Opposition Brief — Gonzales v. Tchoukhrova (No. 05-1401)

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In The

Supreme Court of the Anited States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

VICTORIA TCHOUKHROVA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DICK THORNBURGH JONATHAN D. MONTAG

JONATHAN M. YOUNG Counsel of Record

KIRKPATRICK & LOCKHART MONTAG & NADALIN LLP

NICHOLSON GRAHAM LLP _ 110 West C Street,

1601 K Street, NW Suite 1809

Washington, DC 20006 San Diego, CA 92101

SAMUEL R. BAGENSTOS (619) 230-1420

One Brookings Drive LAURA A. WYTSMA

Box 1120 SONNENSCHEIN NATH &

St. Louis, MO 63130 ROSENTHAL LLP

601 S. Figueroa Street,

Suite 1500

Los Angeles, CA 90017

(Additional Counsel Listed On Inside Cover)

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

R CALL COLLECT (402) 342-2831

DEBORAH ANKER

HARVARD IMMIGRATION

AND REFUGEE CLINIC

197 Friend Street

Boston, MA 02114

GREGORY R. NARON

SONNENSCHEIN NATH

& ROSENTHAL LLP

7800 Sears Tower

Chicago, IL 60606

KAREN MUSALO

STEPHEN KNIGHT

CENTER FOR GENDER

& REFUGEE STUDIES

University of California

Hastings College of the Law

200 McAllister Street

San Francisco, CA 94102

QUESTIONS PRESENTED

1. Whether JNS v. Ventura, 537 U.S. 12 (2002) (per

curiam), and Gonzales v. Thomas, 126 S. Ct. 1613 (2006)

(per curiam), required the Court of Appeals to remand to

permit the Board of Immigration Appeals to rule on an

issue the Board had already decided.

2. Whether Ventura and Thomas required the Court

of Appeals to remand to permit the Government to assert a

defense that it had never raised in the administrative

process or at any time before the Court of Appeals issued

its panel opinion.

3. Whether the Court of Appeals erred in concluding

that the Board’s “persecution” determination was not

supported by substantial evidence.

TABLE OF CONTENTS

Page

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A. FO PO isin cian 1

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REASONS FOR DENYING THE WRIT.................... 14

I. The Decision of the Court of Appeals Does

Not Conflict with This Court’s Rulings in

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A. The Court of Appeals Created No “New

Rule” of “Reverse Derivative Asylum”...... 16

B. Ventura and Thomas Did Not Require a

Remand on the Issues of Changed Cir-

cumstances and the Possibility of Reloca-

SOUR hay ocnstiink icokakveias Hick euiiaidanaacncaeanend 22

II. The Government’s Challenge to the Court of

Appeals’ Persecution Determination Does

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APPENDIX A

Respondent’s Petition for Rehearing En Banc

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APPENDIX B :

Brief for Respondent

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TABLE OF AUTHORITIES

Page

CASES

Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004).................. 21

Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005) ............. 19

Alaska Department of Environmental Conservation

U. BPA, B40 U.S. 461 (QOQ6)... ni. cenenisscesesacenessenersssoces 26

Burbano, In re, 20 I. & N. Dec. 872 (B.I.A. 1994)............. 11

Chicago & Southern Air Lines, Inc. v. Waterman

Sct CPI eee WEE RD LABS osnccnsessnccincadendyass sccspicnaied 26

Citizens to Preserve Overton Park, Inc. v. Volpe,

oe Fe RS 5 ¢ SRO oreaeaeds, ere oue ee ete eeS 19

C-Y-Z-, In re, 21 1. & N. Dec. 915 (B.LA. 1997)................. 21

Ghebremedhin v. Ashcroft, 392 F.3d 241

ete RD sis nis tniccanesschican onus sanaeventecrvntbassincsientant 24, 26

Gishta v. Gonzales, 404 F.3d 972 (6th Cir. 2005).............. 11

Gonzales v. Thomas, 126 S. Ct. 1613 (2006).............. passim

Hayburn’s Case, 2 U.S. 408, 2 Dall. 409 (1792).......... 15, 26

INS v. Abudu, 485 U.S. 94 (1988).....................0s.ss0eseereeese 26

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).........0.000000... 8

INS v. Elias-Zacarias, 502 U.S. 478 (1992).........0..c.c ee. 28

INS v. Sdavic, 467 CB; AOE CORA) a ssivssinsinsins cies ccsccecssasacsceee 8

INS v. Ventura, 537 U.S. 12 (2002) (per curtam)....... passim

Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991) 0. 12

Motor Vehicle Manufacturers Association v.

State Farm Mutual Automobile Insurance Co.,

I Bes eR SI bcc nkcch occlickccdsxancbucsdcdbaanelbvedmecmurccskdasenies 14

NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)........... 26

TABLE OF AUTHORITIES — Continued

Page

SEC v. Chenery Corp., 318 U.S. 80 (1948)............ 14,17, 18

Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005)

(en banc), rev'd sub nom. Gonzales v. Thomas, ‘

126 S. Ct. 1613 (2006) (per curiam) ..................0005- passim

United States v. Tisor, 96 F.3d 370 (9th Cir. 1996)........... 12

United States v. United Foods, Inc.,

ee At SNe GIA B ivahirvicnvandapuitexitiecvacsasiasanessequuaaes 23, 24

United States v. Winstar Corp., 518 U.S. 839 (1996)........ 22

Woodford v. Ngo, 126 S. Ct. 2378 (2006)... 25

STATUTES AND REGULATIONS

Immigration and Nationality Act, 8 United States Code

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8 Code of Federal Regulations

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BRIEF FOR THE RESPONDENTS IN OPPOSITION

Respondents Victoria, Dmitri, and Evgueni Tchouk-

hrov respectfully oppose the Petition for a Writ of Certio-

rari filed by the Attorney General of the United States.

STATEMENT

The Court of Appeals below held that Victoria Tchouk-

hrova was eligible for asylum and entitled to withholding

of deportation. The court concluded that Russia’s horrific

treatment of Victoria and her child, Evgueni, who has

cerebral palsy, gave her a “well-founded fear of persecu-

tion.” 8 U.S.C. § 1101(a)(42)(A). In so holding, the court

agreed with nearly all of the determinations the Board of

Immigration Appeals made in this case. In particular, the

court agreed with the agency’s conclusions “that the

respondent and her family and child did suffer harm in

Russia” and that the harm “was a result of the fact that

the respondents are a member of the particular social

group” of family members of children with disabilities. Pet.

App. 37a. As did the agency, the court treated the harm to

her child as relevant to determining whether Victoria

herself was persecuted. See id..at 37a-39a. The Court of

Appeals disagreed with the agency on only one point:

Where the agency determined that the Tchoukhrovs’

treatment amounted to “discrimination” but not “persecu-

tion,” id. at 39a, the Court of Appeals held that “the record

compels the conclusion that the harm suffered by the

Tchoukhrovs constituted persecution within the meaning

of 8 U.S.C. § 1101(a)(42).” Id. at 20a. That factbound-

decision, which broke no new legal ground, does not

warrant this Court’s review — much less the summary

reversal the Government seeks.

A. The Facts

1. The Tchoukhrovs’ Persecution — In 1991, Victoria and

Dmitri Tchoukhrov married and conceived a son. Adminis-

trative Record (“A.R.”) 332. In October 1991, Victoria went

into labor and delivered her baby at the state-owned hospital

in Vladivostok, Russia. Jd. at 200. After inducing Victoria,

hospital staff abandoned her for the entire night, during

which time her unborn child was deprived of oxygen. Id. The

next morning, Victoria’s induced labor had stopped and the

hospital personnel decided to forcibly extract Victoria’s baby

from her body; they broke his neck in the process. Id. Victo-

ria’s body was “virtually mutilated” as they forced the baby

out of her “with no regard to [her] safety.” Jd. at 201. As a

result of this grossly botched delivery, Victoria’s son, Ev-

gueni, suffered a severe spinal injury that caused cerebral

palsy. Id. at 200.

Instead of giving the newborn child medical care, the

hospital initially threw Evgueni into a container holding

abortion and other medical waste. A.R. at 201.’ Victoria,

having “lost a lot of blood,” fell into a state of unconscious-

ness. Id. When she regained consciousness, the hospital

refused to show Victoria her new son. Jd.

Despite being cast aside with the medical waste,

Evgueni survived. Jd. Victoria pleaded to see her son. Id.

at 93-94, 201. She was told that he was severely disabled

and that she should “refuse” him, because “they didn’t see

the reason why he needed to live.” Jd. at 92, 99. For the

first five days of her son’s life, the state hospital barred

Victoria from seeing her newborn son. 7/d. at 93. Finally,

' The Government asserts (Pet. 17 n.4) that this fact should not

have been considered by the Court of Appeals. But Victoria Tchouk-

hrova’s affidavit, which contains this fact, is a part of the record in this

case and was expressly considered by the immigration judge. Pet. App.

33a. Indeed, the immigration judge discussed Victoria’s affidavit and

swore her to its contents during a hearing. A.R. 85-88. Victoria did not

present further evidence on this point because the immigration judge

specifically stated that “it appears to me, from my review of the case,

that the facts are relatively clear and I don’t think we need to go

through seven hours of testimony to confirm these facts.” Jd. at 80.

Because the immigration judge found Victoria credible and the Board

affirmed that finding, see p. 9, infra, the circumstances surrounding her

son’s birth were properly considered by the Court of Appeals.

Victoria managed to convince a nurse to let her visit her

child in the middle of the night because she “wanted

desperately to see him and to hold his lifeless body close to

{her} heart.” Jd. at 201. Victoria snuck into a room where

her son was held separately from the healthy infants. Id.

Throughout this time, the state hospital pressured the

Tchoukhrovs to give up their son. A.R. at 94-95, 201. The

Tchoukhrovs refused. Despite their objections, the government

forcibly separated Victoria from her son by transferring Ev-

gueni to an institution for orphaned children with birth de-

fects.’ Id. at 95, 202. The government refused the new parents

permission to see their son for two months. Jd. at 96-97.

The state continued pressuring the Tchoukhrovs to

sign a document ceding their parental rights. Jd. at 202.

Even in her weak state, Victoria wrote letters, made phone

calls, and visited agency after agency trying to fight for the

right to bring her own child home. /d. at 201.

When the Tchoukhrovs finally gained entrance to the

“hospital” for children with birth defects, the conditions

were horrifying. A.R. at 97. The children were wrapped in

old, wet, dirty linens and cried out from hunger. Jd. No one

cleaned or otherwise took care of them. Some children

writhed in pain but received no treatment. Jd. at 97-98.

Notwithstanding intense pressure from state authorities

to consent to Evgueni’s permanent institutionalization,

Victoria and Dmitri secured his release after two months

and put him in a private clinic. Jd. at 99-100, 202.

When Evgueni was one year old, he was diagnosed as

having infantile cerebral palsy. Jd. at 100-101. The Rus-

sian government then labeled him disabled and (because

* Although the Government describes that institution euphemisti-

cally as a “government hospital for children” (Pet. 7), that rosy depiction

is belied by the immigration judge’s own description of the “deplorable”

conditions where Evgueni was “confined” for two months and “deprived of

his parents” — children were “wrapped in old and dirty linen,” “wet and

dirty,” “not properly fed” or even cleaned. Pet. App. 34a-35a.

his mother would not permit him to be vaccinated due to

his compromised immune system) barred any public

medical support for his condition. Jd. at 203. The govern-

ment also refused to allow the Tchoukhrovs to enroll

Evgueni in public school, even though his disability was

physical, not mental. Jd. at 101, 202.

Evgueni’s government doctor told the Tchoukhrovs

that if they refused to institutionalize their son, he should

“be isolated at home” and not taken out into public places.

A.R. at 101-102. Indeed, when Victoria took Evgueni out in

public, people verbally abused and spat upon them. Jd. at

203. Victoria “often” heard parents say to their children:

“Get away from that boy, can’t you see he’s abnormal” or

“Don’t get near him, he’s sick.” Id. at 332.

Twice, Victoria watched as strangers assaulted her -

young son so severely that he required hospitalization, and

the Russian government refused to do anything about it.”

During one visit to the park when Evgueni was six, sev-

eral young men attacked him. /d. at 203. Victoria wit-

nessed the men break Evgueni’s arm and cause severe

head trauma that required hospitalization for two months

and led to insomnia, spontaneous crying, shaking, and

paranoia. Jd. Although Victoria and Dmitri filed a police

report, government authorities did not investigate. Id. at

121. On another occasion, a woman yelled at Victoria, “Get

your ugly imbecile out of here,” and shoved Evgueni to the

ground. Jd. at 127, 332. He was rushed to the emergency

room and received several stitches in his head, from which

* The Government's statement that the two incidents of violence

were “not mentioned in [Victoria’s] asylum application” (Pet. 7) is

simply not true. They are specifically mentioned in Victoria’s Affidavit

incorporated into her asylum application. A.R. 195, 200-204. Moreover,

it is beside the point: The immigration judge specifically found “that the

respondent explained adequately why she did not place all of the

alleged past persecution incidents in her initial asylum application.”

Pet. App. 33a. And he made specific findings of fact regarding the two

incidents of violence. Id. at 36a.

he still has a visible scar. Jd. at 127. Victoria again filed a

police report; this time, the police told her the matter was

insignificant and that she should settle it herself. Id. at

332. After these incidents, Evgueni became so frightened

that he refused to leave the house. Jd. at 128, 333.

As the family faced continued harassment and vio-

lence and continued government pressure to institutional-

ize or isolate Evgueni, Victoria and Dmitri decided to take

political action. They joined with other parents of disabled

children and founded an association “that opposed the

prevailing oppressive conditions of the handicap [sic]

children,” called “Mothers-Unite!” A.R. at 202. Victoria

worked toward the publication of a newspaper article

criticizing the Russian government’s treatment of disabled

children, but the proposed article was cancelled at the last

minute. Jd. at 203. The couple spoke to the authorities

about the treatment of children with disabilities and wrote

letters demanding equal rights. Jd. at 115, 201-202.

The family also sought help from the Moon Society;

this action only provoked additional harassment. Jd. at

117, 203. After one meeting, people threw stones at Victo-

ria and vandalized the familys car. When Dmitri com-

plained to the police, the authorities failed to respond. Id.

at 203. In 1997, Dmitri was fired from his job as a civil

engineer and was unable to find employment for two

years; during several job interviews, Dmitri was urged to

stop advocating for the disabled. Jd. at 117-118, 203.

Facing continued hostility toward the family and

certain that they would never be able to adequately

protect their son, the Tchoukhrovs_ left Russia for the last

time. Id. at 90-91.* The family entered the United States

on September 9, 2000. Jd. at 90.

2. The Persecution of People with Disabilities in

Russia — Two reports in the administrative record provided

* Prior to this last departure, Victoria and Evgueni had traveled to

the United States twice for medical treatment. A.R. 90.

additional context and corroboration for the Tchoukhrovs’

claim of persecution. The United States Department of

State’s country report for Russia found that children with

disabilities are “removed from mainstream society and

isolated in state institutions.” A.R. at 241. It further found

that “the prospects of children/orphans who are disabled

physically or mentally are extremely bleak. The label of

‘imbecile’ or idiot, which signifies ‘uneducable,’ is almost

always irrevocable. The most likely future is a lifetime in

state institutions.” Jd. at 242.° The report noted that

“[bleing disabled is still a serious social stigma in the

country, an attitude that profoundly influences how

institutionalized children are treated.” Id. In state institu-

tions, “many disabled children are confined to beds around

the clock or to rooms that are lit, heated, and furnished

inadequately.” Jd. at 243.

The Department of State relied in part on a report

prepared by Human Rights Watch. See A.R. at 242-243.

That report found that Russian parents of children with

even minor disabilities (such as “mild Down syndrome,

cerebral palsy, and-correctable conditions such as club foot

and cleft palate”) “are routinely pressured at the mater-

nity ward to give up such infants.” Jd. at 270. Once placed

in asylum-like institutions, or “internaty,” the children

“are exposed to shocking levels of cruelty and neglect.” Jd.

at 254; see also id. at 258-259 (stating that “examples of

inhuman and degrading treatment are all too common

features of Russian orphanages, both for children with

severe disabilities, and as well for those diagnosed as

‘educable’”). The report singled out the harm to children

with disabilities as especially severe (id. at 254):

Once officially labelled as retarded, Russian or-

phans face another grave and consequential vio-

lation of their rights around the age of four, when

* The immigration judge specifically incorporated the relevant

sections of the State Department’s report in his decision. Pet. App. 38a.

they are deemed “ineducable,” and warehoused

for life in psychoneurological internaty. In addi-

_tion to receiving little to no education in such in-

ternaty, these orphans may be restrained in cloth

sacks, tethered by a limb to furniture, denied

stimulation, and sometimes left to lie half-naked

in their own filth. Bedridden children aged five to

seventeen are confined to understaffed lying-

down rooms as in the baby houses, and in some

cases are neglected to the point of death. Those -

who grow to adulthood are then interned in an-

other “total institution,” where they are perma-

nently denied opportunities to know and enjoy

their civil and political rights.

According to the Human Rights Watch report, those

practices reflect the pérsistence of “Soviet-era policies”

regarding the institutionalization of children. A.R. at 267.

