Alla Konstantinova Pitcherskaia v. Immigration and Naturalization Service, United States Court of Appeals for the Ninth Circuit (24 June 1997)
Alla K. Pitcherskaia petitioned the United States Court of Appeals for the Ninth Circuit for review of the Board of Immigration Appeals’ decision denying her application for asylum and withholding of deportation.
Among other things, the applicant claimed persecution on the basis of her political opinions in support of gay and lesbian civil rights in Russia and on account of her membership in a particular social group: Russian lesbians. She feared involuntary institutionalization, forced electroshocks and drug treatment because of her lesbian status.
In order to prove persecution, does the applicant need to demonstrate that the persecutor had a subjective intent to harm or punish? Or, in other words, is a malignant intent on the part of the persecutor a necessary prerequisite to establish persecution?
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 197; Section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) and sections 208(a) and 243(h) of the INA , 8 U.S.C. § § 1158(a) and 1243(h)
In re Fauziya Kasinga, Int. Dec. 3278 at 12 (BIA June 13, 1996) (en banc) (designated as precedent by the BIA)
Rodriguez-Roman v. INS, 98 F.3d 416, 430 (9th Cir. 1996)
1967 Protocol Relating to the Status of Refugees
Reasoning of the Court
The majority of the Board of Immigration Appeals (BIA) had held that while electroshock treatment, forced institutionalization and drug treatments could constitute persecution, no intent to punish or harm could be attributed to the Russian authorities since they “intended to treat or cure [a] supposed illness”. As a result, the majority of the BIA had denied the applicant’s asylum claim because of the BIA’s understanding of persecution as requiring a malignant intent on the part of the persecutor.
Referring to In re Fauziya Kasinga, where, notwithstanding the persecutors’ ‘benevolent’ intent, a Togolese woman — who had fled her country after being threatened with forced genital mutilation — had been granted asylum, the Court points out that although a subjective ‘punitive’ or ‘malignant’ intent on the persecutor’s part to punish or to cause harm or suffering to the victim existed in most asylum applications, none of it was required for the infliction of harm or suffering to constitute persecution. The motive or intent of the alleged persecutor is relevant only insofar as the applicant had to prove that the persecution was ‘on account of’ a Convention ground, e.g. political opinion or membership in a social group.
Further, the Court holds that the Board erroneously relied on Canas-Segovia as requiring an intent to punish. While unreasonably severe punishment can constitute persecution, “punishment” is neither a mandatory or sufficient aspect of persecution. Punishment implies that the perpetrator believes the victim has committed a crime or some wrong whereas persecution simply requires that the perpetrator cause the victim suffering or harm. The Court rejects Acosta and Mogharrabi to the extent that these require the applicant to prove a subjective intent to punish on the persecutor’s part.
Lastly, the Court examines the legislative intent. Congress passed the Refugee Act to conform the INA to the 1967 Protocol Relating to the Status of Refugees. Accordingly, the UNHCR’s Handbook has been considered, e.g. in Rodriguez-Roman, to be authoritative on the subject. Its definition of persecution does not include a subjective intent on the part of the persecutor to punish or harm.
The Court grants the petition for review and reverses the BIA’s order denying asylum and withholding of deportation. The case was remanded to the BIA for reconsideration.
Pitcherskaia v INS – 9th circuit court of appeals – United States – 24 June 1997 (full text of judgment, PDF)