Hayk Khudaverdyan v. Eric Holder, Jr. ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAYK KHUDAVERDYAN; NADEZHDA No. 10-73346
KHUDAVERDYAN,
Petitioners, Agency Nos.
A099-901-673
v. A099-901-674
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2014*
Pasadena, California
Filed February 27, 2015
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
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 KHUDAVERDYAN V. HOLDER
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KHUDAVERDYAN V. HOLDER 3
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.
COUNSEL
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.
4 KHUDAVERDYAN V. HOLDER
OPINION
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 Petitioner1 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 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,
1
Because Petitioners’ claims rest wholly on Hayk Khudaverdyan’s
treatment at the hands of Armenian governmental officials, the singular
“Petitioner” refers to him.
KHUDAVERDYAN V. HOLDER 5
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.
2
We express no view on the merits of Petitioners’ claims, which the
BIA must address in the first instance. See INS v. Orlando Ventura,
537 U.S. 12, 16–18 (2002) (per curiam) (holding that a court of appeals
should remand, rather than review the record and decide an issue on the
merits, when the BIA has not yet considered that issue).
6 KHUDAVERDYAN V. HOLDER
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 “bad situation with its
people.” Petitioner told the reporter that he was too
frightened to help her, and he left the meeting.
Immediately after the second meeting with the reporter,
two men forced Petitioner into a black car. Petitioner was
detained overnight in a dark room at the military police
station. The next morning he was interrogated, beaten, and
accused of espionage. He was then taken to meet with the
chief of the military police’s investigative department. The
investigative chief told Petitioner that he could expect “life
imprisonment” for spying. He also threatened Petitioner by
noting that Petitioner’s son was approaching military age and
could be drafted and deployed to a dangerous conflict zone.
The investigative chief told Petitioner that he was in trouble
because he was “trying to dishonor the military police, and
things like [that] cannot be allowed”; the police would “deal
with the reporter separately.” Petitioner was released the next
day, after his wife and cousin paid a $3,000 bribe and
promised that Petitioner would leave Armenia.
The IJ held that Petitioner was ineligible for asylum and
withholding of removal because he had failed to establish that
KHUDAVERDYAN V. HOLDER 7
he was persecuted on account of political opinion. The IJ
concluded that Petitioner’s conversation with the reporter did
not amount to whistleblowing because Petitioner
was telling about one incident with one police
chief, not about the whole police force. It was
not an act of corruption within the police
department. . . .
. . . [Petitioner] was not complaining about
any bribes, he was not complaining about any
money that the police chief took, he was not
complaining that the police chief tried to not
pay for his service, he was simply stating to
the reporter that the police chief had him
beaten up because he did not like what
appeared to be an insult to him.
....
. . . I do not find that what [Petitioner] was
stating would show corruption. And in order
to be whistle blowing you have to show
corruption.
The IJ also concluded that the harm that Petitioner suffered
did not rise to the level of torture.
On appeal, the BIA held that Petitioner was ineligible for
asylum or withholding of removal because he had not
demonstrated a nexus between his actual political opinion and
the harm that he experienced. In so holding, the BIA wrote
that, “[t]o the extent that [Petitioner] sought to publicize his
mistreatment, he has not demonstrated that his actions were
8 KHUDAVERDYAN V. HOLDER
meant to expose corruption in a governing institution, in this
case the military police.” The BIA contrasted the facts in
Petitioner’s case to the facts in Baghdasaryan v. Holder,
592 F.3d 1018 (9th Cir. 2010):
Unlike the [petitioner] in Baghdasaryan, [id.]
at 1024, who engaged in a persistent and very
public campaign against a widespread
protection racket, the actions of [Petitioner] in
this case were limited to answering a
reporter’s questions about an aberrational
abuse of power committed by a single law
enforcement official.
