Karapetyan v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTUR KARAPETYAN, 
Petitioner,
No. 05-75865
v.
 Agency No.
MICHAEL B. MUKASEY, Attorney A95-179-012
General,
Respondent.

ARTUR KARAPETYAN, 
Petitioner, No. 05-77141
v.
 Agency No.
A95-179-012
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 8, 2008—Pasadena, California
Filed September 16, 2008
Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Glenn L. Archer, Jr.,*
Senior Circuit Judge.
*The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
12873
12874 KARAPETYAN v. MUKASEY
Opinion by Judge Pregerson
KARAPETYAN v. MUKASEY 12877
COUNSEL
Howard R. Davis, Davis, Miller & Neumeister, Van Nuys,
California, for the petitioner.
12878 KARAPETYAN v. MUKASEY
Peter D. Keisler, Assistant Attorney General, Civil Division;
Richard M. Evans, Assistant Director; Nancy E. Friedman,
Office of Immigration Litigation, Civil Division, Washington,
D.C., for the respondent.
OPINION
PREGERSON, Circuit Judge:
Artur Karapetyan (“Karapetyan”), a native of the Soviet
Union and a citizen of Armenia, petitions for review of a final
order by the Board of Immigration Appeals (“BIA”) that sum-
marily affirmed the Immigration Judge’s (“IJ”) denial of
Karepetyan’s application for asylum, withholding of removal,
and protection under the Convention Against Torture
(“CAT”) (No. 05-75865). Karapetyan also petitions for
review of the BIA’s denial of his motion to reconsider its
decision (No. 05-77141). We have jurisdiction under 8 U.S.C.
§ 1252. We grant relief and remand for further proceedings
consistent with this opinion.
STANDARD OF REVIEW
Because the BIA adopted and affirmed the decision of the
IJ, this court also reviews the IJ’s decision. See Hoque v. Ash-
croft, 367 F.3d 1190, 1194 (9th Cir. 2004). We review ques-
tions of law de novo, Baballah v. Ashcroft, 367 F.3d 1067,
1073 (9th Cir. 2004), and factual findings for substantial evi-
dence, Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997).
We review the IJ’s decision to deny a request for continuance
for abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874,
883 n.6 (9th Cir. 2004); see also Baires v. INS, 856 F.2d 89,
91 (9th Cir. 1988). We also review a denial of a motion to
reconsider for abuse of discretion. INS v. Doherty, 502 U.S.
314, 324 (1992). We will reverse the denial of a motion to
reconsider if it is “arbitrary, irrational, or contrary to law.”
KARAPETYAN v. MUKASEY 12879
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (internal
quotation marks omitted).
PROCEDURAL AND FACTUAL BACKGROUND
I. KARAPETYAN’S BACKGROUND
Karapetyan is a native of the Soviet Union and a citizen of
Armenia. He was admitted as a visitor to the United States on
December 25, 2000 and obtained permission to remain until
June 24, 2001. He remained in the United States beyond June
24, 2001 without authorization. On February 6, 2002, the
Department of Homeland Security (“DHS”) (formerly INS)
issued a Notice to Appear, which charged Karapetyan with
being present in the United States in violation of 8 U.S.C.
§ 1227(a)(1)(B).
At a master calendar hearing on March 19, 2002, Karape-
tyan conceded the charge of removability. The IJ designated
Armenia as the country of removal. Karapetyan sought immi-
gration relief in the form of asylum, withholding of removal,
CAT relief, and, alternatively, voluntary departure.
On June 10, 2004, the IJ held a merits hearing. There,
Karapetyan testified and submitted documentary evidence in
support of his applications for relief.
II. KARAPETYAN’S TESTIMONY
The IJ determined that Karapetyan testified credibly during
the merits hearing, stating “the [IJ] notes that the [petitioner]
has testified in a credible manner.” Where the IJ finds the
applicant’s testimony to be credible and the BIA makes no
contrary finding, we accept as undisputed the applicant’s tes-
timony. Baballah, 367 F.3d at 1073. Thus, we accept the testi-
mony recounted below as true.
Karapetyan was born to a family of mixed ethnicity, with
a Russian mother and an Armenian father. When he was a
12880 KARAPETYAN v. MUKASEY
teenager, Karapetyan and his family moved to Yerevan,
Armenia to escape the war in Chechnya. In Armenia, Karape-
tyan’s family suffered humiliation and discrimination on
account of its mixed ethnicity. Karapetyan was called a “Rus-
sian pig,” a “Chechnyan bastard,” and a “Chechnyan pig” by
people in his community and by members of the military.
While completing mandatory military service, Karapetyan
was routinely assigned to dirty, demeaning tasks by supervi-
sors who knew of his mixed ethnicity. He was also beaten by
military members. When the military officers learned that
Karapetyan submitted written complaints about his treatment,
Karapetyan was beaten and locked in a cell.
