Parussimova v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TATYANA MICHAILOVNA  No. 06-75217
PARUSSIMOVA, Agency No.
Petitioner, A98-822-251
v.
 ORDER
MICHAEL B. MUKASEY, Attorney AMENDING
General, OPINION AND
Respondent. AMENDED
 OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 14, 2008—San Francisco, California

Filed July 24, 2008
Amended January 26, 2009

Before: Diarmuid F. O’Scannlain and
Michael Daly Hawkins, Circuit Judges, and
James V. Selna,* District Judge.

Opinion by Judge O’Scannlain

*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.

871
876 PARUSSIMOVA v. MUKASEY

COUNSEL

Saad Ahmad, Esq., Saad Ahmad & Associates, Fremont, Cali-
fornia, argued the cause for the petitioner and filed a brief;
Robert L. Volz, Esq., Saad Ahmad & Associates, Fremont,
California, was on the brief.

Sarah Maloney, Attorney, Office of Immigration Litigation,
U.S. Department of Justice, Washington, DC, argued the
cause for the respondent and filed a brief; James E. Grimes,
Senior Litigation Counsel, and Peter D. Keisler, Assistant
Attorney General, Civil Division, U.S. Department of Justice,
Washington, DC, were on the brief.
 PARUSSIMOVA v. MUKASEY 877
ORDER

The opinion filed in this case on July 24, 2008, is amended
as follows:

At page 9245 of the slip opinion, line 11, after the sentence
concluding “did not exist,” insert

Judges O’Scannlain and Hawkins have voted to deny the
petition for rehearing en banc and Judge Selna so recom-
mends. The full court has been advised of the petition for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No further
petitions for rehearing or rehearing en banc may be filed.

OPINION

O’SCANNLAIN, Circuit Judge:

We are called upon to interpret a provision of the Real ID
Act of 2005 imposing a new evidentiary burden on asylum
applicants and to determine whether the Board of Immigration
Appeals, in applying such provision, properly denied asylum
to an alien who claimed she was the victim of religious and
ethnic persecution in Kazakhstan.

I

A

Tatyana Parussimova is a 28-year-old native and citizen of
Kazakhstan. She is an ethnic Russian and an adherent of the
878 PARUSSIMOVA v. MUKASEY
Orthodox Christian faith.1 Parussimova was admitted to the
United States on a nonimmigrant B-1 visa in May 2005 for
the purpose of attending a conference organized by her
employer, Herbalife International of America, Inc., in Atlanta,
Georgia. She overstayed her visa and, on the day after it
expired, filed an application for asylum claiming that she had
been persecuted in Kazakhstan on account of her ethnicity
and religion, and that she feared persecution on account of the
same grounds upon her return.

On September 28, 2005, an asylum hearing was held before
an Immigration Judge (“IJ”), at which Parussimova conceded
removability under 8 U.S.C. § 1227(a)(1)(B), and testified in
support of her application for asylum. Parussimova described
her life in Kazakhstan as a harsh one. She witnessed riots
against the Soviet government in 1986, which she said left her
permanently affected. As a student, her schoolteachers dis-
criminated against her and other Russian students. She nar-
rowly escaped an attempted sexual assault by an unknown
stranger in 1999, and her cousin was beaten and killed by a
group of Kazakhs in March 2005.

The most significant event Parussimova described occurred
on January 10, 2005. According to Parussimova, she was
walking on a street near her home, wearing an Herbalife pin
on her chest, when she was confronted by two Kazakh men
who began “bugging” and “insulting” her. Suddenly, the men
dragged Parussimova into the entryway of an apartment build-
ing, where they told her that she “did not have the right to
work for an American company,” and pulled the Herbalife pin
off her chest. Parussimova briefly passed out, and when she
regained consciousness, the men were kicking her, spitting at
1
According to the 2005 State Department reports in the record, ethnic
Russians comprise approximately 28% of Kazakhstan’s population;
Kazakhs, which comprise approximately 56%, are the majority group. The
same reports indicate that 44% of Kazakhstan’s population is Orthodox
Christian, while 47% is Muslim.
 PARUSSIMOVA v. MUKASEY 879
her, and told her that “we were Russian pigs and we . . . had
to get out of their country.” The men warned Parussimova not
to report the attack, and then tore off her clothes and tried to
rape her.