Even after the closing of the Gulag, the report concluded,

the Russian government confines children with disabilities

to “another archipelago of grim state institutions.” Jd. at

253.

B. Proceedings Below

In late January 2001, without any legal assistance,

Victoria Tchoukhrova applied for asylum and withholding

of removal. See A.R. at 323-333. Victoria listed both her

son Evgueni and her husband Dmitri as derivative appli-

cants. See id.® Under the relevant statute, an individual who

is “unable or unwilling to return” home “because of persecu-

tion 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. §1101(aX42)(A), is

eligible for asylum. See 8 U.S.C. § 1158. An applicant need

not prove that he will be persecuted if returned to his

* She also applied for relief pursuant to the Convention Against

Torture, but she has since abandoned that claim. See Pet. App. 9a n.2.

country; ali he must show is a “reasonable possibility” of

persecution, INS v. Cardoza-Fonseca, 480 U.S. 421, 440

(1987), and past persecution raises a presumption of

future persecution, see 8 C.F.R. § 1208.13(b)(1). While the

decision to grant asylum is discretionary, withholding of

removal is mandatory; the Attorney General may not

remove a person to a country where his or her “life or

freedom” would be threatened in a country of removal

because of race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3). To qualify for withholding of deportation

relief, an applicant must show a “clear probability of

persecution,” viz., that it is “more likely than not” that he

or she will be persecuted if deported to his or her home

country. See INS v. Stevic, 467 U.S. 407, 429-30 (1984).

1. Administrative Proceedings - In April 2001, the

Tchoukhrovs appeared before the immigration judge. A.R.

65-75. Victoria renewed her claims for asylum and with-

holding of removal. Jd. at 73. The matter was continued

for a merits hearing. Jd. Before the hearing, Victoria filed

a new asylum application providing a more detailed

description of her asylum claim, including her past perse-

cution and fear of future persecution if removed to Russia.

Id. at 191-204; see id. at 73.’

At the outset of the merits hearing, the immigration

judge admitted all the exhibits, including Victoria’s asy-

lum application and supporting affidavit, without any

objection. A.R. 78. Significantly, the Government trial

attorney made no objections to the admissibility or rele-

vance of Victoria’s sworn statement, which detailed harm

to both herself and Evgueni. See id. at 200-204.

" Victoria’s pretrial brief reiterated that she was seeking asylum

based on both past persecution and her fear of future persecution in

Russia. A.R. 182-183. Thus, the Government was squarely on notice

that the then-current country conditions in Russia would be an

important issue at the merits hearing.

Victoria testified in support of her application. A.R.

83-157. Although her testimony focused largely on the

mistreatment of her son as evidence of her own persecu-

tion, the Government never objected once on relevance

grounds. See id. At the hearing’s conclusion, the immigra-

tion judge stated: “I agree with everything you say, I

believed everything you said.” Jd. at 161-62.

Although the Government briefly cross-examined

Victoria, it presented no evidence whatsoever. A.R. 138-

150. The Government opposed Victoria’s claim on the basis

that the “problems” in Russia did not rise to the “level of

persecution as enumerated in the statute.” Jd. at 159. The

Government voiced no other grounds for its opposition. Jd.

Never did it raise the issue of changed country conditions,

even when uncertain of the immigration judge’s ultimate

decision.

At the conclusion of the hearing the immigration

judge issued a decision. He first addressed the issue of

credibility and found Victoria’s testimony “to be plausible,

internally consistent, sufficiently detailed, and responsive

to questions.” Pet. App. 33a. Although he found that at

times Victoria stated “broad opinions concerning possible

past persecution” that may have been exaggerated, id.

(emphasis added), he found her testimony regarding facts

to be credible: “On the whole, I find the respondent was a

credible witness.” Id.

The immigration judge next discussed the circum-

stances Victoria and her family faced in Russia. Pet. App.

34a-39a. He concluded that the Tchoukhrovs were “mem-

ber[s] of the particular social group described above,” viz.,

a family with a “severely disabled” child or child with a

“debilitating disability.” Jd. at 34a, 36a, 37a. The immigra-

tion judge further found “that the respondent and her

family and child did suffer harm in Russia” and “that this

harm was a result of the fact that the respondents are a

member of the particular group.” Jd. at 37a (emphasis

added).

All of the social-group-related harm the immigration

judge discussed involved the treatment of Evgueni, see

Pet. App. 34a-39a," but he did not reject Victoria’s claim on

that ground (nor did the Government so request). Rather,

he concluded that the harm “d{id] not rise to the level of

persecution.” Jd. at 37a. In particular, the immigration

judge ruled that “[t]he fact that the respondent’s son was

unable to get the quality of medical treatment that he can

secure in the United States is not persecution.” Jd. The

Russian government, he concluded, simply “does not have

the resources to provide medical attention to individuals

at the same standards as in developed nations.” Jd. at 38a.

The immigration judge found it “more troubling” that “the

respondent’s child was prevented from attending public

schools.” Jd. at 37a. But he again determined that the

Russian government “does not appear to have sufficient

resources to educate handicapped children.” Jd. at -38a.

Although the immigration judge ultimately found “that

there is substantial discrimination against individuals

with disabilities in Russia,” he concluded that “that

discrimination does not rise to the level of persecution.” Id.

at 39a. The immigration judge therefore denied all relief

and ordered the Tchoukhrovs removed.

The Tchoukhrovs timely appealed to the Board of

Immigration Appeals. See 8 C.F.R. § 1003.1(b)(9) (author-

izing such appeals). In opposition, the Government filed a

four-sentence brief that described the immigration judge’s

decision as “dispositive of all issues” regarding Victoria’s

asylum appeal. A.R. 17. The Board summarily affirmed

* The immigration judge did discuss Victoria’s allegations that her

husband, Dmitri, lost his job, but the judge found that “[t]here was no

evidence to show that there was a connection between the respondent’s

husband being laid off and the fact that the respondent has a political

opinion and is a member of a particular social group.” Pet. App. 37a.

The immigration judge also discussed Victoria’s allegations that people

threw stones at her when she attended a Moon Society meeting, but

again he found no connection between that incident and her social

group membership. See id. Victoria appealed those findings.

the immigration judge’s decision in its entirety. Pet. App.

28a-29a. The summary affirmance invoked the Board

decision Jn re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.

1994); see Pet. App. 29a. Under Burbano, 20 I. & N. Dec.

at 874, the “Board’s final decision may be rendered in a

summary fashion” when the “Board’s conclusions upon

review of the record coincide with those which the immi-

gration judge articulated.” When the Board invokes

Burbano, it adopts the immigration judge’s decision in its

entirety. In contrast to a streamlining decision under

8 C.F.R. § 1003.1(e)(4)Gi), which affirms only “the result

reached” below as correct, without “implyling] approval of

all of the reasoning of that decision,” id., a Burbano

affirmance adopts both the reasoning and result of the

immigration judge’s decision. See Burbano, 20 I. & N. Dec.

at 874; see also Gishta v. Gonzales, 404 F.3d 972, 980 (6th

Cir. 2005).

2. Judicial Review Proceedings - The Tchoukhrovs

petitioned for review in the United States Court of Appeals

for the Ninth Circuit. A.R. 6. Before the Court of Appeals,

the Government argued that substantial evidence sup-

ported the agency decision. See App., infra, at 42a-53a.

However, in the event the circuit court found that substan-

tial evidence did not support the immigration judge’s

findings on past and future persecution, the Government

requested a remand for the agency to consider whether the

past conduct or future fear was “on account of” a social

group or political opinion. Jd. at 50a-53a.° Significantly, the

Government did not request or even suggest a remand for

* The Government erroneously asserted that the agency had not

previously considered the “on account of” question. See Pet. App. 37a

(finding that the Tchoukhrovs “sufferjed] harm,” and that “this harm

was a result of the fact that the respondents are a member of the

particular social group described above,” but concluding that the harm

“does not rise to the level of persecution”). Notably, the Government in

its petition for certiorari has abandoned the request for a remand on

the “on account of” issue.

consideration of changed country conditions or the possi-

bility of relocation. Indeed, the Government did not

suggest a remand for any issue other than the “on account

of” requirement. Jd. The Government also argued that any

issues not briefed by Tchoukhrova to the Court of Appeals

should be deemed abandoned and waived. Jd. at 30 n.6

(citing United States v. Tisor, 96 F.3d 370, 376 (9th Cir.

1996) and Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir.

1991)).

The Court of Appeals granted the petition for review.

Pet. App. la. In its ruling, the court agreed with most of

the agency’s analysis. In particular, the court “agree[d]

with the legal conclusion of the immigration judge and the

BIA that disabled children and their parents who provide

care for them are members of ‘a particular social group.’”

Id. at 11a. The court also agreed with the agency’s “factual

findings that Evgueni and his parents were members of

that social group, were harmed (directly or indirectly) on

account of their membership, and that these harms were

inflicted by the Russian government or those whom it was

unwilling or unable to control.” Jd. And the court “agree[d]

that, as a matter of law, the immigration judge was correct

to look at the harms faced by the Tchoukhrovas collectively

when evaluating Victoria’s application.” Id. The court

disagreed on only one point: “[W]e hold that [the agency’s]

determination that the harms did not rise to the level of

persecution is not supported by substantial evidence.” Jd.

In addressing Victoria’s eligibility for asylum and

entitlement to withholding, the Court of Appeals ruled

that “the harms suffered by a disabled child” are harms

that “[mJay” be “taken into account when determining

whether to grant his parent’s asylum application.” Jd. at

16a. In so doing, the court simply “agree[d] with the

approach taken by the agency.” Jd. The court also agreed

with the approach taken by the agency’s appellate counsel,

who did not devote a single word of their panel brief to

contesting the use of evidence of Evgueni’s treatment as

support for his mother’s asylum application. See- App.,

infra, at 42a-53a (arguing that Evgueni’s treatment did

not rise to the level of past or future persecution).

The Court of Appeals described the treatment that,

taken cumulatively, “compel[led] the conclusion” that

Victoria Tchoukhrova experienced persecution (Pet. App.

20a): Her newborn baby was “treated as [medical] waste

and thrown into a pile of human remains.” Jd. He was

then “confined against his parents’ will” in an institution

where the children were treated deplorably. Jd. at 21a.

Once her child was released from the institution, Victoria

lived with him as he was denied “any treatment for his

cerebral palsy” and any “elementary education.” Jd. at 23a.

And her son “remains under constant threat that he will

be returned to an internaty by the Russian government, as

Russia confines both disabled children and adults in ‘total

institutions.” Id. at 24a. Finally, “the Russian government

was ‘unwilling or unable’” to keep private individuals from

physically assaulting Victoria’s son because of his disabil-

ity. Id. at 25a.

Having determined that Victoria had experienced

persecution, the court recognized that it would ordinarily

remand to permit “the agency to resolve, in the first

instance, the question of a ‘fundamental change in circum-

stances’ or [whether] there is the possibility of relocation.”

Id. at 26a. But the Government had “made no argument to

the agency — or to [the court] — that there has been a

fundamental change in circumstances or a possibility of

relocation.” Jd. Nor did any evidence to support such a

claim appear in the record. Jd. Accordingly, the court

determined that “Victoria has established a well founded

fear of persecution.” Jd. The court thus found Victoria

eligible for asylum, and it remanded “for the Attorney

General to exercise his discretion” with respect to her

application. Jd. The court similarly found Victoria entitled

to withholding of removal, and it remanded for the grant

of that relief. Id. at 27a.

The Government sought rehearing en banc. In its

petition, the Government argued for the first time that

Evgueni’s persecution should not have been considered in

support of his mother’s asylum application. See App.,

infra, at 13a-16a. It also argued for the first time that the

court should remand for consideration of changed circum-

stances and the possibility of relocation — though the

Government still offered no evidence or argument that

changed circumstances or the possibility of relocation

actually existed. Jd. at 16a-17a. The court denied rehear-

ing en banc. Pet. App. 41a.

REASONS FOR DENYING THE WRIT

The Government argues that the Court of Appeals

contravened the principles of INS v. Ventura, 537 U.S. 12

(2002) (per curiam), and Gonzales v. Thomas, 126 S. Ct.

1613 (2006) (per curiam), in granting the Tchoukhrovs’

petition for review. Indeed, it goes so far as to seek sum-

mary reversal, based on what it asserts is “a continuing

pattern by the Ninth Circuit” of. contravening those

principles. Pet. 14. But the Government’s objections are

misplaced. Whether or not the Court of Appeals has

properly taken account of the principles of Ventura and

Thomas in other cases, it plainly followed those principles

here. Far from creating a “new rule of immigration law”

that mandates “reverse derivative asylum,” Pet. 16, the

Court of Appeals simply followed the agency decision

under review in finding the harsh treatment of a minor

chi'd to be relevant to his mother’s claim of persecution.

Indeed, in arguing that the Court of Appeals should

not have considered Evgueni Tchoukhrov’s treatment in

evaluating his mother’s asylum application, it is the

Government who is disregarding the Chenery I principle

on which Ventura and Thomas rest. See SEC v. Chenery

Corp., 318 US. 80, 88, 92-95 (1943); see also Motor Vehicle

Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463

U.S. 29, 50 (1983) (“[C]lourts may not accept appellate

counsel’s post hoc rationalizations for agency action.”). It is

the Government who seeks to disregard the decision the

agency actually made.

Far from the kind of straightforward application of

Ventura and Thomas that might warrant a summary

reversal, what the Government seeks instead is a radical

expansion of those per curiam decisions. Under the Gov-

ernment’s interpretation, the Government can win an

asylum case, but it can never lose. Instead, the reviewing

court must always remand to give the Government an-

other bite at the apple. If accepted, the Government’s

position would relegate reviewing courts in asylum cases

to an essentially advisory role, in violation of basic princi-

ples of separation of powers. See Hayburn’s Case, 2 U.S.

408, 2 Dall. 409, 410 n.* (1792). It would also disregard

basic principles of waiver and forfeiture of arguments —

principles to which the Government, no less than private

parties, must adhere.

Stripped of the misleading Ventura/Thomas veneer,

the Government’s argument simply rests on a disagree-

ment with the way the Court of Appeals applied settled

law to the particular facts of this case. The agency deter-

mined that the treatment of the Tchoukhrovs constituted

mere discrimination, rather than “persecution,” and the

Court of Appeals disagreed. The court’s determination was

correct. More to the point, however, it is precisely the kind

of factbound ruling that is not a proper candidate for the

grant of certiorari, much less a summary reversal. See

S. Ct. R. 10 (“A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated

rule of law.”).

I. The Decision of the Court of Appeals Does

Not Conflict with This Court’s Rulings in Ven-

tura and Thomas

The Government contends that the Court of Appeals

violated the principles of Ventura, supra, and Thomas,

supra, in two respects. First, it contends that the Court of

Appeals “reached out to create a new rule of immigration

law” — specifically, “a rule of reverse derivative asylum.”

Pet. 16. It argues that Ventura and Thomas required the

court to remand and permit the agency to decide whether

to adopt such a rule. Second, the Government contends

that Ventura and Thomas required the Court of Appeals to

remand for a determination of changed circumstances or

the possibility of relocation — even though the Government

had never, at the agency stage or before the panel, argued

that changed circumstances or the possibility of relocation

existed. Id. at 18-20. Although the Government makes no

assertion that the Court of Appeals’ decision creates a

conflict in the circuits, it contends that the decision is so

egregiously erroneous as to warrant summary reversal.

But the Court of Appeals committed no error here, much

less an egregious one. Because the Government merely

seeks error correction — and there is simply no error to

correct — the Ventura/Thomas issue does not warrant this

Court’s review.

A. The Court of Appeals Created No “New

Rule” of “Reverse Derivative Asylum”

1. Contrary to the Government’s assertions (Pet. 16),

the Court of Appeals neither “reached out” nor created “a

new rule of immigration law.” The Court of Appeals,

expressly following the reasoning of the agency decision

under review, simply held that “the harms suffered by a

disabled child” are harms that “[mlay” be “taken into

account when determining whether to grant his parent’s

asylum application.” Pet. App. 16a. That “common sense”

ruling (id. at 17a), which accords with other circuit and

agency decisions, created no hard-and-fast “rule of reverse

derivative asylum.” Cf. Pet. 21. Nothing in Ventura or

Thomas required the Court of Appeals to remand before

making it.

Ventura and Thomas presented a scenario that is far

removed from this case. In both Ventura and Thomas, the

Court of Appeals ruled on an issue that the agency itself

had never considered in the decision under review. In

Ventura, the Board of Immigration Appeals had ruled that

the asylum applicant failed to show “‘that he face[d]

persecution ‘on account of’ a qualifying ground.’” Ventura,

537 U.S. at 15. Although the Government had also argued

that circumstances had changed “to the point where no

realistic threat of persecution currently existed,” id. at 13,

the Board did not pass on that argument. When the Court

of Appeals reversed the agency’s “on account of” ruling, the

court went on to consider and decide the changed-

circumstances issue even though the Board did not decide

it first. See id. at 15.