The BIA adopted the portion of the IJ’s opinion finding that
the initial altercation and subsequent retaliation were “purely
personal” and not examples of corruption. Because it found
that Petitioner had failed to establish a nexus between
persecution and “his imputed political opinion,” the BIA held
that Petitioner was ineligible for asylum or withholding of
removal without reaching the question whether the harm that
Petitioner suffered constituted persecution. Finally, the BIA
held that Petitioner was ineligible for CAT relief because he
had not been tortured.
Petitioners timely petition for review.
STANDARD OF REVIEW
Our review is “limited to the BIA’s decision, except to the
extent that the IJ’s opinion is expressly adopted.” Popova v.
INS, 273 F.3d 1251, 1257 (9th Cir. 2001) (internal quotation
marks omitted). We review de novo the BIA’s legal
determinations and for substantial evidence the BIA’s factual
KHUDAVERDYAN V. HOLDER 9
determinations. Id. We will remand if the BIA rested its
conclusion on “erroneous legal premises.” Grava v. INS,
205 F.3d 1177, 1182 (9th Cir. 2000). We also will remand if
the BIA did not reach an essential issue. Orlando Ventura,
537 U.S. at 17–18.
DISCUSSION
To establish eligibility for asylum, a petitioner must prove
that he or she is “unable or unwilling” to return to his or her
country of origin because of “persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a political social group, or political opinion.”
8 U.S.C. §§ 1158(b)(1)(B)(i), 1101(a)(42)(A). A petitioner
must show that there is a “nexus between [the] mistreatment
and a protected ground.” Baghdasaryan, 592 F.3d at 1023.
If the protected ground is political opinion, the petitioner
must demonstrate that he or she (1) “had either an affirmative
or imputed political opinion,” and (2) was “targeted on
account of that opinion.” Sagaydak v. Gonzales, 405 F.3d
1035, 1042 (9th Cir. 2005). Under the provisions of the
REAL ID Act, which apply here, the protected characteristic
must be “at least one central reason” for the persecution.
8 U.S.C. § 1158(b)(1)(B)(i).
The facts in this case require us to connect two long-
established lines of precedent concerning political opinion as
a protected ground. In the first line of cases, we have
repeatedly recognized that official retaliation against a
whistleblower may amount to persecution on account of
political opinion. See Baghdasaryan, 592 F.3d at 1024
(listing whistleblowing cases). In determining whether the
whistleblowing constitutes protected political opinion, the
“salient question” is whether the individual’s actions are
10 KHUDAVERDYAN V. HOLDER
“directed toward a governing institution, or only against
individuals whose corruption was aberrational.” Grava,
205 F.3d at 1181.
In the second line of cases, we have made clear that “an
applicant may establish a political opinion for purposes of
asylum relief by showing an imputed political opinion.”
Kumar v. Gonzales, 444 F.3d 1043, 1053–54 (9th Cir. 2006)
(internal quotation marks omitted) (listing imputed political
opinion cases ). To demonstrate that persecution is on
account of an imputed political opinion, a petitioner need not
prove that he or she actually held a political opinion or acted
in furtherance of it, but must provide “some evidence,”
“direct or circumstantial,” that the persecutor was motivated
by a belief that the petitioner held the political opinion. INS
v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis
omitted).
We now apply those two lines of cases to hold that one
form of imputed political opinion is perceived
whistleblowing. That is, an applicant for asylum or
withholding of removal may demonstrate persecution on
account of a protected ground 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.
Substantial evidence supports the BIA’s conclusion that
Petitioner was not an actual whistleblower. But the BIA’s
analysis was incomplete, because it failed to address whether
Petitioner was harmed on account of an imputed political
opinion. The BIA should have considered whether Petitioner
had shown that the military police believed that he was a
KHUDAVERDYAN V. HOLDER 11
whistleblower and mistreated him as a result of that belief.
More specifically, the question is whether the military police
believed that Petitioner’s conversation with the reporter was
“directed toward a governing institution,” as distinct from
being directed only toward the police chief’s “aberrational”
conduct. Grava, 205 F.3d at 1181.
