Yatskin v. Immigration and Naturalization Service

United States Court of Appeals
For the First Circuit

No. 00-1743

YURY YATSKIN,

Petitioner, Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent, Appellee.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Stahl, Senior Circuit Judge.

John H. Ruginski, Jr., for petitioner.
Lyle D. Jentzer, with whom David W. Ogden, Assistant Attorney
General and Terri J. Scadron, Senior Litigation Counsel, were on brief,
for respondent.

July 6, 2001
 TORRUELLA, Circuit Judge. Appellant Yury Yatskin, a Russian

citizen, appeals a final order of deportation issued by the Board of

Immigration Appeals ("BIA"). Affirming the oral decision of the

immigration judge, the BIA held in a per curiam order that Yatskin had

failed to show that he had suffered persecution on account of his anti-

Communist beliefs or that he would face mistreatment due to such

beliefs if he were to return to Russia. We affirm.

BACKGROUND

Yatskin is a seaman by trade who jumped ship in Providence,

Rhode Island on January 4, 1994. He immediately requested asylum.

While conceding his deportability, Yatskin sought asylum pursuant to

Section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C.

§§ 1158(a) & 1101(a)(42)(A), withholding of deportation under Section

243(h) of the INA, 8 U.S.C. § 1253(h),1 and, in the alternative,

voluntary departure. As grounds for his asylum request, Yatskin

claimed that he would be persecuted for his anti-Communist beliefs by

the Communists who remain in Russia if he were compelled to return

there.

In his Statement in Support of Application for Political

Asylum, Yatskin gave the following account. As a teenager, he had been

encouraged repeatedly to join the Communist youth group, Comsomol,

1 This statute was rewritten in 1996, and is now found at 8 U.S.C.
§ 1231(b)(3) in substantially the same form.

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which he refused to do. This led to clashes with administrators and

teachers at his high school. Following high school, he worked in a

track company,2 where he was often in conflict with Party officials at

the factory over his outspoken criticism of the Communist government.

In June 1979, Yatskin was arrested by the KGB and held for three days,

during which time he was beaten. He suffered a broken arm and shoulder

from the beatings, and spent six weeks in the hospital recovering.

Upon his release, Yatskin learned that he had been fired from the track

company.

In August 1979, Yatskin found work in a coal mine but was

fired shortly thereafter for problems with Party officials. He served

a compulsory military term from 1980 through 1982, and caused no

trouble there after being warned that he would be dealt with severely

otherwise.

In 1982, Yatskin could not find work in his hometown of

Lugansk, Ukraine because his opposition to the Communist government was

well-known. His youngest brother also could not find work, purportedly

due to Yatskin's outspokenness. His older brother was fired from his

job for the same reason. Yatskin moved to Murmansk, Russia in an

effort to secure employment. He was hired in 1984 to work on a fishing

trawler, and immediately quarreled with the resident KGB officer on the

2 There is no explanation in the record of precisely what a "track
company" is.

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ship. The KGB officer told Yatskin that the KGB was watching him and

knew all that he had done. For the next seven years, Yatskin avoided

problems with the Communists.

In 1991, while in port in Boston, Massachusetts, the

attempted coup by Communist hardliners against the Gorbachev government

took place in Russia. Several of the crew, led by Yatskin, wanted to

"send a message to Boris Yeltsin in support of his efforts"3 through the

ship's telegraph. The ship's captain refused their request to send the

message, but they did so anyway. Back in Murmansk in October 1993,

Yatskin observed a protest march by the Communists, which he

characterized as "illegal." He objected to their protest and was

beaten as a result. A friend later called and told him that the

Communists were out to get him.

Yatskin concluded his written statement by claiming that the

Communists still retain control of many branches of the Russian

government, including the KGB and other organizations, and that he

would be persecuted by the Communists if he were to return to Russia.

Yatskin's oral testimony before the immigration judge varied,

sometimes substantially, from his written statement. Most critically,

he testified to two additional arrests, one in 1991 upon his return to

Russia and following the incident of unauthorized message sending, and

3 Yeltsin, who had been elected President of Russia in 1990, opposed
the coup leaders and called for the restoration of Gorbachev to his
position as President of the Soviet Union.

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again in 1993 following his protest of the Communist march. When asked

why the 1991 and 1993 arrests were not contained in his written

statement, Yatskin claimed that he had a poor Russian interpreter. He

could offer no further explanation as to why the 1991 and 1993 arrests

were omitted from his application.

The immigration judge ruled against Yatskin's petition for

asylum in an oral decision on October 25, 1996. Taking "administrative

notice" that Boris Yeltsin was the current, democratically-elected

president of Russia, and finding that there was no evidence in the

record to support Yatskin's assertion that the Communists were still in

control of Russia, the judge held that Yatskin had failed to meet his

burden of showing that he would be persecuted or had a well-founded

fear of persecution if he were to return to Russia. As to Yatskin's

withholding of deportation petition, the immigration judge noted that

the burden of proof is higher than that necessary to qualify for

asylum.4 Since Yatskin did not meet his burden for asylum, the

immigration judge held that he had also failed to do so for withholding

of deportation. The judge allowed the motion for voluntary departure

in lieu of deportation.

