Tchoukhrova v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORIA TCHOUKHROVA, DMITRI 
TCHOUKHROVA, and EVGUENI No. 03-71129
TCHOUKHROVA, Agency Nos.
Petitioners,
v.  A75-772-599
A75-772-600
ALBERTO R. GONZALES,* Attorney A75-772-601
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 1, 2004—Pasadena, California
Filed April 21, 2005
Before: Stephen Reinhardt, A. Wallace Tashima, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4557
TCHOUKHROVA v. GONZALES 4561
COUNSEL
Jonathan D. Montag, Law Offices of Jonathan D. Montag,
San Diego, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Margaret J. Perry, Senior Litigation Counsel; William C. Erb,
Jr. and Frances M. McLaughlin, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, Washington,
D.C., for respondent.
OPINION
REINHARDT, Circuit Judge:
The question before us is whether under our immigration
laws asylum may be granted to the parents of a disabled child
who has been persecuted in his native land on account of his
disability or whether, instead, we are compelled to force the
family to return involuntarily to its home country where the
child is likely to face further persistent and debilitating perse-
cution. To answer that question, we must decide (1) whether
disabled children and their parents who provide care for them
may constitute a particular social group within the meaning of
our immigration laws and (2) whether, in order to protect a
disabled child from persecution, a parent of such child may
apply for asylum and withholding of removal and may rely
4562 TCHOUKHROVA v. GONZALES
during the administrative proceeding on the past persecutory
conduct directed against the child.
We hold that disabled children and their parents constitute
a statutorily protected group and that a parent who provides
care for a disabled child may seek asylum and withholding of
removal on the basis of the persecution the child has suffered
on account of his disability. We also hold that, given the
record before us, the parent who is seeking asylum and with-
holding in this case is eligible for the former relief and enti-
tled to the latter. Finally, we hold that the parent’s spouse and
the disabled child are eligible for asylum by virtue of their
derivative applications and are also entitled to withholding of
removal.
I. FACTUAL AND PROCEDURAL HISTORY
Evgueni Tchoukhrova was born in 1991 in Vladivostok,
Russia with infantile cerebral paralysis, or cerebral palsy. His
disability resulted chiefly from the negligence of members of
the staff of the Russian state-owned hospital, who first
induced his mother’s labor and then abandoned her for the
entire night, during which time the fetus did not receive suffi-
cient oxygen. The next morning, because the induced labor
had stopped, hospital personnel decided to forcibly extract the
child from its mother’s body, breaking its neck in the process.
Instead of giving the newborn child medical care, they ini-
tially threw Evgueni into a container holding abortion and
other medical waste, telling his mother that “they didn’t see
the reason why he needed to live.” The mother, Victoria
Tchoukhrova, having lost a lot of blood, fell into a state of
unconsciousness.
Against all odds and despite the staff’s neglect, Evgueni
survived, and was retrieved from the disposal bin. As soon as
she became conscious again, Victoria commenced pleading to
see her son, without success. She was told that he was
severely disabled and that she should “refuse” him. After five
TCHOUKHROVA v. GONZALES 4563
days, Victoria managed to convince a nurse to break the rules
and let her visit her child in the middle of the night because
she “wanted desperately to see him and to hold his lifeless
body close to [her] heart.”
Despite Victoria and her husband Dmitri’s attachment to
their newborn son, government officials tried to intimidate the
couple into abandoning him to a state-run orphanage. Not-
withstanding his parents’ refusal to give their consent,
Evgueni was transferred to an institution for orphaned chil-
dren with birth defects. Victoria and Dmitri repeatedly sought
to visit their son, but were denied permission for the first two
months.
When the Tchoukhrovas finally gained entrance to the
“hospital” for children with birth defects, the conditions were
horrifying. The children were wrapped in old, wet, dirty lin-
ens and cried out from hunger. No one cleaned or otherwise
took care of them. Some children writhed in pain but received
no treatment. Despite their cries and obvious plight, the “chil-
dren were simply abandoned.” The Tchoukhrovas would not
allow their child to remain in confinement under such deplor-
able conditions and, notwithstanding intense pressure from
state authorities to consent to Evgueni’s permanent institu-
tionalization, Victoria and Dmitri secured his release and put
him in a private clinic.
Evgueni’s parents’ struggles had still not ended. Once
Evgueni was diagnosed as having infantile cerebral palsy, he
was permanently labeled as disabled and was consequently
banned from receiving any public medical support for his
condition. In search of better medical care for their child, the
family traveled three times to the Osteopathic Center for Chil-
dren in San Diego. As a result of the treatment that he
received in the United States, Evgueni was able to walk for
the first time in his life. When the family returned to Russia,
Victoria and Dmitri, in accordance with the recommendation
of his American doctor, refused to allow Evgueni to be vacci-
4564 TCHOUKHROVA v. GONZALES
nated. The doctor was concerned about the boy’s fragile
immune system. Because Evgueni was not vaccinated, it
became difficult for him to obtain any medical care in state-
run medical facilities.
