# Opposition Brief — Gonzales v. Tchoukhrova (No. 05-1401) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0730%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2006 ## Text In The Supreme Court of the Anited States ¢ ALBERTO R. GONZALES, ATTORNEY GENERAL, Petitioner, v. 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. re TABLE OF CONTENTS Page Fe RIOT sss inacncedinvseshvlacdidacapedeiniaiiectcmmmenaeinan 1 A. FO PO isin cian 1 ER. FPO GROW isis sa cascnigeiiseasscisacsersdinigs 7 REASONS FOR DENYING THE WRIT.................... 14 I. The Decision of the Court of Appeals Does Not Conflict with This Court’s Rulings in PRRIGIS GI TROUUEE chi cciihestiscGiticcnnmonun 15 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 SOs HE TURN MII sacidnicinn coneaczapuesetsusscbeciaies 27 CINE NC ENM EEN sank bins skecénchnnsediesaiabiedasbieideastediukcaeiinie 30 APPENDIX A Respondent’s Petition for Rehearing En Banc SE IS Bh SP nisi csiksncbccctnaadeeietstiah pdhctibeusiateninentien la APPENDIX B : Brief for Respondent PRUs SPOONING BD BIOS a oiin in diiesicesenccdccgcadcatnscensccsceusaceces 20a ili 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 lV 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 Rennes A er NI snk casas res cetaicuasdinbcataalinmanuaseo ain 1 Peas Be BRCM iccists sin decenascissnrpaccagienanidacabeatens : ERE era AP PP les esse Lisantsiynin kan’ ssasn cue ecoenhieounneanaeueataonemes 7 Rae IE kas dak cones besecrnanerneséiucckvarioeocstgovoices 20 SE aepee Ae ee BI ies sbsccsvandensunisckek hed capeaceniardeniaataaeeoen 8 8 Code of Federal Regulations SP ba le PETS 0 sid ob cea dst sasicip oes Wokeini Dies ahicnav dns eek aaa 19 Peas Te AOE saikaxtonriveatndvacenassanatizsuncksbacmmumaiiooals 20 A is eee MD hess i pistes Visas eatasntnebdesnadessaaciaasebioeas 10 Se ae ae SIM Sai Gaba Sides gn eens chia pss RbnRiegsasenckin BUEdouN ee 11 tee Aas BRINE bcesincascecseachcansjuaxeadscasguaskescseuseiss 11 As RT RIPPED vikdid sa svcnssainis nicsccnvacauiaaetulnevaracees 8 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 2 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. 3 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. 4 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. 5 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. 6 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. 7 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. 8 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. 9 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). 10 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. 11 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. 12 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., 13 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 14 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. 15 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.” 16 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 17 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 18 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 19 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. 20 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. 21 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. 22 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. 23 — “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. 24 405°°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 25 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 26 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. 27 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. 28 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. 29 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. 30 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 & St. Louis, MO 63130 ROSENTHAL LLP 601 S. Figueroa Street, DEBORAH ANKER Suite 1500 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 la Corrected Copy No. 03-71129 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VICTORIA TCHOUKHROVA, et al., Petitioners, v. 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 2a 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 3a 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 4a 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, 5a 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. 6a 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). 7a 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 8a 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) 9a 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 A. B. C. 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 A. B. C. 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 12 12 15 17 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, v. 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” withi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0730%3A3. Public record. Not legal advice.