Parussimova screamed, which alerted residents of the apart-
ment building and caused her assailants to flee. A passerby
came to Parussimova’s aid and called the police, who arrived,
questioned Parussimova, and took her to the hospital.

One week later, Parussimova recognized her assailants on
the street while she was walking with her father. Parussi-
mova’s father called the police, who detained the men and
had them “taken away.” Parussimova’s assailants were appar-
ently released, however, as she testified that she saw them
again a few days afterwards, while she was walking with her
cousin. This time the men threatened to kill her because she
had reported them to the police. Parussimova escaped, but the
men beat her cousin, leaving him unconscious. According to
Parussimova, the police “didn’t do anything” about this inci-
dent. The men threatened Parussimova on several subsequent
occasions, but each time they would always “just disappear.”

As a result of the attacks and subsequent threats, Parussi-
mova told the IJ that she would be “scared for her life” if she
is returned to Kazakhstan, particularly because her assailants
remain at large and because she believes she has “no protec-
tion from the government.”

B

At the conclusion of the hearing, the IJ denied Parussi-
mova’s asylum application.2 At the outset, the IJ discussed
2
Parussimova also applied for withholding of removal and protection
under the Convention Against Torture. The IJ denied both forms of relief
and the Board of Immigration Appeals (“BIA” or the “Board”) affirmed.
Parussimova has not petitioned for review of those determinations and,
accordingly, we deem any claims relating to them waived. See Martinez-
Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).
880 PARUSSIMOVA v. MUKASEY
several inconsistencies between Parussimova’s testimony and
other evidence in the record as well as several notable omis-
sions from the affidavit she filed in support of her application.
Nevertheless, the IJ declined to deny the application on
account of Parussimova’s credibility, instead holding that she
could not establish that she was a refugee under the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,
because she could not demonstrate that her assailants attacked
her “on account of” her religion or ethnicity as opposed to
some other ground. See id. § 1101(a)(42)(A). The BIA
affirmed in a separate opinion, resting its decision on the
same conclusion.3

Parussimova timely filed this petition for review.

II

We begin with the well-established principle that our
review of BIA decisions is highly deferential; we may reverse
only if the evidence in the record compels a contrary result.
See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992);
Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir. 2004).

[1] The Secretary of Homeland Security or the Attorney
General has the discretion to confer asylum on any person
who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1)(A). The
INA defines a “refugee” as an alien who is “unable or unwill-
ing to return to [his or her home country], and is unable or
unwilling to avail himself or herself of the protection of[ ] that
3
Although the IJ suggested more than one ground for its decision, the
BIA affirmed the IJ only insofar as the IJ held that Parussimova failed to
establish that her assailants attacked and threatened her “on account of”
her religion and ethnicity, citing Matter of Burbano, 20 I. & N. Dec. 872,
874 (1994). When the BIA cites Burbano and expressly indicates that its
affirmance “appl[ies] to only one ground upon which the IJ’s decision
rested,” we consider the BIA’s decision as based exclusively on such
ground. Abebe v. Gonzales, 432 F.3d 1037, 1040-41 & n.4 (9th Cir. 2005)
(en banc).
 PARUSSIMOVA v. MUKASEY 881
country because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Id.
§ 1101(a)(42)(A) (emphasis added). We refer to these five
categories as the “protected grounds.”