In Thomas, the Board ruled that the applicants were

not eligible for asylum based on persecution on account of

their race (and perhaps political opinion). Thomas, 126

S. Ct. at 1613-1614. On review, the en banc Court of

Appeals held that the applicants were eligible for asylum —

not based on their race or political opinion, but based on

their membership in the “particular social group” of

persons related to “Boss Ronnie,” a notoriously racist and

harsh foreman at a South African company. Jd. at 1613-

1614. But the Board had never had a chance to “consider ]

whether Boss Ronnie’s family presents the kind of ‘kinship

ties’ that constitute a ‘particular social group.’” Jd. at

1615.

In both cases, this Court held that the Court of Ap-

peals erred by deciding issues as a matter of first view,

without giving the agency an opportunity to “make an

initial determination” of those issues. Ventura, 537 U.S. at

17; accord Thomas, 126 S.Ct. at 1615. Applying the

Chenery I doctrine that “a judicial judgment cannot be

made to do service for an administrative judgment,”

Chenery, 318 U.S. at 88, this Court concluded that the

Court of Appeals was required to remand to permit the

agency “to address the matter in the first instance in light

of its own expertise.” Ventura, 537 U.S. at 17; see Thomas,

126 S. Ct. at 1615.

Unlike in Ventura and Thomas, the Court of Appeals

here did not act before the agency made “an initial deter-

mination” of the relevance of a child’s persecution to a

mother’s asylum application. To the contrary, the Court of

Appeals simply affirmed the agency’s determination that

such persecution is relevant. As we have shown above,

virtually all of the evidence of Victoria’s persecution

presented at the hearing and discussed by the immigra-

tion judge involved the treatment of Evgueni. See pp. 8-9,

supra. Yet he did not reject the asylum application on the

ground that evidence of a son’s barbaric treatment was

irrelevant to a mother’s claim of persecution — nor did

agency counsel object to the relevance of that evidence.

Indeed, the immigration judge explicitly relied on and

evaluated that evidence. He rejected the application for

the sole reason that the harsh treatment of Evgueni in

Russia amounted only to “discrimination” and not to

“persecution.” See pp. 9-10, supra. And the Board, in its

Burbano affirmance, did not merely agree with the result

but instead adopted the immigration judge’s ruling as its

own. See pp. 10-11, supra. Although the Court of Appeals

disagreed with the agency as to whether “persecution”

existed, it simply followed the agency’s own analysis of the

relevance of a child’s treatment to a mother’s claim of

persecution. Nothing in Ventura and Thomas requires a

court to remand to the agency before agreeing with the

agency's analysis of an issue.

Quoting one of the judges who dissented from the

denial of rehearing below, the Government asserts that the

immigration judge and the Board of Immigration Appeals

would “surely be shocked at the suggestion” that they

deemed Evgueni’s treatment to be relevant to the question

whether Victoria experienced persecution. Pet. 16 n.3

(quoting Pet. App. 5la) (internal quotation marks omit-

ted). But that effort at mind-reading itself runs afoul of

the Chenery I doctrine. As Chenery held, a court must

“confin[e its] review to a judgment upon the validity of the

grounds upon which the [agency] itself based its action.”

Chenery, 318 U.S. at 88. Here, the agency plainly did not

base its judgment on the grounds the Solicitor General

suggests — that Evgueni’s treatment is irrelevant to Victoria’s

showing of persecution — but instead based its judgment on

the ground that the treatment amounted only to discrimi-

nation and not persecution. The agency consistently

treated the evidence of Evgueni’s treatment as relevant to

Victoria’s showing of persecution. The Solicitor General

may wish that the agency had not done so, but Ventura

and Thomas are not vehicles for opportunistic remands

based on “too-late formulations, apparently coming from

the Solicitor General’s office.” Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 422 (1971) (separate

opinion of Black, J.). Rather, those cases, and the Chenery

doctrine they apply, enforce the principle that the agency’s

decision must stand or fall based on the agency’s own

analysis, and not that of counsel. The Court of Appeals

followed that principle here.

The Government’s arguments might be closer to the

mark if the Court of Appeals had in fact created a “rule of

reverse derivative asylum.” Pet. 21. Under such a rule, all

parents whose children experienced persecution would

presumably be eligible for asylum on that basis alone, just

as all children whose parents experience persecution are

entitled to asylum under the derivative asylum regulation.

See 8 C.F.R. § 207.7. But the Court of Appeals did not

adopt such a rule. To the contrary, it merely determined

(as did the agency) that a child’s treatment is relevant to

his mother’s showing of persecution. Pet. App. 16a.

If there were any doubt on that score, the Ninth

Circuit’s subsequent en banc decision in Abebe v. Gonzales,

432 F.3d 1037 (9th Cir. 2005), should resolve it. The Abebe

_ court, citing Ventura, determined that it could not decide

the issue of reverse derivative asylum on its own and

therefore remanded to the Board. See id. at 1043. Abebe

shows that the Ninth Circuit has adopted no “rule of

reverse derivative asylum.” Pet. 16. Instead, consistent

with Ventura and Thomas, it has allowed the agency to

address in the first instance the relevance of a child’s

treatment to a parent’s showing of persecution. And that is

all the Court of Appeals did here.

2. Not only did the Court of Appeals comply with

Ventura and Thomas when it deemed Evgueni’s treatment

relevant to his mother’s showing of persecution; the court

was also correct on the merits. To consider a child’s treat-

ment in determining whether his mother experienced

persecution is, as the Court of Appeals said, simply “com-

mon sense.” Pet. App. 17a. Family members personally

suffer while watching their loved ones harmed.” The facts

here illustrate the point. To have one’s child taken away at

birth, left in a bin of medical and abortion waste, and

institutionalized against one’s wishes in horrific conditions

— and to secure his release only to be pressured to reinsti-

tutionalize him — plainly inflicts harm on the parent as

well as the child.

The Government asserts (Pet. 20) that the Court of

Appeals’ decision conflicts with the statute that confers

derivative status on a spouse or child of a principal asylum

applicant, 8 U.S.C. §1158(b)(3), and the implementing

regulation that states that parents do not get the same

derivative treatment, 8 C.F.R. § 207.7(b)(6). There is no

conflict. Derivative status under the statute and regula-

tion is accorded automatically regardless of any harm

suffered by the spouse or child and without regard to the

nature or quality of the family relationship. In contrast,

the Court of Appeals simply held that the harm to Evgueni

as a disabled child — harm that plainly affects his mother

in a direct way — was properly considered in adjudicating

his mother’s claim that she herself was persecuted.

Throughout this litigation, Victoria’s asylum claim has

been based on the violence and severe discrimination faced

by her son, her spouse, and herself on account of Evgueni’s

° The Government’s standard-form asylum application recognizes

that common-sense point. Each question on that application regarding

the basis for the asylum claim begins, “Have you or any member of your

family ... ,” followed by requests for information regarding member-

ship in organizations, mistreatment and threats, and arrests and

imprisonment. See A.R. 195.

disability — as well as on her concern for her son’s special

need for a mother, a concern evidenced by her efforts to

rescue and care for him. As we have shown, Victoria

Tchoukhrova did not advance, nor did the court accept,

any principle of automatic eligibility based on harm to

one’s child.

The Court of Appeals does not stand alone on this

issue. Its unremarkable holding is shared by other courts

and the Board of Immigration Appeals itself. For example,

in Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004), the

Sixth Circuit found a mother eligible for asylum “based on

her fear that her daughter w[ould] be forced to undergo

female genital mutilation.” The court relied on the Board’s

earlier decision in In re C-Y-Z-, 21 I. & N. Dec. 915, 919-

920 (B.1.A. 1997), which-found that an alien whose spouse

was subjected to forced sterilization was eligible for

asylum. In C-Y-Z-, Board Member Rosenberg wrote a

concurring opinion in which she cited an array of authority

— including cases from the Board and the First and Ninth

Circuits — recognizing that the treatment of the applicant’s

family members is relevant to the applicant’s claim of

asylum. C-Y-Z-, 21 I. & N. Dec. at 926-927 (Rosenberg, J.,

concurring). As the Abay court noted, numerous agency

decisions both prior and subsequent to C-Y-Z- have

granted relief to parents based on a threat that their

children will experience female genital mutilation. See

Abay, 368 F.3d at 641-642 (citing cases). The decision of

the Court of Appeals here is perfectly in line with those

decisions.”

" The Government asserts that the dilemma created for the

Tchoukhrov family, the agency, and the courts when a child is eligible

for asylum, but not his parents, can be resolved by a discretionary grant

of deferred action. Pet. 21-22. But, of course, that option has been

available to the Government at all stages of removal proceedings

against the family; indeed, it could have exercised its prosecutorial

discretion not to initiate removal proceedings against the family in the

first place. Yet, the Government has never taken an approach other

than seeking the whole family’s deportation to Russia.

B. Ventura and Thomas Did Not Require a

Remand on the Issues of Changed Circum-

stances and the Possibility of Relocation

As the decision below noted, “the INS made no argu-

ment to the agency — or to [the Court of Appeals] — that

there has been a fundamental change in circumstances or

a possibility of relocation.” Pet. App. 26a. Although the

Government’s panel brief sought a Ventura remand on one

issue, it was not the issue of changed circumstances or

relocation. Instead, the Government sought a remand only

on the question whether the Tchoukhrovs’ harsh treatment

was “on account of” their social group membership — an

argument it abandoned in its petition for certiorari. See

App., infra, at 50a-53a." The Government has therefore

waived the changed circumstances and relocation issues.

In any event, neither Ventura nor Thomas required the

Court of Appeals to remand to permit the agency to ad-

dress them.

1. As the Government itself argued below, failure to

present issues on appeal constitutes a waiver of those

issues. See p.12, supra. That settled and fundamental

principle applies not only to asylum applicants, but to the

Government as well. “[I]t is no less good morals and good

law that the Government should turn square corners in

dealing with the people than that their people should turn

square corners in dealing with the Government.” United

States v. Winstar Corp., 518 U.S. 839, 886 n.31 (1996)

(internal quotation marks omitted).

The Government suggests that it did not litigate the

changed circumstances and relocation issues below be-

cause the immigration judge did not find past persecution

* The Government suggests that it did ask for a broad remand on

“the remaining unaddressed issues to the Board.” Pet. at 20. It did no

such thing. It asked for a remand on one narrow issue. See App., infra,

at 50a-53a. The Government's inaccurate suggestion to the contrary is

disappointing.

— “so there was nothing to rebut.” Pet. 19. That assertion

presumes that the Government knew the eventual out-

come of the case even before the parties finished litigating

the merits. But at the time the Government presented its

evidence, it obviously had no way of knowing how the

immigration judge would ultimately rule.

Indeed, mid-hearing, the immigration judge stated

that Evgueni’s inability to attend public education “poten-

tially rises to the level of persecution.” A.R. 133. The

immigration judge then gave the Government the oppor-

tunity to present any evidence it wanted. Jd. at 160. Yet,

despite the possibility of a past persecution finding, the

Government presented no evidence on either changed

conditions in Russia or possible internal relocation. Nor

did it cross-examine Victoria on the two subjects. The

Government’s four-sentence brief to the Board similarly

failed to address those issues. Jd. at 17. The Government

simply did not raise the changed circumstances and

relocation issues before the agency at all.

Nor did the Government raise the issues before the

Court of Appeals — at least not until it lost before the panel

and filed its petition for rehearing. There is no excuse for

the Government’s failure to at least flag the issues as

requiring a remand. The Government’s suggestion that it

did not raise the issues because the court had no authority

to decide the “merits” of those issues in the first instance

(Pet. 19) is a non sequitur. It is, of course, entirely possible

to raise an issue and request a remand on the topic with-

out litigating its “merits” on appeal. Indeed, that is exactly

what the Government did in its petition for rehearing.

The Government presented no evidence or arguments

on changed conditions or internal relocation to the immi-

gration judge; made no arguments to the Board on those

issues; failed to ask the Court of Appeals for a remand on

those issues; and then raised them only after losing on

appeal. The Government has waived the changed circum-

stances and relocation issues, and it may not raise them

here. See United States v. United Foods, Inc., 533 U.S.

405°°416-417 (2001) (refusing to consider Government’s

argument that was not properly presented to the Court of

Appeals).

2. Even if the issue were properly before this Court,

nothing in Ventura and Thomas required the Court of

Appeals to remand on the changed circumstances and

relocation issues. The Government asserts that the deci-

sion below reflects the “exact same legal error that

prompted summary reversal in Ventura itself.” Pet. at 19.

But the Government ignores the fundamental differences

between Ventura and this case.

Unlike here, the Government in Ventura explicitly

argued the changed circumstances issue to the immigra-

tion judge. Cf. Ventura, 5387 U.S. at 12. The Board ruled

against the asylum applicant on different grounds and

never reached the changed circumstances argument. See

id. at 15. Before the Ninth Circuit, both sides noted that

the Board had not considered the Government’s alterna-

tive argument. See id. at 13. “And both sides asked that

the Ninth Circuit remand the case to the BIA so that it

might do so.” Id. Instead, the Ninth Circuit “evaluated the

Government’s claim itself” and, based on a State Depart-

ment report submitted five years earlier, held that the

record evidence failed to rebut any presumption of perse-

cution. Jd. at 14.

Unlike Ventura’s fact-finding on appeal, the decision

below declined to remand on the issue of changed country

conditions for an entirely different reason — the Govern-

ment’s failure to litigate or even raise the issue before the

agency. See Pet. App. 26a. Consistent with well-

established principles of-waiver, the Court of Appeals

refused to permit the Government to belatedly raise new

defenses for the first time on appeal: “when the INS makes

no argument before the immigration judge or the BIA

concerning changed conditions, we do not remand.” Pet.

App. at 26a. See also Ghebremedhin v. Ashcroft, 392 F.3d

241, 243 (7th Cir. 2004) (disagreeing “that Ventura stands

for the broad proposition that a court of appeals must

remand a case for additional investigation or explanation

once an error is identified” in all cases).

Nothing in Ventura suggests that a court must permit

the Government to raise new defenses for the first time on

appeal. Nor does Thomas require a remand here. In

Thomas, the Court of Appeals held that the applicants’

family constituted a “particular group” even though the

applicants had not litigated that theory before the agency

beyond simply checking the relevant box on their asylum

application. See Thomas, 126 S. Ct. at 1613-1614; Thomas

v. Gonzales, 409 F.3d 1177, 1191 (9th Cir. 2005) (en banc)

(Rymer, J., dissenting), revd sub nom. Gonzales v. Tho-

mas, 126 S. Ct. 1613 (2006). Because the agency did not

rule on that theory, and the Government had never had a

chance to respond to it at the agency level, this Court held

that a remand was required. See Thomas, 126 S. Ct. at

1615.

Here, by contrast, the changed circumstances and

relocation issues were always relevant to the case, and the

Government had a chance to raise them throughout the

administrative proceedings. Unlike in Thomas, the Court

of Appeals here simply declined to have the Board consider

a claim that the Government had waived by failing to

assert it in a timely fashion before the agency. That refusal

was in accord with well-settled administrative law princi-

ples. See Woodford v. Ngo, 126 S. Ct. 2378, 2385-2386

(2006) (citing cases applying general administrative law

principle that issues must be raised before the agency in a

timely manner).

3. By reading the Chenery I doctrine, as applied in

Ventura and Thomas, to require a remand to permit it to

present defenses that it failed to raise in the initial admin-

istrative proceedings or even before the panel of the Court

of Appeals, the Government seeks a radical extension of

that doctrine. Under its position, the Government can win

an asylum case, but it can never lose — if the Court of

Appeals rules against the agency, it must always remand to

permit the Government to raise new issues and arguments

to justify its earlier decision. But this Court has held that

“Chenery does not require that we convert judicial review

of agency action into a ping-pong game.” NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 766 n.6 (1969).

Ventura and Thomas merely applied the Chenery I

doctrine. They did not mandate that whenever a Court of

Appeals considers the facts of a case and exercises its

acknowledged power of judicial review, its holdings must

be referred back for the agency’s concurrence. That would

contravene basic separation of powers principles. See

Hayburn’s Case, 2 U.S. 408, 2 Dall. 409, 410 n.*; see also

Chicago & Southern Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 103, 113-114 (1948) (“It has also been the

firm and unvarying practice of Constitutional Courts to

render no judgments not binding and conclusive on the

parties and none that are subject to later review or altera-

tion by administrative action.”); Alaska Dept. of Environ-

mental Conservation v. EPA, 540 U.S. 461, 512 (2004)

(Kennedy, J., dissenting) (“The principle that judicial

decisions cannot be reopened at the whim of the Executive

or the Legislature is essential to preserving separation of

powers and judicial independence.”). Ventura and Thomas

require that the agency have the first crack at the issues

of a case. They do not give the agency veto power over the

interpretive role of the judicial branch. Ventura and

Thomas sought to preserve the separation of powers, not

destroy it.

In short, as the Seventh Circuit has noted, see Ghe-

bremedhin, 392 F.3d at 243-244, there is nothing in Ven-

tura (or Thomas) that requires a Court of Appeals to _

’ remand to give the agency another bite at the apple as a

matter of course whenever it finds an agency decision

’* This Court has previously rejected a rule that would give

applicants the power to generate “endless delay” by freely reopening

asylum cases. INS v. Abudu, 485 U.S. 94, 108 (1988). The Government’s

reading of Ventura and Thomas would give the Government that same

power.

erroneous. And there is certainly nothing in those cases

that requires the Court of Appeals to remand to permit the

Government to raise a claim that it passed up a prior

opportunity to raise. The Court of Appeals’ refusal to

remand here therefore does not warrant this Court’s

review, much less summary reversal.

