Zorig v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit
October 15, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KHATANBAATAR ZORIG;
OTGONCHULUUN PANDAAN;
TULGA KHATANBAATAR;
MARAL KHATANBAATAR,
Petitioners,
v. No. 08-9576
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
Lead petitioner, Khatanbaatar Zorig; his wife, Otgonchuluun Pandaan; and
two children, Tulga and Maral Khatanbaatar, are citizens of Mongolia. They
applied for asylum based persecution because of political opinion. An
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Immigration Judge (IJ) denied their application, acknowledging harsh treatment
of Zorig at the hands of government officials and others but concluding it was not
done because of his political opinion. The Board of Immigration Appeals (BIA)
affirmed. Petitioners seek our review of the BIA’s final order of removal, urging
reversal. Although they make compelling arguments in favor of asylum,
substantial evidence supports the BIA’s decision and, therefore, we must deny
the petition for review.
I.
Background Information
Zorig’s experiences in Mongolia must be evaluated against the backdrop of
cultural and historical influences. Mongolia was long a nomadic society where
the concept of private property was not a fixed community value. The traditional
system, which existed through the 1920s, called for tribal leaders to allocate the
use of lands, primarily for grazing. Mongolia then became a People’s Republic
and followed Soviet policies. Under that regime, the Communist Party controlled
all land.
In 1990 Mongolia began its transition to a democratic society and a market
economy. It developed a constitution providing for private rights to land and
adopted civil-law provisions granting land licenses for properties identified for
private residential and business uses. The first party in power was the Mongolian
People’s Revolutionary Party (MPRP), composed primarily of former Communist
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party members and officials who renamed themselves as a social-democratic
party. Governmental corruption accompanied the reorganizing process.
The opposing Democratic Coalition Party (DCP) won the 1996 election and
ruled Mongolia through 2000. The DCP’s platform called for an investigation
into corruption but, once in power, DCP officials also engaged in unethical
practices. Under announced DCP policies, families could receive a license for
land they had been using for a residence.
In 2000, the DCP lost the election to the MPRP. The transition in the
government led to a period of debate, protest, and turmoil over land issues.
MPRP officials took back valuable land rights acquired by some DCP members
when the DCP was in power, politicizing (or further politicizing) the land-
distribution process. Despite passage of land reforms and an anticorruption law, a
“perception of rampant corruption” remains. Admin. R. at 280 (State Dep’t
Report of Mar. 6, 2007).
Petitioner’s Experiences
Zorig, a third-generation pilot and also an aeronautical and land engineer
lived in Ulaanbataar. He began working for MIAT, the government-owned civil
airline, in 1992. That same year, he became an active member of the Mongolian
Democratic Party (MDP), a component of the DCP, and served the party as a
volunteer board member for his district. In 1998, when the DCP was in power,
Zorig started his own restaurant on property where his grandparents had lived.
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Under the revised land laws he entered into a five-year lease for the property in
January 1999 with the expectation of eventual ownership. Zorig also continued to
work for MIAT.
In 2002 the MPRP party returned to power. Individuals connected with
MPRP began reorganizing MIAT. Zorig’s flight and engineering schedules were
reduced and his whistle-blowing efforts discouraged. He was listed for a two-
month training session in Amsterdam beginning in February 2003, but shortly
before his departure his boss cancelled his training. Zorig went anyway, at his
own expense. He expected to be fined for this action on his return; instead he
was fired.
Shortly after the termination of his employment, Zorig was served with a
summons to appear at the police station, an unusual occurrence. He went to the
station where, for one to two hours, he was asked questions about the restaurant
land. In obedience to police summonses he returned to the station three to five
more times, but was always asked the same questions. “[A]t the end, [he] didn’t
go there when they called [him].” Admin. R. at 129. During this time period,
criminals came to his restaurant, attempted to get free food and drink, and told
him his business would soon close. Zorig and his wife speculated that a MPRP
member wanted to start a business on the restaurant land.
