Maya Avetova-Elisseva v. Immigration and Naturalization Service

WARDLAW, Circuit Judge,

dissenting:

In finding Maya Avetova-Elisseva (“Avetova”) both eligible for asylum and entitled to withholding of deportation, the *1203majority holds that there is “a pattern and practice of Armenian harassment in Russia,” [maj. op. at 1201-02 (emphasis added) ], and that this “harassment ... amounts to ‘persecution,’ ” [id. at 1202], I must respectfully dissent.

I.

8 C.F.R. § 208.13(b)(2) provides that:

In evaluating whether the applicant has sustained his or her burden of proving that he or she has a well-founded fear of persecution, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for persecution if:
(i) The applicant establishes that there is a pattern or practice in his or her country of nationality or last habitual residence of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that his or her fear of persecution upon return is reasonable.

8 C.F.R. § 208.13(b)(2); accord id. § 208.16(b)(3) (withholding of deportation).

In Kotasz v. INS, 31 F.3d 847 (9th Cir.1994), we explained this regulation to mean “that where members of a given group are systematically persecuted ... proof of group membership suffices to establish a ‘well-founded fear.’” Id. at 852.1 As an example, we pointed to “the systematic attempt to annihilate the Jews in Nazi Germany.” Id. (“Certainly, it would not have been necessary for each individual Jew to await a personal visit to his door by Nazi storm troopers in order to show a well founded fear of persecution.”). In contrast, we noted that during the period of “widespread political violence” in El Salvador, “neither all Salvadorans nor all rebel sympathizers were systematically persecuted.” Id. We confined viable “pattern or practice ... of persecution” claims to “more extreme situations.” Id.; see also id. at 863 (stating that “the problem of non-pattern and practice persecution ... is far more common”). Moreover, it appears that there have been only two successful *1204pattern-or-practice cases since the regulation was enacted ten years ago. See Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir.1999) (finding “that a pattern of persecution targeting a given family that plays a prominent role in a minority group that is the object of widespread hostile treatment supports a well-founded fear of persecution by its surviving members”); Osorio v. INS, 18 F.3d 1017, 1031 (2d Cir.1994) (concluding “that union leaders like Osorio are at grave risk of persecution by Guatemalan authorities”); cf. Chen v. INS, 195 F.3d 198, 204 (4th Cir.1999) (holding that China’s “one child” policy does not amount to a pattern or practice of persecution).

In this case, the evidence in the record does not compel the conclusion that there is a pattern or practice of persecution against Armenians in Russia.2 The affidavit of Dr. Dennis Papazian, which the majority points to as “the most salient evidence as to Avetova’s potential future in Russia,” [maj. op. at 1200 n.18], admits as much. Dr. Papazian states that “some Armenians in the Russian Federation experience only mild discrimination, while others face life-threatening persecution without there being any distinction between the activities of the individuals concerned,” and that “some Armenians” will continue to suffer persecution in Russia. In other words, the sworn statement of Avetova’s own expert reveals that, because some Armenians are persecuted and some are not, Armenians in Russia do not face one of the “more extreme situations in which members of an entire group ... are systematically persecuted.” Kotasz, 31 F.3d at 852.3 Accordingly, I must conclude that substantial evidence supports the BIA’s finding that there does not “exist[ ] in Russia a pattern or practice of persecution of persons on the basis of Armenian ethnicity.”

II.

In Kotasz, we also noted that even if members of the disfavored groups are not threatened by systematic persecution of the group’s entire membership, the fact of group membership nonetheless places them at some risk. That risk can rise to the level required for establishing a well-founded fear of persecution either as a result of an individual’s activities in support of the group, or because the individual is a member of a certain element of the group that is itself at greater risk of persecution than is the membership of the group as a whole.

Id. at 853; accord Mgoian, 184 F.3d at 1035 n. 4.

The majority points to three incidents, incidents that it finds “do not amount to ‘persecution’ (that is, past persecution) within the meaning of the statute,” [maj. op. at 1201], that “coupled with the overall risks that Dr. Papazian had identified,” [id. at 1197], compel the granting of Avetova’s petition: “(1) [Avetova] was harassed and pushed by Russian officers because of her ethnicity; (2) [Avetova] could not get a job even though she had a diploma because ‘there were no jobs for Armenians’; (3) [Avetova’s] friend’s daughter (who was Armenian) was raped and beaten by police officials,” [id. at 1197-98 (footnote omitted) ]. The harassment identified by the majority “falls far short of the required showing needed to compel a finding of persecution.” Khourassany v. INS, 208 *1205F.3d 1096, 1100 (9th Cir.2000) (holding that similar harassment was insufficient to establish past persecution or a well-founded fear of persecution); accord Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998); Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995); Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir.1987). The majority’s assertion that Avetova “could not get a job” is belied by Avetova’s own testimony, which reveals that she worked in Moscow at a hotel, as a babysitter, and as a cleaning woman, and “was getting by” economically. Cf. Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969) (holding that “a probability of deliberate imposition of substantial economic disadvantage upon an alien” may constitute persecution). Finally, that Ave-tova’s friend’s daughter was raped, although deplorable, see Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.1996) (noting that “rape can support a finding of persecution”), does not “mak[e Avetova] a more likely target for persecution.” Mgoian, 184 F.3d at 1035 n. 4. Nothing in the record suggests, and nothing in the majority’s opinion explains, why the rape of Ave-tova’s “friend’s daughter” on account of the “friend’s daughter[’s]” ethnicity should make Avetova, as opposed to any other Armenian in Russia, “more likely to come to the attention of the persecutors.” Id.; see also Kotasz, 31 F.3d at 853-54 (explaining the individualized targeting requirement in non-pattern or practice cases).

