Filed October 23, 1998Before: Diarmuid F. O'Scannlain, Stephen S. Trott, andFerdinand F. Fernandez, Circuit Judges.Opinion by Judge Trott
_____________________________COUNSEL Joseph J. Rose, Los Angeles, California, for the petitioner.Francis W. Fraser (Argued), and Anthony Wray Norwood(On the Briefs), United States Department of Justice, Wash-ington, D.C., for the respondent.
_____________________________OPINION TROTT, Circuit Judge:Vera Korablina, a fifty-five year old native of Russia anda citizen of the Ukraine, witnessed, and was the subject ofrepeated beatings and severe harassment by an ultra-nationalist group in Kiev. She was the target of this oppres-sion on account of her Jewish heritage.Korablina petitions this court for review of a Board ofImmigration Appeals (BIA) decision dismissing her appeal ofan immigration judge's (IJ) denial of her application for asy-lum and withholding of deportation. Although finding her tes-timony and the testimony of her daughter to be credible in allrespects, the IJ determined that Korablina had established thatshe was the target only of discrimination, not of persecution.The BIA reviewed the proceedings and affirmed. The BIAheld that Korablina had failed to establish either past persecu-tion or a well-founded fear of future persecution on accountof being Jewish.We have jurisdiction under 8 U.S.C. S 1105a, and we grantthe petition for review. We hold that the credible evidencecompels both a finding of past persecution and a well-foundedfear of future persecution. The record also compels a findingthat there is a clear probability of persecution as required forthe withholding of deportation.BACKGROUNDKorablina's father was Russian. Her mother was Jewish.Her father adopted Judaism, and she was raised in the Jewishtradition in the Ukraine. Korablina testified that during theGerman occupation, her grandmother, mother and aunt wereeither taken by the Germans or forced into hiding because oftheir religion.Korablina testified that early in her life she had to attendtechnical school because she was denied admittance to thePoly-Technical Institute of Kiev because she was Jewish.After getting a degree, she worked in an automated machineryfactory from 1962 until 1990. She testified that she encoun-tered constant obstacles to career advancement because of herreligion. She was ultimately fired in 1990 because of her reli-gion and because her new boss was a member of an ultra-nationalist and anti-Semitic group. Her explanation of thecause of her dismissal is revealing. Q. Now, let's move up a little ahead in the years to the perestroika years, the mid-80s. When perestroika came to the Soviet Union, how did it affect the situa- tion regarding your Jewish identity? A. (By Korablina) It only worsened the condition that I was in as well as the condition of all other Jews. Q. Now, did this worsening of the condition affect you personally? A. Me personally, yes, it did. Q. Can you tell the Court how it affected you per- sonally? A. When the (indiscernible) and the disruptions in the Kiev started taking place, those extremist organi- zations which previously did not have the right of speech and had to act covertly, they had an open forum at that point in time. They were holding rallies in the city. They were announcing openly that Ukraine should be freed of Jews and, therefore, the Jews have to leave Ukraine. They was saying get out of here. These upheavals also took place every- where. They were at all factories, plants, including ours. Q. How did this affect you personally in your day- to-day situation? A. I personally was fired from my work. Q. When were you fired? A. I was fired in the early 1990. Q. Do you know why you were fired? A. I was fired when I started asking around and finding out things. And when -- at the time of per- estroika a new general director was appointed for my plant. He was a member of the ultra-nationalist movement. And then layoffs started. I was laid off at the time of the first waive of layoffs. Q. Did you inquire as to why you were laid off? A. I was trying to find out but the list that -- well, the majority basically all of them were Jewish.After six months looking for a job, Korablina secured newemployment as a clerical secretary to a Jewish man. In Octo-ber, 1993, three men came into the office and demandedmoney from him, claiming that, as a Jew, he was living at theexpense of Ukrainian resources. Korablina witnessed the beat-ing and extortion of her Jewish boss. The men took severalitems of office equipment as well as a list