In April 2000, Karapetyan joined the 21st Century Party, a
political association led by Arkady Vardanyan (“Vardanyan”)
that sought governmental change and championed human
rights. In October 2000, Karapetyan participated, as a member
of the 21st Century Party, in a large protest involving at least
10,000 attendees. Several protesters were arrested, including
the 21st Century Party leader, Vardanyan, and his attorney.1
The day following the protest, military officers searched
Karapetyan’s home and arrested him. He was detained in iso-
lation for three days.2 While in prison, Karapetyan was inter-
rogated regarding his involvement with the 21st Century
Party. The military officers called Karapetyan a “Russian
pig.” They used batons to beat the soles of Karapetyan’s feet
1
Although credible testimony need not be corroborated, Ladha v. INS,
215 F.3d 889, 901 (9th Cir. 2000), this testimony was corroborated by a
newspaper article from Armenian New Armenia, vol. X, issue 7, Jan. 11,
2001, that describes the detention of Vardanyan. Additionally, the State
Department Report confirms that roughly 10,000 people attended Var-
danyan’s rally to seek governmental change.
2
This testimony was corroborated by a letter from the Ministry of
National Security of Republic of Armenia, which confirms that Karape-
tyan was arrested and detained in isolation for three days for his associa-
tion with the 21st Century Party.
KARAPETYAN v. MUKASEY 12881
until he eventually agreed to sign false papers stating that the
21st Century Party was an illegal organization and its leader,
Vardanyan, was a Russian spy.
After his release from prison, Karapetyan spoke out against
his treatment on a radio station on November 10, 2000. He
criticized the Armenian government and called upon others to
demonstrate against the government.
Two days later, on November 12, 2000, four law enforce-
ment officers came to Karapetyan’s home and beat him “like
a dog,” leaving bruises on his face and other parts of his body.
Karapetyan was hospitalized for injuries caused by those beat-
ings.3 The law enforcement officers told Karapetyan to leave
the country. They told him that, if he refused to leave, he
would be put in prison or “something else [would] happen” to
him. Karapetyan believed he was in grave danger if he
remained in Armenia, and so he obtained a B-1/B-2 visa from
the United States Embassy on December 6, 2000. He arrived
in the United States on December 25, 2000.
Thereafter, Karapetyan applied for asylum, withholding of
removal, and CAT relief. He applied for voluntary departure
in the alternative.
III. IJ AND BIA DECISIONS
The IJ denied Karapetyan’s request for asylum, withhold-
ing of removal, and CAT relief, but granted the limited relief
of voluntary departure. As a basis for the decision, the IJ
found that Karapetyan was not statutorily eligible for asylum
because he had failed to show that he was a refugee. Alterna-
tively, the IJ found that Karapetyan was ineligible for asylum
because he had failed to submit his fingerprints for a security
3
This testimony was corroborated by an Armenia Republican Hospital
report stating that Karapetyan had been beaten in his residence, “suffered
numerous bruises and injuries,” and was hospitalized for one day.
12882 KARAPETYAN v. MUKASEY
check. Karapetyan moved for a continuance so that he could
submit the fingerprints, but the IJ denied his request.
Karapetyan appealed to the BIA, which affirmed the results
without opinion. The BIA subsequently denied Karapetyan’s
motion to reconsider. Karapetyan timely appealed both deci-
sions.
DISCUSSION
I. THE IJ ERRONEOUSLY REQUIRED CORROB-
ORATING EVIDENCE DESPITE FINDING THAT
KARAPETYAN HAD TESTIFIED CREDIBLY
We begin by recognizing that the IJ erred when she
required corroborating evidence despite finding that Karape-
tyan had testified credibly. At the conclusion of Karapetyan’s
merits hearing, the IJ made an express finding that Karape-
tyan had testified credibly. The IJ concluded, “the [petitioner]
has testified in a credible manner.”4
Yet, the IJ failed to credit Karapetyan’s testimony, in part
because he did not provide corroborating documentary evi-
dence of his persecution. Pointing to the lack of corroborating
documentary evidence, the IJ concluded that Karapetyan had
failed to show that he was statutorily eligible for relief. The
IJ’s oral decision is laden with references to the lack of cer-
tain documents. See Administrative Record (noting petition-
er’s “fail[ure] to present any documents establishing that
[petitioner] was a member of the 21st Century Party”) (noting
petitioner “brought no documents establishing that he was
4
The IJ’s remark that she did “not know what to believe about [Karape-
tyan’s] claim” does not constitute a specific adverse credibility finding.
See Kalubi v. Ashcroft, 364 F.3d 1134, 1137-38 (9th Cir. 2004) (“[I]t is
clearly our rule that when the IJ makes implicit credibility findings in
passing, . . . this does not constitute a credibility finding.”) (internal quota-
tion and citation omitted).