In June 2003, the police came to his house and took him to a detention
center. They referred to his membership in the MDP and accused him of
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obtaining the land illegally. The police told Zorig the land he occupied would be
taken from him when the new land law took effect, so he should “give up this
land now and sign on the contract.” Id. at 132. When he refused to sign the
document and asked for an attorney, he was handcuffed and beaten with a long
rubber rod. The next day his brother took him from the detention center to the
hospital, where he remained for two weeks. He had a concussion, foot problems,
and a neck injury.
He left the hospital in July 2003, stayed at his parents’ house, and ceased
operation of the restaurant. He immediately arranged to leave the country,
abandoning any claim to the land. The family entered the United States in
September 2003, with authorization to stay until March 21, 2004. He filed a
timely application for asylum and restriction on removal based on political
opinion and membership in a social group. He also sought relief under the
Convention Against Torture. Both Zorig and his wife have family in Mongolia
but Zorig does not claim, and the record contains no indication of, oppression of
the relatives. Zorig maintains he would be in danger upon his return as long as
the MPRP remains in control of the government.
Administrative Proceedings
Zorig’s evidentiary hearing before the IJ began on August 24, 2006, but
was not completed that day. A continued hearing was scheduled for March 22,
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2007, at which time the government attorney failed to appear due to a calendaring
error. The hearing eventually concluded on May 7, 2007.
Zorig testified at the first hearing; his wife and an expert in Mongolian
history and politics testified at the second. Principally they claimed Zorig had
suffered persecution because of his political beliefs. At the close of testimony
and argument, the IJ reviewed the evidence, emphasizing indications of “a
commercial or financial motive in the mistreatment” of Zorig and the existence of
“a ‘spoils system’ in effect in Mongolia.” Id. at 64-65. The IJ concluded Zorig’s
“claim, which is based on harm inflicted or to be inflicted due to a claim of
property ownership” did not constitute “a claim that can be said to be tied to one
of the protected grounds.” Id. at 65-66. The IJ attributed Zorig’s employment
problems to the downsizing of the airline.
The IJ denied asylum and restriction on removal. Id. at 66. As to relief
under the Convention Against Torture, the IJ concluded Zorig’s abandonment of
the contested property meant the police or governmental officials would not “be
interested in harming him much less actually torturing him should [he] return to
Mongolia.” Id. In a separate statement, the IJ elaborated on his decision,
explaining to petitioners and their attorney that he
did believe that most of what you tell me was . . . basically true.
I just didn’t think that the police and the government of Mongolia
[were] interested in harming you because of your political
opinion. . . . I think that there were just people that wanted to take
your property from you and also you lost your job because you
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weren’t with—you didn’t know the higher ups in your company and
they were downsizing and so you ended up being a victim.
Id. at 264.
Petitioners appealed to the BIA, arguing the IJ misconstrued evidence and
wrongly concluded Zorig failed to establish persecution on account of his
political opinion. They argued the government’s motives were mixed, “and in
addition to wanting to extort property from him for monetary gain, Zorig was
punished on account of his membership in the Democratic Party.” Id. at 28-29.
They also claimed the lengthy gap between the first and second hearing violated
Zorig’s due-process rights.
The BIA issued a short, single-member order affirming the IJ’s decision. It
set forth the appropriate standard of review, summarized the evidence, and
announced its conclusions. In summarizing the facts the BIA mischaracterized
some of Mr. Zorig’s testimony, stating Zorig admitted “he did not follow the rules
with respect to getting land.” Id. at 3. In actuality, Zorig testified the police had
accused him of obtaining the land illegally, id. at 132, but he had filed a proper
application for the land that his grandparents used, id. at 125, 128, 132. The BIA,
however, accurately described Zorig’s testimony about individuals wanting to
take his land and business away.
Like the IJ, the BIA rejected the asylum and restriction-on-removal claims
for failure to link mistreatment to political motives and further stated Zorig had
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“not demonstrated a sufficient likelihood of persecution necessary for asylum.
