WRITING SAMPLE FOR: Aglaia Davis, Esq.

Brief Researched, Written, and Argued Before the Second Circuit Court of Appeals, Winter

2012

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Preliminary Statement

Immigration Judge Michael W. Straus (“IJ”), and the Board of

Immigration Appeals (“BIA”), rendered the decisions appealed from. Neither

decision was reported.

Jurisdictional Statement

The Board of Immigration Appeals (“BIA”) had jurisdiction to review

the Immigration Judge’s (“IJ”) decision in removal pursuant to 8 C.F.R.

§1003.1(b)(3), stemming from the IJ’s July 31, 2001 Decision denying, inter

alia, the Kolyagins’ application for asylum and withholding of removal,

granting their application for voluntary departure, and ordering them to post a

bond of $500.00.1

The Court of Appeals has jurisdiction to hear this appeal pursuant to 8

U.S.C.A. §1252 (a)(1), as a final order of removal. Pursuant to 8 U.S.C.A.

§1252(d), judicial review is appropriate because the Kolyagins have exhausted

all administrative remedies available as of right; and another court has not

decided the validity of the order. The BIA’s affirmance of the IJ decision

constitutes a “final agency determination.”2

1 AR (Administrative Record) 221 (Decision of IJ (“Decision”), p. 22). 2 AR146 (BIA Order)

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The filing dates establishing timeliness of appeal are May 13, 2003, when

the BIA affirmed the IJ decision3; November, when the Kolyagins moved to

Reopen and requested that the BIA decision be reissued4; and April 24, 2008,

when the BIA Reissued its 2003 Order “as if entered on” April 24, 2008.5

On December 10, the Kolyagins submitted a Petition for Review.6

This appeal is from a final order or judgment that disposes of all parties’

claims.

Statement of Issues Presented for Review

1. Did the BIA/IJ err in denying the Kolyagins’ application for asylum?

2. Did the BIA/IJ err in denying the Kolyagins’ application for withholding

from removal under I.N.A. §241(b)(3)?

3. Did the BIA/IJ err in denying the Kolyagins’ claim under Article 3 of the

United Natures Convention Against Torture (“CAT”)?

Statement of the Case

The Kolyagins appeal denial of their asylum, withholding, and CAT

claims. On October 15, 1999, they filed an asylum application, interviewed

May 17, 2000, but found incredible.7 On May 17, 2000, INS issued NTAs,

alleging the Kolyagins were citizens of Azerbaijan who remained in the United

3 AR145-46 (BIA Order). 4 AR42 (Motion to Reopen). 5 AR42 (Reissued Order). 6 AR.

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States without authorization. INS charged them with removal pursuant to

§237(a)(1)(B).

The Kolyagins first appeared before the IJ July 18, 2000, conceding

removability, requesting that the IJ consider their eligibility for asylum,

withholding of removal, CAT, or voluntary departure.8 On July 23, 2001, the IJ

denied the Kolyagins’ application for asylum and withholding, but granted

voluntary departure.9

On August 20, 2001, the Kolyagins submitted their Notice of Appeal to

the BIA,10 denied May 13, 2003.11 No Petition of Review was filed by the

Kolyagins’ then-counsel, so, on November 29, 2007, current counsel filed a

Motion to Reopen.12 On April 24, 2008, the BIA granted the Motion and

Reissued its Decision.13 On September 10, the Kolyagins filed a Petition for

Review.

Statement of Facts

On March 6, 1999, the Kolygins arrived in the United States on non-

immigrant B-2 visas, with authorization to remain up to September 5, 1999.14

7 AR201 (Decision, p. 2). 8 AR202 (Id. at 3). 9AR 221 (Id. at p. 22). 10 The Notice of Appeal has been omitted from the Certified Administrative Record, despite its erroneous

citation in the Table of Contents. 11 AR145-46. 12 AR42. 13 AR1-2. 14 AR201 (Decision, p. 2).

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On May 17, 2000, the Kolyagins were placed in removal proceedings,

where, finding them removable, the IJ considered their applications for asylum,

withholding, protection under the CAT, and voluntary departure.15

(a) Testimony

Vladimir Kolyagin (“Vladimir”) testified that he was born in Baku,

Azerbaijan, to a Jewish mother and Russian father.16 Under Jewish custom,

Jews take nationality through their mother; while, under Russian custom,

Russians take nationality through their father.17 Azeris choose their own

nationality at the age of sixteen; when Vladimir reached sixteen, he chose

Russian nationality because his mother feared anti-Semitism.18 While

Vladimir’s passport showed Russian nationality, his birth certificate showed

that his mother was Jewish.19 When confronted by government officials,

Vladimir had to show both documents.20

Although Vladimir’s “official” nationality was Russian, he felt close to

Jewish traditions.21 As an adult, he attended services two or three times per

month, afraid to attend more regularly and going early to avoid drawing

15 Id. 16 AR202 (Id. at p. 3) 17 Id. 18 Id. 19 Id. 20 Id. 21 Id.

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attention.22 Prayers were recited in both Hebrew and Russian.23 Vladimir’s son

was a member of a Jewish organization which studied Jewish culture and

history.24

Vladimir feared returning to Azerbaijan because he believed he would

suffer persecution as he had since childhood.25 He testified that, in April 1987,

he and some friends attended a Jewish Easter service at a synagogue in Baku.26

As they were leaving, they were beaten by five drunk males shouting “Jew,

Jew.”27 The police brought all parties to the police station, but released the

attackers after one hour and held the victims for twenty-four.28 During this

time, the police would not allow them to contact their parents, trying to coerce

them into admitting they had instigated the fight.29

In June 1998, the police came to Vladimir’s apartment for a registration

check.30 Upon learning they the Kolyagins were Jewish, the police began

shouting.31 Thereafter, Vladimir received numerous threats.32 On one

occasion, vandals painted two Stars of David and the words “get out” on his

22 Id. 23 Id. 24AR203 (Id. at p. 4) 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 AR203-04 (Id. at pp. 4-5) 32 AR204 (Id. at p. 5)

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apartment door.33 Though he filed a formal complaint with the police, they

laughed and refused to open an investigation, claiming it must have been

painted by children.34

In July 1998, Vladimir noticed a policeman standing near his building.35

As he walked inside, he was attacked by two men shouting “Jew, Jew.”36

Vladimir’s injuries were so severe that he went to the emergency room, but the

police made no arrests.37

On September 6, 1998, Vladimir was alerted by a neighbor that she saw

smoke coming from his apartment window.38 The Kolyagins drove back to the

apartment to find their personal belongings burned.39 The IJ noted that

Vladimir was “not sure how his marriage certificate, dated 1990, and other

documents pre-dating the fire, survived.40 He speculated that perhaps he had

stored the documents in the kitchen or bathroom, neither of which had

burned.”41 The fire department termed the fire arson, but the police made no

33 Id. 34 Id. 35 Id. 36 Vladimir believed the attack was motivated solely as a result of his Jewish ancestry, as the attackers took no

money (AR204 [Decision, p. 5]). 37 Id. 38 Id. The Kolyagins were the only Jews living in the apartment building (AR204 [Decision, p. 5].).