II. The Government’s Challenge to the Court of

Appeals’ Persecution Determination Does Not

Warrant Review

In two sentences, the Government challenges the

Court of Appeals’ conclusion that the record established

not merely discrimination but “persecution.” See Pet. 17.

Although the Government suggests that the Court of

Appeals violated Ventura and Thomas in deciding the

persecution issue, there is no basis for such a suggestion.

When it adopted the immigration judge’s ruling as its own,

see pp. 10-11, supra, the Board of Immigration Appeals

plainly “ma[d]le an initial determination” of the persecu-

tion issue. Ventura, 537 U.S. at 17. The Court of Appeals

merely exercised its acknowledged power to “determine

whether [the agency’s] decision exceeds the leeway that

the law provides,” td.

When the Ventura/Thomas veneer is stripped away,

the Government’s argument against the persecution

holding appears as nothing more than a factbound chal-

lenge to the lower court’s “substantial evidence” determi-

nation. In particular, the Government contends that the

Court of Appeals “rel{ied] on unsubstantiated allegations

in the record that the immigration judge did not rely

upon” and “ignor[ed] other portions of the record in critical

respects.” Pet. 17 & nn.4-5. Such a narrow, fact-specific

argument affords no basis for this Court’s review, on

summary reversal or otherwise. See S. Ct. R. 10.

In any event, the “persecution” determination of the

Court of Appeals was entirely correct. The evidence that

Victoria Tchoukhrova’s son was disposed of as medical

waste after his birth is not “unsubstantiated” (cf. Pet. 17

n.5); rather, it appears in a sworn affidavit that the immi-

gration judge specifically declared to be part of the record.

See n.1, supra. Nor was the evidence of the two violent

attacks on Evgueni “unsubstantiated” (cf. Pet. 17 n.5). The

immigration judge specifically found that those attacks

occurred (Pet. App. 35a); he simply disagreed with the

conclusion that they amounted to persecution. In evaluat-

ing the “record ... as a whole,” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992), the Court of Appeals was not only

entitled but obligated to consider those two pieces of

evidence.

Nor did the Court of Appeals ignore evidence in the

record. The court acknowledged the immigration judge’s

conclusion that Evgueni’s deprivation of medical treat-

ment and education was not so complete as to constitute

persecution (cf. Pet. 17-18 n.5), but it simply disagreed

with that conclusion, particularly when the evidence of

medical treatment and education was considered in

conjunction with the other ways in which Evgueni had

been treated harshly in Russia. Pet. App. 23a-24a. And the

Court of Appeals hardly ignored the record by referring to

the hospital in which Evgueni was institutionalized as an

“internaty.” Cf. Pet. 18 n.5. The Human Rights Watch

report, properly in the record, A.R. 252-292, documents

similarly deplorable conditions in both internaty and “baby

~ houses.” Whatever name is used, the immigration judge

explicitly found that the conditions at the “hospital” in

which Evgueni was “confined” and “deprived of his par-

ents” were “deplorable,” with children “wet and dirty,” “not

properly fed,” and some “crying in pain.” Pet. App. 34a-

35a.

As the Court of Appeals properly concluded, the record

establishes a series of undisputed events that, when

considered in their totality, establish that Victoria suffered

not just discrimination, but persecution. Specifically, she

(a) learned her newborn son was discarded as medical

waste; (b) was barred from seeing her son for several days

after his birth; (c) had her son taken to a government

facility against her will and involuntarily held for months;

(d) witnessed the squalid conditions in which her son

spent the first months of his life; (e) was denied the right

to enroll her son in public school; (f) watched as her son

was ridiculed and subjected to violence that the authori-

ties refused to investigate; (g) was spat upon herself when

in public with her son; and (h) became a virtual prisoner in

her own home due to the extreme societal and governmen-

tal prejudice against her disabled son. See pp.1-5, supra.

It is morally outrageous and legally flawed to suggest

that a parent does not suffer harm so severe as to consti-

tute persecution when her newborn child is taken against

her will, institutionalized in squalor, and subjected to

gross mistreatment and abuse. On the undisputed, com-

pelling facts of this case, the Court of Appeals was clearly

correct to conclude that the facts mandated a finding of

persecution. Even if it were appropriate for this Court to

address such a narrow, fact-specific issue, there would be

no basis to review, much less reverse, the lower court’s

correct decision here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Dick THORNBURGH JONATHAN D. MONTAG

JONATHAN M. YOUNG Counsel of Record

KIRKPATRICK & LOCKHART MONTAG & NADALIN LLP

NICHOLSON GRAHAM LLP 110 West C Street,

1601 K Street, NW Suite 1809

Washington, DC 20006 San Diego, CA 92101

SAMUEL R. BAGENSTOS (619) 230-1420

One Brookings Drive LAURA A. WYTSMA

Box 1120 SONNENSCHEIN NATH &

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HARVARD IMMIGRATION

AND REFUGEE CLINIC Los Angeles, CA 90017

197 Friend Street KAREN MUSALO

Boston, MA 02114 STEPHEN KNICHT

GREGORY R. NARON CENTER FOR GENDER

SONNENSCHEIN NATH & REFUGEE STUDIES

& ROSENTHAL LLP University of California

7800 Sears Tower Hastings College of the Law

Chicago, IL 60606 200 McAllister Street

San Francisco, CA 94102

August 4, 2006

Corrected Copy

No. 03-71129

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORIA TCHOUKHROVA, et al.,

Petitioners,

ALBERTO R. GONZALES, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

RESPONDENT’S PETITION

FOR REHEARING EN BANC

PETER D. KEISLER

Assistant Attorney General

JONATHAN F. COHN

Deputy Assistant Attorney General

DONALD E. KEENER

Deputy Director

MARGARET PERRY

Senior Litigation Counsel

Office of Immigration Litigation

Civil Division : ‘

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 616-9310

TABLE OF CONTENTS

INTRODUCTION .......: isi coe GRU HLA AAA Aha haa adh 1

STATEMENT. cca es che uu’ 2

DISCUSSIONS usec iiss edad eines 11

CONCL US IRIN i caievoasactee es Sem bevblidiawnassnnngesinvneccevceis 17

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

: CASES

Ali v. Ashcroft,

SOE FS FP ee i BO avdiniaritccchincassessecccnvsces conse 13

Barron v. Ashcroft,

358 F.3d 674 (9th Cir. Cir. 2004) .....................002csceeee 14

Chevron, U.S.A. Inc. v. Natural Resources Defense

Council,

PY BSS | LSS IRAE GE AENGE Wane Ee ieee ea EEE 13

Farhoud v. INS,

122 F.3d 794 (9th Cir. 1997)....... rd SRE A EDR eS 14

Fisher v. INS,

TD Fe De te Siac siacntsisepirabavsscvendsasscccaccess 12

Florida Power & Light Co. v. Lorian,

Be a, Tae COD isi esau ns ees abcde in adoscda ved etinbuenbadaacs 14

Gonzalez v. Reno,

PA Ok BOO CELE CIE, DD)... ovieciicsscoscivecsescssvasconeee 3

INS v. Aguirre-Aguirre, .

GE ARE BETO) sokvsedciccséccedncscdavinsiccecvindvissscsevesvects 13

INS v. Cardoza-Fonseca,

I ES Fe A Edn sisicnkiwiassccesvesdsnoacsasesduovedinassootenss 13

INS v. Ventura,

Ee rt Re I ini ccicaasvavaceconscstnecscncasedonssous 1,13,15,16

Kaiser v. Ashcroft,

BOG Foe OBS (Oth Cit: 2008) unin vic cccccicisssiccicvsckccesesv cea 13

Maini v. INS,

DAD Fe TUG CORE Cam, BOO iii ni soSecvcicsncincnsvisscasienees 13

Ochave v. INS,

254 F.3d 869 (th {eie] Cir, 2001). ....05.cccccccss scence scceecus. 12

Polovchak v. Meese,

TI ee TR, CPR DOU eoicckkasiniktciceretncano haan 3

Prasad v. INS,

AF Fee core Ch CAE, DD ssi iccccccicsvndesinceseascdisesncs 13

SEC v. Chenery Corp.

ee ts Tr CT cichacdok Aogsvcnsednusiginanarcincowesesiisniaans 13

Singh v. INS,

04 F.3d - 1368 (9th Cir. 1906). i..5. 65.0 i ie 13

Tchoukhrova v. Gonzales,

404 F.3d 1181 (9th Cir. 2005).................... cease 8, passim

Yang v. INS,

79 F.3d 932 (9th Cir.).,

cert, denied 222 TUS JAE, CLOG) wiviviviivisescscecccdcccccsccssess 12

Zara v. Ashcroft,

SOS Fe OSs COE Car, DG) on viccissa svsnsivnnsesscessesvaventavan 14

STATUTES

The Immigration and

Nationality Act of 1952, as amended:

Section 101(a)(42)(A),

8 U.S.C. § LICL AX4Z]NA) 2.00. ... ccc ccccccccscccccsnscctcerscecccsess 2

Section 103(a)(3),

Are CED occ nus cacocenchecssnsdecisscancnsvessoessansensets 13

Section 208(b){1),

Bh Fae Be FRIED isin ciccnc cs avesienseveveseswosnsecsvens 2.3, 13

Section 208(d)(1),

eee eB istics i Caiieiict Lanncsdsesnsesabcasnecsionsaty 13

Section 241(b)(3),

Be RAMs MED bison s cannvnt sun sc dseckvantocs Pine Nee NT See 3

Section 242(d)(1),

Ray as aI: Media ias sthnceashide iceivascnndiccd nv cuscntucnsweecnauie 14

sik nwecaie

ec te ova nk pais ce hnc bac bac tx wed acucicngs 2, 11, 15

eee asc cada ncddeu anus ce pp psavniicinctdawnk 2, 11, 15

ec Ae Re I hos chs cstncuhcsaanuaceesconsciuicceeaes 3, 5, 11

re Be oii vicacc asides icicdiscacicae ae 3,11

INTRODUCTION

Creating an irreconcilable conflict with circuit and

Supreme Court precedent, contravening numerous

statutes and regulations, violating fundamental] princi-

ples of separation of powers, and disregarding the most

basic precepts of administrative law, a panel of this Court

issued a ground-breaking decision that invented a brand-

new form of immigration relief. According to the panel,

someone who has never been persecuted before and faces

no fear of future persecution can nonetheless obtain

asylum through actions taken solely against the appli-

cant’s offspring. This decision finds no support in the text

of the statute, the decisions of the Board of Immigration

Appeals, or the jurisprudence of any court of appeals.

What is more, the issue was not even raised by the parties,

but only by the panel sua sponte, with no exhaustion of

remedies, no prior agency decision, and no briefing on the

question. Accordingly, the Attorney General respectfuliy

requests rehearing en banc.

The decision warrants en banc review for several

reasons. First, the panel’s newfangled means of obtaining

asylum which the panel refers to as “reverse-derivative”

asylum, is contrary to the relevant statues and regulations

and is [sic] tension with decisions of this Court. Second, by

considering unexhausted claims, the decision is in direct

conflict with circuit precedent and the plain text of the

Immigration and Nationality Act, both of which prohibit

jurisdiction over unexhausted questions raised for the first

time on review. Third, the opinion repeatedly violates the

Supreme Court's decision in INS v. Ventura, 537 U.S. 12

(2002), which prohibits the Court from reaching asylum

questions that were not decided by the agency in the first

instance. Finally, the panel’s decision presents a question

of exceptional importance, because it has the potential to

affect the outcome of a large number of asylum cases and

raises sensitive questions of the relationship between the

judicial power of review and the Executive Branch’s duty

to implement the law.

STATEMENT

1. Asylum is discretionary relief that is available if

“the Attorney General determines” that an alien is a

“refugee,” 8 U.S.C. § 1158(b)(1), i.e., is someone who is

unable or unwilling to return to her 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. § 1101(a)(42)(A).

Regulations direct that “the applicant” must prove that “he

or she has suffered past persecution” or “he or she has a

well-founded fear of future persecution,” 8 C.F.R.

§§ 1208.13(a), (b) (emphasis added). These regulations

codify a core principle of our asylum law — that asylum is

for persecution of the “applicant,” not someone else. “[{Hle

or she” must have suffered the past persecution or fear

future persecution.

Moreover, although a separate statutory provision

permits particular family members to derive asylum from

a relative’s claim, this provision is expressly limited to-

cover only a “spouse” or “child” of an alien who has been

granted asylum. 8 U.S.C. § 1158(b)(3); see also 8 C.F.R.

§§ 1208.21(a)-(g). No one else can derive asylum from the

principal applicant. 8 U.S.C. § 1158(b)(3). Thus, a parent

can accord derivative asylum to a minor child, but not the

reverse.’

' A child may apply for asylum in his own right, see Gonzalez v.

Reno, 212 F.3d 1338, 1248-50 (11th Cir. 2000), depending on various

considerations such the child’s age, whether he is accompanied or alone,

and whether his parents support or oppose the application. /d.;

Polovchak v. Meese, 774 F.3d 731 (7th Cir. 1985).

Likewise, mandatory withholding of removal is

available if “the Attorney General determines” that an

“alien’s life or. freedom would be threatened . . . because of

the alien’s race, religion, nationality, membership in a

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

§ 1231(b)(3). Again, numerous regulations require “the

applicant” to prove “his or her life or freedom would be

threatened,” that is, “it is more likely than not” that “he or

she would be persecuted” in the future. 8 C.FR.

§§ 1208.16(b); (b)(2). There is no statute or regulation

authorizing derivative withholding of removal.

2. Victoria Tchoukhrova (“Tchoukhrova”) is a female

native of Russia who has a child with cerebral palsy. In

2001, she applied for asylum and withholding of removal

asserting persecution on account of her “political opinion”

(opposing treatment of disabled persons in Russia) and

“membership in a particular social group” (“women in-

volved in organized protest against human rights/children

rights violations” or “[p]arents of children born with severe

disabilities”). AR 180-81, 191-204. Her reasons for seeking

asylum, though understandable for a caring mother, were

unquestionably insufficient under our asylum laws. In her

asylum application, she admitted that she did not fear

“organized persecution,” but rather “continuous discrimi-

nation and abuse.” And she candidly conceded that she

wanted asylum so her son could get “continuous treat-

ment” from an osteopath in San Diego and so he could

attend a public school with a special physical education

instructor, speech teacher, and equipment. AR 328-33.

Tchoukhrova testified that in 1991 her son Evgueni

was born with cerebral palsy due to a “trauma of the

spin[al] cord.” Because of the condition, medical personnel

told Tchoukhrova that he was not likely to survive, and

her baby was transferred to a “government hospital”

without her consent. She conceded that, at the hospital,

“he had been treated,” but was “pretty sure he was iso-

lated.” She could not visit him for two months. AR 92-93,

95, 97.

Fortunately, her child did survive, but at age one, he

was diagnosed with cerebral palsy. To obtain medical care

for him, Tchoukhrova visited a San Diego osteopath three

times between 1994 and 1995. AR 100, 104, 144-46, 202-

03, 332-33. After that, however, Tchoukhrova could not get

Russia to pay for return visits to San Diego. In 2000, she

liquidated her assets, moved to San Diego, and applied for

asylum. AR 118, 332-33.

It is important to note that, in Russia, despite the

government’s meager resources to assist disabled persons,

AR 242, Tchoukhrova’s child had his own “personal [gov-

ernment] pediatrician” and received hospitalization with

adequate treatment and medicines. AR 100, 104, 110-11,

113, 120. Tchoukhrova nonetheless felt that Russian

medical care was substandard because her son “lack[ed]

... the therapy that normal kids can have” and was not

“treated normall, and according[] to his conditions.” AR

* A 2000 State Department Report incorporated a Human Rights

Watch report on conditions in “Russian [o]rphanages.” AR 242, 256-79.

The reports shows there are over 600,000 “abandoned children” (called

“social orphans”) whose parents have “abandoned” them to be raised by

the state because of social problems like poverty, joblessness, illness, or

because children are disabled. One third (200,000) of these “orphans” or

“social orphans” live in “orphanages.” AR 254, 265. Placement depends

on a state diagnosis of “orphans” at age four. There are orphanages for

educable “[njormal” orphans; educable mildly retarded orphans

(“oligophrenic debil”); and a “psychoneurological internaty” for uned-

ucable, severely retarded orphans (“imbetsile” or “idiot”) aged 5 to 17,

who are transferred to adult “internaty” at the age of 18, with a life of

(Continued on following page)

113. Because of the child’s cerebral palsy, he was not

admitted to “regular school,” and instead was “offere[d]

home studies with a visiting teacher.” AR 103, 333. He also

encountered some discrimination. “Because the public ...

[did not] see [handicapped] kids very often, they [did not]

understand how to react to the child.” AR 103. Some

parents told their children not to play with the son, and in

1997 a woman “pushed” him because he touched her

laundry. The boy fell, cut his scalp, and needed stitches.

That same year, three “young lads” ran with the boy and

“dropped him on the ground,” which broke his arm, caused

a concussion, and required hospitalization for two months.

AR 119-20, 127.