of employees. Afterthe beating, the employees immediately called for an ambu-lance and the police. The ambulance eventually arrived afterthirty minutes, but the police never showed up at all.After the initial beating, the attackers returned on a monthlybasis to extort money. Korablina told a friend at the municipalcity hall of the extortion. He said he would try to help. Soonafterward, he disappeared without a trace. Korablina testifiedthat people who protested often "disappeared" in Kiev duringthat time period.Korablina also testified that after the attackers beat herJewish boss and stole a list of employees, she began to receivenumerous anti-Semitic telephone calls and notes, sometimesas often as several times a week. The notes threatened to killher and threatened that if she decided to go to anyone forhelp, she too could disappear. She did not report the calls tothe police. She testified credibly that the police were not inter-ested in protecting Jews.On another occasion, Korablina was working at a pavilionwhere her employer was trying to arrange contracts for hisbusiness. Two young men approached Korablina when shewas alone, demanding she turn over the business' paperworkin her possession. When she refused, they tied her up in achair, placed a noose around her neck and pulled it tighteruntil she agreed to release the papers. The attackers looked ather exhibition badge and informed her that her Russian lastname could not help her to conceal her Jewish origin. Theyleft her tied to the chair. She testified that she was barelybreathing and in a state of shock. She had to go to the hospitalfor treatment for a brain concussion from being struck in theforehead with a blunt instrument. She did not report this inci-dent to the authorities because she claimed it would be fruit-less. Considering what had happened to her missing friendfrom the municipal city hall, she worried that calling thepolice would jeopardize her life.In September 1994, members of the ultra-nationalist groupcame to the office, ransacked the place, painted a Star ofDavid on the wall, and threatened Korablina's boss. Soonafter this incident, her boss also disappeared.Korablina testified that many Jewish-owned businesses inKiev suffered from the same treatment at the hands of anti-Semitic hoodlums. She testified that her boss' disappearancefinally convinced her it was too dangerous for her to remainin the Ukraine.Korablina's daughter, Irene Cimbal, was present at thedeportation proceeding as a temporary visitor to the UnitedStates. Her testimony, found to be credible, corroborated hermother's account of the conditions in the Ukraine and the per-secution Korablina had suffered. Her daughter testified thatafter her mother departed, she moved in with her father. Theharassing phone calls and notes became more frequent. Cim-bal and her father changed their telephone number and movedin with other family members in a nearby city. Cimbal testi-fied that one night her father returned home after having beenseverely beaten: I helped to open the door and he came in a dreadful condition. He was all beaten up. His entire coat was bloody and apparently the majority of the blood was to his head because he was in a horrible condition and he didn't seem to be mentally together, and he was practically crawling on the wall. I asked him what happened, but he just hugged real hard and he said, "Thank goodness that mom is far away and that she doesn't see it."During the beating, the attackers threatened, "your kike wifewon't be able to hide for long, and it doesn't really matterwhere she is hiding." Both Korablina's daughter and her hus-band elected not to report the incident, claiming that theauthorities provided no sympathy and certainly no protectionfor them.Cimbal also testified that she was attacked and threatenedwith rape by men who proclaimed "we did not manage toclarify where is your kike mother, but we could play withyou." Cimbal testified that on her way home one evening: I felt that someone was following me and as soon as I turned around to see who was it, I was attacked. I know that there was a strong man, some strong men covered my mouth and I could not scream. And he was holding my arms. . . . I remember a hard blow to my face, and for a moment after I lost my con- sciousness and I came to, my face was covered with blood, that man was sitting on my legs and he was trying to tear my clothing.She testified that another man was hovering around all thetime and watching for witnesses. She then heard some foot-steps and a dog barking. Before