39 Id. 40 Id. 41 Id.

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arrests and the Kolyagins relocated.42 A neighbor told Vladimir that police had

come to the building after the fire to ask the location of his new apartment.43

Vladimir testified that government officials who checked his documents

often remarked that he should leave Azerbaijan and immigrate to Israel.44

He left in 1999, after waiting to obtain a U.S. visa.45

Vladimir’s wife’s two sisters in the U.S., both born in Baku, were granted

asylum.46 Elena Evgenjevna Mayorova was born in Baku to a Jewish mother

and Russian father and came to the States in 1995, where she and her husband

were granted asylum.47 She testified that Jews in Azerbaijan experienced

numerous difficulties in employment and with the government.48 It was

common for Jews to be beaten.49 She testified that the Azerbaijan government

was corrupt, and she would not return to the country.50 She also testified that

she attended a Russian synagogue in New York, which the Kolyagins

occasionally attended with her.51

(b) Affidavit / Documentary Evidence

Vladimir submitted an affidavit setting forth in greater detail the facts

42 Id. 43 Id. 44 Id. 45 AR205 (Id. at p. 6) 46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id.

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recited above.52 Additionally, he affirmed that, inter alia, he was unable to

secure employment due to his Jewish nationality.53

In 1989, a nationalistic group called “People’s Front” emerged in

Azerbaijan and the situation worsened for Jews.54 At the time, Vladimir was

living at an apartment in Zabrat-I.55 One morning a group of armed people

stormed into his apartment along with the district police officer upon learning

he had helped an Armenian neighbor.56 The police officer screamed it was bad

enough Jews were living in Azerbaijan, now they were helping Armenians.57

The group destroyed his apartment, promising they would kill the Armenians

and Jews.58 Later he found threatening notes under his door and his porch

windows broken.59

In January 1992, Vladimir was demoted twice.60 His family began

receiving threats over the phone saying Jews could not prosper at the expense of

the Islamic population, and they would get rid of Vladimir’s job.61 In 1994,

52 Id. 53 AR382 (Appendix A [Statement of Lead Respondent], p. 1) 54 AR383 (Id. at p. 2) 55 Id. 56 Id. 57 Id. 58 Id. 59 AR384 (Id. at p. 3). As a result, he moved to another Baku district (AR384 [Decision at p. 3]). 60 Id. 61 Id.

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under threats, demotions, and reprimands, Vladimir quit his job and his wife

was forced from her position.62

In 1998, the new Baku district police officer visited the Kolyagins late

one evening, and, discovering they were Jewish, began yelling.63 He searched

the apartment and informed them that they would be “taken care of.”64

Thereafter, the Kolyagins received threatening, anti-Semitic calls on a near

daily basis.65

On his return from work one day, Vladimir noticed the district police

officer standing at the corner of his apartment building.66 Upon entering, he

was grabbed by two men and beaten up.67 When he went to the hospital, he was

told that there was no place for a Jew.68 Though a criminal case was opened,

Vladimir was told that the state could not protect each Jew and he should go to

Israel.69 His case was closed.70

After the 1998 fire that destroyed their apartment, a neighbor told the

Kolyagins that the district police officer and another stranger had been there

immediately before the blaze.71

62 Id. 63 Id. 64 AR384 (Id. at p. 4) 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. 70 Id. 71 AR386 (Id. at p. 6)

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In addition to Vladimir’s Statement, ample documentary evidence was

submitted to the IJ.72

72 The following documents were submitted to the IJ: May 17, 2000 Notices to Appear (AR205 [Decision, p.

6]); Pleadings (Id.); Applications for Asylum and Withholding and Statement of Vladimir “consistent with the

lead respondent’s oral testimony” (AR206 [Id. at p. 7]); Kolyagins’ January 22, 2001 Notice of Filing of

Supplemental Material, including: (a) Asylum Application of Svetlana Evgenjevna Mayorova; (b) INS

Approval of Application of Svetlana Mayorova; (c) Russian Newspaper [“Kurier”] October 6, 2000 Article:

“USA Denounces Russia for Anti-Semitism,” with translation, stating that the U.S. Government has called on

the Russian government to investigate “religious intolerance and anti-Semitism”; (d) Russ ian Newspaper

[“Russkaja Reklama”] November 24-30, 2000 Article entitled “Azerbaijan Day after Day in Baku,” and

translation, stating that many Jews have left Azerbaijan, and those with fair complexions (meaning those of

Azeri nationality) are subjected to ridicule; (e) internet article from JTA/Virtual Jerusalem Presents outlining

brutality against Jews in North Caucasus; (f) Azerbaijan Human Rights Watch World Report on Azerbaijan for

1998; and (g) internet article from World Jewish Congress – Policy Dispatch #35 – dated November 1998,

entitled “Russian Anti-Semitism: Old Wine in New Bottles Economic Meltdown Lands to New Threats Against

Russian Jewry” – describing Russian anti-Semitism (AR206 [Id. at p. 7]); Azerbaijan Country Reports on

Human Rights Practices for 1999, U.S. Department of State, Bureau of Democracy, Human Rights and Labor,

February 25, 2000 (AR206-07 [Id. at pp. 7-8); Azerbaijan Annual Report on International Religious Freedom

for 2000, U.S. Department of State, Bureau of Democracy, Human Rights and Labor, September 5, 2000

(AR207 [Id. at p. 8]); Asylum Officer’s Assessment Memo dated May 17, 2000 (Id.); copies of the Kolyagins’

Passports dated September 18, 1998, indicating Russian Nationality (Id.); copies of the Kolyagins’ Visas, dated

December 22, 1998 (Id.);copies of Vladimir’s and Natalya’s Birth Certificates dated September 24, 1998, and

translations, indicating that their fathers were Russian and mothers were Jewish (Id.);copy of Gennadiy’s Birth

Certificate, dated November 20, 1996, and translation, indicating that both his parents are Russian (Id.); copy of

Vladimir’s and Natalya’s Marriage Certificate, dated January 14, 1990, and translation (Id.); copy of

Gennadiy’s “Ameshav” (Jewish Agency of Israel) Club Membership Card, his date of birth, October 1, 1990,

and translation; copy of statement of Ljudmila Ivanova Kadysheva dated February 27, 1999, and translation,

indicating that the Kolagyins stayed at her apartment from September 6, 1998 until the date of the letter