Significantly, Tchoukhrova did not testify of many

adverse experiences of her own. She said that she joined

the Moon Society, and once a crowd threw rocks at her car

as she left a society meeting. And in 1997, her husband

was laid-off from work and was advised there could be

problems if he stayed “in this society.” AR 116-18.

3. Accordingly, the IJ denied Tchoukhrova asylum

and withholding of removal. The IJ correctly stated that

the application was Tchoukhrova’s, with her spouse and

child “dependent upon that application.” AR 52-53. And

the IJ found that “the harm suffered by [Tchoukhrova] did

not rise to the level of persecution.” AR 59. The inability to

“total institution.” AR 258, 266-68. Five percent (30,000) of Russia’s

orphans are in these “internaty.” “Orphan care varies broadly across

Russia, making it very difficult to draw conclusions about cities,

regions, or even classes of institutions,” AR 268, but there were reports

of serious abuses in some “internaty.” AR 267-68. The Government has

“meager resources” to assist disabled persons; it gives priority to

disabled World War II and other veterans. AR 242.

10a

“get the quality of medical treatment available in the

United States was not persecution,” AR 59, and the re-

striction on attending public school was simply due to

“Russia’[s] ... dire economic straits” and “[in]sufficient

resources to provide adequate schooling for handicapped

children.” AR 60-61. Further, the IJ did not credit Tchouk-

hrova’s testimony that her son was “refused” medical

care.” The IJ found that the testimony was “exaggerated”

and “not true.” AR 54, 57, 110-11. Finally, the IJ found that

although there is “substantial discrimination against

individuals with disabilities,” “discrimination does not rise

to the level of persecution.” AR 61. Thus, the IJ concluded

that Tchoukhrova failed to establish either past persecu-

tion or a well-founded fear of future persecution. AR 59-61.

The Board of Immigration Appeals (“BIA”) dismissed

Tchoukhrova’s appeal. The BIA concluded that, while there

was a “sympathetic family history,” the “lead respondent

{Tchoukhrova]” did not adequately demonstrate that “she

was a victim of past persecution” or “she has a well-

founded fear or faces a clear probability of .. . persecution

in her country.” AR 10.

4, At oral argument, the panel (Reinhardt, Tashima,

Wardlaw) questioned who should be treated as the asylum

applicant. After Tchoukhrova’s counsel described the

derivative-asylum scheme which permits a child to derive

asylum from a parent but not vice versa, the panel sug-

gested that the law needed some type of “reverse-

derivative” asylum from the child to the parents. The

panel also noted that, if the law were ambiguous, the

Court could clear it up.

Subsequently, the panel issued a published decision

reversing the denial of relief and ruling that Tchoukhrova

lla

was eligible for asylum and withholding of removal based

on her son’s persecution, even if she were not independ-

ently eligible for relief in her own right. 404 F.3d 1190-92,

1194-95. The panel did so by “imputing the disabled child’s

harms to the parent filing an application for asylum on

behalf of the family members.” Jd. at 1190. In effect, the

panel created the “reverse-derivative” asylum it had

suggested at oral argument, with asylum running from a

child to a parent. Id. The panel raised this issue as a

“threshold procedural question,” acknowledging the

question was not “expressly” “discuss[ed]” by the agency.

Id. at 1190.

According to the panel, it was taking a “pragmatic

approach,” which enabled it to ignore the law’s distinctions

between principal and derivative asylum. Jd. at 1192.

Attempting to justify this atextual approach, the panel

stated that caring for families is a purpose underlying our

immigration laws and that enforcing the law as written

would be “cruel” as applied to disabled children and their

parents. Id. At [sic] 1190-92. Additionally, the panel cited

to four Ninth Circuit decisions in the past ten years that

had not “formalistically divided the claims between ‘princi-

pal’ and ‘derivative’ applicants but instead, without discus-

sion, have simply viewed the family as a whole.” Jd. at 1192.

Thus, the panel determined that “a parent of a disabled

child may file as a principal applicant ... and may estab-

lish her asylum claim on the basis of the persecution

inflicted or feared by the [derivative] child.” Jd. The panel

then proceeded to find that the record “compel|[led]” the

conclusion that the son experienced cumulative “harms”

constituting persecution, based in part on de novo fact-

finding, and conclusions that have no basis in the record.

12a

Specifically, the panel alluded to: (1) an “attempted dis-

posal of the newborn child as medical waste,” being “dis-

carded along with aborted fetuses” at birth;’ (2) his two

month “involuntary confinement” as a newborn in an

“internaty” depriving him of his “right to be free;” (3) “the

state’s refusal to provide [the child] with an elementary or

other education” and “the government’s refusal to provide

medical care,” (4) the child “remains under the constant

threat that he will be returned to an internaty by the

Russian government;” and (5) “violence on the part of

individual citizens” which “the immigration judge failed to

even mention” (the IJ found there were two incidents but

held there was no persecution). Jd. at 1192-95.

The panel then concluded that Tchoukhrova was

persecuted in the past by imputation from the boy, and

this triggered the presumption that Tchoukhrova had a

well-founded fear of future persecution. Id. at 1195-96.

* This was de novo factfinding and an unexhausted claim. It was

asserted once, in one of two asylum declarations and never mentioned

again. AR 201. There was no testimony or finding to this effect, and no

claim of error or appeal objecting to lack of such a finding.

*‘ This misportrays the record. The IJ found, and Tchoukhrova

testified, that this was a “hospital.” AR 56, 95. The undisputed docu-

mentary evidence was that an “internaty” is an orphanage for “aban-

doned” “orphans” from 5 to 17 years old who have been diagnosed as

“uneducable” because of severe mental impairment. AR 258, 267.

* This misportrays the record. It was undisputed that Russia

provided home schooling with a visiting teacher. AR 333. The IJ found

there was no denial or refusal of medical care. AR 54, 57, 110-111.

Tchoukhrova got medical care for the child. She simply disagreed with

it and thought it was substandard. AR 100, 104, 110-113, 120.

> &

* This misportrays the record. The panels’ “risk” of future “inter-

naty” confinement is contrary to the evidence that the son is not a

“abandoned,” not an “orphan,” not diagnosed as severely retarded or

ineducable — which are the persons in “internaty.” AR 258, 267.

13a

Although the issue was never presented to the BIA, the

panel proceeded to find, de novo, that the presumption of

future persecution was not rebutted. Consequently, the

panel held that Tchoukhrova was eligible for asylum and

withholding of removal, and that her spouse and son could

derive such relief as well. Jd. at 1195-96.

DISCUSSION

This decision warrants en banc review for several

reasons.

1. First, the panel has invented a whole new theory

of asylum eligibility running from child to parent. Under

this theory, a person can be eligible for asylum without

enduring past persecution or having a risk of actual future

persecution. By contrast, under asylum and withholding

regulations, Tchoukhrova had to prove that “she has

suffered past persecution,” or “she [sic] has “a well-founded

fear of future persecution,” in order to qualify for asylum. 8

C.F.R. §§ 1208.13(a), (b). Moreover, while under the deriva-

tive scheme a “child” may derive. asylum from a principal

parent, the child’s status is expressly dependent on “prin-

cipal alien’s” status. 8 C.F.R. §§ 1208.21(a)-(g). This means

that the child stands in the shoes of the parent; his applica-

tion rises or falls on the parent’s. Contrary to this scheme,

instead of looking at the persecution of Tchoukhrova, who

was the asylum applicant, the panel treated the dependent

son’s derivative claim as controlling, and looked to his harm

concluding that he had been persecuted. 404 F.3d at 1192-

95. The panel then imputed the derivative child’s harm to

Tchoukhrova, and concluded that this made her eligible for

asylum, without having to establish that she, herself,

suffered past persecution or has a_ well-founded

l4a

fear or clear probability of persecution, contrary to our law.

1192, 1195-96. The panel thus reversed the operation of

our derivative laws, in effect having the derivative child’s

claim control the principal parent’s claim, and then per-

mitted Tchoukhrova to be eligible without any persecution

of herself, violating the principal applicant scheme.

The panel’s violation of the principal and derivative

asylum schemes, and invention of this new theory of

asylum eligibility, creates a conflict with case law in this

Circuit applying the law as written. This court has held

that when a derivative child’s application is part of a

family unit’s, the resolution of the parent’s application will

govern that of the minor child, not the reverse as the panel

has decided. See Yang v. INS, 79 F.3d 932, 933 (9th Cir.).,

cert. denied 222 US 222, (1996); Fisher v. INS, 79 F.3d 966

(9th Cir. 1994) (en banc) (where son’s asylum status

derives from mother’s application, court “will focus on the

status of [the mother]”). Cf. Ochave v. INS, 254 F.3d 859,

864 (th [sic] Cir. 2001) (derivative claims “stand or fall” on

principal’s claim). The cases the panel cited in support of

its invented position actually show a conflict with its

position, since in accordance with the law as written, in

these cases the parent or spouse established a persecution

claim in his or her own right from which the other family

members could lawfully derive asylum. Kaiser v. Ashcroft,

390 F.3d 653 (9th Cir. 2004); Maini v. INS, 212 F.3d 1167

(9th Cir. 2000); Singh v. INS, 94 F.3d 1353 (9th Cir. 1996);

Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). Moreover,

the panel’s decision conflicts with circuit case law recog-

nizing that there is no derivative withholding of removal.

Ali v. Ashcroft, 394 F.3d 780, 782 n. 1 (9th Cir. 2005).

2. Rehearing en banc is also warranted because the

panel’s decision is in direct conflict with case law of this

15a

Circuit and the Supreme Court’s decision in Ventura. The

basic legal principles are clear. Congress has delegated to

the Executive Branch the authority to establish, within

reasonable bounds, the requirements for asylum and to

decide whether it is to be granted. 8 U.S.C. §§ 1158(a),

(b)(1), (d)(1). The Attorney General has established legal

standards for asylum eligibility by means of case-by-case

adjudication, see INS v. Cardoza-Fonseca, 480 U.S. 421

(1987), and by regulations. 8 U.S.C. §§ 1103(a)(3), 1158(b)(1),

(d)(1). Both are entitled to Chevron deference. INS uv.

Aguirre-Aguirre, 435 415, 414 (1999). See Chevron, U.S.A.

Inc. v. Natural Resources Defense Council, 467 U.S. 837,

845 (1984). “In such circumstances a ‘judicial judgment

cannot be made to do service for an administrative judg-

ment.” Ventura, 511 U.S. at 17 (quoting SEC v. Chenery

Corp., 318 U.S. 80, 88 (1943)). The Court is not “empow-

ered to conduct a de novo inquiry ... and reach its own

conclusions.” Jd. (quoting Florida Power & Light Co. uv.

Lorian, 470 U.S. 729, 744 (1985).

a. Protecting the Executive Branch’s authority,

Congress has prohibited courts from reviewing unex-

hausted questions not raised before the agency. 8 U.S.C.

§ 1252(d)(1) (“[A] court may review a final order of removal

only if ... the alien has exhausted administrative reme-

dies available to the alien as of right.”). The exhaustion

requiremert ensures that the Executive Branch has the

opportunity to resolve questions before judicial interven-

tion. See Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.

2004). Under this circuit’s case law the Court has no

jurisdiction to decide unexhausted questions raised for the

first time on review. Barron v. Ashcroft, 358 F.3d 674, 677

(9th Cir. Cir. 2004); Zara, 383 F.3d at 931. In order to

exhaust remedies a claim must have been raised before

16a

the BIA. Zara, 383 F.3d at 931; Farhoud v. INS, 122 F.3d

794, 796 (9th Cir. 1997).

The panel’s decision is in conflict with this case law.

Here, the panel reversed the agency’s denial of relief based

on a new “threshold” question that the panel raised for the

first time on review about whether to impute Tchoukhrova

to be eligible based solely on persecution of her child.

Tchoukhrova never raised such a claim before the agency.

This is a new, unexhausted question raised by the panel

for the first time on review. Thus, the panel’s decision is in

direct conflict with the case law of this circuit precluding

determination of unexhausted questions.

b. The panel’s decision also conflicts with the Su-

preme Court’s decision in Ventura. 537 U.S. at 15-17, not

once but three times. First, ‘he panel concedes that the

agency did not “expressly” “discuss|]” the new “threshold”

question whether Tchoukhrova would be imputed to be

eligible for asylum based solely on persecution of her child.

404 F.3d at 1190-91. And the suggestion that the agency

took the same “pragmatic approach,” id. at 1192, is a

“hollow reed.” At no point in the IJ’s or BIA’s decisions do

they take the panel’s invented approach that Tchoukhrova

was (or would be) reversely. eligible for asylum solely by

imputation from her derivative son — without establishing

that she was persecuted in the past or faces future perse-

cution. The Court’s violation of Ventura is serious and far-

reaching. It pertains to a question of statutory construc-

tion as to the meaning of our principal and derivative

asylum laws affecting all cases, not just Tchoukhrova’s.

Second, after engaging in de novo factfinding, the panel

should have remanded to the agency for it [sic] consider

whether these facts amounted to persecution. Third, under

17a

the regulations, a finding of past persecution only gives

rise to a presumption of a well-founded fear or clear

probability of future persecution, which the government

can then rebut by showing changed personal or country

circumstances, or “the applicant” could relocate elsewhere.

8 C.F.R. §§ 1208.13(b)(1)(A) and (B); 1208.16(b)(1). After

finding that Tchoukhrova sustained past persecution, the

panel should have remanded to the BIA for a determina-

tion of whether the government rebutted, or could rebut,

the presumption. Ventura, 537 U.S. at 15-17. The panel

refused to do this and reached the issue deciding it in the

first instance. To correct these errors, the Court should

grant rehearing en banc.

3. Finally, rehearing en banc is warranted because

this case presents a questions [sic] of exceptional impor-

tance. Over the years asylum and withholding of removal

have taken on increasing prominence in our immigration

system. In 1984 there were 11,000 asylum applications

filed with the Executive Office of Immigration Review

(which is the agency for the BIA and IJ’s). As of March

1998, there were nearly 33,800 asylum and withholding of

deportation cases pending at EOIR. In the last two years,

EOIR has had between 60,000 and 80,000 applications.

The invention of a new form of asylum and withholding

eligibility — changing the fundamental operation of the

principal and derivative laws — therefore presents an

important issue in the ongoing administration of our

Nation’s immigration laws. In addition, the panel’s deci-

sion raises serious questions about the fundamental

relationship between the court’s power of review and the

Executive Branch’s congressionally mandated duty to

administer the statutory scheme. And this decision enters

18a

into the sensitive areas of the political relationship be-

tween the United States and a foreign sovereign.

CONCLUSION

For the foregoing Respondent requests that the Court

grant its petition for rehearing en banc.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

JONATHAN F. COHN

Deputy Assistant Attorney General

wae DONALD E. KEENER

Deputy Director

/s/ Margaret Perry

MARGARET PERRY

Senior Litigation Counsel

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 2004 *

(202) 616-9310

CERTIFICATE OF COMPLIANCE

I certify that pursuant to Circuit Rule 35-1 or 40-1,

the attached petition for rehearing en banc is:

X Proportionally spaced, has a typeface of 14 points

or more, and contains 3856 words (petitions and answers

must not exceed 4,200 words).

/s/ Margaret Perry

Margaret Perry

Senior Litigation Counsel

19a

CERTIFICATE OF SERVICE

I hereby certify that on August 5, 2005, two copies of

the foregoing Corrected Copy of Respondent’s Peti-

tion For Rehearing En Banc were served on Peti-

tioner’s counsel by first class mail, postage prepaid, by

depositing them in the Department of Justice mail system

for same day mailing, addressed to:

Jonathan D. Montag

Law Offices of Jonathan D. Montag

P.O. Box 124801

San Diego, CA 92112

/s/ Margaret Perry

Margaret Perry

Assistant United States Attorney

20a

NO. 03-71129

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORIA TCHOUKHROVA, ET AL..,

A75 772 599, 600, 601

Petitioners,

, v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

BRIEF FOR RESPONDENT

PETER D. KEISLER

Assistant Attorney General

Civil Division

MARGARET J. PERRY

Senior Litigation Counsel

WILLIAM C. ERB, JR.

Attorney

Office of Immigration Litigation

Civil Division, Department of Justice

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

(202) 616-4869

Attorneys for Respondent

2la

TABLE OF CONTENTS

STATEMENT OF JURISDICTION ............ssccssessee0ee

ISSUES PRESENTED ..............c0:0[ecccescssecscsecosseseecess

STATEMENT OF THE CASE .......)..c.cecccceseeseeeeseseeees

STATEMENT OF THE FACTS. .........cccccccssseseeseeseeees

Proceedings Before the Immigration

IE ad caiiceuanaaon tteokinestnasakechabenkacebaneaennaa

The Decision of the Immigration Judge ...

The Decision of the Board of Immigra-

SONS PIII Si sicakiccckcetdiccti cccvschsaseasteinaasenis

SUMMARY OF THE ARGUMENT. ...............ccccccceeeee.

MUG io oe ons cc Rie en RO SRR ray es ARN

I. SUBSTANTIAL EVIDENCE SUPPORTS

THE IMMIGRATION JUDGE’S FINDING

THAT PETITIONERS WERE NOT PERSE-

CUTED IN THE PAST, OR HAVE A WELL-

FOUNDED FEAR OF FUTURE PERSECU-

ARETE BEE WRI av senceisnntenkisdsnishvenadinsinvenmaceas

Statutory Standard and Burden of Proof ...