[2] The term “persecution” is not explicitly defined in the
INA, but we have held that an alien who seeks to demonstrate
that she was persecuted in the past must prove (1) that she
was the victim of “an incident, or incidents, that rise to the
level of persecution”; (2) that the persecution was “on account
of” one of the protected grounds; and (3) that such persecu-
tion was “committed by the government or forces the govern-
ment is either unable or unwilling to control.” Navas v. INS,
217 F.3d 646, 655-56 (9th Cir. 2000) (internal quotation
marks omitted). Only the second element of that definition is
at issue here, as the BIA rejected Parussimova’s asylum appli-
cation for the sole reason that she failed to establish that she
was persecuted “on account of” a protected ground. Thus, if
substantial evidence does not support the BIA’s determina-
tion, we must remand to allow the BIA to consider, in the first
instance, whether the other two elements of persecution are
present in Parussimova’s case. See INS v. Ventura, 537 U.S.
12, 16-18 (2002).

A

[3] As the Supreme Court held in Elias-Zacarias, the term
“on account of” in § 1101(a)(42)(A) requires an asylum appli-
cant to prove that she was persecuted “because of” a protected
ground. 502 U.S. at 483 (emphasis in original). This necessi-
tates an assessment of the persecutors’ motives. Indeed, the
INA “makes motive critical” and, while it does not require the
applicant to provide “direct proof of his persecutors’
motives,” it does demand “some evidence of [motive], direct
or circumstantial.” Id. (emphasis in original).

[4] In some cases, such as this one, the record suggests that
persecutors may have had several motives for mistreating an
882 PARUSSIMOVA v. MUKASEY
asylum applicant. We have considered such mixed-motive
cases before, most notably in the companion en banc deci-
sions, Briones v. INS, 175 F.3d 727 (9th Cir. 1999) (en banc),
and Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc). In
Borja, we held that the term “on account of” in
§ 1101(a)(42)(A) does not burden the applicant with proving
that she was persecuted “solely on account of” a protected
ground, but only requires that she “produce evidence from
which it is reasonable to believe that the harm was motivated,
at least in part, by an actual or implied protected ground.” Id.
at 735-36 (first emphasis in original) (internal quotation
marks omitted); see also Singh v. Ilchert, 63 F.3d 1501, 1509
(9th Cir. 1995) (“[P]ersecutory conduct may have more than
one motive, and so long as one motive is one of the statutorily
enumerated grounds, the requirements have been satisfied.”).

[5] Our development of the “at least in part” rule was con-
sistent with our previous holdings in political persecution
cases that imposed a presumption that a government’s harass-
ment of an asylum applicant was politically motivated absent
evidence of “a legitimate prosecutorial purpose” for such con-
duct. Singh, 63 F.3d at 1509 (internal quotation marks omit-
ted); see also Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th
Cir. 1988) (same); Hernandez-Ortiz v. INS, 777 F.2d 509, 516
(9th Cir. 1985) (same). Our subsequent caselaw followed suit,
applying the “at least in part” rule to allow an asylum appli-
cant to establish persecution on account of a protected ground
as long as such ground was at least one reason for her perse-
cutors’ conduct, even if other reasons appeared to have been
the dominant cause of the persecutory action. See, e.g., Ndom
v. Ashcroft, 384 F.3d 743, 755 (9th Cir. 2004) (concluding
that, in the absence of evidence of a “legitimate criminal pros-
ecution,” a member of a group seeking forcibly to overthrow
the government in his home country could establish that he
was persecuted by the government on account of his political
opinion “even if the persecution served intelligence gathering
purposes”); Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir.
2000) (concluding that although petitioner’s persecutors were
 PARUSSIMOVA v. MUKASEY 883
“activated” by their desire to retaliate against the petitioner,
a non-protected ground, the political accusation and ethnic
slur they uttered in the course of detaining and beating peti-
tioner demonstrated that he was persecuted “at least in part”
on account of a protected ground).