In a per curiam opinion, the BIA dismissed Yatskin's appeal.

Finding the evidence insufficient to show that Yatskin was either

4 We have held the same. See, e.g., Aguilar-Solís v. INS, 168 F.3d
565, 569 n.3 (1st Cir. 1999). Perhaps recognizing such, Yatskin has
not appealed the denial of his petition for withholding of deportation.

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persecuted in the past on the basis of his anti-Communist beliefs or

that he had a well-founded fear of persecution if he were to return to

Russia, the BIA upheld the determination of the immigration judge.5 The

BIA also granted Yatskin voluntary departure within thirty days of the

order.

DISCUSSION

Deportation proceedings were initiated against Yatskin prior

to April 1, 1997 and the final deportation order issued after

October 31, 1996. This case, therefore, is governed by the

"transitional rules" for judicial review found in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),

Pub. L. No. 104-208, Div. C, § 309(c)(4), 110 Stat. 3009-546, 3009-625

to 627. The transitional rules dictate that former Section 106 of the

INA applies, which states: "the petition shall be determined solely

upon the administrative record upon which the deportation order is

based and the Attorney General's findings of fact, if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4)

(repealed).

As dictated by the above statute, we review a denial of a

petition for asylum by the BIA under a substantial evidence standard.

5 It has been correctly pointed out by both sides that the immigration
judge made no finding on whether Yatskin had successfully demonstrated
past persecution.

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We will not reverse the BIA's decision unless "the record evidence

would compel a reasonable factfinder to make a contrary determination."

Aguilar-Solís v. INS, 168 F.3d 565, 569 (1st Cir. 1999). Put more

strongly, Yatskin "must show that the evidence he presented was so

compelling that no reasonable factfinder could fail to find" that he

was eligible for asylum. INS v. Elías-Zacarías, 502 U.S. 478, 483-84

(1992).

In order to obtain asylum, Yatskin bears the burden of

proving that he qualifies as a "refugee." See 8 U.S.C. § 1158(b)(1);

8 C.F.R. § 208.13(a). A "refugee" is defined as someone unwilling or

unable to return to his country of nationality and unwilling or unable

to avail himself of the protection of that country due to "persecution

or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion." 8 U.S.C. § 1101(a)(42)(A). A petitioner can meet this

burden in one of two ways: (1) by demonstrating past persecution, thus

creating a presumption of a well-founded fear of persecution; or (2) by

demonstrating a well-founded fear of persecution. 8 C.F.R.

§ 208.13(b); see, e.g., Morales v. INS, 208 F.3d 323, 329 (1st Cir.

2000) (on rehearing).

If an applicant can prove past persecution, a regulatory

presumption that the applicant has a well-founded fear of future

persecution is triggered. 8 C.F.R. § 208.13(b)(1). The burden then

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shifts to the INS to show by a preponderance of the evidence, id.

§ 208.13(b)(1)(ii), that conditions in the country of the applicant's

nationality have changed "such that the applicant no longer has a well-

founded fear of persecution," id. § 208.13(b)(1)(i)(A). Yatskin argues

that he demonstrated past persecution, and thus should be entitled to

the well-founded fear presumption. The INS contradicts this claim,

citing the BIA conclusion that "the evidence is insufficient to show

that the respondent was persecuted on account of his anti-communist

beliefs."

In finding Yatskin to be ineligible for asylum, neither the

immigration judge nor the BIA provided much basis for their

conclusions. The immigration judge failed to make any determination as

to whether Yatskin had proven past persecution, instead stating

unilaterally that he failed to show a well-founded fear of persecution,

and citing only the changed political situation in Russia since the

time that Yatskin left in 1993. The BIA offered little more. While

the latter decision stated that Yatskin had not established past

persecution or a well-founded fear of future persecution, it purported

to uphold the immigration judge's "determination" as to both points.

The order then pointed to the Department of State Country Report for

Russia detailing the changed conditions since Yatskin was last there.

There was no substantive commentary concerning the evidence Yatskin

provided in support of his claim. As such, we have no explanation for

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the BIA's statement that Yatskin's testimony failed to demonstrate past

persecution.

This failure unnecessarily complicates our review. We have

emphasized the need for "clear administrative findings" justifying BIA

decisions. Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998). Following

administrative law principles, a reviewing court should judge the

action of an administrative agency based only on reasoning provided by

the agency, and not based on grounds constructed by the reviewing

court. Id. As such, we are reluctant to analyze the BIA's blanket

statement that Yatskin failed to prove past persecution.