ONIN OE MINWUINOR ni sassiistcccsnkececkajrciasnans

Substantial Evidence Supports The Im-

migration Judge’s Finding That The

Conduct Petitioners Experienced In The

Past Did Not Amount to Persecution .......

Substantial Evidence Supports the Im-

migration Judge’s Determination That

the Petitioners Failed to Show a Well-

founded Fear of Future Persecution in

PI sc cvuitacenatitichbsdakstst decakbawtnsdcabbsioaadatok

22a

Il. PETITIONERS FAILED TO MEET THEIR

BURDEN OF ESTABLISHING WITHHOLD-

RETR Se MRM WOM sinks cn cseespnacninpecesausumbcbacanies 31

a ee ack 32

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES

Abedini v. INS,

SPE hk RO AUER At RIPE oss cada vsic cas ncnccasiseesacninainne 15, 16

Adebisi v. INS,

ee Bcd Ae CORE GAEL REID ves cs sci scans ccveseccsacascanccscqesaans 25

Al-Harbi v. INS,

242 F.3d SES (StH Cir. 2QOO) wn... ci ccccc ccc ccc 14, 15

Alaelua v. INS,

BEE Ee BAC LE GE BDO) sivicnics vas soavvcsdennepaccvesipersecsesnens 17

Aragon-Ayon v. INS,

WA PT TERE Coeds MD as co ciinccechccascnssccamcacanncaraaconns 3

Aruta v. INS,

Be te Ree SURE Tee. BOPIIID 5 hick cpaceslacdtivensncctvodsonacioeras 16

Baballah v. Ashcroft,

ee a SN, COPCME GRE DPS onic nec onsdescccivadacnsccnssnccsaeccs 23

Berroteran-Melendez v. INS,

SUD ce RE CIN GUT, BOND ess cvin scons sneneicicacannnsiecsianens 14

Brijmati Singh v. INS,

Re ee I EE IPED von cssncacsacaninccessncsvicescaiesantenin 21

Bucur v. INS,

RED Fcoee DW CTE Car, ADIT) vavinccssacseccivcasciccacccscccseass 19, 26

23a

Castillo v. INS,

951 Fi Dek BEA Ce a asa easel cs eescsneeenssss. 15

De Valle v. INS,

901 F.2d 787 (Sth Cir. 1990) ................05............ 15, 16, 31

Duarte de Guinac v. INS,

17D FL Sed FAGG CRU Sar Re ack cdcockanesccsviccsccnscasec.iss. 18

Elnager v. INS,

OSO FS TEE Cai Gar Bae eisai ces snes cot dass eekics since ccaes.s. 17

Farhoud v. INS,

12D FF Sek TOG CORRE Gee Bee wept tecdageliss tesvaninsessncsiconvessss>. 5

Fatin v. INS,

12 FS LRSS (Seek Car Re acai iniasasiicsicerecscnass 18, 19, 26

Fisher v. INS,

79 F.3d 965 (Sth Cir, 1996) iin. ccvccccsscoscceseesc0..0 15, 18, 19

Florida Power & Light Co. v. Lorian,

476 UB FEB Cae ree a at ea has dcscndessiwssicccs. 29

Ghaly v. INS,

58 F.3d 1426 (Oth Cir. LGB) .........0..ccesscssscccceess 17, passim

Grava v. INS,

DOS FF. Sek LEFT Ce Gre ee eek canteen Sac as hadi esiwiccessns.e: 21

INS v. Agutrre-Aguirre,

119 S. Ct. 1489 (1999)....... ee IE (SES SS 16

INS v. Cardoza-Fonseca,

PUR EL. gy SRE ENE ONE el ee PE 31

INS v. Chen,

S26 FSi 1BRG COR Cam: BB vcs ckecasisccksdicivaveccesccccscencc. 30

INS v. Elias-Zacarias,

SOS U.S STG Cee cies ae eas ce ods poste sincaass 15, 16

INS v. Stevic,

467 U3... OF CR cic hcehsdah aks serene 2 PRS 15

INS v. Ventura,

pS BR BG RSS Se 28, 29, 30

24a

Kazlauskas v. INS,

GF ate Ue Ca SR RDG a iscsi sci iceckncccciscmacccsin 13

Korablina v. INS,

RES Fk BOSS CR AA, TOG) iv anscis sdcctisccctstscnceseetessaie 20

Kovac v. INS,

ET ae Be Cee Ce, RI i vsic cciidvvevisweieriscon inten 18, 23

Lim v. INS,

Bee Ecee ee CO CAE, BIO) ives cnicdii diners 25

Marquez v. INS,

ROG Fo: OE CHEE CA TT) ov visncssscesegs Gcccsnsasacianvensuasnes 19

Martinez v. Ylst,

OS Fee EAS CORR Cle TOE aon i scvieeesisissinssicpeencdiotenays 5

McMullen v. INS,

Ce Fre ERE CORE Se DI oan vcs céctnepiwssccabasdeivcsccnain 25

Mikhailevitch v. INS,

BOG Fe DE (GRR Cie TOG) oss ckissnce aie 20

Molina-Estrada v. INA [sic],

BS Ee Se (ON GAL BSD inicavnsncesiscensectsavecsssupssaseone 14

Nagoulko v. INS,

ech ae AAP Ree Re CAE: OED soon cscs visodasdsancacanernonsoe’ 23

Port of Portland v. United States,

MOG SIF BEE CR ae aistkercnc ann ah aaa eeens 29

Prasad v. INS,

AT Se core Creek CAD, BG) oasis icccicssencsctionces 16, 19, 22

Rodas-Mendoza v. INS,

266 FO 1257 (Ot Car, DOOD) sive kickass 21

Rodriguez-Rivera v. INS,

Ee ek CE Es ROD enn ccsasds a nancnaevessscdscauscanccanecs 14

SEC v. Chenery Corp.,

at BR. Bo be.” * 5 RRR ORRU Ne pita tmeony creme niente very Rene et 29

Saballo-Cortez v. INS,

CL ee Re CUE CAE, RI vin ends icasenecakesaasccctasncpbines 23

25a

Sangha v. INS,

103 F.3d 1482 (9th Cir. 1997) ...........0..0cce eee 15, 16, 21

Singh v. INS,

Ce He PE CI SE ID vases ccndsdganweiventdcanaiccdnennns 30

Sotelo-Aquije v. Sattery,

AF Ee Oe Ce CAs BO) ohio ick ica ac ssccccannie 25

Turcios v. INS,

BRi Fe Bae Coes Cit TOBE) oni oncoi nicks eemccthinves 15

United States v. Tisor,

Se er Ce ee NI oa isc is aa nicctcccteneciin accents 5

Vargas v [sic] INS,

Aa ee CAE RED inci secdssvcsissonsiscs duheusbacéusvnkasands 5

Vides-Vides v. INS,

Toe He REO CR GE, DGD iis ninco cocickcinccececesisteeavins 15

ADMINISTRATIVE DECISIONS

In re Chen,

SE A, MT EIS, BG CURIA, BI iiss odin cc avewicgscdasexciaavecsneen 13

In re Mogharrabi,

FOP Ee ee a BP, ee Ce RIOD sc ascectincsssconscncacteavcnacatuas 13

Matter of Acosta,

RE es RO, Rk CN AID iyo cds casenccecievciasscastneass 18

Matter of Burbano,

20 1. & N. Dec. 872 GSIA 1994)... cocks csc sacccaees $i, 37

Matter of Laipenieks,

18 I. & N. Dec. 433 (BIA 1983) rev'd on other

grounds, 750 F.2d 1427 (9th Cir. 1985)... 25

Matter of O-Z- and I-Z-,

Oe, es Bs er RAEI Es iiksts Gickacs sa sandacedicascacnennezions 20

Matter of S-A-, Int. Dec. 3433,

__TL&N. Dec. ___, 2000 WL 827754 (BIA 2000)........ 18

26a

STATUTES

The Immigration and Nationality Act of 1952, as

amended:

Section 101(a) (42) of the INA,

eae eee is ick aiconic nse cnteeuvnciouncnen ie 12,18

Section 208(a) of the INA,

EF aie ie oe nck sce inca scansccsasacananaeneascasol 2, 12

Section 237(a)(1)(B) of the INA,

S ERG; SPREE CO) vci ones ini ccc verse 1,4

Section 241(b)(3) of the INA,

BRS aes. Se Ee RI aa av ciakissa Ke udnbvssvendadesd ohharselewnietawene 2, oi

Section 241(b)(3)(A) of the INA,

Bears a PRs ka chievcn vu nsckd cess ce cncadsbguuchenscoitecensst 14

Section 242(a) of the INA,

er, 8 oii sas Sessile inioes asain cae haowacs 3

Section 242(b)(1) of the INA,

ae ee nk ada bcsndv cons ixcateead oaks lanes 3

Section 242(d)(1) of the INA,

FF we Pisce sdaninsgeackviocresen ei aoa 5

REGULATIONS

EG og SER BF. TNE SL: SERRE ebay renee Sp rqnih ice yen sealant Rr ae 15

Ee Oe es Rr) a bass isievncsgdicessGoandosebeaa cena 13, 18

S$ CFE. § BOB. THOM D) (19GB) ovis dcicinsaasciienc 14, 18

ee he a iiiienssiands Accdics ciieacuicteinmutinae 2

AGF ee ROO) CRD i sins cd vccarcecksiney un vascscenebcesackesavcacles 15

ees a We Rs kis cities canchccccgveisvssxt dices aniavenniacven 2

BS BO A OOD) CA) ooo esc ncerci cet deen. 15

Fe Re BO) CD ccnivcncccabeuccasiics Gockacaviceides sscqhaaian 2

27a

MISCELLANEOUS

Homeland Security Act of 2002, Pub. L. No. 107-

296, 110 Stat. 2135 (Nov. 25, 2002)..................cscccccsseseees

United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment

or Punishment, G.A. res. 39 U.N. GAOR Supp.

(No. 51 at 197, U.N. Doc. A/39/51 (1984)], entered

ae SSE UORIR OA A OO EPIC NR RED Tg OP

28a

No. 03-71129

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORIA TCHOUKHROVA, ET AL.,

A75-772-599, 600, 601,

Petitioners,

JOHN ASHCROFT, Attorney General,

Respondent.

BRIEF FOR RESPONDENT

STATEMENT OF JURISDICTION

This is an immigration case in which petitioners,

Victoria Tchoukhrova, Dmitri Tchoukhrov, and Evgueni

Tchoukhrov (“petitioners”), seek review of a final order of

removal issued by the Board of Immigration Appeals

(“the Board”).' A.R. at 1.° The Board affirmed an Immi-

gration Judge’s decision that petitioners were removable

from the United States pursuant to section 237(a)(1)(B) of

the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(1)(B)(2000), for remaining in the United States

’ Petitioner, Victoria Tchoukhrova, was the lead asylum applicant

before the Board with petitioners Dmitri Tchoukhrov and Evgueni

Tchoukhrov being derivative asylum applicants.

* The abbreviation “A.R.” refers to the Certified Administrative

Record on file with the Court.

29a

for a period longer than authorized.* The Board further

affirmed the Immigration Judge’s finding that petitioners

were ineligible for asylum and withholding of removal

under sections 208(a), and 241(b)(3) of the INA, 8 U.S.C.

§§ 1158(a), 1231(b)(3). The Board also found that petition-

ers abandoned their application for withholding of removal

under the Convention Against Torture (“CAT”) because

they failed to challenge the Immigration Judge’s denial of

their CAT application before the before the [sic] Board.*

The Board's jurisdiction arose under 8 C.F‘R. § 1003.1(b)(3)

(2003), which grants the Board appellate jurisdiction over

decisions of Immigration Judges in removal proceedings

initiated by the former Immigration and Naturalization

Service (“INS”).°

Because petitioners were placed in removal proceed-

ings after April 1, 1997, the Court’s jurisdiction is gov-

erned by INA § 242(a), 8 U.S.C. § 1252(a). Petitioners are

subject to a final order of removal issued by the Board;

therefore, pursuant to INA § 242(a), this Court has juris-

diction to review this matter. Aragon-Ayon v. INS, 206

F.3d 847 (9th Cir. 2000). Under this statute, a petition for

* Unless otherwise indicated, citation to the United States Code

will be the latest official 2000 version.

* This refers to Article 3 of the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. res. 39/46, [annex. 39 U.N. GAOR Supp. (No. 51 at

197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987, which

has been implemented by regulations promulgated by the Attorney

General. See 8 C.F.R. §§ 208.16, 18 (2002).

* On March 1, 2003, the INS ceased to exist as an agency within

the Department of Justice and its functions were transferred to the

Department of Homeland Security. See Homeland Security Act of 2002,

Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).

30a

review is timely if filed not later than 30 days after the

date of the final order of removal. INA § 242(b)(1), 8 U.S.C.

§ 1252(b)(1). The Board entered its final order of removal

on February 25, 2003, and petitioners filed their Petition

for Review on March 13, 2003. The Petition for Review

was filed not later than 30 days after the date of the final

order of removal and is therefore timely.

ISSUES PRESENTED

1) Whether substantial evidence supports the

Immigration Judge’s finding that petitioners were not

persecuted in the past in Russia and, to the extent they

were mistreated while living in that country, it was the

result of discrimination, an unprotected ground under the

INA.

2) Whether substantial evidence supports. the

Immigration Judge's decision that petitioners did not have

a well-founded fear of future persecution in Russia where

their claims were wholly speculative, and are not sup-

ported by any evidence in the record, and the evidence

does not “compel” a contrary conclusion.

3) Whether this Court should remand the case

should it find that substantial evidence does not support

the Immigration Judge’s finding that petitioners were not

persecuted in the past, or have a well-founded fear of

future persecution in Russia, so the agency can consider in

the first instance whether the conduct petitioners experi-

enced in the past, or fear in the future in Russia is “on

account” of one of the five grounds set forth in the INA.

3la

STATEMENT OF THE CASE

Petitioners are natives and citizen of Russia, who

entered the United States on or about September 9, 2000,

as a [sic] nonimmigrant visitors authorized to remain in

the United States until March 8, 2001. A.R. 338, 353, 367.

On March 20, 2001, Notices to Appear (“NTA”) were issued

by the INS charging petitioners with being removable

from the United States, pursuant to section 237(a)(1)(B) of

the INA, for remaining in the United States for a period

longer than authorized. A.R. 339, 354, and 368.

In a hearing before an Immigration Judge, on April 9,

2001, petitioners admitted the factual allegations, conceded ~

they were removable as charged in the NTAs, A.R. 68, and

indicated they wanted to apply for asylum, withholding of

removal, and protection under CAT and, in the alternative,

voluntary departure. A.R. 68 [sic] On August 8, 2001, after

a hearing on the merits, an Immigration Judge denied

petitioners’ applications for asylum, withholding of removal,

and relief under CAT finding petitioners failed to establish

they were persecuted in the past in Russia, or had a well-

found [sic] fear of future persecution in Russia on account of

their political opinion, or membership in a particular social

group. A.R. 59-64. The Immigration Judge also found

petitioners failed to establish they would be tortured if

returned to Russia and, therefore, denied their application

for protection under CAT. A.R. 62-63.

On February 25, 2003, the Board adopted and af-

firmed the Immigration Judge’s decision, and dismissed

the appeal.° A.R. 13.

* This Court lacks subject matter jurisdiction to consider the

Immigration Judge’s denial of petitioners’ applications for CAT

(Continued on following page)

32a

STATEMENT OF THE FACTS

A. Proceedings Before the Immigration Court.

The Immigration Judge’s decision contains a descrip-

tion of the documentary exhibits and a summary of the

testimony offered at petitioners’ removal hearing. See A.R.

34-43. In view of the Immigration Judge’s detailed sum-

mary of the testimony, respondent incorporates those

portions of the Immigration Judge’s decision as the de-

scription of the evidence and its statement of the facts.

B. The Decision of the Immigration Judge.

On August 8, 2001, the Immigration Judge denied

petitioners’ applications for asylum, withholding of re-

moval, and protection under CAT finding petitioners were

not persecuted in the past in Russia, and that they failed

to establish they had a well-founded fear of future perse-

cution in Russia. A.R. 51-63. The Immigration Judge also

found petitioners were ineligible for protection under CAT

because they failed to establish they would be tortured if

they were returned to Russia. Jd. After setting forth the

standards for asylum, withholding of removal, and CAT,

protection since they failed to challenge that denial before the Board

and, therefore, failed to exhaust their administrative remedies on that

claim. See 242(d\1) of the INA, 8 U.S.C. § 1252(d)(1) (requiring

exhaustion of administrative remedies as a prerequisite for review);

Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997); Vargas v [sic] INS,

821 F.2d 906, 907 (9th Cir. 1987). In addition, petitioners in their brief

failed to address this claim in their brief to the Court and, therefore,

have abandoned that claim before this Court. See United States v.

Tisor, 96 F.3d 370, 376 (9th Cir. 1996) (failure to brief an issue raised in

section heading results in waiver of right to appeal); Martinez v. Ylst,

951 F.2d 1153, 1157 (9th Cir. 1991) (failure to brief an issue in a timely

fashion may constitute waiver of the issue on appeal).

