrected, by

Smolniakova as fact to impugn her credibility.

The IJ also found that Regina’s testimony that Smolniakova

left Russia shortly after her marriage to Alexey in order to

12532 SMOLNIAKOVA v. GONZALES

escape persecution contradicts Smolniakova’s own testimony

that, according to the IJ, “she left Russia for a visit to the

United States.” The IJ again found a contradiction where none

exists. Smolniakova testified that in order to obtain a visa for

the United States she needed an invitation from people

already in the country. That she was going to visit friends in

the United States was thus the official reason for her trip, the

true purpose of which, she testified, was to seek a safe haven

for the five months in which Alexey was away at sea.

[5] The IJ concluded that this “entire scenario does not

make any sense.” She explained as follows:

Respondent left Russia for the United States in

December, 1991, three months after her marriage to

her boyfriend of many years. Respondent got mar-

ried 4 months after her purported incident of attack

and rape. If respondent’s reason for leaving Russia

was fear, why did she get married within 4 months,

and then leave 3 months later when her husband was

out of town.

Far from “making no sense,” it is perfectly reasonable that,

faced with the prospect of living for an extended period with

her parents — where she had been threatened and attacked

several times before — and without the protection of her hus-

band, Smolniakova would decide to seek safe haven in the

United States. And, in fact, this is exactly what Smolniakova

testified that she and Alexey agreed she would do for the five

months he was away at sea. The IJ erred by not considering

in a reasoned manner Smolniakova’s explanation for what the

IJ thought to be a nonsensical course of events. Osorio v. INS,

99 F.3d 928, 933 (9th Cir. 1996) (holding that the IJ “must

address in a reasoned manner the explanations that [peti-

tioner] offers for [any] perceived inconsistencies”). In sum,

the IJ had no reason to find Smolniakova’s explanation of

why she came to the United States incredible.

SMOLNIAKOVA v. GONZALES 12533

Fourth, the IJ faulted Smolniakova for failing to provide

corroborating evidence in support of her testimony. The IJ

found that Smolniakova’s credibility was undermined by her

failure to corroborate her testimony about the May 1991

attack with a letter from the stranger who witnessed the

assault. The IJ committed legal error in so finding. This court

has held that “[s]upplying corroborating affidavits . . . has

never been required to establish an applicant’s credibility.”

Lopez-Reyes, 79 F.3d at 912 (citing Bolanos-Hernandez v.

INS, 767 F.2d 1277, 1285 (9th Cir. 1984)). Furthermore, it is

unreasonable to expect Smolniakova to have obtained a cor-

roborating letter from an unidentified stranger.

The IJ also claimed that “respondent never offered any cor-

roborating evidence to verify the death of the Berenshteyns.”

To the contrary, Smolniakova provided a copy of a newspaper

article describing the incident, along with a translation, in her

amended asylum application. This court has found that a

newspaper article reporting an alleged incident of persecution

offered in support of oral testimony is sufficient documentary

evidence of such an incident. See Aguilera-Cota, 914 F.2d at

1382-83. The IJ clearly erred by finding that Smolniakova

never offered corroborating evidence of the Berenstheyns’

murder and by using this finding to impugn her credibility.

[6] In light of the foregoing, it is appropriate to echo the

words of this court in Paramasamy and express a similar

worry that “these passages demonstrate the IJ’s ‘predisposi-

tion to discredit’ the testimony, rather than any lack of credi-

bility on the part of the witnesses.” 295 F.3d at 1051 (quoting

Garrovillas v. INS, 156 F.3d 1010, 1015 (9th Cir. 1998)). In

Paramasamy, this court found that the IJ’s adverse credibility

finding was not supported by substantial evidence because,

among other things, it relied upon “perceived inconsistencies

not based on the evidence.” Paramasamy, 295 F.3d at 1052.

In this case, as in Paramasamy, “the facts as they appear in

the record do not support the [IJ’s] articulated basis for an

adverse credibility determination.” Id. That the IJ rebuked in

12534 SMOLNIAKOVA v. GONZALES

Paramasamy is the same IJ who presided over Smolniakova’s

asylum hearing is a fact not lost on this court.2

Because of the IJ’s reliance on contradictions with no fac-

tual basis in the record, and in light of the many inconsisten-

cies she unfairly imputes to Smolniakova, we reverse the IJ’s

adverse credibility finding with respect to the asylum claim,

and accordingly “deem [Smolniakova’s] testimony credible.”

