Chalabyan v. Holder

FILED
NOT FOR PUBLICATION JUN 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KNARIK BAGRATOVNA No. 06-70718
CHALABYAN,
Agency No. A097-478-965
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, District Judge.**
Petitioner, Knarik Bagratovna Chalabyan, a native of the former Soviet
Union and a citizen of Armenia, filed a petition for asylum alleging that she
suffered past persecution and fears future persecution because of her Azeri
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
ethnicity and political activism. Chalabyan also filed claims for withholding of
removal and protection under the Convention Against Torture (“CAT”). See 8
U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16, 1208.18. After a hearing on the merits,
the Immigration Judge (“IJ”) found Chalabyan to be statutorily ineligible for
asylum because she failed to carry her burden of proof in demonstrating that her
application was timely filed. The IJ also found that Chalabyan was not a credible
witness. Relying on his adverse credibility finding, the IJ determined that
Chalabyan failed to carry her burden of proof in demonstrating her eligibility for
withholding of removal and protection under CAT.
First, Chalabyan filed a timely appeal and the Board of Immigration Appeals
(“BIA”) analyzed the merits of Chalabyan’s asylum claim without addressing the
IJ’s determination that her application was untimely. The Government conceded in
its brief that timeliness is no longer an issue because the BIA addressed the merits
of Chalabyan’s asylum claim. Therefore, we hold that the BIA implicitly rejected
the IJ’s finding of untimeliness.
Second, although the BIA reversed the IJ’s adverse credibility finding as
inadequate, it failed to analyze the merits of Chalabyan’s claims after crediting her
testimony about her experiences. The Government failed to address the adverse
credibility reversal in its responsive brief. As we have no basis to consider
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Chalabyan’s testimony as anything less than credible, Lopez-Alvarado v. Ashcroft,
381 F.3d 847, 851 (9th Cir. 2004), we analyze the merits of her asylum application
and grant Chalabyan’s petition.
To qualify for asylum, Chalabyan must establish that she is unwilling to
return to Armenia “because of persecution or a well-founded fear of persecution on
account of her race, religion, nationality, membership in a particular social group,
or political opinion.” Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004).
Whether an alien has demonstrated past persecution or a well-founded fear of
future persecution are questions reviewed for substantial evidence. Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). Under this standard, the
agency’s determination must be upheld “unless the evidence not only supports, but
compels the conclusion that the asylum decision was incorrect.” Id. (citation and
quotation marks omitted).
The record in this case compels the conclusion that Chalabyan suffered past
persecution on account of her ethnicity. Chalabyan narrowly escaped a house fire
the same month that she received an anonymous letter threatening her that if she
did not leave, she would be burned to death “along with [her] house” because she
was Azeri. Chalabyan had brought the death threat to the police’s attention.
Despite the temporal connection between the death threat and the fire, the police
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were unwilling to investigate the matter. No reasonable factfinder could conclude
that the fire was coincidental. Chalabyan was therefore the victim of past
persecution on account of her Azeri ethnicity. See Andriasian v. INS, 180 F.3d
1033, 1042-43 (9th Cir. 1999).
The record also compels the conclusion that Chalabyan suffered past
persecution on account of her political opinion. Chalabyan became a member of
the People’s Party in 1998, and became an active participant in the political process
in 2002. She had several assignments with the party including (1) collecting
signatures to ensure that the opposition candidate, Stephan Demirchian, would
appear on the ballot for the March 2003 presidential election, (2) overseeing the
electoral committee in her neighborhood, and (3) monitoring the election at a local
polling station.
Chalabyan describes several incidents surrounding her assistance with the
March 2003 election. She claims that she was intimidated, pushed, and hit in the
ear by two men (alleged to be cronies of the established party) when she called
attention to an incident of ballot box stuffing. She asserts that the men told her
“you won’t get home” if she continued to call attention to the voting discrepancies,
but she refused to back down. Finally, the men approached her again outside the
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presence of international observers and asked her why she was not taking their
threats seriously.
The day after the election, Chalabyan claims that she was attacked on the
street by an unknown assailant who pushed her to the ground and hit her while
chastising her for supporting Stephan Demirchian. As a result of this assault,
Chalabyan sought treatment at the local hospital. She states in her application that
police officers came to the hospital, questioned her, and informed her that she
would be arrested. According to Chalabyan, the police left an arrest order with the
hospital staff, and instructed the doctors to prepare her so that she could be
checked out the following day to report to the police station. Chalabyan claims
that a nurse helped her flee the hospital without detection. Chalabyan claims that
when she arrived home she received a phone call from her sister-in-law who
informed her that the police were looking for her. Chalabyan left Armenia two
days later and never returned. Chalabyan also presented documentation of the
wide-spread detention of political opposition activists shortly after the election.
Chalabyan alleges that she suffered a physical attack coupled with threats,
which is consistent with persecution. Mamouzian v. Ashcroft, 390 F.3d 1129, 1134
(9th Cir. 2004) (holding that when physical abuse is combined with other
incidents, such as threats, “the harm is severe enough that no reasonable fact-finder
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could conclude that it did not rise to the level of persecution” (internal quotations
omitted)). Further, the evidence compels the conclusion that government officials
were involved in the threats and violence, and that the persecution was committed
because of her political opinion and affiliation with the opposition presidential
candidate. Accordingly, this Court concludes that substantial evidence does not
support the finding that Chalabyan did not experience past persecution.
Because Chalabyan has established that she suffered past persecution
because of her political opinion, on remand she will be entitled to a presumption of
future persecution. 8 C.F.R. § 1208.13(b)(1). We remand this case to allow the
BIA the initial opportunity to determine whether the Government has successfully
rebutted the presumption of future persecution, which would otherwise entitle her
to asylum.
Finally, Petitioner also filed a claim for withholding of removal and relief
under CAT. As discussed supra, the IJ relied on his adverse credibility finding to
deny these claims. Although the BIA reversed the IJ’s adverse credibility finding,
it summarily affirmed his ruling on withholding of removal and relief under CAT,
citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Hence, the agency has
not engaged in an analysis of either issue taking Chalabyan’s testimony as credible.
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Therefore, Chalabyan’s claims for withholding of removal and relief under CAT
are remanded for the agency to address.
PETITION GRANTED; REMANDED.
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