## Facts

- Tatiana Pavlova, a Russian citizen and Baptist, was placed in removal proceedings after entering the United States.
- She applied for asylum, withholding of removal under the INA, and CAT protection.
- Pavlova testified that members of Russian National Unity (RNU), a nationalist group, targeted her and other Baptists because of their religion.
- She described repeated beatings beginning in 1994 while proselytizing, an attack in 1995 after a prayer meeting, and escalating violence against Baptists engaged in printing and distributing religious literature.
- Pavlova reported incidents to authorities and submitted documentary evidence suggesting Russian authorities failed to restrain RNU violence and may have tolerated or assisted RNU members in avoiding prosecution.
- The Immigration Judge (IJ) denied relief, finding Pavlova not credible and stating that, even if credible, the mistreatment by non-governmental actors lacked sufficient government involvement to constitute persecution.
- The BIA summarily affirmed, and Pavlova petitioned for review.

## Issues

1. Whether the IJ’s adverse credibility determination was supported by substantial evidence.
2. Whether the IJ applied the correct legal standard for the required state nexus when persecution is inflicted by private actors.
3. Whether the BIA’s affirmance could stand where the IJ’s credibility and legal-standard analyses were materially flawed.

## Decision

- The Second Circuit granted the petition for review, vacated the BIA’s decision, and remanded.
- The court held the IJ’s adverse credibility determination was not supported by substantial evidence because it rested on serious errors, including mischaracterizations of the record and reliance on minor discrepancies.
- The court held the IJ misstated the law by effectively requiring direct government participation, rather than applying the rule that persecution may be shown where the government is unwilling or unable to control private persecutors.
- The court declined to decide eligibility for asylum, withholding, or CAT relief in the first instance and directed the agency to reconsider under the correct standards.

## Legal Principles

- An adverse credibility finding in immigration proceedings must rest on specific, record-based reasons and be supported by substantial evidence.
- Persecution under the INA can be established based on harm by non-state actors when the government is unwilling or unable to control them; direct state sponsorship or participation is not required.
- Documentary and other corroborating evidence is relevant to both credibility and the state-nexus inquiry and must be fairly assessed.
- When an IJ applies an incorrect legal standard or relies on materially flawed reasoning, vacatur and remand are appropriate for agency reconsideration.

## Conclusion

The Second Circuit set aside the agency’s denial of relief because the IJ’s credibility determination was inadequately supported and the IJ applied an erroneously strict state-action requirement, requiring remand for reconsideration of Pavlova’s claims under the proper “unwilling or unable to control” standard for private-actor persecution.


Pavlova v. Immigr. & Naturalization Serv., 441 F.3d 82 (2d Cir. 2006)