Melkonian v. Ashcroft

Decision Date04 March 2003
Docket NumberNo. 01-71231.,01-71231.
Citation320 F.3d 1061
PartiesArout MELKONIAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Eva Garcia-Mendoza and Luther M. Snavely, Las Vegas, NV, for the petitioner.

Mark C. Walters, Greg D. Mack, and Frances Fraser, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A73-133-099.

Before: SCHROEDER, Chief Judge, W. FLETCHER, Circuit Judge, and WEINER,** District Judge.

WILLIAM A. FLETCHER, Circuit Judge.

Petitioner Arout Melkonian ("Melkonian"), an ethnic Armenian and a Christian, lived in Abkhazia, an autonomous region within Georgia, from his birth in 1959 until September of 1992, when he fled across the Russian border to escape kidnaping by ethnic-Abkhaz Separatists. He subsequently left Russia and, in early 1994, entered the United States illegally and applied for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1253(h) (1994). The Immigration Judge ("IJ") denied his application, and the Board of Immigration Appeals ("BIA") affirmed. Melkonian timely appealed.1

I. Governing Law and Standard of Review

To establish eligibility for asylum, an applicant must demonstrate his or her status as a refugee. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). A refugee is an alien who is unable or unwilling to return to the country of origin "because of persecution 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) (1994).

Eligibility for asylum based on a well-founded fear of future persecution requires an applicant to satisfy both a subjective and an objective test. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Applicants satisfy the subjective test by credibly testifying that they genuinely fear persecution by their government, or forces their government is unable or unwilling to control, on account of a statutorily-protected ground. Id. The objective component is satisfied where credible, direct, and specific evidence in the record supports a reasonable fear of persecution. Id.

We review factual findings of the IJ and BIA under the "substantial evidence" standard. Singh v. Ilchert (Singh I), 63 F.3d 1501, 1506 (9th Cir.1995). That is, we must sustain factual findings if supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review questions of law regarding the INA de novo, but give deference to the BIA's interpretation of the statute. Ladha v. INS, 215 F.3d 889, 896(9th Cir.2000). The BIA must, however, follow the decisions of our court, and we will not defer to BIA decisions that conflict with circuit precedent. Id. To the extent that the BIA adopted the findings of the IJ as its own, we treat the decision of the IJ as that of the BIA. Gonzalez v. INS, 82 F.3d 903, 907(9th Cir.1996).

II. Background

Abkhazia enjoyed full republic status within the Soviet Union until February 1931, when it was incorporated into Georgia as an "autonomous republic." During the Soviet era, Abkhazia was home to ethnic Abkhaz, a Turkic speaking, predominantly Muslim people, along with a large number of ethnic Georgians, Armenians, Russians, and Greeks.

After Georgia achieved independence from the Soviet Union in 1991, ethnic tension in Abkhazia increased. Demands by ethnic Abkhaz for greater autonomy led to armed combat between the Georgian National Guard and Abkhaz Separatists ("the Separatists") in August of 1992. Intense fighting continued until September of 1993, when the Separatists succeeded in driving out the Georgian forces and in achieving de facto independence.

Since gaining control, the Separatists have engaged in a campaign of ethnic cleansing in Abkhazia. See Comms. on Foreign Relations and Int'l Relations, 104th Cong., 1st Sess., Country Reports on Human Rights Practices for 1994, at 815 (Joint Comm. Print 1995) [hereinafter Country Reports on Human Rights Practices for 1994]. Their main target has been ethnic Georgians, but all non-Abkhaz have suffered. See id. It was reported in 1992 that the Separatists moved through captured towns with prepared lists and addresses of ethnic Georgians, plundered and burned homes, and executed designated civilians. See Comms. on Foreign Relations and Int'l Relations, 103d Cong., 1st Sess., Country Reports on Human Rights Practices for 1992, at 778 (Joint Comm. Print 1993). The Separatists are credibly reported to have tortured, raped, killed, expelled, and imprisoned hundreds of Georgians and other non-Abkhaz. See Country Reports on Human Rights Practices for 1994, at 815.