leaving her, the attackerssaid, "you little kike woman, we're not done with you yet."A neighbor stopped the attack and offered to call the police,but the daughter refused. The daughter testified that telling theauthorities was useless.In addition to Korablina's own testimony regarding thepolice's unwillingness to help her and her fear that they mayactually have been collaborating with the ultra-nationalists,Korablina offered her daughter's corroborating testimony andsubmitted articles detailing the authorities' unresponsivenessto complaints made by Jewish victims in Kiev.Korablina entered the United States as a visitor. Four daysbefore her visa was to expire, she applied for asylum. Aftera hearing on the merits, the IJ issued an oral decision denyingasylum and withholding of deportation and grantingKorablina voluntary departure to Russia. The IJ concludedthat what Korablina had described amounted to merely dis-crimination, and did not rise to the level of persecution. Onappeal, the BIA issued its decision dismissing the appeal anddesignating the Ukraine as the country for deportation.DISCUSSION1. Standard of Review[1] The BIA's determination that an alien is not eligible forasylum must be upheld if supported by reasonable, substan-tial, and probative evidence based on the record as a whole.INS v. Elias-Zacarias,
502 U.S. 478, 481
(1992). The decision"can be reversed only if the evidence presented by [the alien]was such that a reasonable factfinder would have to concludethat the requisite fear of persecution existed." Id. (citingNLRB v. Columbian Enameling & Stamping Co., 306 U.S.292, 300 (1939)). On appeal from the BIA's denial of asylum,the alien must demonstrate that "the record compels theconclusion" that she has a well-founded fear of persecution.See Elias-Zacarias,
502 U.S. at 483
. An alien who establishespast persecution is entitled to a regulatory presumption thatshe has a well-founded fear of future persecution. Singh v.INS, 94 F.3d 1353, 1360-61 (9th Cir. 1996).2. Legal Requirements for a Finding of Persecution[2] Under 8 U.S.C. S 1158(a), the Attorney General has dis-cretion to grant asylum to an alien determined to be a"refugee." A refugee is defined as any person who is unableor unwilling to return to his or her country of origin "becauseof persecution or a well-founded fear of persecution onaccount of race, religion, nationality, membership in a partic-ular group, or political opinion." 8 U.S.C. S 1101(a)(42)(A).[3] The Immigration and Nationality Act does not definepersecution or specify what acts constitute persecution. Thiscircuit has defined persecution as "the infliction of sufferingor harm upon those who differ (in race, religion or politicalopinion) in a way regarded as offensive." Ghaly, 58 F.3d at1431 (quoting Elias-Zacarias,
502 U.S. at 489
). In addition,acts of violence against a petitioner's friends or family mem-bers may establish a well-founded fear of persecution. Thiscourt has required, however, that the violence "create a pat-tern of persecution closely tied to the petitioner. " Arriaga-Barrientos, 937 F.2d at 414. Persecution is defined as "anextreme concept that does not include every sort of treatmentour society regards as offensive." Id. The key question iswhether, looking at the cumulative effect of all the incidentsa petitioner has suffered, the treatment she received rises tothe level of persecution. Singh v. INS, 134 F.3d 962, 967 (9thCir. 1998).[4] An alien's well-founded fear must be both subjectivelygenuine and objectively reasonable. Elnager, 930 F.2d at 786(citing Elias-Zacarias, 908 F.2d at 1455). An alien satisfiesthe subjective component by credibly testifying that she genu-inely fears persecution. Singh, 134 F.3d at 966. "The objec-tive component requires a showing by credible, direct, andspecific evidence in the record, of facts that would support areasonable fear of persecution." Ghaly, 58 F.3d at 1428 (quot-ing Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178-79 (9thCir. 1991)). The applicant has the burden of making thisshowing. Fisher v. INS, 37 F.3d 1371, 1376 (9th Cir. 1994).