(AR207-08 [Id. at pp. 8-9]); letter from Ministry of Internal Affairs, Fire Defense, dated September 16, 1998,

and translation, declaring the fire in the Kolyagins’ apartment to be arson and stating that “all possessions,

electric appliances, and all documents” were destroyed (AR708 [Id. at p. 9]); Certificate of Kadyrly Central

Clinic Hospital dated August 7, 1998, and translation, indicating that Vladimir was admitted with a slight

concussion, hermatoma, swollen lip, abrasions, and scratches on hands and legs, and that he was in outpatient

treatment from July 24 to August 7, 1998 (Id.); letter from Ministry of Internal Affairs, Baku Police

Department, dated July 24, 1998, and translation, indicating that the police opened a criminal case regarding the

July 24, 1998 attack against Vladimir (Id.); Certificate of Baku Synagogue dated March 9, 1999 and translation,

indicating that Vladimir was a member of the synagogue (Id.); two (2) photographs showing a doorway with the

writing “Get out” and two Jewish stars on it (Id.); letter from Aslan Ruslanov, and translation, stating that he

had heard from another worker that the police hired someone to perform restoration on the Kolyagins’

apartment which had been burned in fire (Id.); Employment Record of Vladimir dated January 12, 1994, and

translation, indicating that he was “discharged in accordance with personal request” on April 15, 1994 (Id.); the

Kolyagins’ Notice of Filing of Supplemental Material, dated April 6, 2001, including (a) Hebrew Immigrant

Aid Society’s Statistical Abstract on Relocated Jews for 1999 (Id.); (b) Birth Certificate of Mnuskina Asya

Leonidovna, dated November 4, 1955, and translation (Id.); (c) Letter from Ismailov Rafael Mamedovich dated

February 22, 2001, and translation, reconstructing how he and his seven-year-old daughter were thrown out of

their apartment on account of their Jewish nationality and how their case has still not been solved (AR208-09

[Id. at pp. 10-11]); (d) Birth Certificate of Rafael Mamedovich Ismailov dated June 20, 1956, and translation ,

indicating that his father was Azeri and his mother was Jewish (AR209 [Id. at p. 11]); (e) letter from M.B.

Balkishiyev dated May 29, 1992 and translation, regarding P.B. Mammadov’s move into Ismailov’s apartment

(Id.); (f) letter from Baku Public Prosecutor’s Office dated September 28, 1995, and translation, stating that the

delay in returning Ismailov’s apartment to him was because the housing authority could no t find appropriate

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(c) IJ Findings of Fact and Conclusions of Law

As a threshold matter, the IJ found the Kolyagins removable, that they

failed to demonstrate that they were eligible for asylum, withholding of

removal, or protection under the CAT.73

A. Asylum

1. Credibility

The IJ found the Kolyagins’ claims incredible “because they are

inconsistent with State Department country reports on Azerbaijan.”74 The IJ

termed “State Department country reports [ ] ‘the most appropriate and perhaps

housing for P.B. Mammadov (Id.); (g) letter from Baku Public Prosecutor’s Office dated January 31, 2001, and

translation, stating that the situation with Ismailov’s apartment was not yet resolved (Id.); (h) internet article

“Anti-Semitism in Georgia, Azerbaijan and Armenia,” dated August 25, 1999, indicating that Jews in

Azerbaijan still experience a significant degree of anti-Semitism; that two synagogues were desecrated in Baku

in 1998; and that a number of anti-Semitic slogans were written on the walls of buildings in various parts of

Baku (Id.); (i) January 1, 1998 internet article, “Anti-Semitic in the Former Soviet Union: 1995-1997,”

summarizing the attitude of Azeris towards Jews as hostile and giving a description of several attacks against

Jews and their property (Id.); (j) May 12, 2000 internet article, “Anti-Semitism in Russia’s Regions 1999-

2000,” indicating that anti-Semitism continues to exist in Russia (Id.); and (k) September 30, 2000 internet

article, “the Ryazan Brand of Leverage,” recounting an event in Ryazan where skinheads burst into a Jewish

Sunday school, hurled chains at the children, and shouted “Death to Jews” (AR209-10 [Id. at pp. 10-11]). 73 AR216 (Decision, p. 17, VI). The IJ did grant the Kolyagins’ application for voluntary departure (AR216

[Decision, p. 17, VI]). 74 Id. at A(1), The IJ’s conclusion was taken almost verbatim from the Assessment to Refer (AR314-16), which

also began by stating that Vladimir’s “testimony was found not credible because it was inco nsistent with

country conditions information” (AR316 [Id. at p. 3]). The Assessment also refers to the same country reports

as the IJ:

. . . . Country conditions information indicates that “the Government allows persons of all faiths

to practice their religions without restrictions, and the Government respects this provision in practice

for Shi’s and Sunni Muslims, Russian Orthodox, Christians, and Jews.” . . . . Also reported was that

“Jews do not suffer discrimination, and the country is remarkably free from anti-Semitism” . . . .

Further, it was reported that “in a few isolated cases, government officials or those allied with the

Government have used veiled anti-Semitic comments against perceived opponents for politically

motivated reasons” . . . . The 1999 Department of State report further confirms the above by indicating

that “Jews generally do not suffer from societal discrimination” . . . . The report did note, however, that

“according to the Union of Councils for Soviet Jews, two Baku synagogues were desecrated in the fall

of 1998.” [ ] Still, another report indicated that “Russian and Jewish minorities can worship freely” in

Azerbaijan . . . .

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the best resource’ for determining country conditions.”75 “According to State

Department country reports, anti-Semitism is not a major problem in

Azerbaijan.”76 The IJ cited a 1999 report indicating that the “Jewish

community has freedom to worship and conduct educational activities and,

during the year, enjoyed the public support of the Government.”77 “However,

according to the Union of Councils for Soviet Jews, two Baku synagogues were

desecrated in the fall of 1998.”78 The IJ reasoned that, “[w]hile desecration of

synagogues in Baku is certainly deplorable,” “these past incidents [were]

isolated outbreaks of anti-Semitism.”79 Additionally, the IJ found articles

regarding persecution of Jews in Azerbaijan “unpersuasive” because “[m]any

[we]re several years old and [ ] not representative of current country

conditions.”80

The IJ also distinguished Matter of O-Z- & I-Z-, (April 2, 1998 BIA),81 a

case discussed at hearing, by stating that “the country reports on Ukraine

described rampant anti-Semitism” (Id.). Those country reports stated:

(Id.). Based on these country reports, the Assessment found Vladimir incredible. 75 Id. 76 Id. 77 Id. 78 AR217 (Id. at p. 18). 79 Id. 80 Id. 81 In O-Z, supra, the immigration judge found that the respondent had suffered past persecution on account of

his Jewish nationality. On appeal, INS argued that the respondent failed to meet his burden of proof to estab lish

past persecution and well-founded fear of persecution. The BIA, however, disagreed, noting “that the

respondent was physically attacked on three occasions.