Akinmade v. INS, 196 F.3d 951, 958 (9th Cir. 1999);

Aguilera-Cota, 914 F.2d at 1383 (internal quotation marks

omitted) (reversing the IJ’s adverse credibility finding and

holding that when, with the exception of minor omissions and

other insignificant inconsistencies, there is an absence of evi-

dence that undermines the petitioner’s credibility, “we accept

the testimony as true”).

2. Past Persecution on Account of Religion

In addition to finding that Smolniakova was not credible,

the IJ held, in the alternative, that Smolniakova was ineligible

for asylum because she failed to establish either past persecu-

tion or a well-founded fear of future persecution on account

2

In fact, the IJ in this case, Anna Ho, has been reversed by this court

at least three times in the last year for reasons similar to those that compel

our reversal here. Most recently, in Zolotukhin v. Gonzales, No. 04-70945,

slip op. at 10004 (9th Cir. Aug. 3, 2005), we held that IJ Ho violated a

Russian asylum applicant’s due process right to a full and fair hearing

because she “improperly prejudged the petitioner’s case” and “excluded

the testimony of several key witnesses.” Just one year earlier, in Rivera v.

Ashcroft, 387 F.3d 835, 1135 (9th Cir. 2004), amended by 394 F.3d 1129

(9th Cir. 2005), we held that IJ Ho failed “to conduct herself as an impar-

tial judge but rather as a prosecutor anxious to pick holes in the petition-

er’s story.” Moreover, in Singh v. Gonzales, 403 F.3d 1081, 1090 (9th Cir.

2005), this court reversed IJ Ho’s adverse credibility finding in part

because her “focus on minutely disparate dates” in the asylum applicants’

testimony regarding seven-year-old events reflected “a flawed approach to

credibility determination.” Given this line of cases, we cannot help but

question whether this IJ has, at least in some instances, improper hostility

towards asylum applicants who appear before her.

SMOLNIAKOVA v. GONZALES 12535

of a qualifying ground. As a result, we need not remand to the

BIA for a determination of these issues and we consider each

in turn.

To establish eligibility for asylum, Smolniakova must qual-

ify as a refugee. INA § 208(b), 8 U.S.C. § 1158(b). A refugee

is one “who is unable or unwilling to return to . . . [her native]

country because of persecution or a well-founded fear of per-

secution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” INA

§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that

Smolniakova qualifies as a refugee and is statutorily eligible

for asylum.

a) Past Persecution

Asylum is not restricted to petitioners who have suffered

persecution at the hands of state actors. See Singh v. INS, 134

F.3d 962, 967 n.9 (9th Cir. 1998); see also Sangha v. INS, 103

F.3d 1482, 1487 (9th Cir. 1997) (“ ‘Persecution’ may be

inflicted either by the government or by persons or organiza-

tions which the government is unable or unwilling to con-

trol.”) (citation omitted). Taken as true, as it must be for

purposes of this appeal, Smolniakova’s testimony compels the

conclusion that the government turned a blind eye to her per-

secution, refusing to intervene in any meaningful way to stop

it. That her assailants who attacked her in May 1991 “slowly

walked away” when a witness threatened to alert the police is

consistent with this testimony; it suggests that Smolniakova’s

assailants recognized the acquiescence of the local authorities

in this type of conduct and that the witness’s threat was thus

a hollow one. See Krotova v. Gonzales, No. 04-70806, slip op.

10085, 10098 (9th Cir. Aug. 4, 2005) (holding that the Rus-

sian government was “unwilling or unable to control the anti-

Semitic groups responsible for [Jewish] Petitioner’s mistreat-

ment”).

Smolniakova’s account of the May 1991 assault alone com-

pels a finding of past persecution. See Montoya-Ulloa v. INS,

12536 SMOLNIAKOVA v. GONZALES

79 F.3d 930, 931 (9th Cir. 1996) (holding that persecution for

asylum purposes means “infliction of suffering or harm upon

those who differ . . . in a way regarded as offensive”). The

death threats she received immediately following the murder

of the Berenshteyns, during the May 1991 assault, and at her

apartment where her would-be attackers called her home a

“Jewish snake nest,” also amount to past persecution.