The diagnosis of cerebral palsy resulted in Evgueni’s being
denied access to public school, despite the fact that his dis-
ability was a physical and not a mental one.1 The Russian
government doctor recommended that, if Evgueni’s parents
insisted on refusing to allow him to be institutionalized, he
“be isolated at home” and not taken out into public places, a
recommendation that was understandable given the extreme
degree of societal prejudice against the disabled in Russia.
When Victoria took Evgueni out in public, he was subjected
to verbal abuse and spat upon. Victoria would often hear par-
ents say to their children: “Get away from that boy, can’t you
see that he’s abnormal” or “Don’t get near him, he’s sick.”
Children would throw things at him. Although many of the
interactions were simply frightening and humiliating, two
assaults resulted in Evgueni’s hospitalization. On one visit to
a park when he was six years old, several young men attacked
him. The broken arm and severe head trauma that he suffered
due to this incident required him to be hospitalized for two
months and led to insomnia, spontaneous crying, shaking, and
paranoia. Victoria and Dmitri filed a report with the police,
but they never investigated the incident. On another occasion,
a women yelled at Victoria, “Get your ugly imbecile out of
here,” and shoved Evgueni to the ground. He was rushed to
the emergency room and received several stitches in his head,
from which he still has a visible scar. Victoria again filed a
police report; this time, the police told her the case was insig-
nificant and to settle it herself. Evgueni became so frightened
1
In fact, Evgueni has been described by his current doctor as “an intelli-
gent vital child who is determined to overcome his limitations.” Since
coming to the United States, Evgueni has learned English, has made
friends, and is thriving at his elementary school where he is being edu-
cated in regular public school classes.
TCHOUKHROVA v. GONZALES 4565
of the dangers he faced every time he went outside that he
refused to leave the house. All the while, the government con-
tinued to try to have him institutionalized.
Unable to get the government to treat their son with
decency or even to attempt to protect him from the violent
harassment he faced, Victoria and Dmitri decided to take
political action in order to create a normal life for him. They
joined together with other parents of disabled children and
founded an association “that opposed the prevailing oppres-
sive conditions of the handicap [sic] children,” called “Moth-
ers Unite!” Victoria worked to have a newspaper article
published criticizing the Russian government’s treatment of
disabled children, but the proposed article was canceled at the
last minute. The couple spoke to the authorities, wrote letters
demanding equal rights, and engaged in fundraising on behalf
of the cause. The family also sought help from the Moon
Society; this action only provoked additional harassment.
After one meeting, people threw stones at Victoria and van-
dalized the family’s car. When Dmitri complained to the
police, the authorities failed to respond. In 1997, Dmitri was
fired from his job as a civil engineer and was unable to find
employment for two years. In several job interviews, he was
urged to stop advocating for the rights of the disabled. With
hostilities toward the whole family increasing and the mount-
ing certainty that Victoria and Dmitri would never be able
adequately to protect their son and provide him with a life
free from persecution, the family left for the United States in
2000.
Documentary evidence corroborates Victoria’s testimony.
The wretched treatment Evgueni received from both the Rus-
sian government and from private individuals in Russia is far
from uncommon in that country. For example, the 2000 State
Department Human Rights Report (“State Department
Report”) confirms that Evgueni’s treatment as a child with
cerebral palsy reflects the standard practice. Russia institu-
tionalizes its “orphans,” more than 90% of whom are so-
4566 TCHOUKHROVA v. GONZALES
called “social orphans”—children who have at least one living
parent but who, like Evgueni, are so-classified by the state
because they have been deemed undesirable in some respect.
The State Department Report states:
[T]he prospects of children/orphans who are disabled
physically or mentally are extremely bleak. The label
of “imbecile” or idiot, which signifies “uneducable,”
is almost always irrevokable. The most likely future
is a lifetime in state institutions.
The Report also explains that, once institutionalized, children
are often “provided for poorly” and are in some cases “abused
physically by staff.” The State Department Report also incor-
porates the 1998 Human Rights Watch Report “Abandoned to
the State,” which chronicles the “shocking levels of cruelty
and neglect” in the state institutions, called “internaty,” where
children with cerebral palsy and other disabilities are “ware-
housed”:
In addition to receiving little or no education in such
internaty, these orphans may be restrained in cloth
sacks, tethered by a limb to furniture, denied stimu-
lation, and sometimes left to die half-naked in their
own filth. Bedridden children aged five to seventeen
are confined to understaffed lying-down rooms . . .
and in some cases are neglected to the point of death.
According to the Human Rights Watch Report, “severely dis-
abled babies are routinely abandoned at state-run maternity
wards, under pressure from medical personnel who warn the
recuperating mothers of a life as social pariahs if they keep a
‘defective’ child.” All children who have been institutional-
ized face the danger of being diagnosed as “ ‘oligophrenic,’
or mentally retarded” even when they have no mental impair-
ments. As explained in the report, those with “diagnoses of
oligophrenia have extreme difficulty seeking a re-assessment
of their status,” and “[t]hose who grow to adulthood are then
TCHOUKHROVA v. GONZALES 4567
interned in another ‘total institution,’ where they are perma-
nently denied opportunities to know and enjoy their civil and
political rights.” Even the children who manage to be classi-
fied as “normal” while institutionalized face grim prospects
because they “lack the necessary social, educational, and
vocational skills to function in society.”