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While the 1996 country report states that the national government “speaks out against anti-Semitism,” the report also acknowledges that

“[s]ocietal anti-Semitism exists, and the Government has not prosecuted anti-Semitic acts under the law forbidding the sowing of interethnic

hatred.” . . . . It goes on to state that in western Ukraine, Jewish groups “credibly accuse some local Ukrainian ultranationalists of fostering

ethnic hatred and printing anti-Semitic tracts” and “charge that local authorities have not taken action against those who foment ethnic

hatred.” . . . The country report also notes that “death threats were made against Jews in Kharkiv,” the respondent’s hometown. . . .82

His son endured beatings at school and required surgery to treat on injury he incurred during the

July 3, 1993, beating. Furthermore, the respondent’s apartment was broken into, his furniture and

possessions were destroyed, and valuables were stolen. The respondent repeatedly received anti-

Semitic fliers and written threats at his home. . . . We find these incidents constitute more than

mere discrimination and harassment. In the aggregate, they rise to the level of persecution as

contemplated by the Act.

Furthermore, the record reflects that in each instance, the persecutors were motivated by a desire to

punish the respondent and his son on account of their Jewish nationality. The respondent continued to

receive anti-Semitic leaflets at his home. The January 1993 and July 1993 assaults were accompanied

by anti-Semitic comments. “These incidents amount to more than ‘isolated acts of random violence,’

as characterized by the Service.” Therefore, the court “concluded that the multiple beatings, repeated

and personalized threats delivered to the respondent’s home, the vandalization and des truction of

property, and the intimidation and humiliation of his son, inflicted on account of his Jewish nationality,

constitute past persecution.

(AR______).

Here, though the IJ termed this case distinguishable from OZ in that the state department reports here reflect

improved country conditions, there, like here,

[t]he record does not establish that, since the time of persecution occurred, conditions in Ukraine

have changed to such an extent that the respondent no longer has a well-founded fear of being

persecuted in that country. . . . The record contains a Department of State profile of country

conditions for Ukraine, dated June 1996, which the Service quotes as stating that “[a]nti-Semitism

ceased to be a government policy” in that country . . . . This generalized statement, however, is

insufficient to rebut the regulatory presumption of a well-founded fear. We take administrative

notice of the 1996 Department of State country reports on human rights practices for Ukraine,

which is incorporated by reference in the Profile . . . .

While the 1996 country report states that the national government “speaks out against anti-Semitism,”

the report also acknowledges that “[s]ocietal anti-Semitism exists, and the Government has not

prosecuted anti-Semitic acts under the law forbidding the sowing of interethnic hatred.” . . . . It goes

on to state that in western Ukraine, Jewish groups “credibly accuse some local Ukraine . . .

AR540-41. 82AR540-41.

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The IJ further determined that “[c]ertain aspects of the lead respondent’s

testimony [ ] raise issues of credibility.”83 Specifically, Vladimir testified that

during the fire in his apartment “all of his personal documents burned except

for his son’s birth certificate.

The respondent was not sure how his marriage certificate, dated 1990, and other personal documents survived. The respondent stated that

perhaps the documents had been in the kitchen or bathroom which did not burn in the fire. This apparent inconsistency leads the Court to find

the lead respondent’s testimony not credible.84

The IJ also “question[ed]” whether Vladimir was “truthful regarding his

ties to Judaism” because he “was not able to recite a Jewish prayer . . . . While

the Court finds that the respondents are Jewish, it [ ] appears that they have

exaggerated their connection to the religious aspects of the nationality.”85

Lastly, the IJ’s credibility finding was “supported by the Asylum

Officer’s conclusions,” based on the State Department country reports and other

documents demonstrating a lack of anti-Semitism in Azerbaijan.”86

2. Persecution

(i) Past Persecution

83AR568 (Decision at p. 18). 84 Id. 85 Id. 86 (Id. at p. 19)

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The IJ found that any acts of anti-Semitism committed against the

Kolyagins were not “persecution” because at “no point were the[ir] lives or

freedom endangered” (Id.). The IJ discredited each attack on them.87

(ii) Well-Founded Fear of Persecution

The IJ concluded that that the Kolyagins did not establish a well-founded

fear of persecution, relying on the most recent country report which did not

denote anti-Semitism.88 “Instead, only isolated references to anti-Semitism in

Azerbaijan have surfaced” (Id.). The IJ concluded:

. . . If anti-Semitism in Azerbaijan were indeed as prevalent as the

respondents contend, then advocacy groups here in the United States would likely speak out against the persecution. . . . Moreover, the Court

finds the testimony of the female respondent’s sister, Elena Evgenjevna Mayorova, unpersuasive as to current country conditions. Ms.

Mayorova left Azerbaijan for the United States in 1995 and has not returned . . . .89

B. Withholding of Removal

The IJ determined that “[b]ecause the respondents c[ould] not meet the

more generous standard for asylum, the[y did] not me[e]t the higher standard

for withholding of removal under INS v. Stevic, supra.”90

C. Protection Under the CAT

87 AR569-70 (Id. at pp. 19-20). 88 AR570 (Id. at p. 20) 89 AR219-20 (Id. at pp. 20-21). 90 AR220 (Id. at p. 21)

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The IJ found the Kolyagins ineligible for protection under the CAT.

“Torture is defined as pain or suffering.

For the reasons discussed above, there is no evidence that the respondents have suffered torture in the past; nor is there evidence

that they will likely suffer torture in the future. Therefore, they have not established that it is more likely than not that they will be

tortured. 91

Summary of Argument

(1) The IJ erroneously denied the Kolyagins’ application for asylum.

First, a country report does not justify an adverse credibility. Second, the other

“inconsistencies” lending to the adverse credibility finding were insignificant.

Vladimir’s speculation as to why documents survived a fire did not further his

application. Further, Vladimir’s inability to recite a Jewish prayer did not belie

his purported ties to the Jewish faith. Third, the BIA/IJ erroneously determined

that the attacks on the Kolyagins did not “persecution.” The IJ improperly held

that the Kolyagins had to establish that their lives or freedoms were endangered

to make out a claim for past persecution; that the acts of violence they described

did not rise to the level of past persecution; and that they had not established a

well-founded fear of future persecution because the country reports reflected an

absence of anti-Semitism.

91 AR220 (Id. at p. 21)

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(2) The IJ erred in denying the Kolyagins’ application for withholding.

Since the IJ did not properly determine the asylum claim, it erred in concluding

that the Kolyagins could not meet the stricter standard of withholding.

(3) The IJ erred in denying the Kolyagins’ claim under the CAT on the

summary basis that there was no evidence that the Kolyagins suffered torture in

the past; or that they would likely suffer torture in the future. The IJ was

required to, and did not, separately analyze the CAT claim.