Repeated death threats, especially when those threats occurred

in conjunction with other forms of abuse, require a finding of

past persecution. See Mamouzian v. Ashcroft, 390 F.3d 1129,

1134 (9th Cir. 2004) (finding past persecution when harm was

“inflicted [on petitioner] on more than one occasion . . . , and

where the physical abuse was combined with other incidents,

such as detention and threats”); see also Navas v. INS, 217

F.3d 646, 658 (9th Cir. 2000) (“[W]e have consistently held

that death threats alone can constitute persecution.”); contrast

Lim v. INS, 224 F.3d 929, 933, 936 (9th Cir. 2000) (holding

that death threats may be deemed hollow and bereft of “sig-

nificant actual suffering or harm” and thus do not constitute

past persecution where they are unaccompanied by infliction

of actual abuse or harm upon petitioner or petitioner’s fam-

ily). Even if a single incident does not rise to the level of per-

secution, the cumulative effect of these several incidents

constitutes persecution. See Krotova, slip op. at 10093 (hold-

ing that a “background of anti-Semitic harassment and eco-

nomic and social discrimination against [Jewish Petitioner],

and in Russia generally” combined with three violent assaults,

the murder of a close family friend, and the beating of Peti-

tioner’s brother, all compelled a finding of past persecution).

b) On Account of Religion

[7] The facts in the record compel the finding that Smol-

niakova was persecuted on account of her religion. The IJ’s

finding that there was no nexus between the asserted persecu-

tion and Smolniakova’s religion is not supported by substan-

tial evidence.

SMOLNIAKOVA v. GONZALES 12537

The IJ found that the May 1991 attempt on Smolniakova’s

life was not motivated by anti-Semitism. Given Smol-

niakova’s and Regina’s repeated testimony that Smol-

niakova’s assailants called her a “Jewish bitch,” it is difficult

to understand how the IJ could assert that “[n]othing said by

the young men would indicate that this attack had anything to

do with respondent’s ethnicity.”

The IJ also extended this dismissive, and seemingly biased,

attitude to her analysis of another incident described by Smol-

niakova. Smolniakova testified that one evening in November

1991 two men banged on her door and threatened to kill her.

She described the incident thus: “[T]hey were saying some-

thing like you better open the door, otherwise we’ll kill you.

Which, you know, doesn’t make much sense, but I remember

that that’s exactly how they were saying it . . . And, uh, and

calling us . . . Jewish, uh, snake nest or something like that.”

The IJ interpreted this testimony as follows. “Respondent

described an incident in November, 1991, wherein men

threatened to have her open the door of the apartment.

Respondent refused, and thus the men just left. Again, even

if the men yelled, “Jewish snakes”, this is not evidence that

any harm would come to respondent.” We cannot agree with

the IJ’s interpretation; indeed, one would expect that the reac-

tion of any reasonable person who was the victim of such an

episode would include a well-founded fear of future persecu-

tion on account of her religious identity.

Smolniakova’s consistent and corroborated testimony that

she was called a “Jewish bitch” by one of the assailants who

attacked her in May 1991, that she was warned that she and

all Jews in Kaliningrad would be murdered as the Beren-

stheyns were, and that her home was called a “Jewish snake

nest” by those who threatened to kill her if she would not let

them enter her apartment compels the conclusion that Smol-

niakova was persecuted on account of her religion. The IJ’s

finding to the contrary was not supported by substantial evi-

dence.

12538 SMOLNIAKOVA v. GONZALES

3. Fear of Future Persecution

In addition to finding that Smolniakova failed to show past

persecution, the IJ concluded separately that Smolniakova

failed to demonstrate a well-founded fear of future persecu-

tion. We review the decision to determine whether it was sup-

ported by substantial evidence. Mamouzian v. Ashcroft, 390

F.3d 1129, 1135 (9th Cir. 2004). Because the IJ made a deter-

mination on the question of well-founded fear, we do not

remand for further consideration. Id.; see also Khup v. Ash-

croft, 376 F.3d 898, 904 (9th Cir. 2004) (declining to remand

for an analysis of changed country conditions because appli-

cant established a well-founded fear without the benefit of the

presumption).