[5] Korablina clearly met the subjective component of thetest. The IJ found her testimony to the effect that she fearspersecution to be credible. See Sarvia-Quintanilla v. INS, 767F.2d 1387, 1395 (9th Cir. 1985) (holding that a reviewingcourt should give deference to an IJ's credibility finding). Theremaining question is whether Korablina established that areasonable person in her situation would fear persecution onthe basis of her religion.The IJ found that Korablina had established by her testi-mony that she had experienced a "serious [form ] of discrimi-nation because she is Jewish." However, the IJ found, citingGhaly, that her numerous experiences did not amount to per-secution. The Ghaly court held: "Discrimination on the basisof race or religion, as morally reprehensible as it may be, doesnot ordinarily amount to `persecution' within the meaning ofthe Act." Ghaly, 59 F.3d at 1431. The issue, then, is whetherKorablina indeed suffered mere discrimination, or whether therecord compels a finding of past persecution as well as a well-founded fear of future persecution.[6] Persecution may be found by cumulative, specificinstances of violence and harassment toward an individualand her family members not only by the government, but alsoby a group the government declines to control. Singh v. INS,94 F.3d 1353, 1358 (9th Cir. 1996) (citing Shirazi-Parsa v.INS, 14 F.3d 1424, 1428 (9th Cir. 1994)). "Discrimination,harassment, and violence by groups that the government isunwilling or unable to control can also constitutepersecution." Id. at 1539 (citing Arteaga v. INS, 836 F.2d1227, 1231 (9th Cir. 1988)). "Non-governmental groups neednot file articles of incorporation before they can be capable ofpersecution." A single isolated incident may not "rise to thelevel of persecution, [but] the cumulative effect of severalincidents may constitute persecution." Id. ; see Sangha v. INS,103 F.3d 1482, 1487 (9th Cir. 1997).[7] In this case, Korablina testified that she witnessedrepeated violent attacks and experienced one violent attackherself. Korablina presented evidence of widespread harass-ment and violence by Ukrainian ultra-nationalists againstJews. The attacks were motivated by an ultra-nationalisthatred of Jews. Korablina testified and submitted evidencesupporting this proposition. The ultra-nationalist group wasconsistently identified in her testimony and submissions.Korablina knew that close associates and friends were disap-pearing from Kiev. In addition, one of her friends disappearedafter he promised her his help to end the ongoing harassment.She witnessed her Jewish boss beaten and threatened bybands of ultra-nationalists who hurled anti-Semitic epithets,ransacked the office, and extorted money to compensate forJews "living at the expense of Ukrainian resources." Her Jew-ish boss disappeared after the business had been repeatedlyransacked. The close association of the attacks in the officeindicated to Korablina that the violence was motivated by ahatred of the Jewish faith. The attackers expressed their antip-athy to the Jewish religion by painting the Star of David onthe office walls and by their anti-Semitic statements duringthe various attacks.[8] Furthermore, Korablina suffered violent attacks targetedat her specifically. After the ultra-nationalists raided heroffice and took a list of employees, she began to receive tele-phone calls and notes threatening her life because of her reli-gion. She was robbed and attacked, tied to a chair with anoose around her neck and threatened with death. This inci-dent resulted in medical treatment for shock and a concussion.Korablina also testified that because she was Jewish she wasrefused admission to the institute of her choice, encounteredobstacles to career advancement, and finally lost her previousjob when the department was taken over by an ultra-nationalist boss.[9] The nature and increasing frequency of the attacksagainst Korablina and her close associates demonstrated toKorablina the urgency of her leaving. Soon after she left theUkraine, her husband and her daughter were brutally attacked.During both incidents, the attackers alluded to the fact thattheir efforts to find Korablina had been unsuccessful, but thatthey were still seeking her. In both instances, the attackersreferred to Korablina as a kike, a derogatory term for a Jew.[10] Korablina and her daughter both testified that report-ing this type of violence against Jews to the Kiev authoritiesis not helpful and is, in fact, often dangerous. Korablina testi-fied repeatedly that the police, known as the militia, are a partof the same ultra-nationalist and anti-Semitic group, and thatthe State does not make any effort to protect Jews or to stopanti-Semitism. Korablina also offered supplemental articlessupporting her contention. The articles described a pattern ofanti-Semitic violence and negligence on the part of authoritiesin the Ukraine. This evidence brings Korablina's case withinthe rule that extends the test to groups that the government isunable or unwilling to control. Conspicuous by its absence isany authoritative evidence from the government disputing thethrust of her evidence and of the government's complicity.