In Singh v. Holder, 764 F.3d 1153 (9th Cir. 2014), we
addressed what type of evidence can demonstrate that a
persecutor imputed a political opinion to an applicant.
Testimony regarding a persecutor’s statements about motive
is direct evidence that the applicant’s political opinion
motivated the persecution. Id. at 1159. In Singh, the “direct
evidence” consisted of the petitioner’s credible testimony that
the police called him a “‘traitor’” and accused him of
“‘working against the government.’” Id. A petitioner’s
“association with, or relationship to, people who are known
to hold a particular political opinion” may serve as indirect
evidence of imputed political opinion. Id. (internal quotation
marks omitted). In Singh, the “indirect evidence” was that
the police had interrogated the petitioner about his domestic
servant, a man whom the police characterized as a “terrorist.”
Id. at 1157, 1159. We held that the direct and indirect
evidence, taken together, “compel[led] the conclusion” that
the petitioner was subjected to abuse because of “imputed
political opinion.” Id. at 1162.
Here, Petitioner provided direct evidence of a nexus to
imputed political opinion when he testified credibly that the
chief of the investigative department accused him of trying to
“dishonor the military police” and accused him of espionage.
Petitioner provided indirect evidence of a nexus when he
introduced evidence that (1) he was picked up immediately
after his meeting with the reporter; (2) the reporter was
12 KHUDAVERDYAN V. HOLDER
seeking to publish a pre-election article about corruption of
leading governmental officials and encouraged him to talk to
her because, if stories like his did not come to light, the
country would “stay in a . . . bad situation with its people”;
(3) the chief of the investigative department told him that
they would “deal with the reporter separately”; and (4) the
reporter worked for an “opposition” newspaper.3
The question thus presented is whether that direct and
indirect evidence is sufficient proof that (1) the military
police believed Petitioner to be a whistleblower who was
attempting to expose corruption and, if so, (2) their belief
motivated them to detain, beat, and threaten Petitioner. Even
though the BIA couched a portion of its holding in terms of
imputed political opinion, a close look at the BIA’s decision
reveals that it did not address that key question at all.
First, the BIA’s word choice shows that the BIA focused
on Petitioner’s intent rather than on the police officers’
perceptions: “To the extent that [Petitioner] sought to
publicize his mistreatment, he has not demonstrated that his
actions were meant to expose corruption in a governing
institution, in this case the military police.” (emphases
added). The BIA then cited Baghdasaryan to contrast the
campaign to fight government extortion in that case with
Petitioner’s single substantive conversation with a reporter.
Again, the BIA focused on Petitioner’s intent, noting that the
3
Even though we express no view on the ultimate merits of the imputed
political opinion issue, we summarize the evidence of a nexus between the
harm suffered and an imputed political opinion because the BIA’s error
would be harmless if nothing in the record could support a finding of a
nexus. See Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d 420, 427 (3d Cir.
2011) (surveying federal appellate decisions that applied the harmless-
error standard in reviewing BIA decisions).
KHUDAVERDYAN V. HOLDER 13
campaign in Baghdasaryan was “persistent and very public.”
That reasoning and that citation provide ample support for the
BIA’s determination that Petitioner was not an actual
whistleblower, but they tell us nothing about whether the
military police thought that Petitioner was a whistleblower.
Second, the BIA adopted the IJ’s finding that the
retaliation against Petitioner was “purely personal, as it was
motivated by the official’s desire to avoid the consequences
of his violent reaction to [Petitioner’s] perceived insult.” But
in reaching that conclusion, neither the BIA nor the IJ, in the
parts of the opinion adopted by the BIA, addressed any of the
direct or circumstantial evidence that the military police were
attempting to silence Petitioner because they thought that he
intended to expose government corruption.4
Moreover, the reasons that the IJ provided to support the
conclusion that the retaliation was “purely personal”
contravene our precedents. First, the IJ concluded that there
was no corruption to expose because the initial confrontation
at the hotel did not involve bribery or extortion. But the
concept of government corruption is broader than that, and
4
According to the dissent, in remanding for the BIA to consider the
police chief’s perception of Petitioner’s conversations with the reporter,
we reject Petitioner’s own testimony that the conflict was purely personal.