KARAPETYAN v. MUKASEY 12883
[ ]ever a member of the 21st Century Party.”) (noting peti-
tioner “has presented no documents establishing that there
ever was . . . a rally”)5 (noting petitioner “did not present his
passport”) (noting petitioner “has supplied no documents,
whatsoever, to establish that he ever served in the military”)
(noting petitioner “did not present anything from his friends
at the radio station that he ever gave any kind of speech or
talk on the radio”). The IJ denied Karapetyan relief, in part
because he did not produce these corroborating documents.6
[1] Because the IJ made a finding that Karapetyan testified
credibly, the IJ’s failure to credit Karapetyan’s testimony was
improper. We have repeatedly held that, when an applicant
has been found to testify credibly, the facts are deemed to be
true, and no further corroboration is required.7 See, e.g.,
5
Contrary to the IJ’s assertion, Karapetyan had submitted a State
Department Report, which states, “[i]n October 2000, Arkady Vardanyan
[the leader of the 21st Century Party], a Moscow-based Armenian busi-
nessman who is a Russian citizen, led a demonstration in Yerevan of
approximately 10,000 persons calling for the removal of the Government.”
6
It is worth noting that the IJ erred in her evaluation of the corroborating
documents that were submitted. In her oral decision, the IJ remarked,
“[t]he [petitioner] did have some documents that would help establish his
claim, but he failed to have them authenticated.” Yet, the IJ never ruled
on the admissibility of several documents — including his birth certificate,
the hospital report, and the letter from the Ministry of National Security
— and instead gave Karapetyan an opportunity to authenticate them
through his testimony. Moreover, failure to obtain consular certification of
foreign official records under 8 C.F.R. § 287.6 is not a basis to exclude
corroborating documents. Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.
2001). Finally, some documents sought by the IJ were not easily available.
See Sidhu, 220 F.3d at 1091-92 (“[C]orroborating affidavits from relatives
or acquaintances living outside of the United States . . . [are] almost never
easily available.”).
7
In limited circumstances, the failure to corroborate testimony with doc-
umentary evidence can justify an adverse credibility determination, see
Sidhu v. INS, 220 F.3d 1085, 1090 n.2 (9th Cir. 2000) (upholding an
adverse credibility determination where the “applicant inexplicitly fail[ed]
to present easily available, material, non-duplicative, corroborating evi-
dence to support his asylum claim), but that is clearly not the case here.
In this case, the IJ specifically found Karapetyan to have testified credibly.
See Ladha v. INS, 215 F.3d 889, 900 n.11 (9th Cir. 2000).
12884 KARAPETYAN v. MUKASEY
Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000) (“[W]e
must accept testimony as true in the absence of an explicit
adverse credibility finding.”); Ladha v. INS, 215 F.3d 889,
901 (9th Cir. 2000) (reaffirming that “corroboration of credi-
ble testimony is not necessary”); Lopez-Alvarado v. Ashcroft,
381 F.3d 847, 855 (9th Cir. 2004). In fact, the IJ acknowl-
edged, “[t]he [petitioner’s] testimony alone can establish that
he is a refugee.”
[2] Because corroborating evidence is not necessary in the
face of a credibility finding, we accept Karapetyan’s testi-
mony as true.
II. THE IJ’S CONCLUSION THAT KARAPETYAN WAS
INELIGIBLE FOR ASYLUM RELIEF IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE
Accepting Karapetyan’s testimony as true, we must next
address whether substantial evidence supported the IJ’s find-
ing that Karapetyan’s testimony was insufficient to warrant
asylum relief.8 We find that the harm suffered by Karapetyan
compels a finding of past persecution and, accordingly, we
remand the case to the BIA to exercise its discretion in decid-
ing whether to grant asylum.
This court reviews for substantial evidence the IJ’s decision
that an applicant has failed to establish past persecution or a
well-founded fear of persecution. INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992). To obtain reversal under this standard,
the petitioner must demonstrate that the evidence presented
was such that a reasonable fact finder would be compelled to
conclude that the requisite past persecution, or well-founded
fear of future persecution, existed. Id.[3] To be eligible for a grant of asylum, Karapetyan must
show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee
8
The government’s brief avoids this issue entirely.
KARAPETYAN v. MUKASEY 12885
is one who is “unable or unwilling to avail himself or herself
of the protection of [his or her native] country because of per-
secution 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).
“Either past persecution or a well-founded fear of future
persecution provides eligibility for a discretionary grant of
asylum.” Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998).
To show past persecution, Karapetyan must demonstrate that
(1) his treatment rises to the level of persecution; (2) the per-
secution was on account of one or more protected grounds;
and (3) the persecution was committed by either the govern-
ment or by forces that the government was unable or unwill-
ing to control. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.
2000). To show a well-founded fear of persecution, Karape-
tyan must demonstrate that (1) he has a fear of persecution in
his country; (2) there is a reasonable possibility of suffering
such persecution; and (3) he is unable or unwilling to return
to that country because of such fear. See 8 C.F.R.
§ 1208.13(b)(2). The demonstration of past persecution
creates a rebuttable presumption that the applicant has a well-
founded fear of persecution on the basis of the original claim.
See id. § 208.13(b)(1).
[4] Here, Karapetyan provided uncontroverted evidence of
his past persecution — which included physical and verbal
abuse — on account of his mixed Armenian-Russian ethnicity
and membership in a disfavored political party. He testified
that he was detained by the military, beaten by officers, called
derogatory names, and assigned to demeaning tasks because
his mother was Russian. Karapetyan further testified that he
was detained in isolation, beaten, hospitalized for injuries, and
warned to leave the country because of his association with
the 21st Century Party, a political organization that sought
political change in Armenia and advocated for human rights.
