Movsisan v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOURGEN MOVSISIAN,  No. 03-70298
Petitioner,
v.  Agency No.
A70-966-525
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 24, 2004—San Francisco, California
Filed January 20, 2005
Before: Mary M. Schroeder, Chief Judge,
Alfred T. Goodwin, and A. Wallace Tashima, Circuit Judges.
Opinion by Judge Tashima;
Partial Concurrence and Partial Dissent by Judge Goodwin
907
MOVSISIAN v. ASHCROFT 909
COUNSEL
Tim Everett, Los Angeles, California, for the petitioner.
Constance A. Wynn, Civil Division, U.S. Department of Jus-
tice, Washington, D.C., for the respondent.
910 MOVSISIAN v. ASHCROFT
OPINION
TASHIMA, Circuit Judge:
Gourgen Movsisian, a native and citizen of Armenia, peti-
tions for review of the decision of the Board of Immigration
Appeals (“BIA”) summarily affirming the immigration
judge’s (“IJ”) denial of asylum and withholding of deporta-
tion. Movsisian also seeks review of the BIA’s summary
denial of his motion to reopen and remand asylum proceed-
ings. Because the transitional rules of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) apply, see Kalaw v. INS, 133 F.3d 1147, 1150
(9th Cir. 1997), we have jurisdiction under 8 U.S.C. § 1105a,
as amended by IIRIRA § 309(c)(4). We deny the petition for
review as to Movsisian’s claims for asylum and withholding
of deportation. We grant the petition for review as to the
BIA’s summary denial of Movsisian’s motion to reopen.
I. BACKGROUND
Movsisian, a Pentecostal Christian from Armenia, entered
the United States in 1993, when he was 16 years old. Movsi-
sian presented testimony, which the IJ deemed credible, that
he left Armenia with his mother to avoid compulsory military
service. Movsisian stated that the war was very dangerous,
and that he feared being killed given the lack of “law and
order” in Armenia. Movsisian explained that one of his neigh-
bors was conscripted and beaten to death by drunken officers.
Movsisian also testified that the Armenian authorities do
not allow Pentecostal Christians to practice their religion
freely. Movsisian and his mother had to worship in the homes
of other church members, and one of his pastors was arrested
in 1992 or 1993. However, Movsisian did not know what
would happen if he returned to Armenia and practiced his
faith.
MOVSISIAN v. ASHCROFT 911
The IJ denied asylum and withholding of deportation, hold-
ing that Movsisian’s fear of being drafted did not provide a
basis for relief. The IJ also found that the evidence did not
support Movsisian’s claim that he was a genuine religious
conscientious objector to military service. Finally, the IJ
determined that Movsisian’s future fear of persecution on
account of his Pentecostal religion was speculative.
Movsisian appealed the IJ’s decision to the BIA. While his
appeal was pending, Movsisian filed a motion to reopen and
remand with the BIA. In his motion, Movsisian sought to
reopen asylum proceedings to submit evidence regarding his
evolving religious beliefs, his deepening opposition to com-
pulsory military service, and deteriorating human rights con-
ditions in Armenia. Movsisian’s personal declaration,
submitted with his motion to reopen, detailed his fears that he
would be prevented from practicing his faith if he was con-
scripted, and that he would be punished for his refusal to obey
any orders that conflicted with his religious beliefs. Movsisian
also stated that his mother has been subjected to religious
harassment and discrimination since her return to Armenia.
Movsisian also included declarations from two ministers, and
reports on Armenian country conditions showing mistreat-
ment of religious minorities.
The BIA summarily affirmed the IJ’s opinion under 8
C.F.R. § 3.1(e)(4). In a footnote, the BIA denied without
explanation Movsisian’s motion to reopen and remand. Mov-
sisian filed a timely petition for review.
II. DISCUSSION
A. Asylum and Withholding
[1] In order to be eligible for asylum or withholding of
deportation, Movsisian must show the requisite fear of perse-
cution on account of race, religion, nationality, membership in
a particular social group, or political opinion. See Hoque v.
912 MOVSISIAN v. ASHCROFT
Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). We review the
IJ’s factual findings for substantial evidence. See id.[2] Movsisian first challenges the IJ’s denial of asylum and
withholding, and contends that the evidence compels a find-
ing that he has a well-founded fear of persecution on account
of his conscientious objection to military service, and his Pen-
tecostal beliefs. Considering only the evidence presented to
the IJ, we disagree. First, forced conscription or punishment
for evasion of military duty generally does not constitute per-
secution on account of a protected ground. See Castillo v.
INS, 951 F.2d 1117, 1122 (9th Cir. 1991) (“The fact that a
nation forces a citizen to serve in the armed forces along with
the rest of the country’s population does not amount to perse-
cution.”). Second, Movsisian presented no evidence that the
Armenian government would target him for conscription or
punishment on account of his religion or other protected
ground. See Canas-Segovia v. INS, 970 F.2d 599, 601 (9th
Cir. 1992) (holding that religious conscientious objectors did
not establish religious persecution because they did not show
that the government intended to persecute them for their
beliefs). Finally, we conclude that the evidence is insufficient
to compel a finding that Movsisian has a well-founded fear of
persecution on account of his religious beliefs. See Nagoulko
v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that peti-
tioner’s fear of future religious persecution was speculative).