[11] Cumulatively, the experiences suffered by Korablinacompel the conclusion that she suffered persecution. Whereevidence of a specific threat on an alien's life, and here therewere many, is presented in conjunction with evidence of polit-ical and social turmoil, the alien has succeeded in establishinga prima facie eligibility for asylum. See Desir v. Ilchert, 840F.2d 723, 729 (9th Cir. 1988). With all respect, the IJ's deter-mination and the BIA's affirmance that Korablina experi-enced merely discrimination are not "supported byreasonable, substantial, and probative evidence on the recordconsidered as a whole." See Prasad v. INS, 47 F.3d 336, 338(9th Cir. 1995). The suffering inflicted on Korablina becauseshe is Jewish was not simply a "minor disadvantage or trivialinconvenience." See Kovac v. INS, 407 F.2d 102, 107 (9thCir. 1969). It amounted to "the infliction of suffering or harmupon [one] who differ[s] (in race, religion, or political opin-ion) in a way regarded as offensive." See id.[12] Accordingly, Korablina was entitled to a regulatorypresumption that she had a well-founded fear of future perse-cution because she established that she suffered pastpersecution, and the government failed to show that countryconditions had changed. See Singh v. INS, 94 F.3d at 1360-61.("A finding of past persecution triggers a regulatory pre-sumption that the applicant has a well-founded fear of futurepersecution, which provisionally establishes the applicant'srefugee status and eligibility for asylum."); 8 C.F.R.S 208.13(b)(1)(i).3. Eligibility for Withholding Deportation [13] In order to be eligible for a withholding of deportation,Korablina must show that evidence in the record demonstratesa clear probability of persecution. Under the INA, the"Attorney General is authorized to withhold deportation ofany alien within the United States to any country in which inhis opinion the alien would be subject to persecution onaccount of . . . religion." 8 U.S.C. S 1253(h). Petitioner'sdeportation must be withheld if she has shown a "clear proba-bility of persecution" should she be deported to the Ukraine.See Vallecillo-Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir.1996).[14] An applicant is entitled to withholding of deportationif she shows that her life or her freedom would be threatenedon account of her religion. Cardoza-Fonseca v. INS, 767 F.2d1448, 1452 (9th Cir. 1985). She must demonstrate that it is"more likely than not" that she will be persecuted were she toreturn. Id.; see also 8 C.F.R. S 208.16(b)(1) ("[t]he applicant'slife or freedom shall be found to be threatened if it is morelikely than not that [s]he would be persecuted on account ofrace, religion, nationality, membership in a particular socialgroup, or political opinion.").[15] A finding of past persecution triggers a regulatory pre-sumption that the applicant's "life or freedom would bethreatened if deported." Vallecillo-Castillo, 121 F.3d at 1240(quoting 8 C.F.R. S 208.16(b)(2) (internal quotation marksomitted)). A "key factor in finding evidence sufficient forwithholding of deportation is whether harm or threats of harmwere aimed against petitioner specifically." Gonzales-Neyrav. INS, 122 F.3d 1293, 1297 (9th Cir. 1997) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir. 1988)). To rebutthis presumption, the INS must show by a preponderance ofthe evidence that country conditions have so changed that itis no longer likely that the applicant would be persecutedthere. Vallecillo-Castillo, 121 F.3d at 1240. The INS has notdone so here. There is every indication in the record thatKorablina would suffer the same ongoing persecution nowsuffered by her family. The fact that members of her familywere severely beaten soon after she left the Ukraine, with spe-cific threats made regarding her absence, indicates that thepersecution would continue. In addition, Korablina submittednumerous articles which demonstrate that discrimination,harassment, and violence against Jews continues in theUkraine.CONCLUSIONTherefore, we grant the petition for review and reverse theBIA's denial of Korablina's request for asylum and withhold-ing of deportation. Because asylum is granted at the discretionof the Attorney General, we remand that portion of the casefor the Attorney General to exercise that discretion.PETITION GRANTED and REMANDED. the end