Fedunyak v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VOLODYMIR FEDUNYAK, 
Petitioner, No. 04-71914
v.
 Agency No.
A78-757-706
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 16, 2006—Pasadena, California
Filed March 2, 2007
Before: John R. Gibson,* Raymond C. Fisher and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fisher
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
2405
FEDUNYAK v. GONZALES 2407
COUNSEL
Tatyana A. Edwards, San Diego, California, for the petitioner.
2408 FEDUNYAK v. GONZALES
Peter D. Keisler, Assistant Attorney General, Terri J. Scadron,
Assistant Director, Genevieve Holm, Attorney, and Surell
Brady (argued), Attorney, Civil Division, United States
Department of Justice, Washington, D.C., for the respondent.
OPINION
FISHER, Circuit Judge:
Volodymir Fedunyak, a Ukrainian national, petitions the
court for review of a Board of Immigration Appeals (BIA)
decision denying asylum and withholding of removal.
Although the Immigration Judge (IJ) found that Fedunyak had
suffered sufficient persecution to demonstrate that he would
likely be tortured if he was returned to the Ukraine and thus
was entitled to relief under the Convention Against Torture
(CAT),1 a majority of the BIA panel declined to find that
Fedunyak’s persecution was on account of his political opin-
ions. We have jurisdiction under 8 U.S.C. § 1252 and review
the BIA’s findings of fact for substantial evidence. See
Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 982 (9th Cir.
2006). Because the record compels finding that Fedunyak’s
protests against official corruption constituted political opin-
ion, we grant the petition for review and remand for further
proceedings.
I. Background
Fedunyak opened an automobile sales business in 1997 in
the Ukrainian city of Striy. The chief of Striy’s registration
department ordered Fedunyak to share his success and
demanded that Fedunyak pay $100 for every car sold.
Fedunyak made one payment but then began to register cars
through his friends to avoid making the payoffs. As punish-
1
The government did not appeal the Immigration Judge’s grant of relief
under the Convention Against Torture.
FEDUNYAK v. GONZALES 2409
ment, three unidentified gunmen beat Fedunyak until he lost
consciousness. Upon regaining consciousness, the assailants
demanded that Fedunyak pay $2,000 to the registration
department chief.
After forcing Fedunyak to sign a promissory note, the
assailants knocked him unconscious once again. Fedunyak
awoke in a hospital, where he was treated for a concussion,
a broken nose, a torn ear and bruises. While recuperating,
Fedunyak asked the police to investigate the attack. However,
once Fedunyak was released from the hospital, a police
inspector subpoenaed him and threatened to subject him to
additional beatings if he did not fulfill the registration depart-
ment chief’s $2,000 extortion demand. Fedunyak agreed to
pay the debt by delivering the money to two policemen who
warned Fedunyak that he would not survive if anybody found
out about the shakedown.
In early 1999, Fedunyak started a new business repairing
cars. He was soon visited by an inspector from the tax police
who demanded a fine of approximately $180-200 for improp-
erly filed documents. Although Fedunyak paid the money, the
tax inspector returned the next month and fined Fedunyak
again for filing improper receipts. Upset over the magnitude
of the fine, Fedunyak complained to the tax police chief who
responded by telling Fedunyak, “I see your business is suc-
cessful, you’re doing fine, you need to understand everyone
need to live good, you need to share, you need to pay me
$100 a month.”
Rather than accede to the tax chief’s extortion demand,
Fedunyak filed a complaint with the Mayor of Striy. The
mayor criticized Fedunyak for “slandering honest people” and
warned Fedunyak that if he came back with the complaint, the
police would “take care of” him.
After the mayor’s refusal to take action, Fedunyak filed a
complaint with the Governor of the Lviv region. Fedunyak
2410 FEDUNYAK v. GONZALES
testified that his complaint to the governor exposed the names
of those officials responsible for the extortion and urged the
governor to help because local authorities refused to protect
him. Soon thereafter, Fedunyak was summoned before the
Striy chief of police who had acquired a copy of the com-
plaint. The police chief issued a thinly veiled death threat and
threatened to throw Fedunyak into jail unless he withdrew the
complaint.