Dissent at 19. But the dissent takes Petitioner’s testimony that his
abduction was caused by his disrespectful response to the police chief, and
“[n]othing else,” out of context. There is no dispute that Petitioner’s
problems began with his response to the police chief’s demands at the
restaurant, so in that sense “nothing else” caused him to be beaten, jailed,
and threatened. But Petitioner explained that the initial incident led to his
conversations with the reporter, which in turn led the military police to
detain, beat, and threaten him; according to Petitioner, much more was at
play than simply the initial altercation.
14 KHUDAVERDYAN V. HOLDER
efforts to expose something that begins as a personal dispute
can be interpreted as political dissent. See Yan Xia Zhu v.
Mukasey, 537 F.3d 1034, 1043–45 (9th Cir. 2008).5 The IJ
next concluded that a news story about Petitioner’s
confrontation with the police chief would put only the police
chief, rather than the entire military police system, in a bad
light. But the fact that the information that Petitioner could
have given to the reporter concerned conduct of a single
individual does not necessarily mean that it would not serve
to expose more general corruption. See Hasan v. Ashcroft,
380 F.3d 1114, 1120 (9th Cir. 2004) (holding that the
petitioner’s article criticizing a single governmental official
was “directed toward a governing institution” because of its
5
The dissenting opinion’s crabbed view of what constitutes
“corruption,” dissent at 22, is inconsistent with Yan Xia Zhu, in which the
petitioner wrote a letter to government officials asking that they
investigate her allegation that she had been raped by her factory manager.
In the letter, the petitioner “also complained that ‘the government officers
even let this kind of a person to be an officer’” and alleged that the official
was able to obtain and keep his position of authority because of family
connections. Yan Xia Zhu, 537 F.3d at 1037. We held that the petitioner’s
“condemn[ation of] the appointment and protection—on the basis of
family political connections—of people like the manager who raped her”
constituted a revelation of corruption. Id. at 1044.
“Corruption” broadly refers to an abuse of public trust. Regalado-
Escobar v. Holder, 717 F.3d 724, 729–30 (9th Cir. 2013). In common
parlance, as well as in precedent, “corruption” means a lack of integrity
and a use of a position of trust for dishonest gain, which need not be
financial. One form of “gain” is the maintenance of a position of
authority. Yan Xia Zhu, 537 F.3d at 1037. We remand for the BIA to
consider whether the evidence shows that the police chief, in an effort to
keep his government job, used his position of power to silence a possible
report about his abuse of that power. We do not, as the dissent claims,
seek to extend asylum protections to “anyone anywhere who suffers abuse
by an arrogant bully with a government job.” Dissent at 22.
KHUDAVERDYAN V. HOLDER 15
references to the “systemic nature” of that official’s
corruption).
It is not entirely clear whether the BIA incorrectly applied
the test for imputed political opinion or simply neglected to
consider the question of imputed opinion at all. Either way,
the BIA committed legal error. Accordingly, we grant in part
the petition for review and remand to the BIA for further
consideration of Petitioners’ asylum and withholding of
removal claims. We express no view on (a) whether one
central reason for the harm that Petitioner suffered was that
the military police thought that he was engaged in
whistleblowing intended to expose government corruption or
(b) whether Petitioner has demonstrated harm rising to the
level of past persecution or has shown a well-founded fear of
future persecution.6
6
The dissenting opinion faults us for remanding to the BIA to consider
an additional valid theory as to which the evidence could support relief.