See Tsevegmid v. Ashcroft, 336 F.3d 1231 (10th Cir. 2003) (holding that
Mongolian applicant not entitled to withholding of removal where he failed to
link beating to political motives and did not know who attacked him).” Id. 1 As a
final matter, the BIA concluded the due-process claim (based on the delay and
bifurcated hearings) failed to demonstrate prejudice.
II.
In his petition for review Zorig lists five issues. We will address them,
seriatim, but first recount the burden of proof and our standard of review. To
qualify for asylum, an alien has the burden of showing he “has suffered past
persecution or has ‘a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quoting
8 U.S.C. § 1101(a)(42)(A) (quotation and alteration omitted)). We review the
BIA’s legal conclusions de novo. Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th
Cir. 2006). The agency’s factual findings are reviewed for substantial evidence
and we may reject them only if “the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.” Sarr v. Gonzales,
474 F.3d 783, 788-89 (10th Cir. 2007) (quotation omitted). “[A]n appellate court
1
Tsevegmid has been superceded on other grounds by statute,
8 U.S.C. § 1252(a)(2)(D)
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must look to the record for ‘substantial evidence’ supporting the agency’s
decision: Our duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.”
Id. at 788 (quotation and alteration omitted). “We do not weigh the evidence or
evaluate the witnesses’ credibility.” Id. at 789 (quotation omitted). “[T]he
ultimate determination whether an alien has demonstrated persecution is a
question of fact, even if the underlying factual circumstances are not in dispute
and the only issue is whether those circumstances qualify as persecution.”
Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quotation
omitted).
Economic harm, contested standard, and due-process analysis
Three of Zorig’s issues may be addressed and rejected without lengthy
analysis. First, he argues the IJ failed to appreciate the severe and pervasive
economic harm he suffered at the hands of Mongolian officials. He claims it
amounted to persecution. See Vicente-Elias v. Mukasey, 532 F.3d 1086, 1088-89
(10th Cir. 2008) (describing standards for determining whether alien’s economic
loss supports a finding of persecution). Because he did not present this issue to
the BIA, his failure to exhaust administrative remedies precludes our review.
Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007).
Zorig also makes an argument based on the BIA’s citation to Tsevegmid,
336 F.3d at 1235-36, which discussed restriction on removal in connection with a
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Mongolian applicant. He asserts the Tsevegmid citation demonstrates an
erroneous application of the restriction-on-removal standard to his asylum claim.
This theory is based on differing probabilities of persecution: an asylum
applicant must demonstrate “a well-founded fear of persecution,” but a
restriction-on-removal applicant must meet the more demanding standard of “a
clear probability of persecution” upon his return. Wiransane v. Ashcroft,
366 F.3d 889, 893-94 (10th Cir. 2004). Both forms of relief, however, insist the
harm result from persecution related to protected status. The asylum statute
requires Zorig to demonstrate that his persecution was inflicted “on account
of . . . political opinion.” 8 U.S.C. § 1101(a)(42)(A). Although the BIA could
have been clearer, a reading of the BIA’s decision indicates that it was citing
Tsevegmid to illustrate the necessity of a causal connection. The BIA did not
apply an inapplicable standard to Zorig’s asylum claim.
A further argument is that Zorig was denied due-process protection because
the hearing was held in two parts, separated by a significant delay. Moreover,
neither the IJ nor the parties had a recording or transcript of the first part
available at the second part; the IJ had to rely on his notes of Zorig’s testimony.
A petitioner, however, must show prejudice to establish a due-process violation.
See Berrum-Garcia v. Comfort, 390 F.3d 1158, 1165 (10th Cir. 2004). And
Zorig’s explanation of how the time-gap prejudiced him is quite conclusory. He
states only that the delay “resulted in confusion on complex factual issues and
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errors of law that denied Zorig the Due Process to which he was entitled.” Aplt.
Br. at 37; see also Reply Br. at 17 (stating alleged errors in IJ’s decision show
“‘confusion’ and inherent violation of due process”). This argument does not
demonstrate the requisite prejudice.