After his confrontation with the police chief, Fedunyak
filed yet another complaint, this time with a Supreme Soviet
Deputy.2 Although Fedunyak received no direct response
from the Supreme Soviet Deputy, he was soon approached by
the assailants who attacked him in 1998. The assailants
punched Fedunyak in the stomach and kidney, berated him for
complaining about the extortion demands and threatened him
with another beating if he failed to satisfy outstanding debts.
Fedunyak testified that after this run-in, he decided to
defect from the Ukraine because his complaints always ended
up in the hands of those he exposed. Since leaving the
Ukraine, Fedunyak has received three subpoenas to appear
before the local police.
II. Past Persecution
In a 2-1 decision, the BIA affirmed the IJ’s determination
that although Fedunyak credibly testified to suffering harm,
he failed to establish a nexus between that harm and one of
the protected grounds for asylum relief. This conclusion is not
supported by substantial evidence.
[1] Even if Fedunyak’s complaints and letters did not “con-
comitantly espouse political theory,” Grava v. INS, 205 F.3d
2For purposes of argument before us, the government accepted that a
Supreme Soviet Deputy would be the equivalent of a congressman or sen-
ator in America’s political system.
FEDUNYAK v. GONZALES 2411
1177, 1181 (9th Cir. 2000), the BIA erred in concluding that
Fedunyak’s whistleblowing did not constitute an expression
of political opinion. The act of whistleblowing “against cor-
rupt government officials . . . may constitute political activity
sufficient to form the basis of persecution on account of polit-
ical opinion.” Id. Fedunyak’s whistleblowing was political
because — in criticizing the local regime’s failure to stop the
extortion scheme — his acts were “directed toward a govern-
ing institution” and not “only against individuals whose cor-
ruption was aberrational.” Id.; see also Hasan v. Ashcroft, 380
F.3d 1114, 1120 (9th Cir. 2004) (holding that whistleblowing
was political where alien published article criticizing not just
politician’s corruption but also the indifference exhibited by
local law enforcement).
[2] The United States Department of State’s country report
for 1999 confirms that corrupt Ukrainian officials have been
linked frequently to a system of extortion carried out with the
help of members of organized crime. By registering com-
plaints of government corruption with various government
officials, Fedunyak threatened to expose this extortion
scheme.
[3] The BIA also erred in concluding that Fedunyak was
not persecuted on account of political opinion. “Retaliation
for investigating or publicizing corruption by political figures
is by its very nature a political act.” Sagaydak v. Gonzales,
405 F.3d 1035, 1042 (9th Cir. 2005). The Mayor of Striy
threatened Fedunyak that the police would “take care of” him
if he continued to expose the acts of local government offi-
cials. The Striy police chief issued a thinly veiled death threat
conditioned on Fedunyak’s withdrawal of his complaint to the
Governor of Lviv. Finally, Fedunyak was attacked by thugs
who reprimanded him for complaining about the extortion
schemes. The death threats and beating that Fedunyak
received as a result of his complaints establish the requisite
nexus between his political opposition to government corrup-
tion and the retaliatory persecution that he suffered. To qual-
2412 FEDUNYAK v. GONZALES
ify as a whistleblower, Fedunyak was not required to expose
governmental corruption to the public at large. It was suffi-
cient that Fedunyak demonstrated that he suffered retaliation
for acting against governmental corruption. See Njuguna v.
Ashcroft, 374 F.3d 765, 770-71 (9th Cir. 2004) (citing Grava,
205 F.3d at 1181) (holding that petitioner was eligible for asy-
lum where he acted against corruption by rescuing two maids
from the Saudi royal family even though he did not expose
corruption to the public). Fedunyak has thereby demonstrated
that he was persecuted on account of a political opinion. See
Grava, 205 F.3d at 1181 (holding that official retaliation
against those who expose governmental corruption constitutes
persecution on account of political opinion when the alleged
corruption is intertwined with the operation of government).