Unfortunately, what is true for social orphans in Russia
extends to disabled people generally in that country. As the
State Department Report explains, the disabled face the dan-
ger of being “removed from mainstream society and isolated
in state institution[s]”; they face “immense problems” created
by the government and societal prejudice.
The Tchoukhrovas entered the United States on September
9, 2000 and shortly thereafter applied for asylum, withhold-
ing, and relief under the Convention Against Torture. Victoria
filed the principal application for asylum and listed both
Dmitri and Evgueni; she stated that she wished to include
them in her application. In an oral decision, the immigration
judge made explicit findings that (1) Victoria’s testimony was
credible, (2) the family were members of a particular social
group, namely, “a family whose child is severely disabled,”
(3) the harms suffered by the Tchoukhrovas were on account
of their membership in that particular social group, (4) the
government of Russia was responsible for the harms because
“the government of Russia wishes to isolate handicapped chil-
dren,” (5) “Russian society does not tolerate people with dis-
abilities,” and (6) the family did suffer harm in Russia.
However, while saying the case was close and that he hoped
that the family would be able to stay in the United States, the
immigration judge held that the harms the family suffered did
not rise to the level of persecution. He therefore denied Victo-
ria’s application for asylum, withholding, and a prohibition
against removal under the Convention Against Torture.2 The
2
The Tchoukhrovas have since abandoned their Convention Against
Torture claim. Furthermore, although the family requested voluntary
departure at their hearing and although the immigration judge never ruled
on that request, the Tchoukhrovas do not appeal that issue.
4568 TCHOUKHROVA v. GONZALES
BIA issued a summary, although not streamlined, decision in
which it noted that the Tchoukhrovas had a “very sympathetic
family history,” but, nevertheless, adopted the immigration
judge’s decision and denied the relief sought. This petition for
review followed.
II. STANDARD OF REVIEW
We accept the petitioner’s testimony as true when, as here,
the agency finds her to be credible. Mihalev v. Ashcroft, 388
F.3d 722, 724 (9th Cir. 2004). To establish eligibility for asy-
lum, the petitioner must prove that she is unable or unwilling
to return to her home country because of a well-founded fear
of persecution “on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion . . . .”
8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480
U.S. 421, 428 (1987). An asylum applicant can establish eligi-
bility either “because he or she has suffered past persecution
or because he or she has a well-founded fear of future perse-
cution.” 8 C.F.R. § 1208.13(b) (2005). The applicant is enti-
tled to withholding if she has suffered a past threat to life or
freedom or is more likely than not to endure a future threat to
life or freedom. 8 C.F.R. § 1206.16(b) (2005).
When the BIA adopts the immigration judge’s decision as
its own, we treat the immigration judge’s reasons as the
BIA’s. He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir. 2003).
Here, the BIA relied on Matter of Burbano, 20 I. & N. Dec.
872, 874 (BIA 1994), which holds that “the Board’s final
decision may be rendered in a summary fashion,” and that, in
such cases “the Board’s conclusions upon review of the
record coincide with those which the immigration judge artic-
ulated in his or her decision.” When the BIA does not express
any disagreement with any part of the immigration judge’s
decision, but instead cites Burbano, the BIA adopts his deci-
sion in its entirety.
TCHOUKHROVA v. GONZALES 4569
III. ANALYSIS
Because the immigration judge explicitly reached all of the
component issues in the family’s asylum and withholding
claims, we review each of those determinations here, and, if
relief is warranted, we are authorized to order that such rem-
edy or remedies be granted.3 We agree with the legal conclu-
sion of the immigration judge and the BIA that disabled
children and their parents who provide care for them are
members of “a particular social group.” We also agree that the
factual findings that Evgueni and his parents were members
of that social group, were harmed (directly or indirectly) on
account of their membership, and that these harms were
inflicted by the Russian government or those whom it was
unwilling or unable to control are supported by substantial
evidence. Furthermore, although we agree that, as a matter of
law, the immigration judge was correct to look at the harms
faced by the Tchoukhrovas collectively when evaluating Vic-
toria’s application, we hold that his determination that the
harms did not rise to the level of persecution is not supported
by substantial evidence.
A. On Account Of A Particular Social Group
[1] The first question we must consider is whether disabled
children and their parents who provide care for them consti-
tute a particular social group within the meaning of 8 U.S.C.