Dissent at 21. But as we have explained, the BIA either misunderstood or
did not consider the imputed whistleblower theory. When the BIA fails
to “‘state with sufficient particularity and clarity the reasons for’” its
decision, it does not “‘provide an adequate basis for this court to conduct
its review.’” Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)
(quoting Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991)). Moreover,
the BIA’s use of the phrase “imputed political opinion” does not change
our analysis, because “[b]oilerplate opinions” that “are devoid of
statements that evidence an individualized review” of the issue “must be
remanded to the Board for clarification of the bases for its opinion.”
Castillo, 951 F.2d at 1121. We are not free to guess at what the BIA
would have said about imputed whistleblowing. By clarifying the
applicable legal standard for imputed whistleblowing and remanding that
issue to the BIA, we do not find fault with any of the BIA’s factual
findings and do not express a view on the ultimate outcome of the
remanded claim.
16 KHUDAVERDYAN V. HOLDER
Petition DENIED in part,7 GRANTED in part, and
REMANDED. Costs on appeal awarded to Petitioners.
OWENS, Circuit Judge, concurring:
I concur in Judge Graber’s thoughtful opinion. I write
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.
The Justice Department does not limit corruption to
“bribery.” Rather, it correctly defines corruption as the
“abuse of entrusted power for personal gain.” Shortly after
the Arab Spring, former Assistant Attorney General Lanny
Breuer recounted the tragic story of Mohammed Bouazizi,
who lit himself on fire in Tunisia after suffering the abuse of
a corrupt local official.
Bouazizi faced corruption at the most personal
level. His fruit stand and electronic scale
were arbitrarily taken from him by a
municipal inspector, who also humiliated him
7
Substantial evidence supports the BIA’s conclusion that Petitioner did
not show that it is more likely than not that he will be tortured if he is
removed to Armenia. The BIA permissibly ruled that the harm that
Petitioner suffered does not rise to the level of treatment that we have
previously recognized as torture. See Ahmed v. Keisler, 504 F.3d 1183,
1201 (9th Cir. 2007).
KHUDAVERDYAN V. HOLDER 17
with a slap across the face, and authorities
refused to give him back his property.1
Bouazizi’s tale is unfortunately a global one, shared by
Khudaverdyan and many others. A guard who demands
sexual favors from a prisoner is corrupt.2 So is a police
officer who brutalizes a local community.3 And so is a police
1
Lanny A. Breuer, Assistant Att’y Gen., Address at the 26th National
Conference on the Foreign Corrupt Practices Act (Nov. 8, 2011)
(transcript available at http://www.justice.gov/criminal/pr/speeches/
2011/crm-speech- 111108.html).
2
See, e.g., Office of the Inspector Gen., U.S. Dep’t of Justice, The
Department of Justice’s Efforts to Prevent Sexual Abuse of Federal
Inmates 3 (2009) (describing the investigation of “a ring of correctional
officers [who] provided contraband to prisoners in return for sexual
favors” and “intimidated prisoners to keep them from cooperating with
investigators once the corruption was discovered”), available at
http://www.justice.gov/oig/reports/plus/e0904.pdf; Press Release, U.S.
Dep’t of Justice, Attorney General Honors Medal of Valor Recipients
(Oct. 22, 2008) (honoring agent for investigating “corrupt prison guards
in a federal prison facility” who, among other things, “sexually abus[ed]
female inmates”), available at http://ojp.gov/newsroom/pressreleases/
2008/oaag09004 .htm.
3
See, e.g., Press Release, U.S. Dep’t of Justice, Civilian Pleads Guilty
to Conspiring with Corrupt Police Officers in July 2012 Robbery in
Bayamon, Puerto Rico (Nov. 7, 2014) (announcing guilty plea of civilian
who joined with “corrupt police officers” to rob a house of money and
cocaine while “falsely claim[ing] they were executing a search warrant”),
available at http://www.justice.gov/opa/pr/ civilian-pleads-guilty-conspiring-
corrupt-police-officers-july-2012-robbery- bayamon-puerto; Press
Release, U.S. Dep’t of Justice, Five New Orleans Police Officers
Sentenced on Civil Rights and Obstruction of Justice Violations in the
Danziger Bridge Shooting Case (Apr. 4, 2012) (announcing sentencing of
“corrupt police officers” who “shot innocent people” in the aftermath of
18 KHUDAVERDYAN V. HOLDER
chief who, to impress his “ladies and friends,” uses his
bodyguards to beat up a restaurant manager who refuses to
kowtow to his demands. None of these violations feature
bribes, but all involve the abuse of entrusted power for
personal gain, which can be as petty as trying to look like a
big shot in front of friends and members of the opposite sex.