33a

the Immigration Judge denied petitioners’ requests for

relief, finding petitioners failed to meet their burden of

proof of establishing past persecution, or a well-founded

fear of future persecution in Russia, or the possibility of

being subject to torture in that country. A.R. 59-63. The

Immigration Judge found that petitioner Victoria Tchouk-

hrova was a credible witness, but was prone to exaggerate

the facts in her case. A.R. 54. The Immigration Judge

found petitioners’ claims of political persecution in Russia

were based on petitioner Victoria Tchoukhrova’s opposition

to the Russian government’s policies toward providing

services for persons with disabilities, which she expressed

on a few cccasions to a group of parents of disabled chil-

dren in Russia, her attempts to publish a newspaper

article in Russia criticizing the Russian government’s

treatment of disable persons in Russia, and her having

joined the Moon organization. A.R. 55.

The Immigration Judge also fouud petitioners’ [sic]

alleged they were persecuted in the past, and had a well-

found fear of future persecution in Russia on account of

their membership in [a] particular social group, consisting

of the family of a disabled child. A.R. 55. The Immigration

Judge als> found petitioners claimed their son Evgueni

Tchoukhrov, as a disabled child, was persecuted in the

past and would be persecuted in the future on account of

his membership in a particular social group consisting of ~

“disabled child[ren] in Russia.” A.R. 58.

The Immigration Judge indicated, in dicta, that

petitioners “appear[ed]” to have been harmed in Russia

on account of their being members of a particular social

group (as a family with a disabled child), but did not

actually address or decide the social group issue in

his decision, and instead found that petitioners’ past

34a

experiences did not rise to a level of conduct constituting

persecution under the INA. A.R. 59. The Immigration

Judge found the “fact that the [petitioners’] son was

unable to get the quality of medical treatment that he

[could] secure in the United States is not persecution.”

A.R. 59. The Immigration Judge also found that petition-

ers’ child did receive medical treatment in Russia, but that

the petitioners did not agree it was the proper treatment

for their child. A.R. 57. While the Immigration Judge

found it “troubling” that petitioners’ disabled child was

unable to attend public school in Russia, the Immigration

Judge found that it was “unclear” from the record why

that was the case. A.R. 59. The Immigration Judge found

there were several possible explanations shown by the

record. A.R. 59-60. He speculated that on [sic] possible

explanation was that the Russian government was “at-

tempting to punish handicapped people by preventing

them from attending public schvol.” A.R. 59. However,

relying on evidence of country conditions found in the

record, the Immigration Judge found that “it could also be

concluded from the facts in this case that the Russian

government [did] not have sufficient resources to provide

adequate schooling for handicapped children.” A.R. 60. The

Immigration Judge found that this explanation was

supported by a U.S. Department of State country report on

Russia, dated 2000, contained in the record which showed

that “Russia is in dire economic straits,” and that “Russia

does not appear to have sufficient resources to educate

handicapped children.” A.R. 60.

Relying on the same U.S. Department of State country

report, the Immigration Judge found that, in general,

children in Russia “are certainly not treated as they are in

more developed nations, and that prospects for children

35a

with disabilities are “extremely bleak” in Russia. A.R. 60.

Quoting from the same country report, the Immigration

Judge found that in Russia “the label of ‘imbecile’ or idiot,

which signifies uneduatable [sic], is almost always irrevo-

cable,” and “the most likely future [for such persons] is a

lifetime in state institutions.” A.R. 60. The Immigration

Judge also found that the Russian constitution does not

address directly the issue of discrimination against dis-

abled persons, and that, although laws exist in Russia that

prohibit discrimination in that country, the Russian

government has not enforced them. A.R. 61. Finally, the

Immigration Judge noted that to the extent the Russian

government does provide assistance for the disabled in

Russia, it is directed to miliary [sic] veterans and, that

while special institutions exist for children with disabili-

ties in Russia, they do not serve the children’s needs

adequately. A.R. 61.

Even taking into account the hardships suffered by

the disabled in Russia as set forth in the record, the

Immigration Judge found that the family’s past experi-

ences, while unfortunate, simply did not rise to the level of

conduct qualifying as persecution for purposes of asylum.

A.R. 61. Instead, the Immigration Judge found that any

harm the petitioners suffered while in Russia was the

result of discrimination in that country against those with

disabilities, not persecution. A.R. 61. The Immigration

Judge found that while there is substantial discrimination

against persons in Russia with disabilities, discrimination

is not persecution under the INA. Jd.

The Immigration Judge also rejected petitioners’ claim

that if they were returned to Russia, petitioners’ child

would be killed, and they would be imprisoned. A.R. 61-62.

The Immigration Judge found there claims entirely

36a

speculative and “lack[ing] any factual basis.” A.R. 61. In

rejecting petitioners’ claims of future persecution, the

Immigration Judge noted that the petitioners were able to

live in Russia without ever being arrested, and that

despite pressure from the Russian authorities to institu-

tionalize their disabled child, he was allowed to continue

to live with his parents. A.R. 61-62. The Immig® an

Judge also found the petitioners were allowed to leave

Russia on three separate occasions to come to the United

States to secure adequate medical treatment for the child.

A.R. 62. Based on this evidence, the Immigration Judge

found that petitioners failed to establish an objectively

well found fear of future persecution. Jd. The Immigration

Judge also found that petitioners failed to establish they

would be tortured if returned to Russia and, therefore,

were ineligible for protection under CAT. A.R. 62.

C. The Decision of the Board of Immigration

Appeals.

On February 25, 2003, the Board adopted and af-

firmed the Immigration Judge’s decision relying on Matter

of Burbano, 201 & N Dec. 872, 874 (BIA 1994) (the Board’s

independent review authority does not preclude the Board

from adopting or affirming a decision of the immigration

judge, in whole or in part, when we are in agreement with

the reasoning and result of that decision). A.R. 13-14.

While noting that petitioners “presented a very sympa-

thetic family history,” the Board found that the [I])mmigra-

tion Judge’s [sic] was correct in finding that the petitioners

did not demonstrate that they were persecuted in the past,

or had a well-founded fear of future persecution in Russia.

A.R. 61. The Board also found that the petitioners aban-

doned their CAT claim because they did not address it to

37a

the Board. A.R. 13. Based on that finding, the Board

dismissed petitioners’ appeal.

SUMMARY OF THE ARGUMENT

Substantial evidence supports the Immigration

Judge’s finding that petitioners were not persecuted in the

past in Russia and, to the extent they were mistreated

while living in that country, it was the result of discrimi-

nation, an unprotected ground under the INA.

Substantial evidence also supports the Immigration

Judge’s finding that petitioners did not have a well-

founded fear of future persecution in Russia where peti-

tioners’ claims were wholly speculative, and were not

supported by any evidence in the record, and the evidence

does not “compel” a contrary conclusion.

Alternatively, should this Court find that substantial

evidence does not support the Immigration Judge’s finding

that petitioner [sic] were not persecuted in the past, or

have a well-founded fear of future persecution in Russia,

this Court must remand petitioners’ case to the agency to

determine whether the conduct petitioners experienced in

the past, or fear in the future was “on account” of one of

the five grounds set forth in the INA.

38a

ARGUMENT

I. SUBSTANTIAL EVIDENCE SUPPORTS THE

IMMIGRATION JUDGE’S FINDING THAT PE-

TITIONERS WERE NOT PERSECUTED IN THE

PAST, OR HAVE A WELL-FOUNDED FEAR OF

FUTURE PERSECUTION IN RUSSIA.

A. Statutory Standard and Burden of Proof

Section 208(a) of the INA, 8 U.S.C. § 1158(a), author-

izes the Attorney General, “in his ... discretion,” to grant

asylum to an alien who can demonstrate that he is a

“refugee” within the meaning of section 101(a) (42) of the

INA, 8 U.S.C. § 1101(a)(42). Section 101(a) (42) defines a

refugee as an alien who is “unable or unwilling to return

to [his 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.”

If an alien shows he suffered past persecution, the

likelihood of future persecution becomes relevant in the

exercise of discretion. Jn re Chen, 20 I.& N. Dec. 16, 18

(BIA 1989); Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.

1995). If an alien establishes he is a “refugee” because of

past persecution, then a rebuttable presumption arises

that he has reason to fear similar persecution in the

future. Jd. In that situation, the INS ordinarily will have

to present evidence rebutting the presumption. 7d. In

assessing the likelihood of future persecution, the BIA has

held that a change in circumstances can rebut the pre-

sumption of the threat of persecution. Jn re Chen, 20 I. &

N. Dec. at 18. On the other hand, in instances of excep-

tional past persecution, in spite of any change in circum-

stances, asylum may be granted in the exercise of

discretion for compelling humanitarian reasons. /d. At the

39a

time of petitioner’s deportation hearing, the Chen past

persecution standard of proof has been codified at 8 C.F.R.

§ 208.13(b)(1) (1998).

Regarding the well-founded fear standard for future

persecution, the BIA in In re Mogharrabi, 19 I. & N. Dec.

439 (BIA 1987), held that an asylum applicant must show

a “reasonable person in [ihe petitioners] circumstances

would fear persecution” if returned to his country. The

well-founded fear standard requires a showing of genuine

subjective fear and a demonstration of credible, direct,

specific evidence showing that this fear is objectively

reasonable. Berroteran-Melendez v. INS, 955 F.2d 1251,

1256 (9th Cir. 1992) (quoting Rodriguez-Rivera v. INS, 848

F.2d 998, 1002 (9th Cir. 1988)). This standard has been

promulgated by the Attorney General and set forth at

regulation 8 C.F.R. § 208.13(b)(2) (1998).

Section 421(b\(3)A) [sic] of the INA, 8 U.S.C.

§ 1231(b)(3)(A) provides that an alien shall not be removed

if “the alien’s life or freedom would be threatened in that

country because of an alien’s race, religion, nationality,

membership in a particular social group, or political opin-

ion.” See also Molina-Estrada v. IN“. [sic], 293 F.3d 1089 (9th

Cir. 2002). To qualify for withhoiding of removal, an alien

must demonstrate that “it is more likely than not that he

would be subject to persecution on one of the specified

grounds” set forth in the INA. Al-Harbi v. INS, 242 F.3d 882,

888 (9th Cir. 2000) (internal cites omitted). This “clear

probability” standard for withholding of removal is more

stringent than the well-founded fear standard governing

asylum claims. Jd. The well-founded fear standard for

asylum requires less of an evidentiary showing than the

clear probability standard for withholding of deportation. Id.

Accordingly, an alien who fails to show a well-founded fear

40a

of persecution will, by definition, fail to show a clear

probability of persecution. Jd. Upon establishing statutory

eligibility, the alien’s entitlement to withholding of re-

moval is mandatory. Unlike asylum, withholding of re-

moval cannot be denied in the exercise of discretion. Al-

Harbi v. INS, 242 F.3d at 888.

The burden of proof is on the petitioner to establish

eligibility for asylum and withholding of deportation. INS

v. Stevic, 467 U.S. 407, 422 n.16 (1984); Sangha v. INS,

103 F.3d 1482, 1486-87 (9th Cir. 1997); Castillo v. INS, 951

F.2d 1117, 1121 (9th Cir. 1991); see 8 C.F.R. §§ 208.13(a),

208.16(b), and 242.17(c)(4)(iii) (1996).

B. Standard of Review

The Immigration Judge’s factual findings regarding

eligibility for asylum or withholding of removal are re-

viewed for substantial evidence. INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992); Fisher v. INS, 79 F.3d 955, 961

(9th Cir. 1996) (en banc). The discretionary denial of

asylum is reviewed under the abuse of discretion stan-

dard. Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992);

Vides-Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986).

Cred »ility findings are reviewed for substantial evidence.

Turcios v. INE, 821 F.2d 1396, 1399 (9th Cir. 1987).

Given the Attorney General’s broad discretion in

granting asylum, and the deferential substantial evidence

standard of review, this Court has stated both that it will

not reverse the BIA merely if it disagrees with the BIA’s

evaluation of the facts and that it will affirm the BIA if its

conclusion is substantially reasonable. Castillo, 951 F.2d

at 1120; De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990).

4la

In a further elucidation of the substantial evidence

standard in asylum cases, the Supreme Court held in

Elias-Zacarias, 502 U.S. at 481 & n.1, that if substantial

evidence supports the BIA’s denial of asylum, the decision

can be reversed “only if the evidence ... was such that a

reasonable fact finder would have to conclude that the

requisite fear of persecution existed,” adding that the

evidence would not only have to “support” the reversal, but

“compel” it. See also Abedini v. INS, 971 F.2d at 191. Thus,

the Supreme Court concluded that in order for the BIA’s

denial of asylum or withholding of deportation to be

reversed, the record evidence would have to be “so compei-

ling that no reasonable fact finder could fail to find the

requisite fear of persecution.” Elias-Zacarias, 502 U.S. at

484; Aruta v. INS, 80 F.3d 1389, 1396 (9th Cir. 1996). This

Court has stated that Elias-Zacarias is the “definitive

statement” of the substantial evidence standard in asylum

cases. Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). See

also San[gJha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).

Questions of law regarding statutory interpretation of

the INA are to be reviewed de novo, with substantial

deference to the BIA. See INS v. Aguirre Aguirre, 119 S.Ct.

1439, 1445 (1999).

Finally, review is generally limited to the decision of

the Board, except to the extent that it has adopted the

- decision of the Immigration Judge. Ghaly v. INS, 58 F.3d

1425, 1429 (9th Cir. 1995); Alaelua v. INS, 45 F.2d 1379,

1382 (9th Cir. 1995); Elnager v. INS, 930 F.2d 784, 787

(9th Cir. 1991); Matter of Bur[bjano, 20 I & N Dec. 872,

874 (BIA 1994). Because the Board adopted and affirmed

the Immigration Judge’s decision, this Court reviews the

Immigration Judge's decision. Jd.

42a

C. Substantial Evidence Supports The Immi-

gration Judge’s Finding That The Con-

duct Petitioners Experienced In The Past

Did Not Amount To Persecution.

Petitioners claim that because of their son’s disability,

they were persecuted on account of their political opinion,

and membership in [sic] particular social group in Russia.

Pet. Br. at 7-21. However, this calm [sic] is without merit.

Instead, a review of the record in this case establishes the

petitioners were not persecuted while in Russia and, to the

extent they were mistreated while living in that country, it

was the result of discrimination, an unprotected ground

under the INA. Additionally, petitioners in this case

improperly conflate the actions of the Russian government

and those of the general population in Russia. However, as

set forth below, many of the events relied on by the peti-

tioners cannot be tied to the Russian authorities, or by

groups it cannot, or are unwilling to control.

As mentioned earlier, in order to be eligible for asylum

an applicant must demonstrate either past persecution, or

a well-founded fear of future persecution, on account of

one of the qualifying reasons under the INA. See 8 U.S.C.

§§ 1101(a)(42), 1158; 8 C.FR. §§ 208.13(b)(1} and (2)

(1995). The INA does not define the term “persecution.” “In

ordinary usage, the term ‘persecution’ denotes extreme

conduct.” Fatin v. INS, 12 F.3d 1233, 1240 (3rd Cir. 1993).

“For example, The Random House Dictionary of the

English Language 1444 (2d ed. 1987) defines the term to

mean ‘a program or campaign to exterminate, drive away,

or subjugate a people because of their religion, race, or

beliefs[,]’ {and there is] nothing indicating that Congress

43a

intended to depart from the ordinary meaning of the

og ees. S

The BIA has construed the term to mean “the inflic-

tion of suffering or harm upon those who differ (in race,

religion, or political opinion) in a way regarded as offen-

sive.” See, e.g., Matter of S-A-, Int. Dec. 3433, _ I&N

Dec. __, 2000 WL 827754 (BIA 2000), quoting Ghaly, 58

F.3d at 1431; see also Matter of Acosta, 191 & N Dec. 211,

221 (BIA 1985) (“the infliction of suffering or harm on

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

also the meaning given to the term “persecution” in this

and other Circuits. See, e.g., Duarte de Guinac v. INS, 179

F.3d 1156 (9th Cir. 1999); Fisher, 79 F.3d at 961; Kovac v.

INS, 407 F.2d 102 (9th Cir. 1969).

As this Court has stated, “[plersecution is an extreme

concept that does not include every sort of treatment our

society regards as offensive.” Fisher, 37 F.3d at 1376.

“Discrimination ... as morally reprehensible as it may be,

does not ordinarily amount to ‘persecution’ within the

meaning of the [INA].” Ghaly, 58 F.3d at 1431; see also

Bucur v. INS, 109 F.3d 399 (7th Cir. 1997). “Otherwise

hundreds of millions of people would be eligible for asylum

in the United States.” Bucur, 109 F.3d at 402. Not every

“bullying” tactic rises to the level of persecution. Marquez

v. INS, 105 F.3d 374, 379,-80 [sic] (7th Cir. 1997). “Mere

repugnance of ... a governmental policy to our own

concepts of . . . freedom [is] not sufficient to justify labeling

that policy as persecution.” Fatin, 12 F.3d at 1240. “If

persecution were defined that expansively, a significant

percentage of the world’s population would qualify for

asylum in this country — and it seems most unlikely that

Congress intended such a result.” Jd. at at [sic] 1240.