Argument

Standard of Review

This Court reviews de novo the legal conclusions of the BIA and its

application of those principles to particular facts.92 Here, the BIA “summarily

affirmed the decision of the [IJ], thereby presumptively adopting his findings

and analysis.” 93 The Court reviews “the findings and analysis of the

immigration (imputed to the Board).”94

When reviewing asylum, CAT claims, and denials of withholding, this

Court reviews the factual findings underlying the IJ’s determination under the

“substantial evidence standard, reversing only if no reasonable fact-finder could

have failed to find that petitioner suffered past persecution or had a well-

92 Serafimovich v. Ashcroft , 456 F.3d 81, 85 (2d Cir. 2006). 93 See, Yu Sheng Zhang v. United States Dept. of Justice, 362 F.3d 155, 158-59 (2d Cir. 2004)(per curiam) 94 See, Id. at 158-59 & n. 2.

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founded fear of future persecution or torture.” 95 The “substantial evidence”

standard is slightly stricter than the clear-error standard generally applied to a

district court’s factual findings. 96

In contrast, the Court reviews de novo the IJ’s determination of mixed

questions of law and fact, as well as the application of law to facts.97

I. The IJ Erroneously Denied the Kolyagins’ Application for Asylum.

Law

To establish eligibility for asylum, a petitioner must show that he has

suffered past persecution on account of “race, religion, nationality, membership

in a particular social group, or political opinion,” or that he has a well-founded

fear of future persecution on these grounds. See, 8 U.S.C. §1101(a)(42). A

showing of past persecution automatically gives rise to a rebuttable

presumption of a well-founded fear of future persecution, which is overcome

only if “a preponderance of the evidence establishes that a change in

circumstances in the applicant’s country of nationality has occurred such that

the applicant’s fear is no longer well-founded.” 98 “An alien’s fear may be

95 Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir. 2004); Lin v. Gonzales, 151 Fed. Appx. 104, 1 (2d

Cir. 2005). 96 Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003), overruled on other grounds, Shi Liang Lin v. U.S. Dept. of

Justice, 494 F.3d 296 (2d Cir. 2007). 97 Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). 98 Guan Shan Liao v. U.S. Dept. of Justice, 293 F.3d 61, 67 (2d Cir. 2002).

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well-founded even if there is only a slight, though discernible, chance of

persecution.”99

A well-founded fear of persecution does not require the applicant to show

that he probably will be persecuted if he is deported; “one can certainly have a

well-founded fear of an event happening when there is less than a 50% chance

of the occurrence taking place.” 100 That the fear must be “‘well-founded’ does

not alter the obvious focus on the individual’s subjective beliefs, nor does it

transform the standard into a ‘more likely than not’ one.” Id.

Application

The IJ erroneously denied the Kolyagins’ asylum application on the basis

of Vladimir’s allegedly incredible testimony and absence of a well-founded fear

of persecution. Both of these findings were in error.

(1) Credibility

An appellate court may vacate and remand an adverse credibility

determination where, inter alia, the IJ failed relied on inconsistencies that were

relatively minor and isolated and did not concern material facts.101 Here, the

IJ’s adverse credibility finding based on the contrary country reports; and

minor, perceived inconsistencies in Vladimir’s testimony, was in error and

should be vacated.

99 Diallo v. I.N.S, 232 F.3d 279, 284 (2d Cir. 2000).

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(i) Country Reports

The observations of State Department country profiles “do not

automatically discredit contrary evidence presented by the applicant, and . . .

are not binding on the immigration court.” 102 In remanding, the Chen Court

gave the following instruction:

The immigration court on remand will be obligated to consider whether the particular circumstances asserted by Chen establish eligibility for

asylum or withholding of deportation. We believe that, in considering those questions, the immigration court should be careful not to place

excessive reliance on published reports of the Department of state such as the one received into evidence in the instant case. . . . [T]heir observations do not automatically discredit contrary evidence presented

by the applicant, and they are not binding on the immigration court. . . . Thus, where report suggests that, in general, an individual in the

applicant’s circumstances would not suffer or reasonably fear persecution in a particular country, the immigration court may consider

that evidence, but it is obligated to consider also any contrary or countervailing evidence with which it is presented, as well as the

particular circumstances of the applicant’s case demonstrated by testimony and other evidence.

In addition, the immigration court cannot assume that a report

produced by the State Department – an agency of the Executive Branch of Government that is necessarily bound to be concerned to avoid abrading relations with other countries, especially other

major world powers – presents the most accurate picture of the human rights in the country at issue. We note the widely held view that

the State Department’s reports are sometimes skewed toward the governing administration’s foreign-policy goals and concerns.103

100 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213 (1987). 101 Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir. 2007). 102 Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004); Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

2006). 103 Id. at 130 [emphasis added]. See, also, Ni v. U.S. Attorney General, 157 Fed. Appx. 455, 1 (2d Cir. 2005).

(“the country condition reports . . . alone were insufficient to establish a well-founded fear of persecution or a

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Here, the Kolyagins established a long history of persecution and

prejudice riddled with specific examples of violence and intimidation. As such,

the language of the country reports on which the IJ relied was not enough to

overcome the weight and specificity of Vladimir’s testimony. Moreover, the

IJ’s decision glaringly overlooked the tremendous amount of support for the

Kolyagins’ claims within the reports and other sources in the record.104 This

clear probability of torture” “none of the evidence is specific as to him. The IJ acted reasonably in concluding

that the documents alone were too inconclusive to warrant a grant of relief”). 104 For example, in the Executive Summary of “Antisemitism in Russia’s Regions 1999-2000,” furthermore, it

is reported that “[a]ntisemitism continues to be a major problem in Russia and a critical bellwether of the state

of Russian democracy” (AR522). According to “monitoring data, between 1998-99, recorded anti-Semitic

incidents increased by a factor of three, compared to the previous six years” (Id. at AR523). It also states that

“Jews have been left at the mercy of local authorities, some of whom openly or covertly support anti-Semitic

groups, and most of whom are largely indifferent to the Jewish community’s concerns” (Id. at AR524). It

concludes that, while anti-Semitic threats and violent hate crimes against Jews decreased in 2000, “Jews

continue to face specific dangers not only through incidents of anti-Semitic hate crimes, but from an

infrastructure of anti-Semitism, at the grassroots and official levels, that has solidified in several regions . . . .”

(Id. at AR528-29).

The November 1998 Police Dispatch No. 35, “Russian Antisemitism: Old Wine in New Bottles

Economic Meltdown Leads to New Threats Against Russian Jewry,” notes that “[a]ntisemitism in Russia has

deep roots” (AR368).

