Denationalization and Economic Hardship as a Form of Persecution

This week the blog takes a look at the law of asylum.  The Immigration and Nationality Act grants refugee status or the permanent right of abode and access to the labor market to foreign nationals that have a well founded fear of persecution on the basis of race, religion, nationality, political opinion or membership in a social group. 

On May 20, 2011 the US Court of Appeal for the Sixth Circuit in Cincinnati, Ohio released its opinion in Stserba v. Holder.  In its decision, the court reversed and remanded the Stserba family’s asylum applications to the Board of Immigration Appeals (BIA).  On remand, the Court asked the BIA to address the whether denationalization and loss of professional credentials on account of ethnicity constitutes persecution that may serve as the basis for a grant of asylum.

In 1940, the Soviet Army occupied Estonia to defend it from the advancing German Army.  At the end of World War II, the Soviet Union annexed Estonia.  In 1991, Estonia regained its independence from the Soviet Union.   Free of their Soviet overlords, the Estonian government passed a series of measures aimed at the ethnic Russian living in Estonia.  These measures included a statute that denationalized all ethnic Russians that has no ancestors residing in Estonia in 1940.  Additionally, in 1998, Estonia withdrew from the Estonian-Russian agreement regarding educational degrees.  Russian diplomas are not valid in Estonia.

In 2003, Lilia Stserba, a citizen of Estonia and ethnic Russian, and Igor Pabo, a Russian citizen entered the United States as visitors.  They settled in Cincinnati, Ohio and filed for asylum.  In their asylum application Lilia Stserba complained that as an ethnic Russian living in Estonia, she was persecuted by Estonia’s denationalization statute and was effectively stateless.  Additionally, Lilia Stserba was trained as a pediatrician in Leningrad.  She complained that Estonia’s unilateral withdrawal from the agreement recognizing Russian educational degrees deprived her of the ability to practice her chosen profession.  Additionally Both Dr. Stserba and Mr. Pabo complained of substandard and the withholding of medical care from the government run medical system and of receiving racial epitaphs and minor physical assaults at the hands the local populace in Estonia as a result of their Russian ethnicity.

The USCIS’ Asylum Office and Immigration Court denied the Stserba family’s asylum application.  At their deportation hearing, the Immigration Judge (IJ) found that the invalidation of Dr. Stserba’s medical credentials was not persecution because Dr. Stserba found work after the invalidation of her credentials.  Dr. Stserba found employment as a baby sitter and as a pediatrician at a Russian school willing to overlook the fact that her credentials were invalid.  Additionally, the IJ held that the invalidation of Dr. Stserba’s medical credentials was not based on her ethnicity.  All Russian educational credentials were invalidated in Estonia.  Additionally, the IJ held that Dr. Stserba had suffered no harm from the loss of her Estonian citizenship because she was able to regain it several years later.  Finally, the IJ disposed of Mr. Pabo’s claim stating that the harm he suffered at the hands of the Estonian populace was not sufficiently severe to warrant a grant of asylum.  The IJ ordered Dr. Stserba deported to Estonia and Mr. Palo deported to Russia.  The Stserba family appealed to the BIA and then to the Circuit Court of Appeal.

The Sixth Circuit reversed and remanded the Stserba family’s asylum claim to the BIA holding that neither the IJ nor the BIA had adequately discussed the issue of forced denationalization as persecution.  The court held that people have a fundamental right to citizenship, and that forced denationalization that results in statelessness can constitute persecution.  Although the mere creation of statelessness or the change of citizenship as a result of a governmental or border change does not give rise to a claim of asylum in the United States, a person who is made stateless on account of membership in a protected group has demonstrated persecution. 

The Court was equally unimpressed with the IJ’s and BIA’s handling of Dr. Stserba’s claim of loss of livelihood.  The court held that a government’s limitation of opportunities for an individual to continue to work in their chosen profession may constitute persecution even though an individual may continue to work in a field other than that of their choosing.  Even though the IJ correctly noted that the invalidation of Russian diplomas is not limited to ethnic Russians, the IJ ignored the desperate impact of this policy.  The only residents of Estonia that poses the Russian language skill and desire to attend a Russian university would be ethnic Russians.

Finally the Court notes that Mr. Pabo’s mistreatment in Estonia by itself probably does not rise to the level of harm necessary to constitute persecution.  However the Court reverses and remands Mr. Pabo’s asylum application to the BIA with instructions to consider Mr. Pabo’s claim in the aggregate with Dr. Stserba’s claims.  A collection of harmful events that when considered individually do not rise to the level of persecution may be considered persecution when considered together.


Copyright 2011 Richard M. Green, All Rights Reserved