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Khudaverdyan v. Holder

United States Court of Appeals, Ninth Circuit

February 27, 2015

HAYK KHUDAVERDYAN; NADEZHDA KHUDAVERDYAN, Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Submitted, Pasadena, California: October 10, 2014 [*].

Page 1102

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A099-901-673, A099-901-674.

SUMMARY[**]

Immigration

The panel granted, in part, a petition for review of the Board of Immigration Appeals' denial of asylum and withholding of removal, holding that the Board erred by failing to consider whether the lead petitioner had established the requisite nexus to a protected ground based on his imputed whistleblowing, and denied the petition, in part, holding that substantial evidence supported the denial of petitioner's claims based on actual political opinion, as well as the denial of petitioner's claims under the Convention Against Torture.

The lead petitioner asserted that the Armenian military police detained, beat, and threatened him after he was seen talking to a reporter following a personal confrontation with the city's military police chief. The panel held that substantial evidence supported the Board's conclusion that petitioner was not an actual whistleblower, but the Board's analysis was incomplete, because it failed to address whether he was harmed on account of an imputed political opinion, or his imputed whistleblowing. The panel explained that an applicant may demonstrate persecution on account of imputed political opinion if he or she shows that the persecutor thought that the applicant was attempting to expose corruption in a governing institution and mistreated the applicant as a result, even if the applicant in fact had no such intention.

The panel held that substantial evidence supported the denial of CAT protection, and it remanded the asylum and withholding claims for further proceedings.

Concurring, Judge Owens wrote separately to emphasize that the United States Department of Justice's position in this and other immigration cases clashes with its own campaign against foreign corruption.

Dissenting, Judge Kleinfeld wrote that the Board did consider petitioner's claims based on imputed political opinion or imputed whistleblowing, and that the evidence does not compel the conclusion that petitioner was persecuted on that or any other protected basis.

Yeznik O. Kazandjian, Glendale, California, for Petitioners.

Yanal H. Yousef, Trial Attorney, Ernesto H. Molina, Jr., Assistant Director, Office of Immigration Litigation, and Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Elizabeth A. Lopez, San Diego, California, for Amicus Curiae Casa Cornelia Law Center.

Before: Andrew J. Kleinfeld, Susan P. Graber, and John B. Owens, Circuit Judges. Opinion by Judge Graber; Concurrence by Judge Owens; Dissent by Judge Kleinfeld.

OPINION

Page 1103

Susan P. Graber, Circuit Judge:

Petitioners Hayk and Nadezhda Khudaverdyan seek asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (" CAT" ), Dec. 10, 1984, 1465 U.N.T.S. 85. The Armenian military police detained, beat, and threatened Petitioner[1] after he was seen talking to a reporter following a personal confrontation with the city's military police chief. The Board of Immigration Appeals (" BIA" ) held that, because Petitioner failed to prove that he intended to expose corruption when he talked to the reporter, he did not demonstrate that he was persecuted because of his actual political opinion. The BIA further held that Petitioner failed

Page 1104

to show that his mistreatment at the hands of the military police rose to the level of torture within the meaning of the CAT. Although we find no error in those rulings, the BIA failed to address evidence in the record that Petitioner was persecuted on account of an imputed political opinion, that is, because military police officials thought that he was talking to the reporter in an attempt to expose government corruption. That failure is an error of law. Accordingly, we grant the petition for review in part, as to the asylum and withholding claims, and remand to the BIA for further proceedings consistent with this opinion.[2]

FACTUAL AND PROCEDURAL HISTORY

Petitioners are citizens of Armenia who seek asylum, withholding of removal, and protection under the CAT. The immigration judge (" IJ" ) expressly found Petitioner credible, and the BIA did not disagree, so we accept his testimony as true. Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).

Petitioner's problems began with a confrontation with the Armenian military police chief in Petitioner's home city. While dining with friends at the hotel where Petitioner worked as a manager, the police chief complained about the food and the service. When Petitioner defended himself and his staff, the police chief's bodyguards took Petitioner outside and beat him.

About a week later, a reporter approached Petitioner and asked about the incident involving the police chief. Petitioner testified that the reporter worked for a print publication called " A Plus One." A United States Department of State Country Conditions report, included in the record, identified " A1 Plus" as an " opposition" news outlet in Armenia. The IJ found that, although it was not certain that the two were the same news agency, it is " unlikely" that there would be two Armenian opposition news agencies with such similar names.

Petitioner told the reporter that he could not talk about the incident at that time and arranged to meet her the next day. At that second meeting, the reporter told Petitioner that she was preparing an article about the leading officials in the Armenian government--an important topic, she said, because of upcoming elections. She tried to convince Petitioner to give her information about his altercation with the police chief. She argued that, if stories like his did not come to light, the country would remain in a " ...


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