In the January 1, 1998 article on “Azerbaijan” (Id. at 518), the Union of Councils for Soviet Jews

reports that, “[g]enerally, anti-Semitism has not been as overt in Azerbaijan as in other regions of the former

Soviet Union, but is manifested in a personal, street level form, . . .” (Id. at 519). The article examples “selected

incidents of crimes or attacks made against individual Jews or Jewish communal property”:

On December 18, 1995, an elderly Jewish couple was murdered in the small town of Goi-Chi,

northwest of Baku. Six other Jewish families live in the town. –Israeli Consulate Bulletin, January

1995

On January 1, 1995, a 71-year-old Jewish man was killed and his wife injured when hooligans attacked

them at a Baku open-air market. They were just about to emigrate to Israel and had gone to the market

to sell the last of their possessions. –Israeli Consulate Bulletin, January 1995

Refugees reported that emigrating Jews often are the target of militia groups who extort bribes from

them and who impede their departure if they do not comply. –The Hebrew Immigrant Aid Society,

Survey of Jewish Refugees from the Newly Independent States July 1, 1995-December 31, 1995

In February 1995, in Baku, a gang of young Azeris attacked Alexander Taranov, a 30-year-old Jewish

man. A man followed Taranov to the subway, harassed him there, and then grabbed him at the subway

exit and loudly announced that Taranov had a Talmud and a bomb in his briefcase and that he was

going to blow up the subway. People surrounded Taranov and began to severely beat him shouting

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evidence, together with Vladimir’s specific testimony, refutes the country

reports and justifies remand.105

(ii) Other Minor, Insubstantial Inconsistencies

In Secaida-Rosales v. I.N.S.,106 this Court held that when a case “rises

and falls purely on an IJ’s credibility finding, courts have been particularly

concerned that the decision-maker carefully detail the reasoning leading to the

adverse finding.”107 “An IJ cannot insulate her decision from review simply by

dismissing all of an applicant’s testimony on credibility grounds.” Id.

When an IJ rejects an applicant’s testimony, the IJ must provide

“specific, cogent” reasons for doing so. . . . Those reasons must bear a legitimate nexus to the finding [citations omitted], and must

be “valid grounds” for disregarding an applicant’s testimony . . . .

. . . . “Inconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an

adverse credibility finding.” [citation omitted] This is especially so when the inconsistencies do not concern the basis for the claim of

asylum or withholding, but rather matters collateral or ancillary to

“Zionest-terrorist!” Then they brought him to the Militia precinct where he was interrogated and

ridiculed for three hours. They refused to listen to his complaints. He suffered damage to his kidneys,

and for several days after the attack was afraid to go to a hospital. – Olga Bardokova’s report to the

American Association of Jews for the Former Soviet Union on October 15, 1995

In early April 1995, about 50 graves were partially opened in the Jewish cemetery in Baku. Officials

suspect that the vandals were seeking gold fillings. –Israeli Consulate Bulletin, April 1995

(Id. at 519-20).

The October 3, 2000 Union of Council for Soviet Jews reports of a Jewish pogrom in “Russian

Newspaper Says Attack on Ryazan Jewish School a Sign of Things to Come” (AR532). 105 Cao He Lin v. U.S. Dept. of Justice, 428 F.3d 391, 400 (2d Cir. 2005)(“[T]he IJ must consider all the

evidence in the record that has probative value”). 106331 F.3d 297 (2d Cir. 2003), abrogated by, 8 U.S.C.§1158(b)(1)(B)(iii). 107 Id. at 307.

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the claim. [citation omitted]108

When an IJ bases an adverse credibility determination on testimonial

inconsistency, he is required to demonstrate a nexus between the inconsistency,

claim, and establish that the inconsistencies are material.109 Passed in 2005, 8

U.S.C.§1158 provides that an IJ may base an adverse credibility determination

on any inconsistency without regard to materiality.110 In Mukasey, this Court

recognized that only in “cases filed after May 11, 2005, the effective date of the

Act, an IJ may rely on any inconsistency or omission.”111

Country reports aside, the IJ discredited Vladimir’s testimony for being

unable to explain why personal documents survived a fire and to recite a Jewish

prayer.112 Inconsistent testimony may bear a legitimate nexus to an adverse

credibility finding, but need not be fatal if minor and the testimony is otherwise

consistent and believable.113 Here, why certain documents survived a fire was

immaterial to the Kolyagins’ claim.114 Moreover, Vladimir’s explanation – that

the documents must have been in the rooms that did not burn – was reasonable

108 Id. at 308.

109 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). 110 8 U.S.C. §1158(b)(1)(B)(iii). 111 534 F.3d at 167. 112 AR568. 113 Bin v. Gonzales, 154 Fed.App. 273, 275 (2d Cir. 2005). See, e.g., Kutina v. Bureau of Citizenship and

Immigration Services, 160 Fed.Appx. 92, 94 (2d Cir. 2005)(“the IJ failed to acknowledge Kutina’s explanations

for their absence, and, in doing so, failed to ‘point to valid reasons for rejecting [her] testimony’”). C.f., Poro v.

U.S. Dept. of Justice, 161 Fed.Appx. 89, 91 (2d Cir. 2005)(discrepancy was sufficiently linked to IJ’s finding,

“as it concerns details surrounding one of the major events upon which Aleksander premised his claim, . . .”).

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and immaterial to the undisputed arson.115 Moreover, the Kolyagins could have

attended services monthly without being able to recite a prayer.116 Inability to

demonstrate knowledge does not undermine religious ties.117 If the IJ’s

conclusion stemmed from the rationale that a certain level of doctrinal

knowledge is necessary to be eligible for asylum, this Circuit has “expressly

reject[ed] this approach.” 118

The critical showing that an applicant must make to demonstrate eligibility for asylum on religious persecution grounds is that he

has suffered past persecution, or fears future persecution, on the basis of religion. . . . Both history and common sense make amply clear that people can identify with a certain religion, notwithstanding their lack of

detailed knowledge about that religion’s doctrinal tenets, and that those same people can be persecuted for their religious affiliation. Such

individuals are just as eligible for asylum on religion persecution grounds as are those with more detailed doctrinal knowledge. . . . 119

114 As such, such minor inconsistency was insufficient to justify denial of asylum. Fei Min Zhang v. Board of

Immigration Appeals, 160 Fed.Appx. 22, 22 (2d Cir. 2005)(“Because the majority of the findings were based on

minor inconsistencies or speculation, they do not support a denial of asylum” ). 115 See, e.g., Yong Gao v. Board of Immigration Appeals, 156 Fed. Appx. 363, 365 (2d Cir. 2005)(“That his wife

was later sterilized would not minimize the significance of the earlier act of persecution if there was one”) 116 AR202. Indeed, it is most palpably the norm that most primarily secular, moderately -observant Jews who

attend services – even on a weekly basis – are unable to recite a Hebrew prayer. 117 See, e.g., Kotyrio v. U.S. Dept. of Justice, 180 Fed.Appx. 262, 1-2 (2d Cir. 2006)(“ IJ’s determination that

Sergey’s knowledge of the practices of Judaism and [ ] failure to actively practice . . . in the United States cast

doubt on his status as a Jew is fundamentally flawed. Eligibility for asylum on the basis of religious persecution

may not be premised on exhibiting a certain level of doctrinal knowledge of one’s professed religion . . . .