[8] In order to demonstrate a fear of future persecution,

Smolniakova’s fear “must be both subjectively [genuine] and

objectively reasonable.” Hoxha v. Ashcroft, 319 F.3d 1179,

1182 (9th Cir. 2003) (alteration in original) (internal citations

and quotation marks omitted). An alien satisfies the subjective

component of the well-founded fear test by testifying credibly

about his fear of future persecution. Mamouzian, 390 F.3d at

1136. Because we find that Smolniakova’s testimony is credi-

ble, she satisfies the subjective portion of the test. Korablina

v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998).

[9] Smolniakova’s credible testimony also compels the

conclusion that her fear is objectively well-founded. As Smol-

niakova testified, she suffered violent attacks and repeated

death threats as a result of her Jewish identity. She was

attacked and strangled by men calling her a “Jewish Bitch.”

On one occasion, an assailant slashed her wrist. Despite this

evidence, the IJ found that Smolniakova’s three trips back to

Russia demonstrated there was no likelihood of future perse-

cution. However, Smolniakova provided a reasonable expla-

nation for the trips. Smolniakova testified that she went to

Russia on those three occasions to take care of her dying

mother, who was languishing in the hospital “like a corpse,”

SMOLNIAKOVA v. GONZALES 12539

and to help her family, which was ill-equipped to deal with

the situation. Rather than belying her avowed fear of returning

home, Smolniakova’s trips served as a testament to her love

for her mother, whom she went to great pains to visit despite

the risk she bore in doing so. See Karouni v. Gonzales, 399

F.3d 1163, 1176 (9th Cir. 2005) (holding that asylum appli-

cant’s two return visits to Lebanon to see his dying parents

did not constitute substantial evidence that his fear of persecu-

tion was not well-founded); see also Singh v. Moschorak, 53

F.3d 1031, 1034 (9th Cir. 1995) (reversing denial of asylum

where the INS “fails to distinguish fortitude in the face of

danger from absence of fear”).3

The murder of Smolniakova’s close family friends, the

Berenshteyns, also supports a finding of well-founded fear of

persecution. See Zhang v. Gonzales, 408 F.3d 1239, 1249 (9th

Cir. 2005) (holding that “acts of violence committed against

an applicant’s friends or family can establish well-founded

fear of persecution.”). The IJ concluded that there was no evi-

dence that the Berenshteyns’ death caused problems for Smol-

niakova. However, on the night of their murder, Smolniakova

received an anonymous phone call warning her that what hap-

pened to the Berenshteyns would happen to her. Moreover,

after Smolniakova left Russia, Tolik Payrkov, another mem-

ber of her Jewish organization, was killed. Smolniakova

understandably fears the same fate would befall her if she

returned to Russia. In light of these circumstances, no reason-

able fact-finder could conclude that Smolniakova has less

than a ten percent chance of future persecution in Russia on

account of her religion. See Al-Harbi v. INS, 242 F.3d 882,

3

The government’s reliance on Hakeem v. INS, 273 F.3d 812, 817 (9th

Cir. 2001), is inapposite because the court’s consideration of the import

of Hakeem’s uneventful trips home was solely in the context of its review

of Hakeem’s claim of withholding of removal, which requires an applicant

to show a greater likelihood of persecution than she must establish to be

eligible for asylum. Moreover, as Smolniakova points out, the safety of

her one family member remaining in Russia, her father, is not probative

because he is not Jewish.

12540 SMOLNIAKOVA v. GONZALES

888 (9th Cir. 2001) (noting “even a ten percent chance of per-

secution may establish a well-founded fear”). We thus con-

clude that the IJ’s finding that Smolniakova lacked a well-

founded fear of future persecution is not supported by sub-

stantial evidence.