However, even crediting Yatskin with establishing past

persecution (and the attendant rebuttable presumption of a reasonable

fear of future persecution), the evidence of changed conditions in

Russia is sufficient to justify the BIA's denial of asylum. The 1995

United States Department of State "Profile of Asylum Claims and Country

Conditions" for Russia, contained in the administrative record and

cited by the BIA, states the following in reference to claims for

asylum brought by anti-Communists: "It is highly unlikely that an

individual returning to Russia now would face mistreatment because of

any political views expressed or actions taken in the late eighties or

early nineties, even if that individual suffered for those actions at

that time." Bureau of Democracy, Human Rights & Labor, U.S. Dep't of

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State, Russia-Profile of Asylum Claims & Country Conditions 5 (May

1995).6

In this case, the absence of any evidence either to

contradict the State Department report or to show why general improved

conditions do not affect Yatskin's particular risk of persecution leads

us to the conclusion that Yatskin does not have an objectively

reasonable fear of persecution. See Aguilar-Solís, 168 F.3d at 572.

In holding this, we are mindful of our prior statement that: "Abstract

'changed country conditions,' do not automatically trump the specific

evidence presented by the appellant." Fergiste v. INS, 138 F.3d 14, 19

(1st Cir. 1998). Of particular concern is the risk that the BIA might

weigh reports of general changed conditions in a country over that of

an individual's particular, substantiated fear of persecution. See

Gailius, 147 F.3d at 45-46; Fergiste, 138 F.3d at 19.

On the other hand, "[c]hanged country conditions often speak

volumes about the objective reasonableness of an alien's fear that

persecution lurks should he return to his homeland." Aguilar-Solís,

168 F.3d at 572. While it is true that courts have discounted the

relevance of State Department reports of improved country conditions,

this is usually the case when the petitioner has presented powerful

evidence that his particular fear of persecution remains well-founded.

6 Although the report is now six years old, Yatskin has made no
allegation that the situation in Russia has changed since that time in
a way that would affect his asylum claim.

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Reviewing the record as a whole, 8 U.S.C. § 1105a(a)(4), we find that

this is not such a case.

In so ruling, we accept all of Yatskin's testimony as true,

despite the apparent inconsistencies in his story relating to the

number of times and durations of his arrests. See Gailius, 147 F.3d at

44 ("No finding was made by the agency, and it is for the agency, not

the courts, to make findings of fact."). Even doing so, we find that

Yatskin has introduced no evidence of threats of persecution since the

early 1990s, when, according to the State Department report, conditions

in Russia for anti-Communists changed significantly. See Aguilar-

Solís, 168 F.3d at 573. When asked why he still feared persecution

given the improved conditions in Russia, Yatskin could offer only that,

according to his sources,7 very little has changed in Russia. When

asked: "[W]hat do you feel would happen to you if you went back to

Russia at this time?," Yatskin replied that he wasn't sure. After

testifying that his family had suffered retribution for his political

actions, Yatskin admitted that they had not experienced any problems

since 1993.

The testimony offered by Yatskin in favor of his asylum

petition fails to undermine the State Department report that the

7 Yatskin stated that he reads Russian newspapers and calls home
regularly. When asked how often he spoke with his family, he replied
that he had spoken with one of his brothers three or four times since
leaving Russia.

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situation in Russia has changed since the early 1990s in any way. See,

e.g., Gailius, 147 F.3d at 46 (petitioner produced expert witness

testimony on conditions of petitioner's country that contradicted State

Department report). The report is clear that the improved conditions

occurred subsequent to Yatskin's departure from Russia. See, e.g.,

Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000) (report did not state

that conditions had improved in petitioner's country). Nor did he

offer any evidence of threats to him or his family since that time.

See, e.g., Vallecillo-Castillo v. INS, 121 F.3d 1237, 1239-40 (9th Cir.

1997) (petitioner gave testimony of threats to family after country

conditions allegedly improved). As illustrated above, Yatskin relies

exclusively on his own "conclusory assertions of continuing danger."

Aguilar-Solís, 168 F.3d at 572-73. Because of this, we hold that the

presumption of a well-founded fear of future persecution has been

effectively rebutted by the uncontested evidence of changed political

conditions in Russia.

It may be tempting to summarily dismiss claims of political

persecution brought by anti-Communists since the dismantling of the

Soviet Union. That being said, this does not absolve an immigration

judge's or the BIA's responsibility for offering precise, fact-specific

justifications for denying such an asylum application. A failure to do

so will only result in unduly complicated review and needless remands

for further determinations.

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 Yatskin's previously granted petition for voluntary departure

is reinstated. See Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st Cir.

1990). The 30-day voluntary departure period shall commence on the

date of the issuance of this Court's final mandate. The decision of

the BIA is affirmed.

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