§ 1101(a)(42)(A). Whether a category constitutes “a particular
3
Contrary to the government’s argument, INS v. Ventura, 537 U.S. 12
(2002) (per curiam) does not require us to remand cases to the BIA when
an immigration judge has decided an issue of first impression and the BIA
issues a Burbano affirmance adopting the IJ’s opinion in a summary fash-
ion, as the BIA has, by virtue of the Burbano affirmance, already ruled on
the issue in question. We note that a Burbano affirmance is different from
a streamlined affirmance which signifies only “that the result reached in
the decision under review was correct; that any errors in the decision
under review were harmless or nonmaterial.” 8 C.F.R. § 1003.1(a)(7)(ii);
Chen v. Ashcroft, 378 F.3d 1081, 1087 n.2 (9th Cir. 2004).
4570 TCHOUKHROVA v. GONZALES
social group” for the purposes of asylum and withholding of
removal is a legal question we review de novo. Hernandez-
Montiel v. INS, 225 F.3d 1084, 1091 (9th Cir. 2000). A “par-
ticular social group” is one in which the members are “united
by a voluntary association, including a former association, or
by an innate characteristic that is so fundamental to the identi-
ties or consciences of its members that members either cannot
or should not be required to change it.” Id. at 1093. We agree
with the agency that Russian disabled children and their par-
ents constitute a “particular social group.”
[2] We begin by noting that persons with disabilities are
precisely the kind of individuals that our asylum law contem-
plates by the words “members of a particular social group.”
While not all disabilities are “innate” or “inherent,” in the
sense that they may be acquired, they are usually, unfortu-
nately, “immutable.” Id. at 1087, 1093; see also Americans
with Disabilities Act of 1990, Pub. L. No. 101-336 § 2(a)(7)
codified at 42 U.S.C. § 12101(a)(7) (“[I]ndividuals with dis-
abilities are a discrete and insular minority who have been
faced with restrictions and limitations, subjected to a history
of purposeful unequal treatment, and relegated to a position
of political powerlessness . . . based on characteristics that are
beyond the control of such individuals . . . .”). Because dis-
ability constitutes precisely the sort of “immutable character-
istic” that an individual “cannot change,” as contemplated by
our law, we have no trouble concluding that persons with dis-
abilities can constitute a “particular social group” for purposes
of asylum and withholding of removal law.
As the above analysis suggests, we include within the
social group only persons whose disabilities are serious and
long-lasting or permanent in nature. We need not decide
whether such persons necessarily constitute a social group in
every country, although it is clear from our references to the
Americans with Disabilities Act that in this land they do. For
purposes of this case, we need determine only two narrow
questions. First, do disabled children in Russia constitute a
TCHOUKHROVA v. GONZALES 4571
particular social group? And, second, may their parents be
joined with them in that classification? We answer both ques-
tions affirmatively.
[3] Disabled children in Russia constitute a distinct and
identifiable group. In this respect, disabled Russian children
resemble the particular social groups our circuit has previ-
ously recognized. See, e.g., Mohamed v. Gonzales, 400 F.3d
785, 796-98 (9th Cir. 2005) (holding that a Somali woman
under threat of female genital mutilation was a member of a
particular social group); Karouni v. Gonzales, 399 F.3d 1163,
1172 (9th Cir. 2005) (holding that “all alien homosexuals are
members of a ‘particular social group’ ”). Disabled children
in Russia share not only common characteristics but a com-
mon experience as well. Their mistreatment by the state and
society in general is well-documented before us, by explicit
discussion in both the State Department Report and a Human
Rights Watch Report devoted to the issue. Russian children
who are disabled experience permanent and stigmatizing
labeling, lifetime institutional internaty, denial of education
and medical care, and constant, serious, and often violent
harassment. All of this evidence supports our conclusion that
in Russia disabled children constitute a particular social
group.
[4] We further hold that Russian parents who provide care
for their disabled children are properly included in the partic-
ular social group. Parents who resist the harms inflicted by the
Russian government upon their children often express a politi-
cal opinion while doing so, and thus may be entitled to asy-
lum on that basis as well.4 But, in providing care for their
disabled children, parents are doing something more funda-
mental than engaging in politics: They are acting out of love
and devotion for their children. Helping care for one’s dis-
4
Indeed, Victoria and Dmitri pursued political means to redress their
son’s mistreatment—forming a political group, raising funds, meeting
with political leaders, and writing letters.
4572 TCHOUKHROVA v. GONZALES
abled child is an act basic to one’s humanity. Parents who
provide such care act in a manner that is “so fundamental” to
their identities that they “should not be required to change.”
Hernandez-Montiel, 225 F.3d at 1093; see also Matter of
Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled in
part on other grounds by In re Mogharrabi, 19 I. & N. Dec.
439 (BIA 1987). Likewise, just as their children’s disabilities
are “immutable,” so is a parent’s relationship to a disabled
child. Because the parents and their disabled child incur the
harm as a unit, it is appropriate to combine family members
into a single social group for purposes of asylum and with-
holding. Furthermore, including parents in the social group
with their disabled children is consistent with the definition of
a “particular social group” that we sometimes employ,
namely, “a collection of people closely affiliated with each
other, who are actuated by some common impulse or inter-
est.” Sanchez-Trujillo v. INS, 801 F.2d 1511, 1576 (9th Cir.
