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Kholyavskiy v. Mukasey

August 28, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A71-093-229.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before FLAUM, RIPPLE and MANION, Circuit Judges.

Arkadiy Kholyavskiy, a native of the former Soviet Union, petitions for review of an order of the Board of Immigration Appeals ("BIA") denying him asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). For the reasons set forth in this opinion, we grant the petition in part, deny it in part, and remand for further proceedings.


A. Facts

Mr. Kholyavskiy was born in 1977 in Moscow, in the former Soviet Union. Mr. Kholyavskiy is Jewish, and he began to experience harassment as a result of his religion and ethnicity when he started school in 1984. According to Mr. Kholyavskiy, each quarter, he was required to stand in front of his class and state his ethnicity; as a result, students would laugh at him and refer to him as a "kike." A.R. at 645-48. Mr. Kholyavskiy suffered additional humiliations at the hands of his fellow students. On more than one occasion, other students urinated on him. Additionally, when he was in the second grade, older students forced him into a bathroom, pulled down his pants and laughed at him, commenting on the fact that he was circumcised. His parents attempted to address the situation with school officials; the response of the school's director was that the stories "could not have been true" and "that the Jewish child [wa]s just making things up." A.R. at 811.

Mr. Kholyavskiy was mistreated by neighborhood children as well. Mr. Kholyavskiy's mother, Irina, stated that, when he would leave the family apartment, other children would torment him; they would laugh at him, call him names and take or destroy toys and games that he brought outside. Irina Kholyavskiy also testified to a beating by one of Mr. Kholyavskiy's schoolmates that resulted in a broken arm. Irina stated that she became afraid to let Mr. Kholyavskiy play outside.

Both Mr. Kholyavskiy and his mother recounted another incident that resulted in physical injury. They testified that a classmate in the neighborhood called Mr. Kholyavskiy a "kike" and had her German shepherd attack him. Soviet police would not assist in the effort to locate the dog. As a result of the attack, Mr. Kholyavskiy had to undergo a series of forty rabies shots. Subsequently, he became extremely scared of being beaten and harmed; he dropped out of school and began hiding in the attic of his family's apartment.

In addition to actions directed specifically at Mr. Kholyavskiy, there also were threats and harassment targeted at Mr. Kholyavskiy's entire family. In 1991 and 1992, Mr. Kholyavskiy's family received several telephone calls during which the caller informed them that the "Crystal Night" or pogrom was coming.*fn1 A.R. at 924. As well, Stars of David were scratched into his family's apartment mailbox. A.R. at 926.

In 1992, Mr. Kholyavskiy's family was granted refugee status by the United States Embassy in Moscow; Mr. Kholyavskiy*fn2 was fifteen at the time. The Kholyavskiy family moved to the United States, and, in January 1995, Mr. Kholyavskiy's status was adjusted to that of a lawful permanent resident. Later that year, Mr. Kholyavskiy graduated from high school.

However, Mr. Kholyavskiy continued to suffer the emotional effects of his experiences in the former Soviet Union. Prior to leaving the Soviet Union, Mr. Kholyavskiy began to fear encounters with other people. By the time he was sixteen, he was experiencing panic attacks. Since 2001, he has been under the care of Dr. Donald Jacobson,*fn3 a board certified psychiatrist, who diagnosed Mr. Kholyavskiy with severe social anxiety disorder and depression.

Approximately one year after Mr. Kholyavskiy began experiencing his panic attacks, he had his first run-in with the law. Over the next few years, Mr. Kholyavskiy's record reveals the following criminal activity: trespassing, retail theft (two separate incidents), harassment, battery (two incidents), burglary and unlawful possession of counterfeit prescription forms. Mr. Kholyavskiy's criminal record led to the commencement of removal proceedings against him in May 2001.

B. Administrative Proceedings


A merits hearing was conducted before an immigration*fn4 Judge ("IJ") in December 2004. At that hearing, Mr. Kholyavskiy called Dr. Ronald Wixman, a professor from the University of Oregon, to testify. Despite Dr. Wixman's extensive credentials, the IJ believed that Dr. Wixman was biased in favor of Jewish emigration to the United States; as a result, the IJ refused to recognize Dr. Wixman as an expert witness on ethnic groups in Russia or on any other topic. Nevertheless, the IJ allowed Dr. Wixman to testify with respect to the "propiska" system and the recent rise of nationalism, anti-Semitism and anti-Westernism in Russia.*fn5

After Dr. Wixman had testified, but before Mr. Kholyavskiy could be called as a witness, Mr. Kholyavskiy suffered an acute psychotic breakdown. Dr. Jacobson was present and declared Mr. Kholyavskiy legally incompetent. The IJ continued Mr. Kholyavskiy's merits hearing until January 5, 2005. In the interim, Mr. Kholyavskiy was transferred from the custody of the Department of Homeland Security to a mental health facility.

At the continued hearing on January 5, 2005, Mr. Kholyavskiy testified to the incidents of abuse that he suffered at the hands of his classmates and neighbors. He also detailed the history of his mental illness, as well as his run-ins with the law. Mr. Kholyavskiy expressed his fears at the possibility of returning to Russia. He believed that, as a Jew, he would be attacked with impunity. He did not believe that he would be able to obtain a "propiska" and, therefore, would have to live on the street. Finally, he feared that he would not be able to obtain the medications necessary to control his disorder. In response to the question whether Mr. Kholyavskiy wanted to return to Russia, he stated:

I'll die in Russia it's impossible. It's impossible. I have no money; I have nothing there who will take care of me? If I, if I turn to the police for help they will put me in jail and then I won't be able to get any medication. I won't have any medication there. I can't even imagine I'm just again didn't think about that.