44a

In order to show persecution, an alien must show

mistreatment that rises above discrimination, harass-

ment, or even basic suffering. Cf. Prasad, 47 F.3d at 337-

38 (no past persecution where Indo-Fijian was subjected to

religious and ethnic discrimination, rocks were thrown at

his house, his wife was harassed by military, and experi-

enced one brief arrest and detention with some physical

mistreatment); Fisher v. INS, 291 F.3d at 494-95 (8th Cir.

2002) (no past persecution in Ukraine based on activities

reviving Lutheran church, where educational and job

opportunities were curtailed, salary was cut, church was

infiltrated by KGB, and applicant received veiled threats

of problems at work if he pursued religious activities);

Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998) (no

past persecution in Communist Belarus based on Roman

Catholic beliefs and activities, where believers of all faiths

were subject to discrimination, KGB questioned alien on

several occasions and conducted searches of home and

place of business, and on one occasion arrived at home at

1:00 a.m. and knocked on door for 40 minutes). Contrast

Korablina v. INS, 158 F.3d 1038, 1039-44 (9th Cir. 1998)

(compelling evidence of past persecution in Ukraine of

Jewish applicant, based on the robbery and beatings of

employers, violent attacks by ultranationalists against

Jews, incident in which applicant was tied to chair with

noose around neck, threatened with death, and beaten

requiring hospitalization, and attacks on family members

who were badly beaten or threatened with rape); Matter of

O-Z- and I-Z-, 22 1 & N Dec. 23 (BIA 1998) (past persecu-

tion in Ukraine, where Jewish alien faced years of housing

and employment discrimination, was physically attacked

and beaten on several occasions, received multiple anti-

Semitic threats and messages at home, apartment was

45a

vandalized, son was dragged from classroom at school by

schoolmates, beaten, and forced to remove his pants).

Also inherent in the concept of “persecution” is the

requirement that it must be inflicted by the Government,

or by persons the Government is unable or unwilling to

control. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.

1997). Conduct that “the government does not sponsor and

in which it is not complicit” does not support asylum.

Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir.

2001). There is no “persecution” where conduct is not

“condoned by the state.” Ghaly, 58 F.3d at 1431. “[V]iolence

completely untethered to a governmental system does not

afford a basis for asylum.” Grava v. INS, 205 F.3d 1177,

1181 n. 3 (9th Cir. 2000). Evidence that the police were

ineffective does not suffice. See Brijmati Singh v. INS, 134

F.3d 962, 968 (9th Cir. 1997).

Given these standards, substantial evidence supports

the Immigration Judge’s finding that petitioners failed to

establish that the conduct they experienced in the past

rose to the level of “persecution.”

Petitioners in this case have failed to set forth any

facts which establish that they were persecuted while

living in Russia. The fact that petitioners’ child was not

provide [sic] with the level of medical care in Russia that

petitioners could obtain in the United States does not

amount to persecution. In fact, the record in this case

establishes that the petitioners’ child was given medical

treatment for his disability while in Russia, but that

petitioners did not believe it was either sufficient, or the

proper therapy for their child. A.R. 110-111. However, the

fact that the “proper” medical therapy was unavailable

according to petitioner is not persecution.

46a

Nor does petitioners’ child [sic] inability to enroll in a

public school because of his disability amount to persecu-

tion. The record in this case establishes that the Russian

economy is having extreme economic problems, and as a

result Russia does not have the economic resources to

educate handicapped children. A.R. 206, 242. The fact the

Russia government decides to use its resources to fund

other programs, rather than providing non-institutional

medical care for children with disabilities, does not

amount to persecution. Furthermore, the petitioners have

not establish [sic] that there are no private schools or

hospitals in Russia that could assist petitioners’ child. In

fact, petitioner Victoria Tchoukhrova admitted that her

child was [sic] received [sic] private medical care while in

Russia. A.R. 100.

~ Nor does petitioner Victoria Tchoukhoriva’s [sic] car

being stoned by unknown assailants after she attended a

meeting of parents with disabled children amount to

persecution. While such an event was unsettling for the

petitioner, petitioner was not harmed by her car being

stoned, and does not amout [sic] to persecution. Prasad v.

INS, 47 F.3d at 339-40; Ghaly v. INS, 58 F.3d at 1431.

Petitioners also claim that petitioner Dmitri Tchouk-

hrova lost his job because he had a disabled son. Pet. Br.

at 17. However, besides petitioners’ unsupported state-

ment, petitioners do not offer any evidence which would

support such a conclusion. In fact, the record establishes

that petitioner’s husband was employed in Russia until

1997, nearly six years after the birth of petitioners’ dis-

abled son. A.R. 117-118. Moreover, even if petitioner

Dmitri Tchoukhrova lost his job because he had a disabled

child, this would not be considered persecution under the

INA. Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003) (being

47a

fired from job did not rise to level of persecution); Saballo-

Cortez v. INS, 761 F.2d 1259, 1264-65 (9th Cir. 1985)

(denial of discounts on food and denia! of special work

permit not sufficient to establish persecution). In addition,

petitioners failed to establish that the government in

Russia imposed “deliberate imposition of substantial

economic disadvantage upon” them in firing petitioner

Dmitri Tchoukhrov on account of one of the protected

grounds under the INA. Kovac v. INS, 407 F.2d 102 (9th

Cir. 1969). Nor do the facts in this case support a claim of

severe economic deprivation. Id; Baballah v. Ashcroft, 335

F.3d 981 (9th Cir. 2003) (severe harassment, threats,

violence and discrimination made it virtually impossible

for applicant to earn a living). Instead, petitioners traveled

several times to the United States and were able to afford

private medical care for their child. In addition, petitioner

Victoria Tchoukhrova stated that she supported the family

by decorating for wealthy families in Russia. A.R. 118.

Petitioners also rely on two incidents in which their

son was injured by unknown persons in Russia. During

the first instance, petitioners’ son was attacked by an

unknown group of young men who grabbed their son and

were carrying him towards a lake in a park. A.R. 119-121.

Petitioner Victoria Tchoukhrova chased after the young

men who then dropped petitioners’ child. A.R. 119. As a

result of being drop[sic], petitioners’ child was hospitalized

for two months with a broken arm and injuries to his face.

A.R. 120. In another incident, petitioners’ son was injured

by an unknown woman in a park after the woman pushed

him down to the ground because he touched an article of her

clothing. A.R. 126. Petitioners’ son suffered a severe lacera-

tion to is [sic] head which required medical treatment at

48a

a hospital. A.R. 127. However, these events to do not

amount to persecution. Petitioners have failed to establish,

let alone claim, that their son’s alleged assailants were

part of the government in Russia, or from a group the

government was unwilling or unable to control. Nor could

they, petitioners admitted they were unable to identify

their son’s assailants. A.R. 119-120. To the extent petition-

ers cannot establish their son’s assailants were with the

government, or a group it could not, or was unwilling to

control, the alleged attacks on the petitioners’ son were not

persecution under the INA. This Court has repeatedly

held that persecution under the INA means acts either

committed by the government or a group the government

was unable or unwilling to control. Adebisi v. INS, 952

F.2d 910, 913-14 (9th Cir. 1992) and case cited therein. See

also, Sotelo-Aquije v. Sattery, 17 f.3d [sic] 33, 37 (2d Cir.

1994) (same); McMullen v. INS, 658 F.3d 1312, 1815 & n.2

(9th Cir. 1981); Matter of Laipenieks, 18 I & N Dec. 433,

456-57 (BIA 1983) rev'd on other grounds, 750 F.2d 1427

(9th Cir. 1985) (persecution under the INA means “(t]he

infliction of suffering or harm, under government sanction,

upon persons who differ in a way regarded as offen-

sive.... ”). Nor does the fact that petitioner Victoria

Tchoukhrova and her son were subject to derogatory

comments on one occasion in a park amount to persecu-

tion. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 1999)

(mere unfulfilled threats with no evidence of injury, harm

or mistreatment do not constitute “persecution.”).

While petitioners did not live under ideal conditions in

Russia, to the extent that they were mistreated in that

country does not amount to persecution. Instead, substan-

tial evidence supports the Immigration Judge’s decision

that petitioners were victims of discrimination in Russia.

49a

The record in this case establishes that discrimination

exists in Russia against children and their families with

disabilities. A.R. 242. While respondent does not condone

discrimination, a claim of discrimination by itself is not

persecution under the Act. Ghaly v. INS, 58 F.3d at 1429

(“discrimination on the basis of race or religion, as morally

reprehensible as it may be, does not ordinarily amount to

“persecution” within the meaning of the Act”); Bucur v.

INS, 109 F.3d at 402 (7th Cir. 1997) (“discrimination is not

persecution”); and Fatin v. INS, 12 F.3d at 1243 (8rd Cir.

1993) ([t]he concept of persecution does not encompass

every sort of unfair treatment that our society regards as

offensive ... unjust, or even unlawful or unconstitu-

tional.”).

D. Substantial Evidence Supports the Immi-

gration Judge’s Determination That the

Petitioners Failed to Show a Well-founded

Fear of Future Persecution in Russia.

Petitioners claim that if they are returned to Russia

their son will be killed, and they will be imprison [sic]

based on the fact their son is disabled. Petitioners’ claim is

wholly speculative, and is not supported by any evidence

in the record. Petitioners offered no testimony or evidence

showing even a remote possibility that their son would be

killed, or that they would be imprisoned if returned to

Russia. In fact, the record in this case supports an exact

opposite conclusion. Petitioners admit that they were

allowed to travel back and forth between Russia and the

United States on several occasions without any incident. A.R.

122-123. Nor did the Russia [sic] authorities ever attempt to

stop their travels to the United States. A.R. 122-123. In

addition, the record in this case is completely void of any

50a

evidence that the Russian authorities kill young school-~

aged children because they are disabled, or imprison their

parents for having disabled children. To the extent peti-

tioners claim their child would be “killed” because he

would not receive proper medical treatment, nothing in

the record supports this claim. Instead, the record in this

case establishes petitioners’ child had access to public and

private medical assistance, and was given emergency medi-

cal help on several occasions in Russia. While not to diminish

what has happen [sic] to the petitioners in Russia, petition-

ers nevertheless have failed to establish that they have a

well-founded fear of future persecution in Russia.

Alternatively, should this Court find that substantial

evidence does not support the Immigration Judge’s finding

of no past persecution or well-founded fear of future

persecution in Russia, this Court must remand petitioners’

case to the agency to determine whether the conduct

experienced in the past or feared in the future is “on

account” of one of the five grounds set forth in the INA. In

this case, the Immigration Judge indicated, in dicta, that

petitioners “appear[ed]” to have been harmed in Russia as

“a result of” their being a member of a particular social

group (a family with a disabled child), but did not actually

address or decide the social group issue, and instead found

that petitioners’ past experiences did not rise to the level

of conduct constituting persecution under the INA. A.R.

59. Thus, the Immigration Judge made no finding as to

whether petitioners were members of a particular social

group. In fact, there is no discussion of the legal require-

ments for establishing a claim of persecution on account of

a particular social group in the Immigration Judge’s

decision. The petitioners acknowledge this when they

admit in their brief that neither the “immigration judge

5la_

nor the BIA gave any legal analysis as to” whether the

petitioners “belong[ed] to a particular social group.... ”

Pet. Br. 8. Nor did the Immigration Judge make any

finding as to whether petitioners were persecuted on

account of their alleged political opinion. In fact, the

Immigration Judge’s decision itself establishes he made no

such findings. Under section 208 of the INA, an Immigra-

tion Judge is first required to establish whether an alien

has been persecuted, and then whether that finding comes

under one of the five categories under section 208 of the

INA in order to determine eligibility for asylum.

Since the Immigration Judge did not make a final

ruling on whether the conduct petitioners’ experienced or

fear was on account of membership in a particular social

group, or a political opinion, this Court must remand this

case to the Board in order to allow it to decide these issue

[sic] in the first instance. INS v. Ventura, 123 S. Ct. 353

(2002) (requiring remand on issues not decided by the

agency below). When a court reviews an adjudicatory

decision by a federal agency that Congress has charged

with administering a statute, a respect for the agency’s

primary jurisdiction requires the court to refrain from

rendering its own findings of fact or resolving issues the

agency did not consider. /d. In fact, “[glenerally speaking,

a court of appeals should remand a case to an agency for

decision of a matter that statutes place primarily in

agency hands. This principle has obvious importance in

the immigration context.” Ventura, 123 S. Ct. at 355. See

also Port of Portland v. United States, 408 U.S. 811, 842

(1972) (“[o]ur appellate function in administrative cases is

limited to considering whether the announced grounds for

the agency decision comport with applicable legal princi-

ples”); SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (“an

52a

appellate court cannot intrude upon the domain which

Congress has exclusively entrusted to an administrative

agency.”). A court of appeals “is not generally empowered

to conduct a de novo inquiry into the matter being re-

viewed and to reach its own conclusions based on such an

inquiry.” Ventura, 123 S. Ct. at 355, quoting Florida Power

& Light Co. v. Lorian, 470 U.S. 729, 744 (1985). Rather, if

the agency has not decided certain aspects of the case, the

proper course, except in rare circumstances, is to remand

to the agency for additional investigation or explanation.

Florida Power & Light Co., 470 U.S. at 744.

In light of these firmly established principles, the

Supreme Court held in Ventura “that well-established

principles of administrative law did require the Court of

Appeals to remand the ‘changed circumstances’ question to

the [Board].” Ventura, 123 S. Ct. at 355.

Just as remand was warranted in Ventura because the

Board had not reached the “changed circumstances”

question, remand is required if the Court finds substantial

evidence does not support the Immigration Judge’s perse-

cution finding here, since the Immigration Judge did not

decide whether any alleged persecution in this case came

under one of the five categories under section 208 of the

INA. As previously discussed, the Immigration Judge

denied petitioners’ asylum and withholding applications

on the basis that petitioners were not persecuted in the

past and did not show a well-founded fear of future perse-

cution in Russia. Consequently, under Ventura and other

binding precedent, this Court may not reach the issue of

whether said persecution was “on account of” petitioners

being a member of a particular social group, or any of the

other grounds provided in the INA, because these issues ~

have not been finally addressed and decided by the agency

53a

below. See also INS v. Chen, 326 F.3d 1316 (9th Cir. 2003)

(once court has reversed decision of the Board it is appro-

priate to remand so BIA can decide asylum issues rather

than for Court to decide issues); Singh v. INS, 292 F.3d

1017, 1025 (9th Cir. 2002) (reversing Board’s adverse

credibility determination and remanding, but declining to

consider merits of asylum claim where “the Board had not

yet had an opportunity to address the remaining issues.”).

II. PETITIONERS FAILED TO MEET THEIR

BURDEN OF ESTABLISHING WITHHOLDING

OF REMOVAL.

As already set forth above in the discussion of the

controlling law section, in order to be eligible for withhold-

ing of removal under section 241(b) (3) of the INA, an alien

must demonstrate a “clear probability of persecution,”

showing by objective evidence that persecution is “more

likely than not.” As argued above, petitioners failed to

satisfy the lower burden of proof- required for asylum.

Therefore, they necessarily failed to satisfy the clear

probability standard of eligibility required for withholding

of removal. INS v. Cardoza-Fonseca, 480 U.S. 421, 423

(1987); De Valle v. INS., 901 F.2d at 790 (where petitioner

failed to meet threshold burden of establishing statutory

eligibility for asylum, he could not meet the tougher

standard required for withholding of deportation). Thus,

the Immigration Judge was correct in denying petitioners’

application for withholding of removal. A.R. 2-3.

54a

CONCLUSION

For the reasons stated above, the petition for review

should be denied and the decision of the Immigration

Judge should be affirmed.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

MARGARET J. PERRY

Senior Litigation Counsel

/s/ {Mllegible]

WILLIAM C. ERB, Jr., Attorney

Office of Immigration Litigation

Civil Divisien

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 616-4869

Dated: November 24th, 2003 Attorneys for Respondent

STATEMENT OF RELATED CASES

In accordance with Local Circuit Court Rule 28.1

(a)(ii), counsel for respondent declares that based on a

survey of the attorneys in this office, he is not aware of

any related cases pending in this Circuit.

/s/ (Megible]

WILLIAM C. ERB, JR., Attorney

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

Dated: November 24th, 2003

55a

CERTIFICATE OF COMPLIANCE PURSUANT TO

FED. R. APP. P. 32(a) AND NINTH CIRCUIT RULE 32.

I certify that pursuant to Fed. R. App. P.

32(a)(4), (5), (6), and (7), and Ninth Circuit Rule 32, the

attached Brief For Respondent is monospaced spaced [sic],

has a typeface of 12 points (Courier New), contains 879 lines

- and 7,490 total words, and contains fewer than 22 pages.

/s/ {Illegible] e

WILLIAM C. ERB, JR., Attorney

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

Dated: November 24th, 2003

CERTIFICATE OF SERVICE

I certify that on the 24th day of November, 2003, two

copies of the BRIEF FOR RESPONDENT were placed in

a mail room at the United States Department of Justice

for service by same-day mailing, first-class postage pre-

paid, upon petitioner’s counsel at the following address:

Mr. Jonathan D. Montag

P.O. Box 124801

San Diego, CA 92112

/s/ {Illegible]

WILLIAM C. ERB, JR., Attorney

Office of Immigration Litigation

Civil Division 7

Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 616-4869

Dated: November 24th, 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.