## Facts

- Alla Konstantinova Pitcherskaia, a Russian national, entered the United States in 1992 on a temporary visitor visa and overstayed.
- She sought asylum and withholding of deportation, alleging persecution and fear of future persecution based on:
  - Political opinion supporting lesbian and gay civil rights, and
  - Membership in a particular social group, identified as Russian lesbians.
- An asylum office found her credible and found past persecution but denied asylum for lack of a well-founded fear of future persecution; she was placed in deportation proceedings.
- In deportation proceedings, an Immigration Judge found her credible but denied relief for failure to establish a well-founded fear of future persecution.
- She testified to repeated targeting by authorities because of her sexual orientation and activism, including arrests, detention, and beatings, and threats aimed at stopping her associations and extracting information about other gay and lesbian individuals.
- She further testified that officials threatened and employed involuntary psychiatric confinement and coercive “treatment,” including electroshock and drugging, intended to change her sexual orientation.
- The Board of Immigration Appeals (BIA) affirmed, reasoning that even if electroshock, institutionalization, and drugging could be severe, they were undertaken with a claimed intent to “treat or cure” homosexuality rather than to punish, and therefore did not constitute persecution.

## Issues

1. Whether “persecution” under INA § 101(a)(42)(A) requires proof that the persecutor subjectively intended to harm or punish, as opposed to acting for a purportedly therapeutic purpose.
2. Whether coercive psychiatric confinement and “curative” treatment directed at an applicant’s sexual orientation or related activism may constitute persecution when inflicted on account of a protected ground.

## Decision

- The Ninth Circuit granted the petition for review and remanded to the BIA.
- The court held that the INA does not require an applicant to prove a persecutor’s subjective intent to harm or punish for conduct to qualify as persecution.
- The court rejected the BIA’s “malignant intent” requirement and directed reconsideration under an objective persecution standard focused on the nature and severity of harm and the statutory nexus requirement.

## Legal Principles

- “Persecution” is assessed primarily by the objective character and severity of the harm inflicted; asserted benevolent, therapeutic, or culturally approved motives do not negate persecution.
- The statute’s required mental element concerns nexus: the applicant must show the harm was inflicted “on account of” a protected ground (e.g., political opinion or membership in a particular social group), not that the persecutor desired suffering for its own sake.
- Coercive practices imposed to change or suppress protected characteristics—such as forced psychiatric institutionalization, electroshock, or drug “treatment” directed at sexual orientation—can constitute persecution if sufficiently severe and tied to a protected ground.
- Prior references to “punishment” in asylum jurisprudence describe one common form of persecution but do not create a necessary element that persecution must be punitive in intent.

## Conclusion

The Ninth Circuit held that persecution under the INA does not depend on proving a persecutor’s punitive intent; severe coercive “treatment” may still be persecution when inflicted on account of a protected ground, requiring the BIA to reassess the claim under an objective harm-and-nexus standard on remand.


Pitcherskaia v. Immigr. & Naturalization Serv., 118 F.3d 641 (9th Cir. 1997)