There is an alternative basis on which we may ground our

well-founded fear holding. Even were Smolniakova otherwise

unable to demonstrate a well-founded fear of persecution, the

finding that she established past persecution entitles her to a

presumption of well-founded fear. See Korablina, 158 F.3d at

1043; 8 C.F.R. § 1208.13(b)(1). The presumption shifts the

burden of proof to the government to establish by a prepon-

derance of the evidence that the presumption no longer con-

trols. Id. The government may satisfy this burden by showing

that there has been a “fundamental change in circumstances,”

such that Smolniakova no longer has a well-founded fear, or

that Smolniakova could “avoid future persecution by relocat-

ing to another part of [Russia], and under all the circum-

stances, it would be reasonable to expect [her] to do so.” 8

C.F.R. § 1208.13(b)(1)(i)-(ii); see also Ochave v. INS, 254

F.3d 859, 868 n.5 (9th Cir. 2001).

The Supreme Court has held that we cannot determine the

issue of changed country conditions in the first instance. INS

v. Ventura, 537 U.S. 12, 14 (2002). However, here, the IJ

addressed the issue of changed circumstances. The relevant

portion of the IJ’s decision reads as follows: “This Court does

not find that even if there had been past persecution, that there

is any likelihood of future persecution. The country condition

has changed substantially.” Where the IJ reaches the issue of

changed circumstances, we need not remand, see Ali v. Ash-

croft, 394 F.3d 780, 788 (9th Cir. 2005), unless she fails to

“make an individualized determination as to the effect of

country conditions.” Lopez v. Ashcroft, 366 F.3d 799, 806

(9th Cir. 2004). The IJ here made an individualized determi-

nation. In concluding that the “country condition has changed

substantially,” the IJ noted that Smolniakova’s trip to Russia

SMOLNIAKOVA v. GONZALES 12541

with her new husband was proof that she was not afraid to

return to Russia. In light of the limited evidence submitted by

the government in rebuttal4 — just two newspaper articles —

it is not clear whether the IJ could have made her analysis

more individualized. Because the agency has already brought

“its expertise to bear upon the matter” and “evaluate[d] the

evidence,” cf. INS v. Ventura, 537 U.S. 12, 17 (2002) (per

curiam), this case requires no further remand for the applica-

tion of agency expertise or for agency evaluation. See Ali v.

Ashcroft, 394 F.3d 780, 788 (9th Cir. 2005).

[10] We review the IJ’s factual findings regarding changed

country conditions for substantial evidence. Lopez, 366 F.3d

at 805; see also Gui v. INS, 280 F.3d 1217, 1229 (9th Cir.

2002). The record does not support the IJ’s conclusion that

the government rebutted the presumption of well-founded

fear. The government offered two newspaper articles into evi-

dence in support of its assertion that Russia was no longer a

country that posed a threat to Smolniakova. The only relevant

article profiled a Rabbi who works to cultivate Jewish life in

Moscow. Nothing in the article suggests that a Jewish refugee

would no longer have reason to fear persecution if she

returned to Russia. The article simply concludes that “[t]oday

there are three Jewish day schools in Moscow. Emigration has

stabilized and the approximately 2 million Russian Jews are

4

We note that the extremely limited evidence of changed country condi-

tions offered by the government in this case may constitute an alternate

ground for not remanding on the issue of changed conditions. Where the

INS offers no evidence concerning changed circumstances before the

immigration judge, the BIA, or this court, we do not remand because “to

provide the INS with another opportunity to present evidence of changed

country conditions . . . would be exceptionally unfair.” Nuru v. Gonzales,

404 F.3d 1207, 1228 (9th Cir. 2005) (quoting Baballah, 367 F.3d at 1078

n.11); see also Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004). Here,

aside from the two articles presented to the IJ, the government did not

assert changed country conditions in its memorandum on appeal to the

BIA or in its brief to this court. Because we have concluded that remand

is unnecessary for other reasons, we need not determine whether the scant

evidence introduced amounts to “no evidence” under our Nuru rationale.

12542 SMOLNIAKOVA v. GONZALES

not only permitted to leave the country; but to retain their

Russian citizenship.” U.S. Rabbi Cultivates Jewish Life in

Russia, Wash. Times, Aug. 24, 1996, at 13, reprinted in AR

at 1017.5 Moreover, a news article such as this is not authori-

tative. Cf. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th

Cir. 2002) (holding that generalized information from a State

Department report on country conditions is not sufficient to

rebut the presumption of future persecution). In addition,

“[i]nformation about general changes in the country is insuffi-

cient for the government to overcome the presumption.”

