Pitcherskaia v. Immigration and Naturalization Service

In March 1992, Alla Pitcherskaia (defendant) entered the United States from Russia on a visitor visa. In June 1992, Pitcherskaia applied for asylum. The Immigration and Naturalization Service (INS) (plaintiff) conducted an interview and found Pitcherskaia failed to establish a well-founded fear of future persecution. The INS placed Pitcherskaia in deportation proceedings for overstaying her visa. At the deportation hearing, Pitcherskaia renewed her application for asylum, citing her fear of persecution based on her political opinions and her involvement in certain social groups. Pitcherskaia testified she had been under the surveillance of Soviet authorities her entire life due to her father’s political opinions. Pitcherskaia further testified that she was interrogated, beaten, and imprisoned for participating in lesbian organizations in Russia. In 1986, Pitcherskaia’s ex-girlfriend was forcibly sent to a psychiatric institution, and Pitcherskaia testified that the authorities subsequently forced her to attend therapy. Pitcherskaia testified that Soviet authorities continued to order her to return to the clinic for additional treatment while she was in the United States. Pitcherskaia testified she feared the authorities would forcibly institutionalize her if she returned to Russia. The immigration judge (IJ) denied Pitcherskaia’s application for asylum. Pitcherskaia appealed to the Board of Immigration Appeals (BIA), which affirmed the IJ in a divided opinion. The majority found that, under Section 101(a)(42) of the Immigration and Nationality Act (INA), Pitcherskaia had not been persecuted because her involuntary psychiatric treatment had sought to cure her, not persecute her. Pitcherskaia appealed to the Ninth Circuit, arguing the BIA relied on an erroneous, subjective definition of persecution.