The IJ’s conclusion that Karapetyan is not statutorily eligi-
ble for asylum is not supported by substantial evidence. As
12886 KARAPETYAN v. MUKASEY
we discuss further below, the IJ made a series of factual and
legal errors in reaching her conclusion that Karapetyan was
not statutorily eligible for asylum.
A. Past Persecution
[5] The IJ’s conclusion that Karapetyan failed to show past
persecution is not supported by substantial evidence. The
record indicates that the IJ arrived at this conclusion only by
misunderstanding the record and misapplying the law. See
Smolniakova v. Gonzales, 422 F.3d 1037, 1045-46 (9th Cir.
2005) (granting relief and criticizing IJ for misconstruing the
record).
[6] For example, with regard to Karapetyan’s three-day
detention, the IJ stated, “his testimony did not indicate that he
was beaten.”9 This pronouncement overlooks the facts in the
record. On direct examination, Karapetyan stated, “For three
days, they would not let me talk to anybody, no phone calls,
anything, nothing. They [sic] investigating person was [sic]
beating me in their cells.”
The IJ also assumed that Karapetyan’s injuries, which
resulted from his three-day detention in early November
2000, were not significant because Karapetyan did not seek
medical attention.10 But Karapetyan never testified as to
whether he sought medical treatment on that occasion. The
IJ’s conclusion that Karapetyan did not seek treatment was
nothing more than conjecture and, thus, cannot support the
IJ’s decision. See, e.g., Lopez-Reyes v. INS, 79 F.3d 908, 912
(9th Cir. 1996) (explaining that “conjecture is not a substitute
for substantial evidence”).
9
Later in her decision, the IJ stated that Karapetyan’s testimony “did not
establish that he was at any time beaten.” And, again, she stated, “the
[petitioner] did not testify that he was beaten during detention . . . .”
10
The IJ accepted as true Karapetyan’s testimony that he was hospital-
ized after another series of beatings that took place in his home.
KARAPETYAN v. MUKASEY 12887
Moreover, an applicant’s failure to “seek medical treatment
for the [injury] suffered is hardly the touchstone of whether
[the harm] amounted to persecution.” Lopez v. Ashcroft, 366
F.3d 799, 803 (9th Cir. 2004). We have repeatedly found that
threats and attacks constitute past persecution even where an
applicant has not been beaten or physically harmed. See, e.g.,
Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (concluding
that the petitioner had established persecution when the evi-
dence showed that she had been robbed numerous times in the
course of seven to ten days but not physically harmed).
Misconstruing the record again, the IJ stated that there were
“no documents” establishing that the October 2000 demon-
stration, involving the 21st Century Party leader, Vardanyan,
had occurred. The IJ specifically stated that Karapetyan had
produced no reports regarding the rally. However, contrary to
the IJ’s assertion, Karapetyan submitted the State Department
Report, which the IJ admitted into the record. The Report
states:
In October 2000, Arkady Vardanyan [the leader of
the 21st Century Party], a Moscow-based Armenian
businessman who is a Russian citizen, led a demon-
stration in Yerevan of approximately 10,000 persons
calling for the removal of the Government. After the
demonstration, security forces searched Vardanyan’s
house and took him into custody; he was sentenced
to 11 days detention on the charge that he had a per-
mit for a demonstration but not a march. In Novem-
ber 2000, Vardanyan was charged with attempting a
coup. . . . In February Vardanyan was released,
cleared of charges and his case was closed. Soon
after his release, Vardanyan left the country.
[7] The IJ also erred by failing to consider the cumulative
impact of the various incidents. Although the IJ described the
beatings, threats, and verbal abuse inflicted upon Karapetyan,
she erroneously dismissed each incident alone as insufficient
12888 KARAPETYAN v. MUKASEY
to establish persecution. Addressing each incident separately,
the IJ stated, “a short detention with no injuries does not
establish that the [petitioner] was persecuted on account of his
political opinion.” Later in the decision, the IJ stated, “offen-
sive names . . . do[ ] not rise to the level of persecution.” And,
again later in the decision, the IJ remarked, “[petitioner’s]
claim that he served in the military and was given poor treat-
ment does not rise to the level of persecution.”
[8] An applicant may suffer persecution because of the
cumulative impact of several incidents even where no single
incident would constitute persecution on its own. Shirazi-
Parsa v. INS, 14 F.3d 1424, 1428 (9th Cir. 1994), overruled
on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.
1996). The court “look[s] at the totality of the circumstances
in deciding whether a finding of persecution is compelled.”
Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (finding
persecution where Chinese Christian was arrested, detained
twice, physically abused, and forced to renounce religion).