Lopez, 366 F.3d at 805 (citing Rios v. Ashcroft, 287 F.3d 895,

901 (9th Cir.2002)).

Not only is the record bereft of any substantial evidence

supporting the government’s contention that Russia has

changed, but Smolniakova, her sister and Yuliya Berenshteyn

testified that the persecution of Jews in the Kalingrad area of

Russia continues and has grown substantially worse in recent

years due to the growing strength of anti-Semitic organiza-

tions such as the anti-Jewish party, Pamyat. Indeed, Smol-

niakova testified that she believed her attackers were

members of Pamyat and pointed out in her brief to the BIA

that the U.S. Department of State Russia Country Report on

Human Rights Practices for 1997 states that “Jews continue

to encounter societal discrimination, and government authori-

ties have been criticized for insufficient action to counter it.”

None of this testimony was contradicted or disputed by the

5

The other article detailed how the INS had cataloged the misuse of the

Lautenberg amendment, which allows certain historically persecuted

groups of the former Soviet Union, including Jews, to seek refugee status

abroad. See 1989 amendment to 8 U.S.C. § 1157 (Lautenberg amend-

ment). Notwithstanding that the Lautenberg amendment is not the law

under which Smolniakova may seek asylum, the article in fact supports

Smolniakova’s position. See Vast Soviet Refugee Fraud Detailed, Wash.

Times, Nov. 4, 1995, at A1, reprinted in AR at 1083 (“ ‘The irony is that

there are plenty of cases from the former Soviet Union which could qual-

ify [as persecuted refugees],’ noted a top INS official in Moscow in

December 1993.”) (emphasis added).

SMOLNIAKOVA v. GONZALES 12543

government. The IJ’s finding that Smolniakova’s presumption

of well-founded fear was rebutted is thus not supported by

substantial evidence. Accordingly, the presumption of a well-

founded fear of persecution stands and Smolniakova is eligi-

ble for asylum on this basis as well.

[11] We therefore hold that Smolniakova is statutorily eli-

gible for asylum and remand to the BIA so that it may exer-

cise its discretion whether to grant her that form of relief.

B. Withholding of removal

[12] A finding of past persecution also gives rise to a pre-

sumption of withholding of removal. 8 C.F.R.

§ 1208.16(b)(1)(i); Hoque v. Ashcroft, 367 F.3d 1190, 1198

(9th Cir. 2004). Because of her finding on the asylum claim,

however, the IJ did not consider Smolniakova’s withholding

claim in light of this presumption. We therefore remand

Smolniakova’s withholding of removal claim to the BIA so

that it may consider this claim in light of the presumption. See

He v. Ashcroft, 328 F.3d 593, 604, (9th Cir. 2003) (holding

that petitioner was statutorily eligible for asylum, but that

remand for consideration of withholding of removal claim

was still required under Ventura).

C. Qualifying Marriage

[13] Pursuant to INA § 216(b)(2), Smolniakova requested

a removal proceeding to review the INS’s determination that

her marriage to Roberto Quitevis, a United States citizen, was

a sham. Under INA § 216(b)(2), “the burden of proof shall be

on the Attorney General to establish, by a preponderance of

the evidence” that the qualifying marriage was improper. 8

U.S.C. § 1186a(b)(2). To dispose of the marriage fraud issue,

the IJ merely concluded that “the evidence is not clear as to

whether this was a fraudulent marriage” and went on to hold

that “[t]he respondent has not met her ‘heavy burden’ of prov-

ing that she did not enter into this marriage solely for the pur-

12544 SMOLNIAKOVA v. GONZALES

pose of obtaining immigration benefits.” In so holding, the IJ

applied the wrong standard of proof to the wrong party.

Imposing the heavy burden of clear and convincing evidence

on Smolniakova likely affected the result, especially in light

of the IJ’s conclusion that the evidence of marriage fraud was

not clear. This alone would be sufficient reason to reverse the

denial of Smolniakova’s petition for review of the termination

of her conditional resident status and to remand to the BIA.