1986). The family interest in preserving the rights and protect-
ing the welfare of a disabled child welds the parents (or those
in loco parentis) together with the disabled child in a manner
that qualifies all of them as members of a social group for
purposes of our immigration laws.
We therefore come to the same legal conclusion as the
agency and hold that Russian disabled children and their par-
ents who help care for them constitute a social group for pur-
poses of our immigration statutes. See 8 U.S.C.
§1101(a)(42)(A). If individuals experience persecution on
account of their membership in that group, they may seek asy-
lum and withholding of removal.
In addition to the legal questions, we also consider the
immigration judge’s factual determinations that (1) the
Tchoukhrovas were members of this particular social group,
(2) the harms that they experienced were on account of their
membership in the social group, and (3) the harms that
occurred were inflicted by the government or those whom the
government was unwilling or unable to control. In this case,
TCHOUKHROVA v. GONZALES 4573
none of these factual determinations is disputed. Uncontro-
verted evidence supports the findings that Evgueni suffers
from cerebral palsy and is classified as disabled by the Rus-
sian government, that Victoria and Dmitri have dedicated
their lives to caring for their son, and that the Tchoukhrova
family was therefore part of the “social group” of disabled
Russian children and their parents. Furthermore, it is undis-
puted that the government’s cruel mistreatment of Evgueni
and the violence to which he was subjected by private parties
were both on account of his membership in that group and
that the government not only inflicted harm directly but was
unwilling or unable to control the persecutory conduct of the
private parties involved. Accordingly, the requirements for
finding “persecution” under the statute are all met, except for
the question whether the harmful and injurious conduct to
which Evgueni was subjected rose to the level of persecution.
B. Rising To The Level Of Persecution
1. Preliminary Question
Before addressing the final issue, we must decide a thresh-
old procedural question: May the harms suffered by a dis-
abled child be taken into account when determining whether
to grant his parent’s asylum application? Once again, we
agree with the approach taken by the agency in this case.
Without discussing the question expressly, the agency treated
the harms inflicted on the family members cumulatively. Both
the purposes of our immigration statutes and the background
principles of law generally applicable to families and children
mandate the procedure followed by the agency in this case.
[5] Immigration law has always had a purpose of protecting
families and, where possible, keeping them united. See, e.g.,
Solis-Espinoza v. Gonzales, ___ F.3d ___ (9th Cir. 2005)
(“The Immigration and Nationality Act (“INA”) was intended
to keep families together. It should be construed in favor of
family units and the acceptance of responsibility by family
4574 TCHOUKHROVA v. GONZALES
members.”). It has also always been a principle of American
law that the family is a unique and important social unit enti-
tled to legal protection. See Moore v. City of East Cleveland,
431 U.S. 494, 503 (1977) (“Our decisions establish that the
Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this
Nation’s history and tradition.”); Stanley v. Illinois, 405 U.S.
645, 651 (1972) (emphasizing the “important” and “essential”
nature of the family and holding that “integrity of the family
unit” is constitutionally protected); see also Troxel v. Gran-
ville, 530 U.S. 57, 65 (2000) (rejecting any notion that a
“child is the mere creature of the State”) (internal citations
omitted). Caring for the family is also consistent with our
international obligations. See, e.g., International Covenant on
Civil and Political Rights, art. 23, opened for signature, Dec.
16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368, 375 (ratified by the
United States on September 5, 1992) (“The family is the natu-
ral and fundamental group unit of society and is entitled to
protection by society and the State.”). Imputing the disabled
child’s harms to the parent filing an application for asylum on
behalf of the family members vindicates these basic principles
and statutory purposes, and renders the law consonant with
both common sense and the important family values on which
this nation prides itself. The agency was correct, as a matter
of law, to do so here.
[6] The procedural issue arises as a consequence of the lim-
ited scope of derivative asylum applications. Under 8 U.S.C.
§ 1158(b)(3), only a spouse or child of an alien may obtain
asylum eligibility derivatively when the petitioning alien’s
application is approved. Although the statute provides that
minor children may obtain asylum derivatively through their
parents, there is no comparable provision permitting parents
to obtain that relief derivatively through their minor children.
Accordingly, if a minor child is granted asylum as a deriva-
tive applicant of his parent’s principal application, both par-
ents and child can stay in the United States. However, if the
child is the principal applicant and is granted asylum, the
TCHOUKHROVA v. GONZALES 4575
child can legally stay in this country, but his parents will be
removed. This second circumstance occurs rarely because
parents fleeing to this country usually have their own claims
of persecution, and it is infrequent that the child is the only
member of the family who has been directly persecuted in the
family’s native country. See generally Jeff Weiss, U.S. Dep’t.
of Justice, Guidelines for Children’s Asylum Claims, at 1998
WL 34032561 (1998) (“The majority of children who apply
for asylum do so riding along with a parent’s (‘principal’)
application.”). However, when it is only the child who is the
direct victim, a narrow interpretation of our asylum laws
could have devastating practical effects: Facing imminent
removal, parents could be forced to make a choice between
abandoning their child in the United States or taking him to
a country where it is likely that he will be persecuted.
