Abovian v. INS

• Decision Date: 11 December 2000
• Docket Number: No. 98-70934,98-70934
• Citation: 219 F.3d 972
• Parties: (9th Cir. 2000) SOGHOMON ABOVIAN; LOUSINE ABOVIAN; ISKOUI ABOVIAN, PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 972

219 F.3d 972 (9th Cir. 2000)

SOGHOMON ABOVIAN; LOUSINE ABOVIAN; ISKOUI ABOVIAN, PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 98-70934

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted March 8, 2000

Filed July 19, 2000

Amended October 12, 2000

Second Amendment December 11, 2000

NOTE: SEE OPINIONS AT 228 F.3d 1127, AND 234 F.3d 492.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

On Petition for Review of an Order of the Board of Immigration Appeals INS Nos. A70-918-599, A70-918-600, A70-955-211

Yeu S. Hong, Popkin, Shamir & Golan, Los Angeles, California, for the petitioners.

Robbin K. Blaya, Civil Division, Department of Justice, Washington, D.C., for the respondent.

J. Clifford Wallace, Harry Pregerson, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Pregerson; Dissent by Judge Wallace

Pregerson, Circuit Judge.

Soghomon Abovian, his wife Iskoui Abovian, and their twenty-three-year-old daughter Lousine are natives and citizens of Armenia. They petition for review of the Board of Immigration Appeal's ("BIA's") de novo decision denying their requests for asylum and withholding of deportation. Iskoui and Lousine Abovian are derivative applicants whose petitions depend exclusively on the merits of Soghomon Abovian's ("Abovian's") petition. Although the Immigration Judge ("IJ") made no credibility finding at all, the BIA made an independent adverse credibility finding and denied Abovian's request for asylum and withholding of deportation in part on this basis. Alternatively, assuming Abovian's credibility, the BIA found that he did not show past persecution or a well-founded fear of persecution on account of political opinion and denied him relief from deportation on this basis as well. We have jurisdiction to review the BIA's final order in this case under 8 U.S.C. S 1105a(a).¹ We grant the petition for review and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

Petitioners Soghomon Abovian ("Abovian"), his wife Iskoui, and their daughter Lousine are citizens of Armenia. Their six-year-old son was born in this country and is a U.S. citizen. Both Abovian's mother and Iskoui Abovian's parents are permanent United States residents. Abovian, as lead petitioner, concedes deportability but seeks asylum and withholding of deportation on the basis of past persecution or a well-founded fear of future persecution because he refuses to work for and adopt the ideology of the KGB and its successor the National Security Council ("NSC"). The root of Abovian's intense opposition to communism and the KGB was his father's zealous endorsement of both.

Abovian was born in Damascas, Syria, on March 10, 1941, to a family of Armenian heritage. His father, a staunch supporter of communism, was the First Secretary General of the Communist Party in Damascas from 1934 to 1947. Abovian's father also worked for the Soviet KGB in Syria during the same period of time. In 1947, the communists were forced to leave Syria, and Abovian's father led a group of Armenian communists back to Armenia. Abovian's father continued to work for the Communist Party and as a spy for the KGB in Armenia. Abovian's father's communist leadership was well-known throughout the community.

Abovian's aversion to communism began when he was a young boy. He felt ashamed of his father's affiliation with the KGB and strongly opposed the Communist Party. Since he was fourteen, Abovian fought his father's communist teachings and was even thrown out of school a number of times because he refused to advocate the principles of communism. When he was sixteen, Abovian left home and moved to Kazakstan to escape the legacy of his father.

Abovian lived in Kazakstan for two years until he was conscripted into the Soviet Army for the compulsory three years of service in October 1960. When Abovian learned that he was going to be stationed in Cuba, he refused to go. As a result, Abovian was physically beaten and placed in the army jail for six months. He has visible scars from the beatings he endured while in jail. After he was released, Abovian still refused to go to Cuba. He was sent to a military hospital's mental ward in Tbilisi, Georgia. After a month, he was released but was declared "unfit" for military service because he deemed "mentally ill." Once branded mentally ill, Abovian could not get a driver's license or an education at a university. Additionally, because the KGB approved all job placements, Abovian was only able to obtain menial jobs.