Moreover, in Ukraine, Judaism is considered a nationality as well as a religion. So even if the Kotyrlos did not

adhere to any of the practices of Judaism, their official nationality still might be Jewish, thus subjecting them to

a risk of persecution on that basis”; “Second, Sergey explained that, when a Ukranian is issued an internal

passport at the age of 16, he may elect to adopt the nationality of either his father or his mother. Sergey’s

parents ensured that his internal passport identified him as Ukranian, his father’s nationality. This . . . does not

provide substantial evidence for determining that his testimony regarding his Jewish heritage is false”). 118 Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006). 119 Id. The Rizal Court pointed to the Seventh Circuit case of Zhen Li Jao v. Gonzales, 400 F.3d 530 (7th Cir.

2005), where the court observed one “disturbing feature[ ] . . . that bulk large in the immigration cases that we

are seeing” – an “exaggerated notion of how much religious people know about their religion. . . . [M]any

deeply religious people know very little about the origins, doctrines, or even observances of their faith.” 442

F.3d at 533.

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Because an individual’s religious ties can exist both nationally and

without a high degree of religious knowledge, even assuming that the

Kolyagins did overstate their ties to Judaism, their nationality alone would be

enough to justify their past- and fear of future-persecution.

Neither of the alleged inconsistencies in Vladimir’s testimony, even if

true, supported the Kolyagins’ asylum applications. As a result, the IJ’s adverse

credibility finding was premised on insignificant discrepancies and should be

reversed.120

(a) Past-Persecution

A claim of past persecution can be based on harm other than threats

to life or freedom, including non-threatening violence and abuse.121 In Chen v.

U.S. I.N.S.,122 the Second Circuit “agree[d] with the Seventh Circuit that

‘persecution’ in the asylum context means that, although ‘the conduct must rise

above mere harassment,’” it includes” non-life-threatening violence and

physical abuse . . .”

Accordingly, physical harm inflicted on an applicant on account of his religious beliefs is a circumstance relevant to establishing past

persecution, and such harm is also relevant in establishing a well-founded fear of future persecution. . . .123

120 Biao Yang v. Gonzales, supra, 496 F.3d at 272; Secaida-Rosales v. INS, supra, 331 F.3d at 307; C.f.,

Ghenescu v. Gonzales, 232 Fed. Appx. 44 (2d Cir. 2007). 121 Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir. 2006). Accord, Chen v. Mukasey, supra, 269 Fed.

Appx. at 105; Aqudelo v. Gonzalez, 246 Fed.Appx. 707, 709 (2d Cir. 2007). 122 359 F.3d 121, 128 (2004). 123 Id.

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Here, the IJ applied the wrong legal standard, holding that the Kolyagins’

past persecution claim failed because “[a]t no point were the[ir] lives or

freedom endangered.”124 It is only under the withholding from removal

standard that an applicant “bears the greater burden of establishing that his ‘life

or freedom would be threatened in [his homeland] because of [his] . . .

religion.”125 The IJ’s application of the wrong legal standard justifies remand,

Karaj v. Gonzales126 (remand awhere IJ “made a significant error in applying

the wrong legal standard to Elida’s asylum claim”), or even vacatur. Rafiq v.

Gonzales127 (“An IJ decision based on the application of an incorrect legal

standard, of course, is subject to vacatur”). As stated in Ivanishvili v. U.S. Dept.

of Justice, 433 F.3d 332, 337 (2d Cir. 2006):

. . . . As noted above, we will vacate the BIA’s or IJ’s “conclusion[ ] as to the existence or likelihood of persecution . . . . insofar as the BIA has

applied the law incorrectly, or has not supported its findings with record evidence.” [citation omitted] This means that errors found pursuant to

our de novo review of the IJ’s application of law are not necessarily

124AR218 (Decision at p. 19). In Cukaj v. Gonzalesi, 188 Fed. Appx. 62 (2d Cir. 2006), the IJ “wrongly

concluded that the harm Cukaj described . . . did not rise to the level of persecution.” Id. at 63. There, Cukaj

testified that

. . . he and his friends were beaten in a crowd of demonstrators, and on one occasion, he was arrested,

detained for ten hours, and beaten. While general harassment falling short of sufficiently extreme

misconduct does not constitute persecution, violence and physical abuse are forms of persecution. . . .

The alleged beatings rise to the level of persecution. Accordingly, Cukaj demonstrated past

persecution, and was entitled to the presumption of a well-founded fear of future persecution. . . .

Id. C.f., Sodoli v. Gonzalesi, 186 Fed. Appx. 32, 34 (2d Cir. 2006)(minor beatings do not amount to

persecution, nor do “racial slurs”). 125 Chen v. U.S. I.N.S., supra, 359 F.3d at 127. 126 462 F.3d 113, 118-19 (2d Cir. 2006). 127 468 F.3d 165, 166 (2d Cir. 2006).

27

excused because the IJ’s decision might have been reasonable if the error had not been made. . . .

As to the IJ’s application of law, its opinion failed to distinguish

adequately between “harassment” and “persecution,” that is, what “constitute[s] persecution within the meaning of the Immigration and

Nationality Act.” While the confusion is somewhat understandable, since the courts of appeals have not settled on a single, uniform definition

of persecution in this context, . . . , a clear understanding of the meaning of persecution – a term not defined by the Immigration and Nationality

Act – is essential to the analysis of withholding of removal.

. . . . We have explained that persecution “includes ‘more than threats to life and freedom,’[citations omitted], and therefore encompasses a variety

of forms of adverse treatment, including “non-life-threatening violence and physical abuse,” [citation omitted], . . . In short, persecution is the infliction of suffering or harm upon those who differ on the basis of a

protected statutory ground . . . .128

Here, the Kolyagins set forth ample evidence that they were subjected to

life-threatening conduct and other serious adverse treatment. Therefore, the IJ

erred in concluding that they did not establish past persecution.