This court has found that the severity of harm is compounded
when incidents of persecution have occurred on more than
one occasion, particularly when “an applicant . . . is victim-
ized at different times over a period of years.” Chand, 222
F.3d at 1073-74. Taken cumulatively, the brutal beatings, the
hospitalization, the threats of harm, the isolated detention, and
the verbal insults compel a finding of persecution in this case.
B. On Account of Mixed Ethnicity and Political Opinion
[9] Likewise, the facts in the record compel the finding that
Karapetyan was persecuted on account of his mixed ethnicity
and political opinion.11
11
The persecution of children due to their mixed parentage is on account
of a protected ground. Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000);
see also Shoafera v. INS, 228 F.3d 1070, 1074 n.2 (9th Cir. 2000) (“[T]he
term ethnicity describes a category which falls somewhere between and
within the protected grounds of race and nationality.”) (internal quotation
marks omitted).
KARAPETYAN v. MUKASEY 12889
The IJ acknowledged that Karapetyan “was always being
ignored and being ordered to carry out the most dirtiest jobs,
such as cleaning restrooms and polishing military boots of the
officers.” Nonetheless, the IJ determined that “it is not clear”
that Karapetyan was assigned insulting tasks during his mili-
tary service on account of his mixed ethnicity.
[10] The IJ erred when she required Karapetyan to clearly
establish the motives of his persecutors. Because it is difficult
to conclusively prove motive, Karapetyan need only “provide
some evidence of [motive], direct or circumstantial,” Elias-
Zacarias, 502 U.S. at 483, and demonstrate the connection
between the government’s actions and his membership in a
protected group, Fisher, 79 F.3d at 962. “[U]ncontroverted
and credible testimony is sufficient to establish that [an asy-
lum applicant] was persecuted on account of ethnicity.”
Shoafera v. INS, 228 F.3d 1070, 1075 (9th Cir. 2000). Under
this standard, Karapetyan need only provide some evidence
that his persecutors were motivated by his mixed ethnicity or,
alternatively, his political opinion.
[11] Karapetyan was called a “Russian pig,” a “Chechnyan
bastard,” and a “Chechnyan pig” while being persecuted. The
use of these slurs amply establishes the connection between
the acts of persecution and Karapetyan’s ethnicity. See, e.g.,
Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir. 1999)
(noting that motivation was on account of ethnicity where
persecution was “coupled with explicit expressions of ethnic
hatred”).
[12] Additionally, there is an undeniable connection
between Karapetyan’s political activities and his persecution.
His arrest occurred just one day after he attended the 21st
Century Party protest. Karapetyan’s captors physically abused
Karapetyan to coerce him to confess that the 21st Century
Party was an illegal organization. The nexus between Karape-
tyan’s political activism and the persecution is also estab-
12890 KARAPETYAN v. MUKASEY
lished by the beatings he endured in his home just a few days
after he criticized the government over the radio.
[13] We find that Karapetyan has shown credible, non-
speculative insight into the motivation of his persecutors. See
Shoafera, 228 F.3d at 1075. The use of derogatory slurs and
the close connection between political events and persecution
demonstrate that Karapetyan’s abusers were motivated to per-
secute him based on his mixed ethnicity and political opinion.
C. Perpetuated by the Armenian Government
We further conclude that the IJ’s conclusion that the perse-
cution was not perpetuated by the Armenian government is
not supported by substantial evidence.
[14] The applicant must demonstrate that the persecutor
was the government, a quasi-official group, or persons or
groups that the government is unwilling or unable to control
to qualify for asylum. See Avetova-Elisseva v. INS, 213 F.3d
1192, 1196 (9th Cir. 2000). Affirmative state action is not
necessary to establish a well-founded fear of persecution if
the government is unable or unwilling to control the agents of
persecution. Siong v. INS, 376 F.3d 1030, 1039 (9th Cir.
2004). We will presume that the persecution was perpetrated
by government agents where there is no evidence to the con-
trary and where there is no evidence of hostility between the
applicant and non-governmental actors. See Njuguna v. Ash-
croft, 374 F.3d 765, 772 (9th Cir. 2004).
The IJ expressed disbelief that the Armenian government
would persecute Karapetyan and other members of the 21st
Century Party — stating, as the basis for her decision, “[i]t
simply makes no sense that . . . authorities in Armenia would
then come after [Karapetyan] after he is a member of an ille-
gal organization.”12
12
The IJ also denied CAT relief on this ground, citing Karapetyan’s fail-
ure to establish that the perpetrators were public officials.
KARAPETYAN v. MUKASEY 12891
[15] But the State Department Report corroborates the
human rights violations in Armenia during the relevant time.
The Report specifically discusses the Armenian government’s
targeting of Vardanyan, the 21st Century Party’s leader, who
was detained, accused of starting a coup, and coerced to leave
Armenia.13
[16] The IJ also expressed doubt that the men who invaded
Karapetyan’s home and beat him on November 10, 2000 were
government actors. Yet, Karapetyan testified that he knew
that the men were police officers. Karapetyan also testified,
and the IJ accepted as true, that he had endured beatings at the
hands of the Armenian military earlier that month. And the
State Department Report confirms that the Armenian govern-
ment did not always respect the constitutional prohibition of
unauthorized searches. The IJ provided no reason for rejecting
these facts, and it is pure speculation to assume that the later
beating of Karapetyan was perpetrated by non-governmental
agents, unlike the earlier beating, where no testimony or evi-
dence supports that finding.