[6] This body of mixed-motive jurisprudence has now been
superseded by statute. In 2005, Congress enacted the Real ID
Act, Pub. L. No. 109-13, div. B, 119 Stat. 231, altering sev-
eral aspects of the asylum system, including the evidentiary
burden placed on asylum applicants seeking to demonstrate
that they have been or will be victims of persecution. Replac-
ing the “at least in part” rule we previously applied, section
101(a)(3)(B)(i) of the Act states that “[t]o establish that the
applicant is a refugee . . . , the applicant must establish that
race, religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central
reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i) (emphasis added). This is the first occasion
on which we have been called upon to interpret this new stat-
ute. Thus, we examine the difference, if any, between Borja’s
rule and the new “one central reason” standard.

B

Statutory interpretation begins with the text of the enact-
ment. Duncan v. Walker, 533 U.S. 167, 172 (2001). The Real
ID Act requires that a protected ground represent “one central
reason” for an asylum applicant’s persecution, but the phrase
“one central reason” is not explicitly defined. “When a word
is not defined by statute, we normally construe it in accord
with its ordinary or natural meaning.” Smith v. United States,
508 U.S. 223, 228 (1993). Dictionaries define the term “cen-
tral” as being “of primary importance”; the terms “essential”
and “principal” are synonyms. Merriam Webster’s Collegiate
Dictionary 201 (11th ed. 2003); see also Webster’s Third New
International Dictionary 363 (1986) (defining “central” as
“belonging to the center as most important part,” “basic,
884 PARUSSIMOVA v. MUKASEY
essential, principal, dominant,” “not peripheral or inciden-
tal”); American Heritage Dictionary 302 (4th ed. 2000)
(defining “central” as “[o]f basic importance; essential or
principal”).

[7] Thus, the text of this provision leads us to two initial
conclusions. First, an asylum applicant need not prove that a
protected ground was the only central reason for the persecu-
tion she suffered. The Act requires that a protected ground
serve as “one central reason” for the persecution, naturally
suggesting that a persecutory act may have multiple causes.
Second, an applicant need not prove that a protected ground
was the most important reason why the persecution occurred.
The Act states that a protected ground must constitute “at
least one” of the central reasons for persecutory conduct; it
does not require that such reason account for 51% of the per-
secutors’ motivation.

[8] Nevertheless, the plain meaning of the phrase “one cen-
tral reason” indicates that the Real ID Act places a more oner-
ous burden on the asylum applicant than the “at least in part”
standard we previously applied. A central reason—one that is
“primary,” “essential,” or “principal”—represents more than
a mere “part” of a persecutor’s motivation. We find confirma-
tion for this view in the fact that Congress inserted the “one
central reason” standard into 8 U.S.C. § 1158(b), which
describes the “Conditions for granting asylum,” by creating a
new subsection entitled “Burden of Proof.” Id.
§ 1158(b)(1)(B). As the pre-Real ID Act version of § 1158
contained no such provision, its insertion suggests Congress’s
intent to elevate the applicant’s burden rather than to maintain
or to reduce it. The Act’s structure further supports this view,
as it contains several provisions besides the one at issue here
that enhance the evidentiary requirements for obtaining asy-
lum. See, e.g., Real ID Act of 2005, Pub. L. No. 109-13, div.
B., § 101(a)(3)(B)(ii), 119 Stat. 231, 303 (codified at 8 U.S.C.
§ 1158(b)(1)(B)(ii)) (permitting immigration judges to require
evidence to corroborate an applicant’s “otherwise credible
 PARUSSIMOVA v. MUKASEY 885
testimony”); id. § 101(a)(3)(B)(iii), 119 Stat. at 303 (codified
at 8 U.S.C. § 1158(b)(1)(B)(iii)) (authorizing immigration
judges to reach adverse credibility determinations “without
regard to whether an inconsistency, inaccuracy, or falsehood
[in the applicant’s testimony] goes to the heart of the appli-
cant’s claim.”).

[9] Indeed, the BIA’s own analysis of this provision points
in the same direction. As the Board explains, under the “one
central reason” standard, “the protected ground cannot play a
minor role in the alien’s past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential,
superficial, or subordinate to another reason for harm.” In re
J-B-N & S-M, 24 I. & N. Dec. 208, 214 (2007).