In the case of disabled children, this dilemma is exacer-
bated. Although all children are dependent and vulnerable,
disabled children are particularly so. Children with disabilities
have unique needs, their treatment frequently requires special-
ized knowledge, and their care often involves heightened
levels of compassion and patience that parents are particularly
suited, and motivated, to give. See Parham v. J. R., 442 U.S.
584, 618 (1979) (“For a ward of the state, there may well be
no adult who knows him thoroughly and who cares for him
deeply[,] [u]nlike with natural parents where there is a pre-
sumed natural affection to guide their action . . . .”). Further-
more, because children with disabilities still face considerable
discrimination, even in a country such as our own, they
require more protection than children who are not confronted
with such prejudices. Therefore, if we were to interpret the
law as requiring persecuted disabled children to apply for asy-
lum on their own as principal applicants, while barring their
parents from applying for asylum on their behalf or on the
basis of the persecution that the children have experienced or
fear, the consequences would be particularly disastrous. Dis-
abled children would be able to live either in a country free
from persecution or with a care-giving parent, but not both.
4576 TCHOUKHROVA v. GONZALES
This interpretation would result in affording relief to perse-
cuted disabled children in name only. Fortunately, our law is
not so cruel as to require that result.
[7] Our precedent supports the pragmatic approach applied
here by the agency. When confronting cases involving perse-
cution of multiple family members, we have not formalisti-
cally divided the claims between “principal” and “derivative”
applicants but instead, without discussion, have simply
viewed the family as a whole. See, e.g., Kaiser v. Ashcroft,
390 F.3d 653, 660 (9th Cir. 2004) (“Because Kaiser and his
family have a well-founded fear of persecution in Pakistan . . .
we grant the petition with respect to Petitioners’ asylum claim
and remand to the BIA.”); Maini v. INS, 212 F.3d 1167, 1177
(9th Cir. 2000) (“Accordingly, we hold that the Mainis are
‘statutorily eligible for asylum.’ ”); Singh v. INS, 94 F.3d
1353, 1360 (9th Cir. 1996) (“[W]e conclude that Singh and
his family are eligible for asylum based on the past persecu-
tion they suffered in Fiji.”); Prasad v. INS, 47 F.3d 336, 339
(9th Cir. 1995) (discussing the “family’s application”). Fol-
lowing that practice here, we hold that a parent of a disabled
child may file as a principal applicant in order to prevent the
child’s forced return to the family’s home country and may
establish her asylum claim on the basis of the persecution
inflicted on or feared by the child.
2. Extent Of Past Harm
[8] Although we have agreed with the agency’s adjudica-
tion of this case thus far, we conclude that it erred in finding
that the injurious conduct to which Evgueni and his parents
were subjected did not rise to the level of persecution. Sub-
stantial evidence does not support that finding. To the con-
trary, the record compels the conclusion that the harm
suffered by the Tchoukhrovas constituted persecution within
the meaning of 8 U.S.C. § 1101(a)(42).
Throughout Evgueni’s life, he has suffered greatly at the
hands of others. Below, we explain the four kinds of injurious
TCHOUKHROVA v. GONZALES 4577
conduct to which he has been subjected. Although most of
these harms could rise to the level of persecution indepen-
dently, there is no doubt that, when taken together, they con-
stitute persecution. Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th
Cir. 2004) (explaining how the court “look[s] at the totality of
the circumstances in deciding whether a finding of persecu-
tion is compelled”).
[9] The first form of injury inflicted on Evgueni occurred
in the hospital at the time of his birth. Although the breaking
of his neck was likely a result of gross negligence, the subse-
quent attempted disposal of the newborn child as medical
waste because he was “damaged” was unquestionably inten-
tional. The immigration judge failed to discuss this incident
when deciding that the treatment to which Evgueni was sub-
jected did not constitute persecution. Although there are no
precedents on point—most likely because few living individu-
als have been discarded along with aborted fetuses and
survived—we have no doubt that being treated as waste and
thrown into a pile of human remains, when done on account
of a protected ground, rises to the level of persecution.
[10] The second form of injury Evgueni suffered was his
involuntary confinement in an “internaty.” Aside from any
pain or suffering associated with the conditions of the con-
finement, children, like adults, have a right to be free. The
deprivation of freedom can constitute persecution and can
form the basis of eligibility for asylum or entitlement to with-
holding. See, e.g., 8 C.F.R. § 1208.13; 8 C.F.R. § 1208.16 (an
alien may be entitled to withholding of removal when his “life
or freedom” would be threatened on account of a protected
ground). It is true that “we have held that some circumstances
that cause petitioners physical discomfort or loss of liberty do
not qualify as persecution.” Mihalev, 388 F.3d at 729. Here,
however, Evgueni was confined against his parents’ will for
two months as a child. He was not a danger to society. Nor
was it necessary that the state provide care for him. (Indeed,
the state gave him virtually no care during his institutionaliza-
4578 TCHOUKHROVA v. GONZALES
tion.) Evgueni deserved to be free. See Parham, 442 U.S. at
600 (holding that disabled children have “a substantial liberty
interest in not being confined unnecessarily”).