A.R. at 751.

At the final stage of the hearing in February 2005, Mr. Kholyavskiy called Dr. Jacobson as a witness. Dr. Jacobson stated that he had treated Mr. Kholyavskiy since 2001, that he suffered from social anxiety disorder, and that it had taken some time to determine the combination of medications that would control most effectively Mr. Kholyavskiy's symptoms. He further stated that, for approximately two years, Mr. Kholyavskiy had been on Paxil and Klonopin, drugs that were not available in Russia. In addition to depriving him of his medication, Dr. Jacobson believed that removal to Russia would be devastating to Mr. Kholyavskiy because he would be incapable of taking care of his day-to-day needs. Indeed, Dr. Jacobson believed that Mr. Kholyavskiy would suffer an acute psychotic breakdown if he were separated from his family. See A.R. at 756-57. Finally, Dr. Jacobson testified*fn6 that he was aware of Mr. Kholyavskiy's criminal history. However, Dr. Jacobson did not believe that Mr. Kholyavskiy was capable of intentional violence or that he was a danger to his family or to the community.

Mr. Kholyavskiy's mother, Irina, also testified on his behalf. She stated that, while living in Russia, Mr. Kholyavskiy consistently was mocked and beaten by other children because he was a Jew. A.R. at 812. Irina Kholyavskiy also corroborated Dr. Jacobson's testimony regarding her son's inability to live on his own.


Approximately one month after the hearing concluded, the IJ issued a written opinion. After reviewing the*fn7 evidence presented, the IJ found that Mr. Kholyavskiy had testified credibly, but that "his fears of future mistreatment in Russia [we]re based on exaggerations and misinformation." A.R. at 473. Concerning the other witnesses, the IJ commented:

Similarly, the respondent's mother, Irina Kholyavskiy, impressed the Court with her obvious concern for her son and desire to assist him in any way she could. Furthermore, the Court finds the testimony of the remaining witnesses [sic] Dr. Donald Jacobson, to be credible. In contrast, Professor Wixman seemed to be an advocate for the respondent, and tried to fit any information into the mold of anti-Semitism, without endeavoring to make an objective judgment.

Id. at 474.

Turning to Mr. Kholyavskiy's asylum claim, the IJ determined that Mr. Kholyavskiy's status as a refugee when he arrived in 1992 did not continue in perpetuity, but ended when he was granted lawful permanent resident status. Consequently, the IJ concluded that he was not entitled to a presumption that he would suffer persecution if returned to Russia. Apart from his previous refugee status, the IJ found that Mr. Kholyavskiy had not suffered past persecution. The IJ observed that, "although the respondent felt humiliated by having his pants pulled down in the bathroom by older students who called him derogatory names, this incident does not rise to the level of persecution." Id. at 475. Additionally, the court stated that, although it did not want to "downplay the respondent's mistreatment," it did not believe that "a single isolated incident of violence where the respondent was assaulted by a dog owned by an adolescent and subsequently required rabies shots" constituted persecution. Id.*fn8

Additionally, the IJ determined that Mr. Kholyavskiy was not likely to suffer future persecution based on any other protected status. Specifically, Mr. Kholyavskiy's mental illness did not render him a member of a "particular social group" because his "illness is not immutable." Id. at 477. Furthermore, the IJ determined that Mr. Kholyavskiy's fear of mistreatment on the basis of his Jewish identity was not objectively reasonable because, inter alia, anti-Semitism had been "officially condemned" by then-Russian President Vladmir Putin. Id. at 478.*fn9

Finally, the IJ determined that, even if Mr. Kholyavskiy had qualified for asylum, in the exercise of discretion, he would have denied Mr. Kholyavskiy's application. The court stated that "it has become clear that the respondent's fear of returning to Russia is rooted in his mental illness and the possibility of being separated from his family rather than his Jewish identity, and the Court is sympathetic to the respondent's circumstances." Id. at 480. The IJ continued:

Notwithstanding, the respondent's mental illness and the difficult circumstances both he and his family face if he is returned to Russia, his claim for asylum is extremely weak in several regards. The first is that his claim of past persecution is grounded on incidents which occurred long before he departed Russia and while he was the subject of an openly anti-Semitic Soviet Union which has long since expired. While troubling, the incidents upon which the respondent relies simply do not rise to the level of persecution. The second weakness to his claim centers around the complete absence of documentary evidence supporting the proposition that Jews are systematically targeted for persecution. The respondent has never held himself out as being Jewish and his claim that he will be recognized as Jewish because of his physical appearance or that he is destined to become homeless because he will be unable to find housing because of his mental illness and because he is Jewish are self serving and simply unsupported by the record. In short, the respondent's case is based on a profusion of arguments based on "worst case scenarios" that are unsupported by the evidence. Additionally, there is nothing preventing the respondent's family from mailing his medication to him and making arrangements to ensure that he is cared for.

Id. Finally, the court noted that Mr. Kholyavskiy did not come before the court with a "clean slate." Id. Although the court noted that "the respondent's crime must be kept in perspective and not inflated so as to suggest either that he is a nascent terrorist or a career criminal," the court determined that the crimes that he had committed "illustrate that the respondent is a man who repeatedly engages in ...

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