[14] We also note that the IJ’s misguided, and at times

seemingly biased, adverse credibility finding in the asylum

context casts serious doubt on her analogous finding in the

sham marriage context. The IJ’s application of differing stan-

dards to assess the credibility of witnesses undermines her

impartiality and suggests a “ ‘predisposition [selectively] to

discredit’ the testimony, rather than any lack of credibility on

the part of the witnesses.” Paramasamy, 295 F.3d at 1051.

Quitevis testified that his marriage to Smolniakova was

never more than a mere business proposition — a way for a

young college graduate in bad financial straits to make some

easy money. And yet, he testified inconsistently about the first

payment installment he allegedly received from Smolniakova.

The IJ was forgiving of this inconsistency, explaining that

“[a]lthough the amount of payment was not completely con-

sistent, the testimony is consistent in that Mr. Quitevis was

paid for marrying the respondent.” The IJ was similarly for-

giving of Quitevis’ inability to provide consistent testimony

regarding the date he first met Smolniakova. It is striking,

however, that the IJ did not extend the same understanding to

minor inconsistencies, including inconsistent dates, in Smol-

niakova’s testimony and the testimony of those who were cal-

led on her behalf.

Although Smolniakova’s claims were presented together at

a single hearing, the asylum claim and the qualifying marriage

claim are analytically distinct. The adverse credibility finding

in the asylum context must not be allowed to “wash over the

SMOLNIAKOVA v. GONZALES 12545

[qualifying marriage] claim.” Kamalthas v. INS, 251 F.3d

1279, 1284 (9th Cir. 2001) (quoting Mansour v. INS, 230 F.3d

902, 908 (7th Cir. 2000)); see also Taha v. Ashcroft, 389 F.3d

800, 802 (9th Cir. 2004) (reversing the IJ’s adverse credibility

finding in the asylum context and citing Kamalthas, 251 F.3d

at 1284, for the proposition that such a finding should not be

allowed to “wash over” petitioner’s Convention Against Tor-

ture claim). Where, as here, the IJ’s adverse credibility find-

ing in the asylum context betrays the IJ’s bias against the

petitioner, such a finding of necessity casts a suspicious cloud

over the negative credibility determination made in reviewing

whether petitioner’s qualifying marriage was a sham.

[15] Indeed, the IJ explicitly acknowledges this “wash

over” effect in her decision. When discussing the marriage

claim, the IJ states, “[T]he totality of the respondent’s evi-

dence is so internally inconsistent, inconsistent with her asy-

lum application and inconsistent between witnesses, that the

Court cannot possibly believe the witness.” We therefore hold

that the IJ’s numerous erroneous findings that Smolniakova

was lying about her asylum claim tainted the IJ’s view of her

credibility with respect to the qualifying marriage claim.

Accordingly, we reverse the IJ’s credibility determinations in

the qualifying marriage context and remand to the BIA with

instructions to hold a new hearing to make fresh findings on

this issue. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059

(9th Cir. 2005) (remanding for a new hearing “to ensure that

Petitioner has a full and fair opportunity to establish her credi-

bility”). We further direct the BIA not to return the case to IJ

Anna Ho. Id.; Perez-Lastor v. INS, 208 F.3d 773, 782 (9th

Cir. 2000).

IV. Conclusion

In sum, we reverse the IJ’s adverse credibility finding in

the asylum context and find that Smolniakova has suffered

past persecution on account of her religion and has a well-

founded fear of future persecution. We accordingly find

12546 SMOLNIAKOVA v. GONZALES

Smolniakova statutorily eligible for asylum. We remand for

an exercise of discretion on Smolniakova’s asylum claim and

for further consideration of the withholding of removal claim

in light of the presumption that now operates regarding her

ability to show future threats to her life or freedom. We

reverse the IJ’s denial of Smolniakova’s petition to review the

INS’s determination that her marriage to Quitevis was a sham.

We remand to the BIA for a new hearing to make fresh credi-

bility findings in the qualifying marriage context and for fur-

ther review of the INS’s termination of Smolniakova’s

conditional permanent resident status in light of the new cred-

ibility findings and in conjunction with an application of the

appropriate burden of proof. The BIA is instructed not to

remand the case to IJ Anna Ho.

PETITION GRANTED, REVERSED AND

REMANDED.