[11] The fact of Evgueni’s unnecessary, involuntary, and
unjustified confinement might alone be sufficient to warrant
a finding of persecution. Given the horrifying conditions of
his confinement, however, any reasonable factfinder would be
compelled to conclude that in his case the confinement rose
to that level. At Evgueni’s “internaty,” the children were
wrapped in wet, soiled linens and abandoned in cold rooms to
spend their days alone without human contact, much less
affection. No one cleaned them and they were rarely and inad-
equately fed. They did not receive medical treatment, even
those who were in great pain from the injuries they suffered.
Their frequent screams elicited no response from the institu-
tion’s staff. Evgueni spent his first two months of life in these
shameful conditions and is lucky to have survived.
Under our precedent, involuntary detentions under harsh
conditions can constitute persecution. See Ndom v. Ashcroft,
384 F.3d 743, 752 (9th Cir. 2004) (holding that two deten-
tions, for a total of 25 days, in “dark, crowded cells without
formal charges,” “shackled in cuffs that prevented him from
straightening his legs,” and “forced to urinate in his clothes”
along with threats constituted persecution); Kalubi v. Ash-
croft, 364 F.3d 1134, 1136 (9th Cir. 2004) (noting that immi-
gration judge found that imprisonment in a “over-crowded jail
cell with harsh, unsanitary and life-threatening conditions”
established persecution). That Evgueni was subjected to such
harsh conditions at a tender age strengthens his claim. The
time he spent suffering, without any stimulus or love, were
two developmentally crucial months of his life. See Parham,
442 U.S at 627-28 (Brennan, J. concurring in part and dissent-
ing in part) (explaining how institutional confinement has
more severe consequences on children than adults and that
“childhood is a particularly vulnerable time of life and chil-
dren erroneously institutionalized during their formative years
TCHOUKHROVA v. GONZALES 4579
may bear the scars for the rest of their lives”). Furthermore,
the fact that Evgueni’s treatment was standard practice for the
Russian government and not directed at him personally does
not lessen the nature of the harm he experienced. In fact, “the
more serious and widespread the threat of persecution to the
group,” the easier it is for an applicant to prove a well-
founded fear of persecution. Mgoian v. INS, 184 F.3d 1029,
1035 n.4 (9th Cir. 1999). Finally, while we do not assume that
the Russian government had Evgueni’s best interests at heart
when it institutionalized him—indeed, the evidence supports
the opposite conclusion—the lack of malicious intent on the
part of the persecutor is irrelevant to this aspect of our
inquiry. See, e.g., Pitcherskaia v. INS, 118 F.3d 641, 648 (9th
Cir. 1997) (“The fact that a persecutor believes the harm he
is inflicting is ‘good for’ his victim does not make it any less
painful to the victim, or, indeed, remove the conduct from the
statutory definition of persecution. . . . Human rights laws
cannot be sidestepped by simply couching actions that torture
mentally or physically in benevolent terms such as ‘curing’ or
‘treating’ the victims.”); In re Kasinga, 21 I. & N. Dec. 357,
365 (BIA 1996) (holding that “ ‘punitive’ or ‘malignant’
intent is not required for harm to constitute persecution”).
Thus, Evgueni’s confinement under the conditions that
existed in his internaty constituted significant persecutory
conduct.
The third form of harm Evgueni suffered was continuing
discrimination by the Russian government following his
release from confinement. Because he was officially labeled
as disabled by the Russian government, Evgueni was denied
rights afforded to all other citizens. One right that was signifi-
cantly circumscribed was access to medical care. Specifically,
Evgueni was never given any treatment for his cerebral palsy
and had difficulty obtaining routine medical care afforded to
other Russians as a matter of course. He was also denied the
benefits of another right—the right to an elementary educa-
tion. While Evgueni is an intelligent and thriving young boy,
the disability label the government attached to him served to
4580 TCHOUKHROVA v. GONZALES
bar him from attending public schools. The immigration judge
excused the Russian government’s treatment of Evgueni
because Russia “does not have the resources to provide medi-
cal attention to individuals at the same standards as in devel-
oped nations.” He applied the same reasoning to the state’s
refusal to provide Evgueni with an elementary or other educa-
tion. However, that reasoning was erroneous.
It is true generally that a country’s failure to provide its cit-
izens with a particular level of medical care or education due
to economic constraints is not persecution. See Raffington v.