Application of mixed-motive standard to evidentiary record
Zorig asserts that the IJ failed to apply the proper standard to the evidence
in this mixed-motive case. The BIA’s single-member order, however, referred to
the appropriate mixed-motive standard. And “where the BIA decision contains a
discernible substantive discussion that stands on its own and does not explicitly
incorporate or reference the IJ’s reasoning, our review extends no further.”
Sidabutar, 503 F.3d at 1123 (quotations and alterations omitted). We discuss the
standard applied by the BIA, not the IJ.
The BIA’s denial of asylum was premised on the finding that Zorig failed to
demonstrate his mistreatment was motivated, at least in part, by political opinion
rather than economic considerations. 2 “[A] key task for any asylum applicant is to
show a sufficient ‘nexus’ between persecution and one of the listed protected
2
Zorig’s employment troubles are not convincing evidence of persecution.
Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003) (institutional
discrimination does not constitute persecution). The land-contract incident,
however, is a different matter. It involved an arrest, restraint, a beating at the
hands of police officers, and hospitalization. His mistreatment was severe enough
to constitute persecution. See Kapcia v. INS, 944 F.2d 702, 708 (10th Cir. 1991)
(recognizing that “‘beatings, arrests, and assaults’ [c]ould be enough to establish
past persecution”).
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grounds.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009). In
instances of mixed-motives, the applicant need not show persecution solely on
account of a protected ground, but must demonstrate that at least one of the
persecutor’s motives falls within a statutorily protected ground. Id.; Rivera v. U.S.
Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007); Menghesha v. Gonzales, 450 F.3d
142, 148 (4th Cir. 2006); Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir.
2005); Deloso v. Ashcroft, 393 F.3d 858, 860-61 (9th Cir. 2005); De Brenner v.
Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004); Mihaylov v. Ashcroft, 379 F.3d 15, 22
(1st Cir. 2004); Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002) (per curiam);
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997); Osorio v. INS, 18 F.3d 1017,
1028-29 (2d Cir. 1994); see also In re S-P-, 21 I. & N. Dec. 486, 495 (BIA 1996). 3
But “[t]he fact that an actor may have multiple motives does not alter the
petitioner’s burden to provide sufficient evidence to forge an actual connection
between the harm and some statutorily protected ground.” Sompotan v. Mukasey,
533 F.3d 63, 70 (1st Cir. 2008) (quotation omitted).
3
Because Zorig applied for asylum before May 11, 2005, he is not subject to
a provision of the REAL ID Act of 2005–requiring an alien applying for asylum
in a mixed-motive case to show “‘that race, religion, nationality, membership in a
particular social group, or political opinion was or will be at least one central
reason’” for the alleged persecution. Ndayshimiye, 557 F.3d at 129 (quoting 8
U.S.C. § 1158(b)(1)(B)(i)). Thus, the mixed-motive analysis previously applied
by the BIA and federal courts of appeal remains valid for this case. In any event,
application of the new standard would not alter the result.
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The BIA did not require Zorig to show his persecutors were motivated
solely by his political belief. Rather, it set out the appropriate mixed-motive
standard. While Zorig disagrees with the BIA’s conclusion, he has not shown the
BIA misunderstood the controlling standard. Thus, Zorig’s claim of legal error
fails.
We acknowledge the brutality experienced by Zorig and recognize the
discrepancies in the BIA’s summary of his testimony. Nevertheless, the BIA
specifically found, as a matter of fact, that financial gain was the fundamental
reason for Zorig’s mistreatment. While there is contrary evidence, the record also
reveals substantial evidence supporting the BIA’s finding that, absent his property
claim, Zorig would not have be subjected to harm at the hands of government
officials. This court may not reverse the BIA’s findings of fact “unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
Tulengkey, 425 F.3d at 1280 (quotation omitted). That is not the case here.
III.
Based on our deferential standard of review of the agency’s factual findings,
we DENY the petition for review.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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