Kristina Movsesyan v. Atty Gen USA ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 09-1108
__________
KRISTINA MOVSESYAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency File No. A099-560-004)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2010
Before: McKEE, Chief Judge, RENDELL and GARTH, Circuit Judges
(Opinion Filed: August 24, 2010)
OPINION
McKEE, Chief Judge.
Kristina Movsesyan petitions for review of an order of the Board of Immigration
Appeals affirming the Immigration Judge’s denial of her application for asylum,
withholding of removal, and relief under the Convention Against Torture. For the
reasons set forth below, we will deny the petition in part and grant the petition in part, and
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remand for further proceedings.
I.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
Because the BIA issued its own opinion that did not expressly adopt or defer to a finding
of the IJ, we review only the decision of the BIA. See Kayembe v. Ashcroft, 334 F.3d
231, 234 (3d Cir. 2003).
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not set forth the underlying facts or procedural history. Although the IJ denied
Movsesyan’s claim based on a finding that she was not credible, the BIA did not rule on
the IJ’s adverse credibility determination. Rather, the BIA held that “[e]ven assuming
arguendo that the respondent testified credibly, she has still failed to sustain her burden of
proof for asylum.” J.A. 28. Since there is no BIA ruling on credibility to review, “we
must proceed as if [Movsesyan’s] testimony were credible and determine whether the
BIA’s decision is supported by substantial evidence in the face of [her] assumed (but not
determined) credibility.” Kayembe, 334 F.3d. at 235.
We review the BIA’s findings of fact under the substantial evidence standard.
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “We will uphold the findings of the
BIA to the extent that they are supported by reasonable, substantial and probative
evidence . . . , and will reverse those findings only if there is evidence so compelling that
no reasonable factfinder could conclude as the BIA did.” Kayembe, 334 F.3d at 234.
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II.
The Immigration and Nationality Act gives the Attorney General or the Secretary
of Homeland Security the authority to grant asylum to any alien who is a “refugee” under
8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). To receive “refugee” status, an
asylum applicant must establish “persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). An asylum applicant may obtain asylum by
proving past persecution on account of a statutorily enumerated ground or a well-founded
fear of future persecution on account of a statutorily enumerated ground. Espinosa-
Cortez v. Attorney Gen. of the U.S., 607 F.3d 101, 107 (3d Cir. 2010).
A.
If an asylum applicant establishes that she suffered past persecution, then a
rebuttable presumption exists that the applicant has a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b)(1); see, e.g., Espinosa-Cortez, 607 F.3d at 107. “[T]he
term ‘persecution’ . . . include[s] ‘threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.’” Kibinda v.
Attorney Gen. of the U.S., 477 F.3d 113, 119 (3d Cir. 2007) (quoting Fatin v. Immigration
and Naturalization Servs., 12 F.3d 1233, 1240 (3d Cir. 1993)). “Persecution refers to
extreme conduct.” Fatin, 12 F.3d at 1240 n.10. To qualify for asylum based on past
persecution, an applicant must show: “(1) an incident, or incidents, that rise to the level of
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persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is
committed by the government or forces the government is either unable or unwilling to
control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (internal quotation
marks omitted).
Movsesyan claims she suffered past persecution based on political opinion. She
was threatened and followed on numerous occasions. On one such occasion she was
attacked and suffered two fractured ribs. She was not able to identify any of the
perpetrators.
In its opinion, the BIA stated: “Although the respondent testified that she received
threatening telephone calls, was occasionally followed, and was attacked on account of
her political opinion, we find that she failed to establish that these incidents, whether
considered individually or cumulatively, rise to the level of past persecution.” J.A. 28.
That conclusion is supported by substantial evidence. Although the treatment Movsesyan
described is certainly suggestive of an oppressive atmosphere and an oppressive regime,
her testimony about things that actually happened to her does not rise to the level of
“extreme conduct” required to prevail on a claim of past persecution. See Fatin, 12 F.3d
at 1240 n.10. Accordingly, we must deny Movsesyan’s asylum petition to the extent that
it is based on past persecution for political opinion.
