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Doe v. Holder

United States Court of Appeals, Ninth Circuit

November 27, 2013

John DOE, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

Argued and Submitted Sept. 9, 2013.

Page 872

Katherine M. Lewis (argued), Van Der Hout, Brigagliano & Nightingale, LLP, Allan A. Samson, Law Office of Allan A. Samson, San Francisco, CA, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel, and Kimberly A. Burdge, Trial Attorney, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098-690-486.

Before: ARTHUR L. ALARCÓ N, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

ALARCÓN, Senior Circuit Judge:

John Doe [1] has petitioned for a review by this Court of the Board of Immigration

Page 873

Appeals' (" BIA" ) dismissal of his appeal from the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (" CAT" ). He contends that he has a wellfounded fear of future persecution if he is removed to Russia because he is a homosexual. An immigration judge (" IJ" ) found, and the BIA did not disagree, that Doe had been subjected to past persecution in Russia by nongovernmental forces because he is a homosexual. The IJ concluded, however, that Doe failed to carry his burden of demonstrating that the Russian government was unable or unwilling to control his nongovernmental persecutors.

The BIA dismissed Doe's appeal from the IJ's decision based on the BIA's conclusion that Doe " failed to demonstrate that the government was unable or unwilling to control the non-governmental actors who attacked the Respondent in Russia" or prove that " there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government."

We grant the petition in this matter because we conclude that Doe met his burden of presenting evidence that the Russian government was unable or unwilling to control the nongovernmental actors who persecuted him because he is a homosexual. We also hold that in order to obtain the relief he requested, Doe was not required to demonstrate that the Russian government sponsored or condoned the persecution of homosexuals or was unwilling for that reason to control persecution of Doe. We remand with directions that the BIA determine whether the Government can meet by a preponderance of the evidence its burden of demonstrating either that changed circumstances in Russia overcome the presumption that Doe has a well-founded fear of future persecution based on the past persecution he was subjected to because he is a homosexual or that Doe reasonably can relocate to an area of safety within Russia.

I

A

Doe is a Russian citizen who was born in Ulan-Ude, the capital of the Republic of Buryatia, and is ethnically a Buryat.[2] Doe identifies his sexual orientation as homosexual or bisexual.

After high school, Doe attended East Siberian Technological University in Ulan-Ude for two years. During his first year, Doe joined a club for homosexuals, called Kletka. Members of Kletka socialized and supported each other when they had problems. In April 2002, when he was eighteen years old, some of Doe's classmates from the university saw him socializing with members of Kletka and surmised that Doe was a homosexual. When Doe returned to school the following Monday, almost " everybody [he] knew" — classmates, persons from Doe's wrestling club, students from his former school— began mocking him.

In his testimony, Doe described two violent attacks. The first occurred in September

Page 874

2002 while he was walking in a park with his partner, Mark. A group of five persons, some of whom were Doe's classmates, approached Doe and Mark and asked what they were doing. Doe at first remained silent or gave short answers. The group then became enraged, pushing Mark and knocking Doe to the ground where they beat and kicked him. Doe attempted to defend himself, but he could not. His attackers' assaults injured his eye and bruised his body, but he was able to go home unassisted.

Following the attack, Doe went to the police station and filed " an application for a complaint" describing the attack and naming his assailants. The police officer on duty told Doe that he did not want to receive the report and that Doe's injuries were " just bruises, nothing." The officer then discussed Doe's complaint with his supervisor and told Doe " to wait for the boss." When the officer returned, he told Doe that " maybe [he could] come back later" and that his " case is not so serious." The officer further commented that Doe was a man and asked why he had not defended himself. Doe testified that the police were " really busy and physically [could] not exam[ine] [his] report." Doe eventually left, because " [t]hey simply clearly let [him] know that they d[id]n't want to consider it at all."

After the first incident, Doe continued to suffer harassment and was pushed and hit " [a]lmost constantly." During a second attack in April 2003, Doe was beaten severely while he was at a restaurant with Mark. Between five and ten persons, three of whom Doe knew, entered the restaurant and sat near Doe and Mark. A man named Timur spoke to him in a kind tone at first, but then began to speak more rudely. Timur then hugged Doe, stuck his tongue out at him, and asked Doe, " [D]o you like this? Do you like this?" Timur then " started to say dirty words." Doe pushed Timur away. Timur hit Doe, and the ...


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