Mamouzian v. Ashcroft

• Citation: 390 F.3d 1129
• Decision Date: 09 December 2004
• Docket Number: No. 03-71469.,03-71469.
• Parties: Nune MAMOUZIAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1129

390 F.3d 1129

Nune MAMOUZIAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-71469.

United States Court of Appeals, Ninth Circuit.

Submitted September 2, 2004.^*

Filed December 9, 2004.

COPYRIGHT MATERIAL OMITTED

Asbet A. Issakhanian, Glendale, CA, for the petitioner.

Peter D. Keisler, Terri J. Scadron, and Leslie McKay, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A74-657-616.

Before REINHARDT, WARDLAW, and PAEZ, Circuit Judges.

REINHARDT, Circuit Judge.

Nune Mamouzian, a native and citizen of Armenia, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA affirmed without opinion the Immigration Judge's ("IJ") denial of her applications for political asylum, withholding of deportation, and protection under the Convention Against Torture ("CAT"). We have jurisdiction over her petition for review pursuant to 8 U.S.C. § 1252. We conclude that the IJ erred in determining that Mamouzian has not established a well-founded fear of future persecution on account of political opinion. Therefore, we grant Mamouzian's petition for review and remand.

I.

Mamouzian testified to the following at her asylum hearing before the IJ: She worked as an electrical engineer for a state-owned factory from 1989 through the fall of 1995. In September of 1995, the director of the factory, a member of the ruling "HeHeShe" party,¹ asked Mamouzian to help sell the factory's machinery to governments in Iran, Libya, and North Korea. After assisting in a couple of transactions over the course of three months, she told the factory director that she opposed the dismantling of the factory despite the profits such sales would bring to the government because she "did not want the factory to ... stay jobless." The director became very angry with her and called the police. After arresting Mamouzian, the police hit and kicked her until she lost consciousness. She was detained for one week and released only after her family paid a fine. After the arrest, Mamouzian was fired from the factory and was subsequently unable to find another job.

Approximately one year later, Mamouzian participated in a massive anti-government rally, demanding the resignation of the ruling HeHeShe party officials. She and other demonstrators who were holding banners in the front row of the crowd were attacked and arrested by the police. At the police station, Mamouzian explained why she opposed the HeHeShe party, at which point the officers beat her for about twenty minutes. The next day, she was taken to court, where she testified regarding her opposition to the HeHeShe party's policies, including the policy of dismantling and selling off government factories, and her disgust with political corruption. According to Mamouzian, the judge became so upset by her testimony that he accused her of being "an anti-government person" and forbade her to leave the country for two years. Again, the authorities released her only after her family paid a fine.

After Mamouzian's court appearance, government personnel began to follow her and, on several occasions, threatened her life. On June 5, 1997, two government officials searched Mamouzian's home and found articles that she had authored criticizing the ruling party and protesting government corruption. Then, "[t]hey started slapping me on my face and kicked me. I fell down and they said `we catch you with something similar again, we will jail you.'" Fearing for her safety, Mamouzian fled Armenia for Moscow. In Moscow, she worked with a smuggler (whom she referred to as a "mediator"), to get a visa to Mexico; from Mexico she entered the United States.

In an oral decision issued in September 1999, an IJ denied Mamouzian's applications for asylum, withholding of deportation, and protection under CAT. He concluded that Mamouzian's experiences did not rise to the level of persecution and were not on account of her political opinion. According to the IJ, opposition to "corruption is not a ground[ ] for a grant of asylum in the United States." Furthermore the IJ concluded that Mamouzian's ability to leave the country using her own passport undermined her claim that she had a well-founded fear of persecution by Armenian authorities, and he found that her fear was not objectively reasonable in light of the conditions in Armenia. Finally, he concluded that she would not be eligible for asylum as a matter of discretion, even if she were statutorily eligible, because she had used fraudulent documents to enter the United States and had failed to seek asylum in Russia or Mexico. In addition, the IJ denied Mamouzian's CAT claim, asserting that she indicated "nothing more than a gentle description of an alleged beating and mistreatment."

On March 17, 2003, one member of the Board affirmed the decision of the IJ without opinion. This petition for review followed.

II.

Where, as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We must uphold the decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). We reverse if a reasonable factfinder would be compelled to conclude that the requisite persecution or fear has been shown. Id. at 483-84, 112 S.Ct. 812; Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998).

To establish eligibility for asylum, Mamouzian must prove that she is unable or unwilling to return to her home country because of a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "A well-founded fear of future persecution may be established by proving either past persecution or `good reason' to fear `future persecution.'" Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000) (citation omitted).

According to the IJ, the physical abuse Mamouzian suffered was too "gentle" to rise to the level of persecution. The government on appeal similarly argues that the "physical abuse" was "mild." Yet Mamouzian testified that she was beaten by government officials on three occasions, on two of which she was also kicked. One of the beatings and kickings caused her to lose consciousness for some period. She further testified that she was jailed twice in retaliation for her political expression, and that her life was threatened by government authorities on other occasions as well. Because the IJ made no express adverse credibility determination, we accept this testimony as true. See Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000).²

We have consistently found persecution where, as here, the petitioner was physically harmed. Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999). Where such harm was inflicted on more than one occasion over a period of years, and where the physical abuse was combined with other incidents, such as detention and threats, "the harm is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution...." Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.2000); see also Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (cumulative effect of several instances of violence and harassment compel finding of past persecution).³ Indeed, we have held that death threats alone can compel a finding of past persecution, especially when those threats occur in conjunction with detention, attacks, or even close confrontations. See, e.g., Ruano v. Ashcroft, 301 F.3d 1155, 1159-60 (9th Cir.2002); Salazar-Paucar v. INS, 281 F.3d 1069, 1074-75 (9th Cir.2002); Reyes-Guerrero v. INS, 192 F.3d 1241, 1245-46 (9th Cir.1999); Leiva-Montalvo v. INS, 173 F.3d 749, 751 (9th Cir.1999). Thus, there is no doubt that Mamouzian has made a sufficient showing of persecution. We hold that any reasonable fact-finder would be compelled to conclude that the repeated beatings, arrests, and threats suffered by Mamouzian constitute persecution within the meaning of the asylum statute; the IJ erred in dismissing her experiences as "gentle" beatings.

The IJ also erred in concluding that the persecution was not on account of political opinion. The second and third attacks were unquestionably in retaliation for Mamouzian's political expression: She was arrested and beaten for participating in an anti-government rally, and was threatened and beaten as a result of articles she wrote in which she voiced opposition to corruption in the ruling party. In addition, the first attack, which occurred after Mamouzian voiced her opposition to the sale of state-owned factory equipment, was also at least in part "on account of" political opinion. Mamouzian expressed opposition to the economic policies of the ruling HeHeShe party as implemented in the state-run factory. The consequence was her arrest, beating, and detention. That Mamouzian's supervisor might also have been motivated by personal dislike, as the government contends, does not undermine Mamouzian's claim of persecution. An applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground. Borja v. INS, 175 F.3d 732, 736 (9th Cir.1999) (en banc); see also Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir.2001).

The IJ's conclusion that persecution resulting from opposition to government corruption cannot form the basis for an asylum claim is without support. Indeed, we have repeatedly held that retaliation against an individual who opposes government corruption can constitute persecution on account of political opinion. See Hasan v. Ashcroft, 380 F.3d 1114, 1120-21 (9th Cir.2004); Njuguna v....