The government argues that the extortion suffered by
Fedunyak was motivated by “personal” rather than “political”
interests. As we noted in Grava, “[p]urely personal retribution
is . . . not persecution on account of political opinion.” Id. at
1181 n.3. However, many persecutors have mixed motives
and “[i]n such instances, personal retaliation against a vocal
political opponent does not render the opposition any less
political, or the opponent any less deserving of asylum.” Id.;
see also Borja v. INS, 175 F.3d 732, 734 (9th Cir. 1999) (en
banc) (holding that “the plain meaning of the phrase ‘persecu-
tion on account of the victim’s political opinion,’ does not
mean persecution solely on account of the victim’s political
opinion”) (quoting Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.
1994)) (emphasis in original).
[4] While some of the persecution suffered by Fedunyak
may have been motivated by the personal greed of local offi-
cials, Fedunyak’s testimony that he was harassed, threatened
and assaulted for raising complaints about the extortion
scheme adequately establishes that the persecution was — at
least in part — a response to his political opinion expressed
through his whistleblowing.
FEDUNYAK v. GONZALES 2413
III. Well-Founded Fear of Future Persecution
[5] A showing of past persecution gives rise to a presump-
tion of a well-founded fear of future persecution. See 8 C.F.R.
§ 1208.13(b)(1); Guo v. Ashcroft, 361 F.3d 1194, 1204 (9th
Cir. 2004). Typically, this court is required to remand to the
BIA under INS v. Ventura, 537 U.S. 12 (2002) (per curiam),
to give the government an opportunity to rebut the presump-
tion with evidence of changed country conditions. See Guo,
361 F.3d at 1204.
[6] A Ventura remand in this case is inappropriate because
even if Fedunyak were precluded from relying on the pre-
sumption of persecution, we would still be compelled to hold
that he has established a well-founded fear of future persecu-
tion. See Nuru v. Gonzales, 404 F.3d 1207, 1228-29 (9th Cir.
2005) (holding that alien “easily met” the burden of establish-
ing a well-founded fear of persecution by demonstrating a
high probability of torture on account of political opinion if
returned to native country). The IJ concluded that Fedunyak
qualifies for relief under the Convention Against Torture
because it is more likely than not that he would be tortured if
returned to the Ukraine, and the government has not chal-
lenged that finding. That risk of torture derives in part from
his political resistance to the government’s extortion schemes,
as detailed above. Having shown that it is more likely than not
that he will be subjected to torture on account of political
opinion, Fedunyak has “easily met the lesser burden of estab-
lishing a well-founded fear of persecution.” Id. at 1229.
IV. Withholding of Removal
[7] To establish eligibility for withholding of removal, an
applicant must meet a more stringent standard of proof than
is required for asylum. See Navas v. INS, 217 F.3d 646, 655
(9th Cir. 2000). A petitioner must establish a “clear probabili-
ty” that he would be persecuted were he to be deported to his
home country. See Korablina v. INS, 158 F.3d 1038, 1045
2414 FEDUNYAK v. GONZALES
(9th Cir. 1998). To demonstrate a clear probability of persecu-
tion, a petitioner must prove that it is “more likely than not”
that he will be persecuted on account of a statutorily protected
ground. Id. at 1046 (citation omitted). By demonstrating past
persecution, Fedunyak is entitled to a presumption of eligibil-
ity for withholding of removal. See 8 C.F.R. § 1208.16(b)
(1)(i); Navas, 217 F.3d at 657.
[8] For the same reasons as stated above, remand of
Fedunyak’s withholding of removal claim is unnecessary.
Because Fedunyak has established it is more likely than not
he will be tortured on return to the Ukraine on account of
political opinion, he has demonstrated the existence of a clear
probability of future persecution. See Nuru, 404 F.3d at 1229.
Accordingly, Fedunyak is entitled to withholding of removal.
See 8 U.S.C. § 1231(b)(3).
V. Conclusion
[9] We conclude that Fedunyak suffered past persecution
because of his political opinion and that he has shown a genu-
ine and well-founded fear of future persecution should he
return to the Ukraine. Under these circumstances, Fedunyak
is eligible for asylum. We also conclude that Fedunyak is
entitled to withholding of removal. We remand this case to
the BIA for the Attorney General to exercise his discretion
under 8 U.S.C. § 1158(b) as to whether to grant asylum, and
for an appropriate order withholding removal of Fedunyak.
See Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th Cir.
2004).
The petition for review is GRANTED; REMANDED for
further proceedings.