As Judge Graber’s opinion ably demonstrates, this court has
acknowledged that this abuse, not the exchange of money, is
the essence of corruption. And I read our immigration laws
as protecting (rather than deporting) those who protest (or are
perceived as protesting) corrupt government officials. It is
unclear why the Justice Department champions the fight
against foreign corruption while it simultaneously tries to
deport those perceived as fighting foreign corruption. As
Cinna the Poet learned in Julius Caesar, it matters more that
the State thinks one is an enemy than being an enemy of the
State. William Shakespeare, Julius Caesar act 3, sc. 3.
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent.
Khudaverdyan supervised the waiters at a restaurant
frequented by government officials, foreign visitors and
business people. One night at the restaurant, Khudaverdyan
responded to a complaint by the police chief that “the food
doesn’t taste good” and was “served late.” Rather than
apologizing and giving the deferential response that the police
Hurricane Katrina “and then went to great lengths to cover up their own
crimes”), available at http://www.justice.gov/opa/pr/five-new-orleans-
police-officers-sentenced-civil- rights-and-obstruction-justice-violations.
KHUDAVERDYAN V. HOLDER 19
chief may have expected, Khudaverdyan said that “our food
is good . . . [it] requires a long time [to prepare] and . . . we
have other guests.” Khudaverdyan says that his response
“humiliated” the police chief because he was with “ladies and
friends.” Khudaverdyan’s own testimony is that because of
his response, the chief’s two bodyguards took him outside
and beat him up. A week after the restaurant beating, a
reporter approached Khudaverdyan for information about the
incident. He agreed to meet with her, but ultimately decided
not to tell her anything. Later that day, he was picked up by
the police, held overnight, and accused of espionage the
following morning. He was beaten and threatened with life
in prison and with the conscription of his son into the military
for “dishonoring the military police.” The next morning he
was released when his wife and cousin gave the police a
$3,000 bribe.
Thus, Khudaverdyan’s account of the facts supports the
inference that his mistreatment was not attributed to an
imputed political opinion. Substantial evidence on the record
supports the BIA’s decision crediting Khudaverdyan’s
opinion about why he was abused. Khudaverdyan testified
that his mistreatment at the hands of the police was due to
disrespect, not politics. “Q: [] [Y]ou believe that you had
been abducted all because of insulting the chief of police? A:
Yes. Nothing else.” Khudaverdyan’s own testimony
supports the BIA’s decision, not the majority’s, because
“nothing else” brought about his travails but “insulting” the
police chief.
The BIA agreed with the IJ that Khudaverdyan “did not
establish that his past harm and feared future harm were on
20 KHUDAVERDYAN V. HOLDER
account of an imputed political opinion.”1 The BIA expressly
noted that “official retaliation against those who expose
governmental corruption may amount to persecution on
account of political opinion,” but found that Khudaverdyan
did not demonstrate that his actions were so intended or
understood. The BIA found that the abuse Khudaverdyan
suffered was personal, flowing from the police chief’s
“violent reaction to the respondent’s perceived insult.”2
I am baffled as to why the majority thinks that the BIA
doesn’t understand the doctrine of imputed political opinion
and its extension to whistleblowing. The BIA considered
these claims and found them to be without merit. The law that
should control this case is the standard of review. “The
BIA’s determination . . . must be upheld if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole. It can be reversed only if the evidence
presented [] was such that a reasonable factfinder would have
to conclude that the requisite fear of persecution existed.”3
This burden of proof is on the petitioner. We do not have
authority to overturn a BIA decision supported by substantial
evidence, as this one was, even though an argument can be
made that the evidence could have been interpreted in a
different way to support relief. “‘In order to reverse the BIA,
we must determine that the evidence not only supports [a
contrary] conclusion, but compels it’ and also compels the
further conclusion that the petitioner meets the requisite
1
Decision of the Board of Immigration Appeals, September 30, 2010.