[10] We are persuaded by such interpretation. In Borja, we
insisted that a protected ground play a role in the persecutors’
actions, see 175 F.3d at 736, but we never suggested that the
applicant was required to show that such ground was a neces-
sary cause of the persecutory conduct. Thus, as our subse-
quent decisions confirmed, causation was not a required
element of the “at least in part” standard. See, e.g., Gafoor,
231 F.3d at 653 (“Borja makes clear that an applicant need
not show that a protected ground, standing alone, would have
led to the persecution.”). We believe the difference between
the “one central reason” standard and our prior “at least in
part” rule lies here. A “central” reason is a reason of primary
importance to the persecutors, one that is essential to their
decision to act. See supra at 883-84. In other words, a motive
is a “central reason” if the persecutor would not have harmed
the applicant if such motive did not exist. Likewise, a motive
is a “central reason” if that motive, standing alone, would
have led the persecutor to harm the applicant. As noted above,
persecution may be caused by more than one central reason,
and an asylum applicant need not prove which reason was
dominant. Nevertheless, to demonstrate that a protected
ground was “at least one central reason” for persecution, an
886 PARUSSIMOVA v. MUKASEY
applicant must prove that such ground was a cause of the per-
secutors’ acts.

C

[11] We next consider whether Parussimova has satisfied
the “one central reason” standard in the case at hand. Here,
the record reveals that Parussimova’s assailants had at least
three possible reasons for attacking her on the street: (1) her
ethnicity, (2) her association with an American company,
made evident by her wearing an Herbalife pin on her chest,
and (3) her vulnerability, as a young woman walking alone,
to a sexual assault. These same reasons and a fourth, her deci-
sion to report the first incident to the police, served as possi-
ble causes of their subsequent threats. Only the first reason is
a protected ground.4

[12] According to Parussimova, her assailants called her a
“Russian pig” and told her to get out of their country in the
course of their January 10, 2005 attack. This is the only evi-
dence that such trait played any role in that incident or the
subsequent threats. Such statements indicate that the men
were aware of Parussimova’s ethnicity and used it as a means
to degrade her. Yet the record reveals no causal connection
between this characteristic and the men’s attack or the threats
that followed afterwards.

[13] It is important to emphasize that persecutors are hardly
“likely to submit declarations explaining exactly what moti-
vated them to act,” Gafoor, 231 F.3d at 654, and we do not
believe the Real ID Act demands such an unequivocal show-
4
Although Parussimova makes a general assertion that she was perse-
cuted in Kazakhstan on account of her ethnicity and her religion, she
makes no specific allegations that her faith played any role in the January
10, 2005 incident or the subsequent threats, and the record contains no
such evidence. Thus, we consider Parussimova’s ethnicity as the only
potential protected ground upon which she may establish her eligibility for
asylum.
 PARUSSIMOVA v. MUKASEY 887
ing. In this case, however, it is simply not clear whether
Parussimova’s ethnicity, as opposed to one of the other possi-
ble motives evinced by the record, caused the assailants to ini-
tiate their attack or increase its severity once it had begun.
Indeed, the assailants accosted Parussimova and dragged her
off the street without any mention of her ethnicity. And their
first statement to her once they had cornered her in the apart-
ment building entryway was an explicit, hostile reference to
the Herbalife pin she was wearing and their belief that she had
“no right” to work for an American company. Finally, their
last act was to try to rape her.

[14] The assailants’ reference to Parussimova’s ethnicity in
the course of their attack may suggest that such trait played
a role in this incident. Nevertheless, we cannot conclude that
the utterance of an ethnic slur, standing alone, compels the
conclusion that her ethnicity was a central motivating reason
for the attack.

III

[15] Accordingly, the BIA’s determination that Parussi-
mova was not attacked on account of a protected ground is
supported by substantial evidence, and Parussimova’s petition
for review is

DENIED.