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Rusak v. Holder

United States Court of Appeals, Ninth Circuit

August 22, 2013

Natallia Valerievna RUSAK, Petitioner,
Eric H. HOLDER, Jr., Attorney General, Respondent.

Argued and Submitted Jan. 7, 2013.

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Sergei Shevchenko (argued), Barshev, P.C., Beverly Hills, CA, for Petitioner.

Ashley Young Martin (argued), Regan Hildebrand, Kiley L. Kane, and Jennifer L. Lightbody, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095-878-063.

Before: WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and EDWARD R. KORMAN,[*] Senior District Judge.


KORMAN, District Judge:

Natallia Rusak, a twenty-eight year old native and citizen of Belarus currently residing in California, petitions for review of an order of the Board of Immigration Appeals (" BIA" ) affirming an Immigration Judge's (" IJ" ) determination that she is not entitled to asylum, withholding of removal, or relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA's decision for substantial evidence and must affirm if it is " supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)).

Ms. Rusak has been deaf since infancy, a condition that she claims subjected her to persecution in Belarus due to widespread hostility to persons with disabilities. Ms. Rusak's family also belongs to the Seventh Day Adventist Church, a religion disfavored in Belarus. According to the testimony of Ms. Rusak and her mother, Ms. Rusak's mother was arrested, beaten, and raped by the police on account of her church membership. She also lost her job as a schoolteacher as a consequence of her religious affiliation. Ms. Rusak's father was severely beaten by the police and died of a heart attack related to the assault. At the time of these events, Ms. Rusak was approximately eleven years old. Ms. Rusak herself claims to have suffered physical abuse and harassment as a child from her teachers and peers on account of her deafness and her family's religion.

In 2000, Ms. Rusak and her mother left Belarus for Argentina, where they lived for several months until legally entering the United States so that Ms. Rusak could undergo testing for a cochlear implant. Their authorization to remain in the country expired in June 2002. Initially, Ms. Rusak's mother filed an asylum application on her own behalf and listed Ms. Rusak as a derivative applicant. However, in 2004, Ms. Rusak's mother married a United States citizen and withdrew her application; Ms. Rusak then submitted the independent asylum application under review here. Both Ms. Rusak and her mother gave testimony before the IJ in support of her application, and neither was subject to an adverse credibility finding. Ms. Rusak has lived with family, most of whom now reside in California, for her entire life, and has no independent means of support.

The Department of Justice attorney acknowledged at oral argument that other options may be available to deal with the unfortunate circumstances in which Ms. Rusak finds herself. Ms. Rusak may be

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eligible for a visa based on her mother's new status. This would allow her to apply for an adjustment of status. The Department of Homeland Security could exercise prosecutorial discretion in determining not to seek Ms. Rusak's removal. Nevertheless, because these two options must be explored through avenues other than this litigation, we address the merits of Ms. Rusak's asylum claim.

Title 8 U.S.C. § 1158 provides that the Attorney General and Secretary of Homeland Security have discretion to grant political asylum to aliens they determine to be refugees. Under 8 U.S.C. § 1101(a)(42)(A), a " refugee" is " any person who is outside any country of such person's nationality ... who is unable or unwilling to return to ... that 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." An asylum applicant bears the burden of proving that she has a well-founded fear of future persecution based on one of the enumerated grounds. Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995). A well-founded fear of future persecution " must be both subjectively genuine and objectively reasonable." Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). An asylum applicant's credible testimony that he or she genuinely fears persecution suffices to establish the subjective element. Id. The objective element may be established either by the presentation of " credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution," or through a showing by an asylum applicant that he or she has ...

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