Harutyunyan v. Gonzales

• Decision Date: 02 September 2005
• Docket Number: No. 04-2207.,04-2207.
• Citation: 421 F.3d 64
• Parties: Artur HARUTYUNYAN, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 64

421 F.3d 64

Artur HARUTYUNYAN, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-2207.

United States Court of Appeals, First Circuit.

Submitted August 3, 2005.

Decided September 2, 2005.

Kevin MacMurray, on brief, for petitioner.

Michael J. Sullivan, United States Attorney, and Jeffrey M. Cohen, Assistant United States Attorney, on brief, for respondent.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

SELYA, Circuit Judge.

The petitioner, Artur Harutyunyan, a native of Armenia, seeks review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum.¹ Concluding, as we do, that the BIA's order is supported by substantial evidence, we deny the petition.

The facts are uncomplicated. In June of 2001, the petitioner, then twenty years old, entered the United States under a J-1 visa to embark upon a work-study program. Having been lawfully admitted, he proceeded (again, lawfully) to acquire B-2 visitor status, which entitled him to remain until April 10, 2002.

The petitioner overstayed his departure deadline and, in June of 2002, applied for asylum. The Immigration and Naturalization Service responded by instituting a removal proceeding. The petitioner conceded removability.

At an ensuing hearing, an immigration judge (IJ) examined the petitioner's asylum application and the supporting documents submitted therewith (including the affidavit of an expert in Armenian politics and the 2002 State Department country report on human rights practices in Armenia). These exhibits showed a long history of conflict between Armenia and Azerbaijan. Those historic problems were exacerbated by a war that raged from 1988 to 1994. During the war, both Armenians residing in Azerbaijan and Azeris residing in Armenia were confronted with varying degrees of violence and discrimination. As a result, many of the Azeris who had resided in Armenia — upwards of 185,000 individuals — fled to Azerbaijan. These ethnic tensions were heightened in 1998 following the election of a self-proclaimed chauvinist, Robert Kocharian, as president of Armenia. Notwithstanding these tensions, a few people of Azeri origin continue to reside in Armenia.

The petitioner testified against this general background. In his testimony, he noted that his mother is from Azerbaijan. Building on that foundation, he alleged that, in early 2001, he began experiencing attacks upon his person and assaults upon his financial well-being due to his Azeri ethnicity. He further alleged that these intrusions constituted ethnic persecution.

The petitioner mentioned three specific events. In January of 2001, a group of men spouting anti-Azeri ethnic slurs assaulted him. The men told him that he did not have a right to live in Armenia. This assault occurred in Yerevan (where the petitioner lived). The petitioner responded to it by altering his daily routine; he left home earlier in the morning to travel to class and he returned from work later at night in order to avoid unwanted confrontations.

All was well until an evening in March, when a group of men accosted the petitioner and struck him with knives and sticks. The marauders told him that he had been forewarned that violence would occur unless he and his Azeri relatives left Armenia. This time, the petitioner suffered significant injuries, which required a two-day hospital stay.

This incident prompted the petitioner's family to move to their summer home in rural Ashtarakh, approximately fifteen miles from Yerevan, in hopes of avoiding future trouble. The petitioner resided there from March until June of 2001 and regularly attended school. He experienced no further acts of violence against his person. On April 24, 2001, however, arsonists burned down his store in Yerevan. The petitioner testified that the same nucleus of individuals who had been involved in the two prior assaults also were involved in the arson.

The petitioner contemporaneously reported each of these incidents to the police. The incidents were all investigated; one case was closed for lack of evidence; and nothing has yet been resolved in connection with the other two incidents. The petitioner attributes this state of affairs to an unwillingness to prosecute based on his Azeri ethnicity. He concedes, however, that the police responded promptly to the news of the first incident, investigated it, filed a report, and told the petitioner that they would seek to find the miscreants and bring them to justice. He also concedes that, following the second incident, the police again responded promptly, interviewed the petitioner in his hospital room, tracked down the perpetrators, and initiated criminal proceedings against them. These proceedings were pending when the petitioner absconded. Criminal proceedings also were initiated against the persons accused of committing the arson.

