Pitcherskaia v. Immigration & Naturalization Service
97 Cal. Daily Op. Serv. 4844, 118 F.3d 641, 97 Daily Journal DAR 7939 (1997)
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Rule of Law:
Under Section 101(a)(42)(A) of the Immigration and Nationality Act, the legal definition of 'persecution' for asylum purposes is based on an objective standard of harm inflicted upon an individual. It does not require proof that the persecutor possessed a subjective intent to punish or harm the victim.
Facts:
- Alla Pitcherskaia, a citizen of Russia, had a father who was a political dissident and died in prison.
- In 1980, Pitcherskaia was arrested and detained for 15 days for protesting the beating of a gay friend.
- In 1981, she was arrested, beaten, and imprisoned for 15 days for demonstrating with a lesbian youth organization; Russian militia threatened her with involuntary psychiatric confinement if she continued to associate with women.
- In 1985 or 1986, after visiting an ex-girlfriend who was forcibly institutionalized, militia took Pitcherskaia to a doctor where she was registered as a 'suspected lesbian' and ordered to undergo psychiatric treatment.
- Pitcherskaia was forced to attend eight 'therapy' sessions where she was diagnosed with 'slow-going schizophrenia,' a term used for homosexuals in Russia, and prescribed sedative drugs.
- Between 1990 and 1991, she was arrested twice and interrogated about her sexual orientation and activities with a gay and lesbian political organization.
- After Pitcherskaia arrived in the United States in 1992, two more 'Demands for Appearance' from the militia were delivered to her mother’s home in Russia.
Procedural Posture:
- Alla Pitcherskaia applied for asylum with the Immigration and Naturalization Service (INS).
- The INS Asylum Office found Pitcherskaia credible and that she had suffered past persecution, but denied her application for failing to establish a well-founded fear of future persecution.
- The INS placed Pitcherskaia in deportation proceedings before an Immigration Judge (IJ), a trial-level administrative court.
- Before the IJ, Pitcherskaia renewed her request for asylum and withholding of deportation, adding new grounds based on her sexual orientation and political activism.
- The IJ denied the applications for asylum and withholding of deportation.
- Pitcherskaia, as appellant, appealed the IJ’s decision to the Board of Immigration Appeals (BIA), an administrative appellate body.
- The BIA, as appellee, dismissed the appeal, finding the actions against Pitcherskaia were not persecution because they were intended to 'cure,' not 'punish' her.
- Pitcherskaia then filed a petition for review of the BIA's decision with the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the definition of 'persecution' under Section 101(a)(42)(A) of the Immigration and Nationality Act require an asylum applicant to prove that their persecutor had a subjective intent to punish or harm them?
Opinions:
Majority - Fletcher, Circuit Judge
No. The definition of 'persecution' under the Immigration and Nationality Act does not require proof of a persecutor's subjective intent to harm or punish. The court defines persecution objectively as 'the infliction of suffering or harm upon those who differ... in a way regarded as offensive.' The standard turns not on the persecutor's state of mind, but on what a reasonable person would deem offensive. The persecutor's motive is relevant only to establish that the harm was inflicted 'on account of' a protected ground, such as membership in a particular social group or political opinion. The court explicitly rejected prior BIA holdings in Acosta and Mogharrabi to the extent they required an intent to punish, stating that harm inflicted under the guise of 'curing' or 'treating' a victim is still persecution if it causes suffering.
Analysis:
This decision significantly clarifies the definition of 'persecution' in asylum law, particularly within the Ninth Circuit, by establishing an objective standard focused on the harm suffered by the victim rather than the subjective intent of the persecutor. It broadens the scope of asylum protection for individuals fleeing harm disguised as benevolent or curative treatment, such as 'conversion therapy' or female genital mutilation. By rejecting a punitive intent requirement, the court aligns U.S. asylum law more closely with international human rights norms and the UN Refugee Protocol, setting a key precedent for cases where a persecutor's motives are not overtly malicious.