Rather than demonstrating that Avetova was targeted for persecution in Russia, the evidence shows that (i) Soviet troops rescued her from Azerbaijan and brought her to Moscow; (ii) she had a residency permit for Moscow; (iii) unlike thousands of others from the Caucasus, she avoided expulsion from the Russian capital in 1993; (iv) she was able to obtain a passport to leave the country; and (v) Avetova’s husband remains in Moscow and is receiving disability payments from the government. Cf. Khourassany, 208 F.3d at 1100 (denying Khourassany’s petition for review because, inter alia, “some members of his family continue to live in Israel now and to operate businesses without interference” and because “Khourassany retained his passport and was able to travel freely within Israel and to leave Israel without hindrance”); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988) (per cu-riam) (noting that “Rodriguez-Rivera obtained a passport from the government, and his family continues to live in El Salvador unmolested,” and that “[t]hese factors are relevant in assessing a request for asylum or withholding of deportation and further undercut Rodriguez-Rivera’s claims of a well-founded fear of governmental persecution”).

III.

For the foregoing reasons, I would deny Avetova’s petition for review. Therefore, I dissent.

. The majority states that 8 C.F.R. § 208.13(b)(2) and "its explication in Kotasz v. INS ” are "inapplicable] ... to defeat Ave-tova's claim” because "Avetova’s past experiences and Dr. Papazian’s express affirmance as to her personal future risk plainly" show that "she would be singled out individually for persecution.” [Maj. op. at 1201 (internal quotation marks omitted)]; see infra Part II (finding that Avetova has not made the requisite showing of individualized persecution). This heavy reliance on Avetova’s "past experiences” is a bit inconsistent with-the majority's earlier holding that these same past experiences "do not amount to ‘persecution’ (that is, past persecution) within the meaning of the statute.” [Maj. op. at 1197]. As for Dr. Pa-pazian’s "express affirmance,” it is of course true that Dr. Papazian concludes that Avetova "would face a strong likelihood of persecution ... if she were forced to return to the Russian Federation.” In his affidavit, however. Dr. Papazian does not focus on Avetova’s individual circumstances, but rather discusses what he views as a “pattern of persecution experienced by Armenians ... in the Russian Federation,” (emphasis added).

Other parts of the majority's opinion are not consistent with its express disavowal of any reliance on 8 C.F.R. § 208.13(b)(2) and its " ‘pattern or practice' requirement.” [Id. at 1201]. For example, at one point, the majority states that, for Avetova to succeed on her .petition for review, “she merely has to demonstrate that Armenians are being systematically persecuted,” [id. at 1198 n. 10 (citing Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999))]. Systematic persecution is a requirement only of pattern-or-practice claims, which are governed by 8 C.F.R. § 208.13(b)(2). See Kotasz, 31 F.3d at 852-53. In addition, the section of Mgoian v. INS cited favorably by the majority rests entirely on 8 C.F.R. § 208.13(b)(2) and Kotasz. [See maj. op. at 1198 n.10 (citing Mgoian, 184 F.3d. at 1035)]. Finally, at several places in its opinion, the majority appears to conclude that there is "an established current pattern of persecution” against Armenians in Russia. [Id. at 1201]; [accord id. at 1201 (stating that there is "a pattern and practice of Armenian harassment in Russia”) ]; [id. at 1202 (stating that “the detention, intimidation and beatings of Armenians because of their ethnicity” amounts to persecution) ].

. The record also does not compel the conclusion that there is systematic persecution against Mormons in Russia. As the majority does not address this argument, [see maj. op. at 1196-97 n.7], neither will I.

. The majority correctly notes that a successful pattern-or-practice claim does not require "a showing of universality-a showing that every individual in the vulnerable group must face such serious persecution.'' [Maj. op. at 1201]; see Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir.1995) (holding that "to require a showing of persecution of all the members of the applicant’s group represents an unreasonable reading of the 'pattern or practice' language”). A successful pattern-or-practice claim, however, does require a showing of "systematic persecution,” Kotasz, 31 F.3d at 853; accord Makonnen, 44 F.3d at 1383. Avetova has not made such a showing in this case.