INS, 340 F.3d 720, 723 (8th Cir. 2003). However, claims of
financial difficulties cannot be used to justify the deprivation
of services essential to human survival and development, if
the deprivation is based on the recipient’s membership in a
statutorily protected group. The government’s refusal to pro-
vide medical care and an elementary education to “disabled
children” solely because they are members of the particular
social group the term describes cannot be excused on the basis
of the need to limit expenditures. If medical or education
resources are to be limited, the allocation of funds must be
based on other, less invidious, grounds. Although denying
medical care or education on the basis of race, ethnicity, reli-
gion, political opinion, or membership in a particular social
group is, at a minimum, discrimination, where the denial seri-
ously jeopardizes the health or welfare of the affected individ-
uals, a finding of persecution is warranted.
[12] Furthermore, Evgueni remains under constant threat
that he will be returned to an internaty by the Russian govern-
ment, as Russia confines both disabled children and adults in
“total institutions.” In these institutions, the inmates are
denied all their civil and political rights and kept in inhumane
circumstances. While Evgueni’s parents have been successful
so far in preventing the government from re-institutionalizing
him, if the government were to prevail in its efforts, Evgueni
would be subjected to a lifetime of suffering. The continuing
threat of that confinement, when considered along with the
TCHOUKHROVA v. GONZALES 4581
continuing denial of a public education and of medical care
for the condition that plagues Evgueni, provides strong sup-
port for the claim of persecution.
[13] The fourth form of harm from which Evgueni suffered
is violence on the part of individual citizens. When consider-
ing whether the adverse treatment to which Evgueni was sub-
jected rose to the level of persecution, the immigration judge
failed even to mention this factor, and completely ignored the
two assaults on Evgueni that caused him serious bodily injury.
In doing so, the immigration judge committed error. The two
incidents were serious indeed; in both instances Evgueni
required medical attention and as a result of one of them he
was hospitalized for a two month period. See, e.g., Chand v.
INS, 222 F.3d 1066, 1073-74 (9th Cir. 2000) (“Physical harm
has consistently been treated as persecution.”); Duarte de
Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir. 1999) (“[W]e
have consistently found persecution where, as here, the peti-
tioner was physically harmed . . . .”). The Tchoukhrovas
reported these and other incidents to the authorities, who
refused even to investigate them. As the Russian government
was “unwilling or unable” to control the conduct of those who
assault the disabled, the Tchoukhrovas are entitled to seek
asylum and withholding of removal on that basis. Malty v.
Ashcroft, 381 F.3d 942, 948 (9th Cir. 2004); see also Avetova-
Elisseva v. INS, 213 F.3d 1192, 1198 (9th Cir. 2000) (holding
that the fact that “financial considerations may account for”
Russia’s inability to prevent persecution “does not matter”).
[14] Taken as a whole, the harm to which Evgueni was sub-
jected unquestionably rose to the level of persecution.
Because this persecution is properly considered when adjudi-
cating his mother’s claim, we hold that Victoria has suffered
past persecution, and note that the same would be true which-
ever parent was the principal applicant.
3. Well-Founded Fear
[15] Because Victoria suffered past persecution, she is enti-
tled to a presumption of a well-founded fear of future persecu-
4582 TCHOUKHROVA v. GONZALES
tion. 8 C.F.R. § 1208.13(b)(1). Here the immigration judge
did not apply the presumption and therefore did not consider
whether the INS met its rebuttal burden. In such cases, we
often remand for the agency to resolve, in the first instance,
the question of a “fundamental change in circumstances” or
that there is the possibility of relocation—the two ways the
INS could demonstrate that the Tchoukhrovas no longer have
a well-founded fear—in the first instance. See Ventura, 537
U.S. at 14, 17-18; Lopez v. Ashcroft, 366 F.3d 799, 806-07
(9th Cir. 2004). However, when the INS makes no argument
before the immigration judge or the BIA concerning changed
conditions, we do not remand. See Ndom, 384 F.3d at 756;
Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.
2004). Here, the INS made no argument to the agency—or to
us—that there has been a fundamental change in circum-
stances or a possibility of relocation. Moreover, no evidence
regarding improvement in the conditions facing the disabled
in Russia appears in the record. To the contrary, the record
clearly shows that Russia continues to treat its disabled popu-
lation, and particularly its disabled children, cruelly and inhu-
manely. Under these circumstances, the presumption has not
been, and cannot be, rebutted. Thus, Victoria has established
a well founded fear of persecution. Accordingly, she is statu-
torily eligible for asylum, and we remand for the Attorney
General to exercise his discretion. If Victoria is granted asy-
lum, Dmitri and Evgueni may obtain relief through their
derivative applications.
[16] Because it is more likely than not that Evgueni would
face future persecution if he were returned to Russia, Victoria
is also entitled to withholding of removal, 8 C.F.R.
§ 1208.16(b)(1), as are Dmitri and Evgueni. The agency erred
in failing to grant this relief. See, e.g., Qu v. Gonzales, 399
F.3d 1195, 1203 (9th Cir. 2005); Agbuya v. INS, 241 F.3d
1224, 1231 (9th Cir. 2001) (as amended). Accordingly, we
also remand for the grant of withholding of removal.
GRANTED and REMANDED for further proceedings
consistent with this opinion.