Sergey Viadimirovich Garder v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2972
SERGEY VIADIMIROVICH GARDER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97-478-667
(U.S. Immigration Judge: Honorable David W. Crosland)
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 5, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.
(Filed: August 13, 2009)
OPINION OF THE COURT
PER CURIAM.
Petitioner Sergey Viadimirovich Garder, a native and citizen of Russia, petitions
for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision
of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of

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removal, and protection under the United Nations Convention Against Torture (“CAT”).
For the following reasons, we will grant Garder’s petition for review.
I.
Garder entered the United States on a non-immigrant visa in 2002. He filed an
application for asylum, withholding of removal, and CAT relief, asserting that he had
been persecuted because of his Baptist faith. His application stated that he and members
of his religious community were repeatedly attacked by Cossacks and Russian neo-Nazis
for proselytizing.
At his removal proceedings, Garder testified that he was attacked at least nine
times from 1996 through 2002 due to his religion by Cossacks and the Russian National
Unity (“RNU”). He did not claim to know much about the groups and their relationship
with the government but described the Cossacks as a “free organization” that consider
themselves a “volunteer guard.” (A.R. 91.) He also stated that they behaved like the
police and “guarded order.” (A.R. 100.) He described the RNU as nationalists. (A.R.
96.)
Garder testified that he was injured during many of the attacks and that he sought
medical attention after three of the Cossack attacks and one of the RNU attacks. He
stated that after a 1996 incident in a park in which he suffered a wrist injury, bruises, and
bloody knees, he was turned away from a medical center because they did not have gauze
or bandages. In March 1999, Garder attended a youth meeting at the home of a religious

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community member, Brother Georgy. Cossacks entered the house, accused the Baptists
of brainwashing young people, dragged them to the street and whipped them. Garder’s
leg was injured, and he and others were taken by ambulance to the hospital, where he was
treated on an outpatient basis for several days. In December 2001, Garder was stabbed by
someone to whom he was proselytizing and was given a bandage at a trauma center.
Finally, in February 2002, he stated that he was treated by a chiropractor—who was a
member of his religious community—after he was slammed to the ground by the RNU
and suffered three dislocated vertebrae. Garder did not, however, submit any medical
documentation in his removal proceedings. Nor did Garder seek medical attention after
any of the other attacks, including those in which he: (1) was struck in the cheek with a
whip (1998), (2) fainted after a Cossack hit him in the head (2000), and (3) was beaten
with whips and sticks (2001). He explained that he did not seek medical help because
there were no treatment centers nearby, it was easier to go home, or because other people
helped him.
Garder also largely avoided reporting the attacks to the police. He stated that after
the 1996 attack, he told the police who were patrolling the park what had happened, but
that they just told him to go home. (A.R. 94.) Brother Georgy’s parents reported to the
police the incident which sent Garder to the hospital, but Garder does not believe that the
police followed up on the complaint. (A.R. 100-01.) Additionally, when a Baptist priest
was attacked by Cossacks, several people (including Garder) signed a police report.

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(A.R. 103-04.) Garder stated that there was “no result” to this police complaint, either.
(A.R. 104.) He testified that he did not report the other incidents to the police for various
reasons, including the time of day that the attack occurred, the particular town where the
attacks occurred, and the unavailability of a telephone. Additionally, he stated the police
would not help because they treated Baptists poorly, and because he often could not
identify his attackers. He did not submit any of the police reports as
evidence—explaining that he did not obtain them because he did not think he would need
them.
In the summer of 2001, after he had already been attacked several times, Garder
traveled to the United States and worked in Ocean City, Maryland. He did not apply for
asylum at that time because he was unaware that he could do so and because he hoped the
situation in Russia would improve. So, he returned to Russia at the end of the summer.
After he returned to Russia, he was attacked at least two more times and left his
university. He testified that his family finally convinced him that he needed to leave
Russia, and that he thus came back to the United States in 2002. Although Garder settled
in southern New Jersey, he joined the Maryland church that he had attended the previous
summer. Garder submitted a letter from the church’s preacher stating that he had been a
member since fall 2003 (although the letter was dated March 2003). Garder testified that
he attends church as often as possible but that he does not participate in evangelical
activities in the United States.