[17] An IJ’s unsupported speculations regarding the likely
actions of a foreign government are not substantial evidence.
Such conjecture is an invalid basis for the decision. See Ban-
dari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000). Thus, we
conclude that the evidence in the record compels the conclu-
sion that Karapetyan’s mistreatment was at the hands of the
government.
D. Well-Founded Fear of Future Persecution
[18] Because Karapetyan has established past persecution
on account of his mixed ethnicity and political opinion, there
is a rebuttable presumption that he has a well-founded fear of
13
The Report states, “After [the October 2000] demonstration, security
forces searched Vardanyan’s house and took him into custody . . . . In
November 2000, Vardanyan was charged with attempting a coup.”
12892 KARAPETYAN v. MUKASEY
future persecution. The government bears the burden of dem-
onstrating by a preponderance of the evidence that changed
country conditions rebut the presumption of a well-founded
fear of future persecution. 8 C.F.R. § 208.13(b)(1)(i). The
government has never claimed that country conditions have
changed, and nothing in the record suggests that they have.
Accordingly, the government has failed to meet its burden.
See, e.g., Chand, 222 F.3d at 1078 (“[R]emand is not appro-
priate where the record clearly shows that the country condi-
tions material in the record will not serve to rebut the
presumption.”); Navas v. INS, 217 F.3d 646, 662 (9th Cir.
2000) (holding that a remand is unnecessary where past perse-
cution has been established “but the INS has failed to intro-
duce the requisite country conditions information and thus has
failed to meet its evidentiary burden on that issue . . . .”).
[19] We therefore conclude that Karapetyan is statutorily
eligible for asylum and remand solely for the Attorney Gen-
eral to exercise his discretion to grant asylum.
III. THE IJ’S CONCLUSION THAT KARAPETYAN IS
INELIGIBLE FOR OTHER FORMS OF RELIEF IS
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
[20] The IJ based her finding that Karapetyan was ineligi-
ble for withholding of removal and CAT relief upon her faulty
conclusion that Karapetyan had failed to meet the more
lenient standard for asylum relief. For the reasons discussed
in Section II, the IJ erred as to the substance of the asylum
claim. Thus, we remand for a determination of whether
Karapetyan is eligible for withholding of removal and CAT
relief.
IV. THE IJ IMPROPERLY DENIED KARAPETYAN’S
MOTION FOR A CONTINUANCE TO COMPLY
WITH THE FINGERPRINTING REQUIREMENTS
As an alternate basis for the denial of relief, the IJ found
that Karapetyan was ineligible for relief because he had not
KARAPETYAN v. MUKASEY 12893
submitted fingerprints. Karapetyan moved for a continuance
so that he could submit his fingerprints. The IJ denied the
motion for a continuance.
A. The IJ Abused Her Discretion in Denying the
Continuance
The IJ abused her discretion in denying Karapetyan’s
request for a continuance so that he could submit fingerprints.
[21] Under 8 C.F.R. § 1003.29, an IJ “may grant a motion
for continuance for good cause shown.” In the context of
immigration proceedings, the decision to grant or deny con-
tinuances is in the sound discretion of the trial judge. See
Nakamoto, 363 F.3d at 883 n.6 (9th Cir. 2004); see also
Baires, 856 F.2d at 91. But the IJ’s discretion is limited.
Baires, 856 F.2d at 91 (quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964)). We will reverse an IJ’s decision should we
conclude that her ruling results from “an abuse of discretion.”
Id.When evaluating an IJ’s denial of a motion for continuance
we consider a number of factors — including, for example,
(1) the importance of the evidence; (2) the reasonableness of
the immigrant’s conduct; (3) the inconvenience to the court;
and (4) the number of continuances previously granted in the
case. See Baires, 856 F.2d at 92-93; cf. United States v. Flynt,
756 F.2d 1352, 1358-59 (9th Cir. 1985) (listing factors appel-
late court considers when reviewing district court’s denial of
request for continuance), amended, 764 F.2d 675 (9th Cir.
1985).
[22] We recently evaluated these factors in a similar case,
Cui v. Mukasey, No. 05-72185, slip op. 11043 (9th Cir. Aug.
19, 2008), in which we held that the IJ abused his discretion
in denying the immigrant’s request for a short continuance to
submit fingerprints. Although a decision whether a denial of
a continuance constitutes an abuse of discretion must be
12894 KARAPETYAN v. MUKASEY
resolved on a case by case basis, Baires, 856 F.2d at 91, Cui
established that “it is clearly an abuse of discretion for an IJ
to deny a request from an otherwise diligent applicant for a
short continuance to submit fingerprints, particularly where
the applicant was faced with an unclear fingerprint require-
ment and where the applicant was disserved by an IJ’s inade-
quate guidance on the requirement.” Cui, slip op. at 11056.