(b) Well-Founded Fear of Future Persecution

In rejecting the Kolyagins’ well-founded fear of persecution, the IJ relied

solely upon the country reports.129 As cautioned by this Court, however,

immigration courts should “not place excessive reliance” on country reports.130

In Tambadou v. Gonzales, this Court explained that the BIA cannot rely in a

conclusory fashion on information contained in a country report about “general

128 Id. at 340-41. Accord, Pavlova v. I.N.S., 441 F.3d 82 (2d Cir. 2006). 129 AR570. 130 Chen, supra, 359 F.3d at130.

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changes in the country.”131 The BIA must “use the information in the [r]eport

in a case-specific manner and supplement it with further analysis”; that is, the

BIA must “conduct an individualized analysis of how changed conditions

would affect the specific petitioner’s situation.” Id. In Gonzales, the BIA

ignored “significant information favorable to” the petitioner in the country

report as well as several articles describing continued unrest in the city. Id.132

The IJ also erred in finding that the Kolyagins’ persecution did not

threaten their lives or freedom. For instance, the IJ “note[d] that the July 1998

attack133 d[id] not amount to persecution,” pointing to Bucur v. INS,134 which

“held that an isolated attack with resulting minimal injury is not evidence of

persecution.”135 In Bacur, however, the sole allegation was that, after

participating in a demonstration, the respondent was questioned by police.136

Finally, the IJ’s determination that the Kolyagins did not “satisif[y] the

government involvement requirement for asylum”137 was based on a cursory

conclusion that the police department’s failure to investigate was random or

meaningless. However, the Bucur court recognized that persecution of

131 446 F.3d 298, 303 (2d Cir. 2006). 132Accord, Passi v. Mukasey, 261 Fed.Appx. 332 (2d Cir. 2006). 133 In the July 1998 attack, Vladimir’s injuries were so severe that he and his wife went to the emergency room

(AR204). Even though he reported the incident, the police did not make any arrests (Id.). 134 109 F.3d 399, 403 (7th Cir. 1997). 135 AR569 (Decision, p. 19) 136Bacur “was not imprisoned or beaten but during the questioning the police officer yelled at him” and made

Hungarian slurs. 109 F.3d at 402. 137 AR219 (Decision, p. 20)

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members of minority groups which is “merely condoned rather than

orchestrated by the government” may constitute persecution.138 The Kolyagins

presented evidence indicating that hospitals would not treat them; police

wrongfully detained them; arsons, attacks, and other brutalities went

uninvestigated; officials verbally assaulted them; and threats, beatings, and

arson occurred in circumstances suggesting that the police may have been

aware of, if not involved, in them. As such, it could not be said that the

Kolyagins failed to establish government involvement. See, e.g., Krotova v.

Gonzales139 (“The police failed to hold the attackers responsible for to take any

meaningful steps to prevent similar incidents from occurring in the future”).

The IJ’s contention that the Kolyagins failed to establish that the

persecution was on account of their nationality was also in error. In

Kojevnikova v. Reno,140 this Court could not “agree with the IJ’s conclusion that

Kojevnikova [ ] failed to demonstrate that she suffered past persecution” as a

result of her part-Jewish nationality. Id. at 1.

The IJ did not specify the facts that led him to conclude that conditions had sufficiently changed in Russia. Elsewhere in the IJ’s decision, he

discussed statements in the State Department report regarding then-current circumstances for Jews in Russia. But even this passage of the

IJ’s decision discussed only the situation in Russia at a static moment; it did not specifically address the changes in the country’s condition, as

required by the relevant regulations. . . . On remand, the agency should

138 109 F.3d at 403. 139 416 F.3d 1080, 1086 (9th Cir. 2005). 140 173 F.3d 844, 1-2 (2d Cir. 1999).

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explicitly consider not only the current situation that would greet Kojevnikova upon her return to Russia, but should also address the ways

in which the situation differs from the one in which Kojevnikova assertedly experienced persecution in the past . . . .141

II. The IJ Erroneously Denied the Kolyagins’ Withholding Claim

In I.N.S. v. Stevic,142 the Court “deliberately avoided

any attempt to state the governing standard beyond noting that it requires

that an application be supported by evidence establishing that it is more likely than not that the alien would be subject to persecution on one of

the specified grounds. . . . Today we . . . decid[e] that the “clear probability of persecution” standard remains applicable to §243(h)

withholding of deportation claims. . . .143 As set forth above, the Kolyagins submitted evidence establishing that it

is more likely than not that they would be subject to persecution on the basis of

their nationality if deported. Therefore, the IJ erred.

III. The IJ Erroneously Denied the Kolyagins’ Protection Under the

CAT Without Separately Analyzing the Claim.

The CAT provides significantly different protections from those provided

under the traditional asylum and withholding provisions.144 In Ramsameachire

v. Ashcroft,145 this Court noted that “both the IJ and BIA incorrectly assumed

that Ramsameachire’s CAT claim was necessarily precluded because he [ ]

failed to carry his burden [on] . . . his asylum claim.

141 Id. at 2. 142 467 U.S. 407, 104 S.Ct. 2489 (1984). 143 Id. at 429, 2501.

144Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d 554, 567 (2d Cir. 2006).

31

Because the CAT inquiry is independent of the asylum analysis, however, the BIA’s decision with respect to an alien’s claims for

asylum and withholding of removal pursuant to the INA should never, in itself be determinative of the alien’s CAT claim. . . .

Consequently, an alien’s CAT claim may be established using different evidence and theories than the alien’s INA claims. The

CAT claim therefore must always be considered independently of the resolution of the alien’s claim under the INA. The INS’s

CAT regulations reflect the independence of the INA and CAT as avenues of relief from removal, as well as CAT’s objective

focus, by requiring the agency to consider “all evidence relevant to the possibility of future torture,” . . . , without requiring any

specific type of showing.

In particular, an adverse credibility determination made in the asylum context should not necessarily affect the BIA’s consideration of the alien’s CAT claim. While an asylum claim depends on an alien’s

credibility, because the alien must establish, through credible testimony, either that he or she has suffered past persecution, or that he or she

subjectively fears future persecution, to prevail on a CAT claim the alien need only proffer objective evidence that he or she is likely to be

tortured in the future. An adverse credibility determination, therefore, will doom an alien’s asylum claim, but may not be a particularly

significant aspect of the CAT inquiry. See, Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003)(stating that the “taint of the earlier

adverse credibility determination” in the asylum context should not be allowed to “bleed through” to the BIA’s consideration of the CAT

claim).146 There, because asylum and CAT claims warranted individualized treatment,

“and because the INS’s regulations require the agency to consider all evidence

relevant to the CAT claim,” the Court vacated the BIA’s dismissal of the

petitioner’s CAT claim and remanded for further proceedings.147

145 357 F.3d at 169. 146 Id. at 185. 147 Id. at 186.

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Here, the IJ ran afoul of this well-settled rule, conclusively stating that

“[f]or the reasons discussed above, there is no evidence that the respondents

have suffered torture in the past; nor is there evidence that they will likely

suffer torture in the future.”148

Conclusion

For the reasons set forth above, the Kolyagins’ appeal should be granted.

148 AR220 (Id. at p. 21).