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Igor Kotler testified as an expert regarding the Cossacks and RNU and the
treatment of Baptists in Russia. He stated that the Cossacks are an “ethnographic group
of the Russian people” who are “very nationalistic, very, very pro-government, and pro-
church people.” (A.R. 168, 170.) When asked if there was any connection between the
Cossacks and the Russian government, Kotler stated that the Cossacks are “considered to
be close allies of the government,” and that there are several areas—including the
Stavapol region where Garder is from—where “they are allowed to patrol areas even
without police to maintain order and they are allowed . . . to carry their weapon and they
experience full support of the government.” (A.R. 170.) When asked what “patrol”
meant, he answered: “to maintain order . . . stop and catching rebels.” (A.R. 171.)
On October 23, 2006, the IJ denied Garder all requested relief except for voluntary
departure. He made an adverse credibility determination, and found that Garder did not
meet the standard for asylum, withholding of removal, or CAT relief. The BIA affirmed
the IJ’s denial of relief without opinion on June 5, 2008.
Through counsel, Garder now petitions for review of the BIA’s final order of
removal.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §
1252(a)(1). Where, as here, the BIA affirms the IJ’s decision without opinion, we review
the IJ’s decision directly as the final agency determination. Dia v. Ashcroft, 353 F.3d

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228, 245 (3d Cir. 2003). We review an IJ’s factual findings under the “substantial
evidence” standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009). Under
this standard, “a factual determination will be upheld if it is supported by ‘reasonable,
substantial, and probative evidence on the record considered as a whole.’” Id. (internal
citation omitted). Alternatively, “where the agency’s determination is based on an
inaccurate perception of the record, omitting potentially significant facts, we may remand
for reconsideration or rehearing, . . . or, if circumstances warrant it, a new hearing.”
Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004) (internal citations omitted).
Our review of the agency’s legal conclusions is de novo, and we apply the principles of
deference set forth in Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). Lin-Zheng, 557 F.3d at 155.
The IJ determined that Garder did not suffer past persecution because he did not
“show that he was previously persecuted at the hands of the government or persons the
government is unwilling or unable to control.” This decision was based largely on the
IJ’s finding that Garder and Kotler described the Cossacks and RNU as “free
organization(s) having no connection to the government.” However, while Garder stated
that he did not believe the Cossacks were affiliated with the government, he also asserted
that they behaved like the police and “guarded order.” Additionally, Kotler testified that
the Cossacks are “considered to be close allies of the government” and that there are
several areas—including the Stavapol region where Garder is from—where “they are

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allowed to patrol [] even without police to maintain order and they are allowed . . . to
carry their weapon and they experience full support of the government.” (A.R. 170.)
The IJ thus mischaracterized the testimony by finding that Garder “failed to present any
testimony . . by his own testimony [or] his expert witness” that the government was
“unable or unwilling to control the Cossacks or RNU nationalists who allegedly
persecuted Respondents.”
The IJ also determined that Garder’s claim failed in part because, when asked to
do so by the court, he did not provide specific information regarding his assertion that his
family continued to be persecuted, and that affidavits submitted by his mother did not
corroborate this claim. (A.R. 35.) See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001) (An applicant is expected to “corroborate facts which are central to his claim and
easily subject to verification.” (internal citations omitted)). This conclusion is incorrect in
both respects. First, when reviewing the transcript we found neither testimony by Garder
claiming that his family continues to be persecuted nor questioning by the IJ about attacks
on his family. Second, one of Garder’s mother’s affidavits states that their family has
“suffered from the Cossacks” several times since Garder left Russia. (A.R. 193-94.)
Thus, if Garder is claiming that his family is being persecuted in Russia, he has
introduced evidence supporting that assertion, and if he never testified to such continued
persecution, he need not supply corroboration.

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We note that the IJ found Garder to be not credible. The IJ stated, without giving1
any examples, that Garder’s testimony was riddled with inconsistencies, and he appeared
to base the credibility determination in large part on Garder’s failure to provide medical
records documenting his injuries. Thus, to the extent IJ failed to “follow the BIA’s
avowed policy of considering separately the issues of credibility and failure to provide
corroboration,” the adverse credibility analysis is also unsound. See Chukwu v. Att’y
Gen., 484 F.3d 185, 191 (3d Cir. 2007).
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There may be valid reasons for denying Garder’s application for relief.
Nevertheless, the IJ’s mischaracterization of at least two salient issues undermine his
decision and we are unable to adequately consider whether substantial evidence supports
the denial Garder’s application for asylum, withholding of removal, and CAT relief. See1
Tian-Yong Chen, 359 F.3d at 127-28 (remanding BIA opinion due to its “fundamental
error” of ignoring a significant aspect of the petitioner’s testimony). Because it is unclear
whether the IJ would have reached the same result had he not misconstrued the testimony
and evidence, we will remand the case to the BIA with instructions for it to remand to the
IJ to reevaluate the petitioner’s claim.
For the foregoing reasons, we conclude that the IJ did not adequately consider
Garder’s application for asylum, withholding of removal, and CAT relief. Because of its
errors, we cannot accept its determination that Garder failed to establish past persecution
or a fear of future persecution. Accordingly, we will grant Garder’s petition for review,
vacate the BIA’s decision, and remand the case for further proceedings.

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