Rusak v. Holder

The objective element of determining whether an individual has a well-founded fear of future persecution by their native country can be proven by the showing of past persecution of groups or persons “similarly situated” and establishing that the individual is a member of the group.

Natallia Rusak ("Rusak") left the country of Belarus with her mother to come to United States in 2000, legally, to undergo testing for a cochlear implant. Prior to leaving Belarus, Rusak’s mother was arrested, beaten and raped by the police because she is a member of the Seventh Day Adventist Church. Rusak’s father was severely beaten by the police and died of a resulting heart attack induced by the attack. When Rusak’s authorization to remain in the United States expired she applied for asylum. The Board of Immigration Appeals ("BIA") denied asylum noting that she did not satisfy the objective prong of the two-pronged test to determine whether the fear of future persecution is reasonable. The asylum applicant bears the burden of proof that she has a well-founded fear of future persecution. Evidence of fear of future persecution can come from past persecution of groups or persons “similarly situated” and showing that she is a member of said group. Rusak claimed asylum on the grounds that she has been deaf since childhood in a country where persons with disabilities are treated with hostility and her religious affiliation with the Seventh Day Adventist Church. The board determined that her past experiences did not rise to the level of persecution. This panel disagreed and held that the BIA erred in not following the case of Hernandez-Ortiz v. Gonzales stating that “injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claim were perceived when the petitioner was a child.” The panel held that Rusak had established a claim of past persecution based on the abuses suffered by her parents while she was a child and she was eligible for asylum on this claim. PETITION FOR REVIEW GRANTED.