Andriasian v. INS

Decision Date11 June 1999
Docket NumberNo. 97-70894.,97-70894.
Citation180 F.3d 1033
PartiesSamvel ANDRIASIAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

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Steven A. Hirsch, Keker & Van Nest, San Francisco, California, for petitioner.

Michelle Gluck, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent.

Before: FARRIS, REINHARDT, and HAWKINS, Circuit Judges.

REINHARDT, Circuit Judge:

Before 1988, Samvel Andriasian's family had lived relatively peacefully in Azerbaijan for seven generations. In 1988, however, a territorial dispute broke out between Azerbaijan and Armenia. The resultant inflammation of ethnic tensions and escalation of violence abruptly ended the Andriasian family's prospects for peaceful existence as ethnic Armenians living in Azerbaijan. Samvel Andriasian, his wife, and his daughters soon found themselves facing discrimination, hostility, harassment, and physical violence from their neighbors and coworkers wherever they went. The Azeris initiated an ethnic cleansing campaign that ultimately resulted in hundreds of thousands of individuals becoming refugees. Brutally attacked by their countrymen, the Andriasian family fled its homeland and ultimately arrived in Armenia. The Andriasians may have hoped that, since the Azeris had persecuted them for their Armenian origins, they would be more welcome in Armenia itself. But they soon made the unfortunate discovery that their new neighbors were also suspicious and hostile—because of the Andriasians' religion, their former residence in Azerbaijan, and their noticeable accents. In an effort to avoid further persecution, the family began a nomadic life, moving back and forth among three countries, the Ukraine, Russia, and Armenia.

After 44 months of moving from place to place seeking to avoid harassment, discrimination, and physical violence, Mr. Andriasian fled to the United States. However, the BIA exercised its discretion and denied him asylum, solely on the basis of the time that he spent in Armenia after his family had fled persecution in Azerbaijan. In doing so, the BIA committed a clear legal error by disregarding the INS regulation that governs the exercise of its discretion in such circumstances. Because the regulation precludes the BIA from denying Mr. Andriasian asylum on the basis it did, and because the BIA relied on no other ground in denying asylum, we hold that Mr. Andriasian is entitled to asylum in this country.

BACKGROUND

At his asylum hearing, on October 3, 1995, Mr. Andriasian testified that he, his wife Rima Diagarian-Andriasian, and his two daughters, Marine and Astghik, had lived peacefully in Baku, Azerbaijan until 1988.1 Mr. Andriasian had worked as an engineer for the same employer, Baku Water Lines and Pipes, for over sixteen years, enjoying a relatively comfortable lifestyle, although he had always faced barriers to advancement as a result of his Armenian origins.

Far worse than simple discrimination was yet to come. In 1988, a dispute over the Azeri territory of Nagorno-Karabakh escalated ethnic tensions within Azerbaijan.2 As a result, as Mr. Andriasian himself put it at the close of his asylum hearing, "everything was changed." In August 1989, two Azeri teenagers attacked and assaulted Mr. Andriasian's nine-year old daughter Marine, causing injuries which eventually resulted in the total loss of vision in her left eye. When Mr. Andriasian reported the assault, he recounted, the police "`advised' me in a rather rude way to get out of Azerbaijan as soon as possible, if I wanted to save my life and the lives of my kids and wife." The day after he received this advice from the police, Mr. Andriasian was attacked by three young men near his workplace; they attempted to throw him into a water canal. His coworkers and employer began harassing him, eventually forcing him to resign his position. As did most of the few remaining ethnic Armenians left in the country, the Andriasian family began preparing to move.

Still, the Andriasian family had not yet experienced the worst of its suffering. On January 13, 1990, as Mr. Andriasian and his family prepared to leave Azerbaijan, an Armenian neighbor—the only other Armenian still living in the Andriasians' apartment building—knocked on their door in the middle of the night. Mr. Andriasian opened the door to find the neighbor bleeding from a gunshot wound. Before Mr. Andriasian could offer any assistance, five to six Azeri men rushed to the door, pushed the neighbor inside the apartment and shot him, killing him as the Andriasian family stood watching. The men then ransacked the Andriasians' apartment, stealing or destroying most of the personal belongings that they had packed in anticipation of their move, and brutally assaulted the entire family. The assailants beat Mr. Andriasian and held him down while the rest of his family was assaulted, knocked his daughter Marine unconscious, further damaging her left eye, and beat and sexually abused his wife Rima, causing her to also lose consciousness. As the attackers left, they issued a warning: the Andriasians must leave Azerbaijan within 24 hours or they would be killed. The family immediately fled to Moscow.