1. Nature of the Excluded Evidence
[23] We first consider the evidence that was excluded as a
result of the IJ’s denial of Karapetyan’s motion for a continu-
ance. The denial of the continuance meant that Karapetyan
was unable to submit fingerprints for the required security
check. Without a security check, Karapetyan could not be
granted relief under the law. Thus, when the IJ denied his
request for a continuance to submit fingerprints, the IJ effec-
tively pretermitted any hope Karapetyan had of obtaining
relief. The vital importance of the excluded fingerprint evi-
dence counsels in favor of granting a continuance. See Cui,
slip op. at 11051.
2. Petitioner’s Conduct
Another factor we consider is whether the need for a con-
tinuance arose because the petitioner behaved unreasonably.
We find that Karapetyan’s conduct was not unreasonable,
given the circumstances.
First, Karapetyan showed that exceptional circumstances
prevented him from complying with the fingerprint require-
ment. See Baires, 856 F.2d at 92-93; see also 8 C.F.R.
§ 1208.10 (requiring the applicant to show “good cause” for
a continuance). When Karapetyan was asked by the IJ why he
did not submit fingerprints, he explained that he suffered a
debilitating injury from a car accident on April 4, 2004 —
about two months prior to the merits hearing, which was held
on June 10, 2004. Karapetyan explained that he had injured
KARAPETYAN v. MUKASEY 12895
his back and neck as a result of the car accident. He had regu-
lar doctor appointments twice per week and experienced diffi-
culty sitting upright for the first two months. As of June 10,
2004, the date of the merits hearing, Karapetyan was still tak-
ing antibiotics and painkillers for his injuries.
Second, as we have previously recognized, the ability of
otherwise diligent applicants, like Karapetyan, to comply with
the fingerprint requirement was frustrated by the legal
uncertainties surrounding the fingerprint laws. See Cui, slip
op. at 11051. The IJ denied Karapetyan’s motion for a contin-
uance in June 2004, when the laws addressing fingerprinting
were still unclear.14
Third, Karapetyan did not receive adequate notice regard-
ing the fingerprint requirement. On May 8, 2003, the govern-
ment informed the IJ that Karapetyan had not been
fingerprinted. The IJ told Karapetyan’s attorney, Rita Mah-
dessian, “before we conclude this case, you need to have your
client fingerprinted.” (emphasis added). Attorney Mahdessian
replied, “I will.” The IJ never said that the fingerprints had to
be submitted before the beginning of the merits hearing.
The vague statement made by the IJ certainly would not
meet the notice standards under existing law. As a result of
the confusion over the fingerprint requirement, the EOIR pro-
14
In January 2005, the Executive Office for Immigration Review
(“EOIR”) acknowledged that the consequences of failing to complete fin-
gerprint security checks in advance of the merits hearing were unclear
under existing regulations. See 70 Fed. Reg. 4743, 4744 (Jan. 31, 2005).
The EOIR proposed changes to the existing regulations while acknowl-
edging that 8 C.F.R. § 1003.29 “leaves numerous questions unanswered in
the complicated area of criminal history checks and national security
investigations.” Id. The EOIR admitted, “[t]he current regulations are also
unclear as to the scope of an immigration judge’s authority to act to grant
relief in situations where a background investigation is ongoing.” Id. In
practice, IJs did not always require fingerprint checks be completed in
advance of the merits hearing. The state of the law is described in greater
detail in our recent decision, Cui, slip op. at 11051-52.
12896 KARAPETYAN v. MUKASEY
posed a new rule, effective April 1, 2005, that required IJs to
ensure that applicants understand the fingerprint requirements
and the consequences of noncompliance by specifying for the
record (1) when the applicant received the fingerprint notice
and instructions from DHS, and (2) the consequences for fail-
ing to submit the required fingerprints. See 8 C.F.R.
§ 1003.47(d). Neither was done in this case.15
[24] Under the totality of the circumstances, we conclude
that Karapetyan’s failure to submit fingerprints prior to his
merits hearing was reasonable.
3. Inconvenience to the Court
We also consider whether the requested continuance would
inconvenience the immigration court. Here, it is quite clear
that neither the IJ nor the government would have been incon-
venienced by a short continuance. The IJ had already heard
the merits of Karapetyan’s claims. If she had found Karape-
tyan worthy of relief, she could have simply held the decision
in abeyance pending submission of Karapetyan’s fingerprints
15
Moreover, it is questionable whether Karapetyan received adequate
guidance from his trial counsel on this issue of unsettled law. During the
proceedings before the IJ, Karapetyan was represented by Rita Mahdes-
sian. Mahdessian has been disciplined by the State Bar of California and
was issued an actual suspension in September 1996 and, again, in Novem-
ber 2005. See State Bar of California, Attorney Search, Rita Mahdessian,
http://members.calbar.ca.gov/search/member_detail.aspx?x=141901. In
September 1996, Mahdessian was found culpable of an act of moral turpi-
tude, filing fraudulent amnesty applications, and possession of a counter-
feit employment authorization card. Id. In November 2005, Mahdessian
stipulated to six counts of misconduct in two cases. She admitted that she
aided in the unauthorized practice of law by abdicating control of her
office to her staff, failed to perform legal services competently, failed to
keep her client informed of developments in his case, and “employed . . .
means inconsistent with the truth” by telling the court she had just been
hired. Stipulation Regarding Facts, Conclusions of Law and Disposition
and Order Approving, No. 02-O-14394, at 10 (effective Nov. 12, 2005),
available at http://members.calbar.ca.gov/courtDocs/02-O-14394.pdf.