B.
However, Movsesyan also claims that she has a well-founded fear of future
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persecution. To establish a well-founded fear of persecution, an applicant must
demonstrate both a subjective fear of persecution and an objectively reasonable fear of
persecution. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). “The subjective
prong requires showing that the fear is genuine. Determination of an objectively
reasonable possibility requires ascertaining whether a reasonable person in the alien’s
circumstances would fear persecution if returned to the country in question.” Id. (citation
omitted).
As noted, Movsesyan alleges that the persecution she fears results from her
political opinion and the imputed political opinion of her father.1 We have held that an
asylum applicant may establish a well-founded fear of future persecution based on a claim
of imputed political opinion. See, e.g., Kayembe, 334 F.3d at 234. “At the root of the
concept of persecution on account of imputed political opinion is the fact that persecution
may be on account of a political opinion the applicant actually holds or on account of one
the [persecutor] has imputed to him.” Espinosa-Cortez, 607 F.3d at 112 n.8 (internal
quotation marks omitted).
1
The government argues that we lack jurisdiction to consider the imputed political
opinion claim because it was not raised on appeal to the BIA. Although Movsesyan did
not raise the issue that her asylum claim should have been considered on the basis of
imputed political opinion before the BIA, the BIA considered it sua sponte. In its
opinion, the BIA considered that Movsesyan “was attacked (‘used as a weapon’) against
her father, a prominent journalist.” J.A. 28. Additionally, it found that the assassination
attempt on her father was “too attenuated to establish a present basis for a well-founded
fear of persecution.” J.A. 29.
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The BIA held that Movsesyan “failed to present sufficiently detailed testimonial or
documentary evidence to establish that a reasonable person in her circumstances would
fear persecution upon her return to Armenia.” J.A. 28-29. The BIA reached that
conclusion because: (1) Movsesyan left Armenia over three years ago; (2) she no longer
works with journalists; (3) her family still lives in Armenia; and (4) she has not received
any threats since 2005. J.A. 29. The BIA also stated, “Although the respondent’s father
was recently the victim of an assassination attempt, we find this too attenuated to
establish a present basis for a well-founded fear of persecution.” Id.Although Movsesyan left Armenia more than three years ago and is currently a
psychologist, her father remains in Armenia, he is still an active media figure, and he
continues to oppose the government. We see nothing on this record to suggest that
Movsesyan’s absence from Armenia or her career change would somehow mitigate the
chances of her father’s political opinion being imputed to her if she were to return to
Armenia, or that she no longer has reason to fear reprisals. We realize, of course, that
“when family members remain in petitioner’s native country without meeting harm, . . .
the reasonableness of a petitioner’s well-founded fear of future persecution is
diminished.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). However, any conclusion
that Movsesyan’s family has not suffered harm is simply not supported by the record.
Indeed, as we have just noted, her father was reportedly the target of an assassination
attempt and he was threatened by the Minister of Communication and Transport, only
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weeks before Movsesyan’s removal hearing.
We disagree that such evidence is somehow insufficient to establish that an
objectively reasonable person in Movsesyan’s circumstances would fear persecution upon
being returned home. This record contains both testimony and exhibits that would
support a finding that A1 Plus and Mesrop Movsesyan were critical of the government.
Movsesyan’s father expressed his anti-government political opinion on numerous
occasions, including in a published interview. When Movsesyan was attacked, the
assailant told her that he was “going to rape [her], and tomorrow he’s going to tell [her]
father what a good time he had.” A.R. 178. There is no realistic way to interpret the
reference to her father other than that the assailant was threatening an attack on
Movsesyan to punish her father for his opposition to the government. Moreover, the
record contains testimony that when Movsesyan told the Chairman of the National
Commission on Television and Radio that she was Mesrop Movsesyan’s daughter, he
threatened her and had her removed from the building. There is also testimony that
Mesrop Movsesyan received several threats directed at his daughter.