During the 44 months following their flight from Azerbaijan, the family's ordeal continued, causing them to move from place to place nine times. While in Moscow, the Andriasian family encountered difficulty finding housing and work because they lacked residency papers and faced discrimination as refugees from the Caucasus region. Marine obtained treatment for the damage to her eyes, but to no avail. Russian doctors diagnosed her as blind in her left eye and impaired in the other. In August 1990, the family left Moscow for Armenia, initially residing in the Armenian capital and then, as a result of the hostility they encountered there, constantly moving around between countries from August 1990 to September 1993, at which point they left for the Ukraine for the final time. After Mr. Andriasian made arrangements for his family, he returned to Armenia briefly in order to complete arrangements for obtaining his visa to visit the United States.

Because it is the Andriasians' stay in Armenia that is at issue in this case, the circumstances of their life in that nation merit further elaboration. The record on this subject is not fully developed. Mr. Andriasian was not represented by counsel and was not notified that he should be prepared to present evidence about the family's Armenian experience at his asylum hearing. However, the following facts were established on the record. Mr. Andriasian speaks Armenian with an accent and cannot read or write the language. His family's former residence in Azerbaijan and their resultant Azeri accents caused suspicion and hostility on the part of Armenians, who dubbed the Andriasians "traitors" and accused them of being true Azeris, not Armenians. After his neighbors discovered that Mrs. Andriasian had been sexually assaulted, they taunted her husband for being unable to prevent the attack, and one neighbor attempted to rape her. The Andriasian daughters were mocked by Armenian children; Marine's blindness made her a special target. The family members also faced harassment and threats because of their Baptist religion, which differed from the majority Armenian Apostolism.3 Mr. Andriasian testified that he was sometimes unable to go to church because Armenians would block his way. Because of the physical threats and harassment that the Andriasians faced, as well as at least one death threat, they moved frequently within Armenia, and never remained in the country for more than six months at a time, ultimately residing there for just 22 of the 44 months that preceded Mr. Andriasian's departure for the United States.4 During the period that his family was in Armenia, Mr. Andriasian traveled frequently between Armenia and Russia, working as a trader. He also took his daughter Marine to Moscow for one final attempt to restore her eyesight, an attempt that ended in failure after her third operation.

Mr. Andriasian has submitted newspaper articles documenting that, at the time his family lived in Armenia, there were no procedures in place for refugees to apply for asylum or citizenship. Mr. Andriasian testified that he asked the government about temporary resident status and was told to "go to Karabakh to live with other Azerbaijanis." As previously noted, Nagorno Karabakh is a province of Azerbaijan that has a majority of residents of Armenian origin, the political status of which was the cause of the violence that the Andriasians fled.

Through the United States Consulate in Armenia, Mr. Andriasian applied for a visa to visit the United States. After being advised that the visa would be granted, he moved his family to the Ukraine in September 1993, and then returned to Armenia to obtain the document. Mr. Andriasian's wife and two daughters, now sixteen and seventeen years old, remain in the Ukraine today, awaiting resolution of his asylum case. They have recently been forced to move again within the Ukraine because of escalating hostility toward refugees from the Caucasus, as a result of the conflict with the Chechens.

IMMIGRATION PROCEEDINGS

Mr. Andriasian entered the United States on December 25, 1993 as a temporary nonimmigrant visitor for pleasure, and failed to leave the country when his visa expired. He went to an INS office and requested the forms that would have allowed him to seek to extend his visa, but abandoned his efforts when he found that he could not fill out the forms by himself and was unable to afford an attorney. At a hearing held on June 1, 1995, the Immigration and Naturalization Service issued an Order to Show Cause initiating deportation proceedings. On September 22, 1995, Mr. Andriasian,...

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