KARAPETYAN v. MUKASEY 12897
and then scheduled a brief hearing to hear the results of the
security check. Thus, this factor also supports granting
Karapetyan’s request for a continuance.
4. Previous Continuances
When evaluating the denial of a continuance, we also con-
sider the length and number of continuances that have previ-
ously been granted in the case. Here, the proceedings had
been ongoing for about two years. On March 19, 2002,
Karapetyan requested a ninety-day continuance to supplement
his asylum application. On June 13, 2002, Karapetyan
requested another continuance to submit additional docu-
ments. On February 13, 2003, Karapetyan requested a contin-
uance to submit additional documentation explaining that
country conditions had recently changed. On May 8, 2003, the
merits hearing was continued, by mutual agreement, to Sep-
tember 2, 2003. The record does not indicate why the merits
hearing did not take place on September 2, 2003 as scheduled.
On March 24, 2004, Karapetyan’s counsel withdrew. On
April 16, 2004, Karapetyan did not appear for the merits hear-
ing because he had suffered debilitating injuries from a car
accident two weeks earlier, and the matter was reset for June
10, 2004. The merits hearing was eventually held on June 10,
2004, and the IJ denied Karapetyan’s motion for a short con-
tinuance to submit fingerprints after the hearing concluded.
Although Karapetyan’s case had been continued previ-
ously, the interest in administrative efficiency cannot justify
the pretermission of Karapetyan’s claims where the other fac-
tors we have addressed — the importance of the evidence
excluded, the reasonableness of the petitioner’s conduct, and
the inconvenience to the immigration court — all militate
strongly in Karapetyan’s favor.
Accordingly, we conclude that the IJ abused her discretion
when she denied Karapetyan’s motion for a continuance.
12898 KARAPETYAN v. MUKASEY
B. The IJ’s Denial of the Continuance was Improper to the
Extent the Decision was Based on an Erroneous
Assessment of the Underlying Claim
The IJ indicated that the denial of the continuance was
based on her assessment of Karapetyan’s eligibility for relief.
The IJ suggested that she might reconsider the denial of the
continuance based on her assessment of the underlying claim.
She stated, “All right, we’ll [take] the testimony today and if
for any reason, it looks like a continuance might be required,
we’ll consider that at the end of the testimony.” In her oral
decision, following the merits hearing, the IJ revisited the
issue and denied the motion for a continuance because “after
hearing [Karapetyan’s] claim,” the IJ determined that he
“does not appear eligible for asylum in any event.”
[25] In light of the legal errors committed by the IJ during
her evaluation of Karapetyan’s claim for asylum, we find the
IJ’s denial of a continuance is improper to the extent that the
decision was based on the IJ’s flawed analysis of Karapety-
an’s claims for relief.
V. THE BIA ABUSED ITS DISCRETION WHEN IT
DENIED KARAPETYAN’S MOTION TO
RECONSIDER
We also conclude that the BIA abused its discretion when
it denied Karapetyan’s motion to reconsider. The BIA
asserted that it was denying the motion to reconsider because
the motion failed to present new legal arguments. It stated,
“[w]e find no new legal argument presented nor any particular
aspect of [the] case that was overlooked in our previous deci-
sion. Accordingly, the motion will be denied.”
[26] There is no basis for the BIA’s finding that “no new
legal argument” was presented. A comparison of petitioner’s
appellate brief to the BIA and his subsequent motion for
reconsideration demonstrates that although the motion for
KARAPETYAN v. MUKASEY 12899
reconsideration reiterated many of the arguments that had pre-
viously been presented to the BIA, it also raised new claims.
For example, it argued, for the first time, that the IJ had
improperly denied Karapetyan’s motion for a continuance to
take fingerprints. It also argued, for the first time, that the IJ
violated Karapetyan’s right to procedural due process in deny-
ing the motion for a continuance. Moreover, the motion for
reconsideration drew the BIA’s attention to additional facts
from the record and supplemental case citations.
[27] We therefore conclude that the BIA abused its discre-
tion in denying the motion for reconsider on the grounds that
the motion failed to present new arguments or aspects of the
case. Nonetheless, because we are granting Karapetyan’s
other petition, we need not remand to the BIA on these
grounds.
CONCLUSION
For these reasons, we conclude that Karapetyan is statu-
torily eligible for asylum relief. We also find that the IJ
abused her discretion in denying Karapetyan’s motion for a
continuance so that he could submit fingerprints. We remand
for proceedings consistent with this opinion.
REVERSED and REMANDED.