From 1962 through 1988, Abovian moved from city to city within the Soviet Union looking for work. He was contacted by the Soviet Army every five years to see whether he had changed his mind about communism, but because he refused to accede to communist political beliefs, Abovian's official mental illness stamp on his papers was renewed for another five years. Once, the KGB threw Abovian into a hole in the ground that was filled with water and snakes to convince him to work for the KGB. He still refused. As a result, the KGB continued to periodically harass and abuse Abovian for the next 26 years.

While on a visit to Armenia, Abovian met his wife Iskoui and married her. They settled in the Soviet Union.

In 1988 conflicts in Armenia heightened and the Russian Army began sending its troops there to keep the peace. As a result of hostility against Armenians in Russia, the Abovians returned to Armenia to live. From 1988 to 1990, Armenia had no official government. The Soviet Constitution was the only law in the country, and the KGB was still in control of national security. Abovian alleges that, even after the fall of the Soviet Union and the democratic elections in 1990, the KGB -- now called the NSC -- was still running the country.

The KGB/NSC in Armenia took Abovian in for questioning on numerous occasions. He was ridiculed and threatened for not becoming a member of the KGB like his father. They demanded that he work for them, specifically as a Turkish translator, and told him that if he did not he would "suffer the consequences for the rest of [his] life." In 1991, Abovian was interrogated by the KGB about his membership in an informal social group promoting "real independence" for Armenia. Abovian told them that he would never work for the KGB/ NSC or spread their "pro-Russia" ideology.

Not long after this interrogation, Abovian and his family began receiving threatening telephone calls. In June 1993, Abovian decided to send his wife, who was pregnant at the time, to America to visit her parents to avoid any problems with the KGB/NSC.

Shortly after his wife left for the United States, Abovian's then-seventeen-year-old daughter, Lousine, was hit by a car while sitting on a bench outside their apartment building in Armenia. Lousine spent twenty days in the hospital due to her injuries. She recognized the driver of the car as a man who she had seen speaking with her father on a number of occasions. Abovian believed that the driver was associated with Ter-Petrosyan, the President of Armenia at the time and the leader of the KGB/NSC. Abovian testified that he was told that his daughter was harmed because of his stubbornness and that he should not report the incident to the police. When Abovian did report the accident, the police tried to force Lousine to identify the wrong person.

On August 21, 1993 the Abovians had a baby boy, born a United States citizen. Days after their son's birth, someone kidnaped Abovian's daughter on her way home from school. Abovian was told that the men who had interrogated him previously were the ones who had kidnaped his daughter Lousine. Abovian met with Ter-Petrosyan and was told that he was "playing with our honor" by refusing to work for them as his father had. The facts suggest that Ter-Petrosyan and the Armenian Communists would not tolerate the political fallout from Abovian's refusal to work for them. They, in essence, gave him an ultimatum: work for us or leave Armenia. Because he still refused, Abovian was told that he would have to leave Armenia immediately. He claims that they knew that his wife was in America and was told to get visas for himself and his daughter. Lousine was held for 18 days until Abovian obtained the necessary paperwork to leave the country.

The American Embassy would not grant Lousine an interview, so on February 11, 1994 she traveled to Mexico and then entered the United States on February 14, 1994. Abovian flew directly from Armenia to Los Angeles on February 17, 1994, on a tourist visa. Before leaving he was thoroughly checked to make sure that he was not taking any documents out of the country. He had given his military papers to his mother who came to America earlier and is now a permanent legal resident of the United States. Abovian was also forced to sign over his apartment and sign papers stating that if he returns to Armenia he will be taken to court. Abovian claims that communism is still a real threat in Armenia. He fears that if he is forced to return he will be killed because of his refusal to accept the communist ideology and work for the KGB/ NSC.

II. ANALYSIS

We review the BIA's determination that an alien has not established eligibility for asylum or withholding deportation under the substantial evidence standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). Substantial evidence can be found lacking only if the applicant shows that the evidence which he presented "was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacharias, 502 U.S. 478, 483-84 (1992); see Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995).

"We review de novo claims of due process violations in deportation proceedings." Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000).

A. Due Process Violation

When the BIA decides an asylum case "based on an independent, adverse, credibility determination,...