In addition, there is evidence that Movsesyan was not only the daughter of the
owner of A1 Plus, she was also an employee of that media outlet. That would mean that it
is even more likely that she would be targeted because of real or imputed political
opinions. She was reportedly in Parliament with A1 Plus during a terrorist attack, which
the government did not want A1 Plus to broadcast. She also told a government official
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that he lacked a conscience for denying A1 Plus a television frequency.
In addition, this record contains more than Movsesyan’s personal experiences and
her testimony about threats and violence directed toward her and her father. The abuse of
journalists in Armenia is well documented by the United States Department of State in
their Country Reports and by several international organizations. Accordingly, the
record does not support a conclusion that, assuming her credibility, Movsesyan has not
established eligibility for asylum based on a well founded fear of future persecution.
IV.
Movsesyan also seeks relief in the form of withholding of removal. To qualify for
withholding of removal, an “alien must first establish by a clear probability that his/her
life or freedom would be threatened in the country of removal. Clear probability means
that it is more likely than not that an alien would be subject to persecution.” Zubeda, 333
F.3d at 469 (citation and internal quotation marks omitted). The clear probability
standard is a higher burden of proof than the standard of proof required to establish a
well-founded fear of persecution required for asylum. Id.Here, the BIA denied Movsesyan’s claim for withholding of removal because it
found that she could not satisfy the lesser burden of proof required for asylum. Because
we are granting Movsesyan’s petition on her asylum claim based upon a well-founded
fear of future persecution, we will also grant her petition on her claim for withholding of
removal based on future persecution and that claim can now be considered on remand.
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V.
Lastly, Movsesyan seeks relief pursuant to the Convention Against Torture
(“CAT”).2 “An applicant for relief on the merits under the Convention Against Torture
bears the burden of establishing ‘that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d
166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
The BIA held that Movsesyan’s CAT claim failed because there was insufficient
evidence that she would be tortured by the government or with its acquiescence upon her
return to Armenia. Although Movsesyan’s petition refers to the CAT, she does not
develop any argument to support her claim for relief under the CAT, and we discern
nothing in the record that would support a claim for relief under the CAT. Therefore, we
will deny Movsesyan’s petition as to the CAT claim.
VI.
For the foregoing reasons, we will deny the petition as to Movsesyan’s claim for
asylum on the basis of past persecution and her claim for relief under the CAT. However,
we will grant the petition as to Movsesyan’s claim for asylum on the basis of a well-
2
Unlike “judicially-crafted doctrines, statutory exhaustion requirements deprive
us of jurisdiction over a given case.” Lin, 543 F.3d at 120. Because exhaustion is a
statutory requirement for review of a final order of removal, see id., we note that
Movsesyan did not raise her CAT claim in her appeal to the BIA. However, Movsesyan
has exhausted her CAT claim because the BIA considered it sua sponte. See id. at 124
n.7 (“[T]he BIA’s consideration of an issue is sufficient to provide us with jurisdiction
over that issue.”).
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founded fear of future persecution and her claim for withholding of removal. The BIA’s
order is vacated to the extent it denies relief based upon future persecution, and we will
remand to the BIA for further proceedings consistent with this opinion.
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GARTH, Circuit Judge, dissenting:
The majority, in holding that we should grant Movsesyan’s petition, has held that
Movsesyan has not suffered past persecution. It has done so despite the BIA’s determination
as reflected in the record, which reveals that (1) Movsesyan left Armenia over three years
ago, (2) she no longer works with journalists, (3) her family still lives in Armenia, and (4)
she has not received any threats since 2005.
I agree that Movsesyan has not been the victim of past persecution, and in light of that
unanimous determination by our panel and the conclusions of the BIA, I cannot agree that
Movsesyan meets the criteria for fear of future persecution.1 That being so, I respectfully
dissent.
1
1
To establish that a fear of future persecution is “well-founded,” an asylum applicant must
show both that her “fear is genuine” and that “a reasonable person in [her] circumstances would
fear persecution if returned to the country in question.” Espinosa-Cortez v. Att’y Gen., 607 F.3d
101, 108 (3d Cir. 2010) (citations and internal quotation marks omitted).