In failing to qualify for asylum, Movsisian necessarily failed
to meet the more stringent standard of proof for withholding
of deportation. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.
1995).
B. Motion to Reopen and Remand
Movsisian also challenges the BIA’s denial of his motion
to reopen asylum proceedings. The motion to reopen, filed
while his appeal was pending before the BIA, is treated as a
motion to remand to the IJ for further proceedings. See Rodri-
guez v. INS, 841 F.2d 865, 867 (9th Cir. 1987); see also 8
MOVSISIAN v. ASHCROFT 913
C.F.R. § 1003.2(c)(4). We review the BIA’s denial of a
motion to reopen and remand for abuse of discretion. See
Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir. 1996). The
BIA abuses its discretion when it acts “arbitrarily, irrationally,
or contrary to the law.” Id.Movsisian contends that the BIA abused its discretion in
denying his motion to reopen and remand without explana-
tion. The government counters that the BIA is not required to
articulate its reasons for denying a motion to reopen where,
as here, the motion “is basically a thinly disguised attempt to
relitigate” the merits. The government also contends that the
BIA’s summary denial of Movsisian’s motion is consistent
with the BIA’s streamlining procedures, which this court
upheld in Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-52
(9th Cir. 2003) (holding that the BIA’s summary affirmance
procedure does not violate due process).
[3] Here, the BIA denied Movsisian’s motion to reopen
stating, in toto: “The respondent’s motion to reopen is
denied.” Unlike the BIA’s streamlining process, where the
IJ’s decision becomes the final agency determination, see id.
at 849, where the BIA entertains a motion to reopen in the
first instance, and then fails to provide specific and cogent
reasons for its decision, we are left without a reasoned deci-
sion to review.
[4] We have long held that the BIA abuses its discretion
when it fails to provide a reasoned explanation for its actions.
See, e.g., Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th
Cir. 2002) (remanding motion to reopen to apply for suspen-
sion of deportation where BIA did not engage in substantive
analysis or articulate any reasons for its decision); Arrozal v.
INS, 159 F.3d 429, 432-33 (9th Cir. 1998) (stating that the
“BIA abuses its discretion when it fails to state its reasons and
show proper consideration of all factors when weighing equi-
ties and denying relief” (internal quotation marks and empha-
sis omitted)); see also Kalubi v. Ashcroft, 364 F.3d 1134,
914 MOVSISIAN v. ASHCROFT
1141-42 (9th Cir. 2004) (holding that conclusory statements
are insufficient, and that the BIA must provide an explanation
showing that it has “heard, considered, and decided” the issue
(internal quotation marks omitted)).
[5] We recently held that “the BIA must address and rule
upon remand motions, giving specific, cogent reasons for a
grant or denial.” Narayan v. Ashcroft, 384 F.3d 1065, 1068
(9th Cir. 2004) (remanding petition where the BIA failed to
rule on a pending motion to remand asylum proceeding to
consider evidence of worsened country conditions); see also
Pilica v. Ashcroft, 388 F.3d 941, 955 (6th Cir. 2004) (remand-
ing unexplained denial of motion to remand to the BIA “for
the provision of a rational explanation for the denial,” while
affirming the BIA’s denial of asylum and withholding of
removal); cf. Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir.
2004) (vacating and remanding the BIA’s denial of an asylum
claim, while affirming the denial of withholding of removal
and Convention Against Torture claims).
[6] Here, in ruling on Movsisian’s motion to reopen and
remand, the BIA denied it without any explanation. We reject
the government’s argument that no explanation should be
required in streamlined cases as unsupported by any reason or
authority. Accordingly, we conclude that the BIA abused its
discretion in denying Movsisian’s motion to reopen without
articulating its reasons. See Narayan, 384 F.3d at 1068.
III. CONCLUSION
[7] We deny the petition for review as to Movsisian’s chal-
lenge to the IJ’s denial of asylum and withholding of deporta-
tion. We grant the petition for review with regard to
Movsisian’s motion to reopen, and we remand to allow the
BIA to provide specific and cogent reasons supporting its
determination.
Each party shall bear its own costs on review.
MOVSISIAN v. ASHCROFT 915
PETITION FOR REVIEW GRANTED in part, and
DENIED in part.
GOODWIN, Circuit Judge, concurring in part, and dissenting
in part:
I concur in part II. B. of the opinion, holding that the BIA
abused its discretion in failing to articulate reasons for deny-
ing Movsisian’s motion to reopen, and remanding for a state-
ment of reasons. However, I do not join in Part II. A. which
expresses an opinion on the merits of the petitioner’s case for
asylum and withholding of deportation. No convincing rea-
sons have been called to my attention for this court to decide,
on the merits, that the petitioner has a losing case, and then
to remand the case to the forum from which the appeal was
taken, so that forum could state its reasons for the denial. All
courts dealing with the flood of immigration petitions are too
busy, and our forests are too depleted, to justify this formality.