By the end of 1993, the Abkhaz reign of terror had produced dramatic results. Virtually the entire Georgian population of Abkhazia had fled the region, along with most of the rest of the non-Abkhaz population (approximately 250,000 people). See Comms. on Foreign Relations and Int'l Relations, 103d Cong., 2d Sess., Country Reports on Human Rights Practices for 1993, at 881 (Joint Comm. Print 1994). The State Department reported that those fleeing Abkhazia made highly credible claims of atrocities, including the killing of civilians without regard to age or sex. See id. Corpses recovered from Abkhaz-held territory showed signs of extensive torture. See id. The conflict between the Abkhaz Separatists, who continue to control the region, and the Georgian government remains unresolved today.

Both Melkonian and his wife testified at the hearing before the IJ. Melkonian also offered a written declaration in support of his application for asylum. Neither the IJ nor the BIA questioned the credibility of Melkonian or his wife. We therefore accept their testimony as true. Prasad v. INS, 101 F.3d 614, 616 (9th Cir.1996). It reveals the following.

Before hostilities between Abkhaz Separatists and the Georgian military intensified in August of 1992, Melkonian was living in Gagra, Abkhazia, with his wife, Angela (also an Armenian Christian), their eleven-year-old son, Gegam, and Angela's parents. They had a home, a large farm and farmhouse, and a herd of cattle. Life had been relatively calm during the Soviet era, but when the Soviet Union began to disintegrate, living in Abkhazia became difficult. Ethnic groups began to fight amongst each other, particularly the Muslim Abkhaz and Christian Georgians. As Christian Armenians, Melkonian's family felt bound to side with the Georgians. Melkonian's family demonstrated its loyalty by supplying the Georgian fighters with fruit and with money for weapons.

In the early summer of 1992, Abkhaz fighters descended from the mountains and took control of Gagra. Initially, Melkonian could protect his family simply by giving the Separatists money. Then, when fighting broke out with Georgian troops, the Separatists began to round up Armenian men to fight on the front lines. Melkonian testified that the Separatists would grab young men off the street and take them to the front. He explained that the "Muslims would come in the middle of the night and take the Armenian men at gunpoint." Neighbors and friends he had gone to school with were taken to war and never returned. Angela, Melkonian's wife, testified that the Separatists "were beating Armenians up, threatening them and holding them in fear."

Melkonian's father-in-law, whom Angela described as the head of the family, openly refused to fight for the Abkhaz cause. One day in September 1992 he spoke out against the Muslim tactics and in favor of Christianity. That night, a group of armed Separatists came to Melkonian's house with shotguns, demanding to see Melkonian and his father-in-law. Angela and her mother were able to convince them that the men were not at home. Immediately thereafter, Melkonian and his father-in-law fled to Russia. Angela, Gegam, and Angela's mother stayed behind to protect their property.

Melkonian hoped things would normalize soon so that he could return home. He explained at the hearing: "We had our farm, we had our house, we had everything." But the situation in Gagra got worse. The Separatists returned to Melkonian's home demanding to know where he and his father-in-law were. This time, Angela and her mother convinced them that the men had only gone across the border to Russia for supplies, and would return.

The Separatists continued to pursue Melkonian and his father-in-law, repeatedly breaking into their house at night to search for the men. They stole all of the family's meat and cheese and violently beat Melkonian's cheese maker. They took all of Melkonian's cows and murdered an elderly woman who was trying to protect his herd. They took the family's possessions, including the washing machine, the couch, and the doors, shot the windows and ceiling, and then burned Melkonian's farmhouse and farm. The Separatists placed a man in a car trunk to die, mistaking him for Angela's father.

After an Armenian mother and daughter were burned to death in a home not far from Melkonian's, Angela and Gegam decided that they risked death if they remained in Abkhazia. They crossed over the Russian border and reunited with Melkonian in December 1992. In Russia, the family was safe from the violence of the Separatists, but Melkonian was unable to work without registration. Obtaining registration required knowing someone who could be bribed, and Melkonian knew no one.

In order to survive, Melkonian and Angela got divorced, and Angela married a Russian man with two children. This allowed her to obtain registration, and ultimately two B-2 Visitor's Visas. In November 1993, Angela and Gegam left for the United States; both have been granted...

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