Sizov v. Ashcroft

70 F. App'x 374
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 2, 2003
DocketNo. 02-2394
StatusPublished

This text of 70 F. App'x 374 (Sizov v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sizov v. Ashcroft, 70 F. App'x 374 (7th Cir. 2003).

Opinion

ORDER

Oleg Sizov, together with his wife Elena and son Sergei, seek review of the Board of Immigration Appeals’ (BIA) summary affirmance of an Immigration Judge’s (IJ) denial of their petition for asylum and application for withholding of removal. The Sizovs have lived in the United States illegally since 1991. They seek to avoid removal to either Kazakhstan, Russia, or Ukraine, because of past persecution they suffered there and their fear of future persecution. Having entered the United States on passports issued by the U.S.S.R., the Sizovs believe that they are now stateless.1 The IJ found the evidence insufficient to establish past persecution and credited State Department reports that the Sizovs do not face a risk of future persecution should they return to Russia, Kazakhstan or Ukraine; accordingly, their petition was denied. Although we have serious reservations about the Board’s conclusion that the Sizovs were not the victims of past religious persecution, we nevertheless affirm the decision of the BIA for reasons more fully explained below.

Neither Oleg nor Elena had an easy time in the Former Soviet Union (FSU), because of an unfortunate coincidence of ethnic background and place of residence. Oleg was a Russian ethnic who was born and raised in Kazakhstan where his father was exiled during Stalin’s reign, and Elena was the daughter of Russian nationals who was born in the former East Germany and then moved to Ukraine at age two. Oleg was mistreated in Kazakhstan for attempting to practice the Russian Orthodox religion. His first run-in with the authorities was in the fourth grade when he was discovered attending an underground Easter religious service. Later in high school Oleg was questioned by the KGB after a Bible that he lent to a friend was discovered at the friend’s place of employment. In 1981, Oleg unsuccessfully tried to escape his problems by relocating to [376]*376Leningrad, but there he was again subjected to ridicule and abuse, this time by his fellow ethnic Russians who taunted him for being from a Central Asian republic. In Leningrad Oleg attended a second-rate school (because his KGB record kept him out of the more prestigious Leningrad University) and worked various jobs. During this period he was forced to return to Kazakhstan four times for questioning by the KGB, all because of the Bible incident. The KGB finally left Oleg alone when he was summoned for military service in 1982. But the military proved no less hostile to members of the Russian Orthodox church, and Oleg was again singled out for attempting to practice his religion. His efforts to worship at a Leningrad Cathedral while on weekend furloughs subjected him to beatings, solitary confinement, and ultimately the loss of furlough privileges. Two years later his military service was completed, and he returned to Leningrad where he was hired to work for the local police, a position that entitled him to a coveted residence permit, or propiska.

The next chapter in Oleg’s Leningrad experience began in 1986 when Oleg and Elena married. Finding suitable housing was challenging for the couple, and they initially lived in sex-segregated dormitories where they had limited access. Nonetheless Elena soon became pregnant, and the Sizovs were lucky enough to obtain a permit to live together in a dormitory that was slated for demolition. This arrangement did not last long, and the couple was threatened with expulsion just before Sergei’s birth. Trouble was around the corner once again when Sergei’s baptism came to Oleg’s employer’s attention. The employer threatened to fire Oleg if he did not stop practicing his religion. Oleg eventually left his job, perhaps because he quit in frustration over his co-workers’ corruption, perhaps because of the baptism incident.

With the loss of Oleg’s job came the loss of the residence permit to remain in Leningrad. The Sizovs spent the remainder of their time in the FSU bouncing between friends’ apartments in Leningrad and Elena’s parents’ house in Ukraine. But Ukraine was no more welcoming of the Sizovs than Russia or Kazakhstan, and they were taunted by Ukrainian nationalists for being Russian. After several run-ins with local nationalists, Oleg, Elena and Sergei returned to Leningrad and applied for visas to visit the United States.

Elena’s story is similar to Oleg’s. Her family was persecuted in Ukraine because of their religious and political beliefs. This persecution kept Elena from pursuing the best educational opportunities, and eventually she fled to Leningrad after she was expelled from school because of her political activism. In Leningrad Elena had no choice but to take a low-paying construction job, which at least qualified her for a residence permit. Finally, upon her marriage to Oleg, his troubles became hers, and Elena dropped out of school after it was made clear to her that as Oleg’s new wife she was no longer welcome.

The IJ heard evidence of the Sizovs’ experiences in Russia, Kazakhstan and Ukraine and found it insufficient to support a claim of past religious persecution. He also considered a State Department advisory opinion on the Sizovs’ petition, as well as a State Department country report that addressed the general situation in Russia, Kazakhstan and Ukraine, and was equally unpersuaded that the Sizovs had a reasonable fear of future persecution on the basis of either their religious beliefs or their national origin. The BIA agreed that there was insufficient evidence to find past or future persecution and dismissed the Sizovs’ appeal.

Since the BIA’s opinion in this case summarily adopted the IJ’s decision, “we re[377]*377view the IJ’s analysis as if it were the Board’s.” Mousa v. I.N.S., 223 F.3d 425, 428 (7th Cir.2000). We will uphold the IJ’s conclusion that the Sizovs did not experience past persecution only if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” id. (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)), and will only reverse in an asylum case “if the evidence presented ‘was such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed.’ ” Dobrican v. I.N.S., 77 F.3d 164, 167 (7th Cir.1996) (quoting Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812).

Asylum is granted at the discretion of the Attorney General to refugees who face “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); 8 U.S.C. § 1158(b)(1). It is the applicant’s burden to show that the fear of persecution is both “(subjectively) genuine and that it is reasonable in light of the (objective) credible evidence.” Dobrican, 77 F.3d at 167. If the Sizovs establish that they experienced past persecution, they benefit from a presumption of future persecution unless the future persecution is based on unrelated circumstances, 8 C.F.R. § 208

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70 F. App'x 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sizov-v-ashcroft-ca7-2003.