2
Id.
3
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal citation
omitted) (emphasis added).
KHUDAVERDYAN V. HOLDER 21
standard for obtaining relief.”4 Sometimes this deferential
standard of review is troubling, but not here. The majority
says that the BIA overlooked a legal doctrine, “imputed
whistleblowing” that could support relief.5 The BIA did not
overlook anything. We are required by law to deny the
petition if there is substantial evidence for its determination.
There was.
Evidently, the majority thinks that Khudaverdyan was
wrong about why he was beaten and jailed, and that the BIA
is ignorant of the law. I cannot see how the evidence would
compel that view or even support it. The BIA could
reasonably interpret the accusation of “dishonoring” the
military police to mean talking back instead of showing
respect. The police chief obviously disliked being
embarrassed in front of his friends by a waiter. Had
Khudaverdyan told this story to the reporter, it would likely
have further embarrassed the police chief. Our anti-
corruption political opinion cases bear little resemblance to
Khudaverdyan’s. For instance, in Hasan v. Ashcroft,6 an
Armenian woman wrote a newspaper article exposing
corruption of a high government official. In Grava v. I.N.S.,7
a Filipino man reported several instances of smuggling by
corrupt customs officers. In Badhdasaryan v. Holder,8 a
4
Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 n. l (1992)).
5
Maj. Op. at 15, n.6.
6
380 F.3d 1114 (9th Cir. 2004).
7
205 F.3d 1177 (9th Cir. 2000).
8
592 F.3d 1018 (9th Cir. 2010).
22 KHUDAVERDYAN V. HOLDER
business owner organized a rally with 100 other business
owners to protest bribes they had to pay to corrupt
government officials to stay in business, and in Fedunyak v.
Gonzales,9 a car dealer refused to pay a bribe to corrupt local
government officials and reported the conduct to the local
police, the mayor, and his congressman. The majority
evidently seeks to expand the category of asylum for
persecution on account of political opinion to anyone
anywhere who suffers abuse by an arrogant bully with a
government job. Maybe there is someplace on earth free
from such bullies, but I doubt it.
Judge Owens provides a good definition of corruption,
“abuse of entrusted power for personal gain.” But, if the
“personal gain” includes the feeling of vindication a person
with political power gets from hurting someone insufficiently
obsequious, as in this case, then the definition is too inclusive
to be useful. Khudaverdyan was abused by a bullying police
chief because he talked back, not because of whatever
political opinions he had or that might have been imputed to
him. Ironically, the only corrupt conduct squarely under
Judge Owens’s definition was Khudaverdyan’s cousin who
“had connections” showing up at the jail with a $3,000 bribe.
The police took the money and let Khudaverdyan go.
Nothing in the record showed that the police requested a
bribe, but fortunately for Khudaverdyan, police greed
trumped police arrogance.
If Congress chooses to extend asylum to all who have
been abused by arrogant government employees, it can. But
so far, it has offered it only to those who flee their countries,
“because of persecution or a well-founded fear of persecution
9
477 F.3d 1126 (9th Cir. 2007).
KHUDAVERDYAN V. HOLDER 23
on account of race, religion, nationality, membership in a
particular social group, or political opinion.”10 Substantial
evidence supported the BIA’s conclusion that Khudaverdyan
did not bear his burden of proof that he fell within this
classification.
10
8 U.S.C. § 1101(a)(42)(A).