The arson proved to be the last straw for several of the petitioner's relatives. His brother and sister-in-law emigrated to Georgia and his parents moved to Russia. The petitioner claims that he was unable to accompany either set of relatives because he had not yet fulfilled Armenia's requirement for military service (and, thus, could not obtain an exit stamp).² The petitioner further testified that he could not meet his military service obligation because he would be murdered by anti-Azeri army officers. Faced with this Hobson's choice, the petitioner fled to the United States.

The IJ found the petitioner's testimony credible as to the raw facts, but nevertheless denied the application for asylum. In the IJ's view, the incidents that the petitioner described did not amount to past persecution.³ The IJ also determined that the petitioner had failed to demonstrate a well-founded fear of future persecution. The BIA upheld the IJ's decision without authoring an independent opinion. This petition for judicial review followed.⁴ We have jurisdiction under 8 U.S.C. § 1252(b).

When the BIA summarily affirms, this court reviews the IJ's decision "as if it were the decision of the BIA." Olujoke v. Gonzáles, 411 F.3d 16, 21 (1st Cir.2005). Consequently, we focus the lens of our inquiry on the IJ's asylum determination. We employ the highly deferential "substantial evidence" standard of review. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir.2005); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). This means that the IJ's findings of fact must stand "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

In order to establish eligibility for asylum, an alien first must demonstrate that he is a refugee. See id. § 1158(b)(1); 8 C.F.R. § 208.13(a); see also Makhoul, 387 F.3d at 79. An immigrant is considered a refugee when he or she "is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [the native] country 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). To attain refugee status, therefore, an asylum applicant must satisfy two fundamental criteria: he must (i) qualify under one of the five protected grounds enumerated above and (ii) connect that ground to a well-founded fear of future persecution. See 8 C.F.R. § 208.13; see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005).

Here, the petitioner claims that he experienced bodily injury and property damage due to his Azeri ethnicity. That allegation, on its face, satisfies the "protected ground" element. Still, it is not enough for an asylum applicant to show that he has suffered harm on account of a protected ground; he also must satisfy the "well-founded fear" requirement. This entails either (i) a showing of past persecution (which establishes a rebuttable presumption of a well-founded fear of future persecution) or (ii) independent proof of a well-founded fear of future persecution. See Da Silva, 394 F.3d at 4. Either route requires that the applicant forge a link between the harm asserted and some governmental act or omission. See id. at 7; Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir.2004).

Here, the IJ held that the petitioner had not successfully traveled either route. In so holding, she emphasized that the petitioner's antagonists were not government actors, that the Armenian government was responsive to and protective of Azeris during the relevant time frame, that the violence of which the petitioner complained was localized in nature, that the petitioner could return to Armenia free of an objectively reasonable fear of future attacks, and that his Azeri heritage posed no special danger in connection with future service in the Armenian military.

Against this mise-en-scène, we first address the petitioner's claim of past persecution. This claim rests on the three incidents recounted above. Because the IJ found the petitioner credible, we accept that those incidents occurred as described.

Importantly, however, the IJ found that all three incidents involved the same nucleus of individuals, under the hegemony of a single ringleader, and that the authorities responded appropriately on each occasion. These findings are supported by substantial evidence in the record. Indeed, they are supported by the petitioner's own testimony. These facts, in turn, adequately ground the IJ's ultimate conclusion that the three incidents did not add up to a showing of past persecution.

It is apodictic that, for asylum purposes, "not all horrific experiences translate into persecution." Rodriguez-Ramirez, 398 F.3d at 124. The incidents recounted here do not compel a finding of past persecution. The basic reason is that the petitioner has not sufficiently connected them to the Armenian government.

Although persecution is a term of art that lacks...