Hayrapetyan v. Mukasey

• Decision Date: 28 July 2008
• Docket Number: No. 06-9538.,06-9538.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Armenuhi HAYRAPETYAN, Petitioner, v. Michael B. MUKASEY, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.

534 F.3d 1330

Armenuhi HAYRAPETYAN, Petitioner, v. Michael B. MUKASEY, United States Attorney General,^* Respondent.

No. 06-9538.

United States Court of Appeals, Tenth Circuit.

July 28, 2008.

Asbet A. Issakhanian of Glendale, CA, for Petitioner.

Joanne E. Johnson, United States Department of Justice, Office of Immigration Litigation, Washington, D.C. (Peter D. Keisler, Assistant Attorney General, Civil Division; Mary Jane Candaux, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division; and N. Christopher Hardee and Ihan Kim, United States Department of Justice, Washington, D.C., on the brief), for Respondent.

Before TYMKOVICH, McKAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Armenuhi Hayrapetyan petitions for review of a Board of Immigration Appeals (BIA) decision denying her application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and the United Nations Convention Against Torture (CAT). A native and citizen of Armenia, Ms. Hayrapetyan entered the United States illegally in September 2003. In February 2004, she filed her application for asylum and restriction on removal, claiming she would be persecuted if forced to return to Armenia because of her past efforts as a television reporter to expose corruption in the ruling regime of President Robert Kocharian. The immigration judge (IJ) denied the application, concluding the mistreatment she suffered did not rise to the level of political persecution. The BIA summarily affirmed the IJ's decision. We reverse and remand.

I.

Ms. Hayrapetyan began working as a reporter for a private television station in Hrazdan, Armenia in 1999. She initially worked on a children's program, but later moved to reporting on political issues. At a hearing before the IJ, Ms. Hayrapetyan testified that because her political reports threatened to expose government corruption and the oppression of the Armenian people, the television station where she worked was warned not to air her reports, and she and her husband were repeatedly harassed, threatened, detained, and abused by the police and other government officials acting on behalf of the regime of President Kocharian.

The first such incident occurred in November 2001, when she was assigned to interview newly-inducted soldiers at the army base in Armavir, Armenia. She interviewed the soldiers in private, and they told her about torture and other mistreatment they were suffering as new recruits. She had permission from the military to conduct the interviews, which her crew filmed, but when she returned to work she was told the Ministry of Defense had called the director of the television station and told him not to air the interviews. Her boss told her that if he aired the program he would lose his license and she would lose her job.

The next incident occurred on October 25, 2002, as Ms. Hayrapetyan and her film crew were leaving a demonstration organized in remembrance of eight parliament members who were gunned down in 1999. Ms. Hayrapetyan testified that she and her crew were stopped by the police after she finished filming the demonstration. When she showed her identification, the police became very angry, slapped her, and confiscated her documents and camera equipment. She claims the police told her, "[y]ou prepared this material to bring us to justice." Admin R. at 107. It is unclear what happened after this run-in with the police, but as far as we can tell from Ms. Hayrapetyan's testimony, she went to the police station on November 4, 2002, to retrieve her confiscated documents. While there, Arum Manukyan, whom Ms. Hayrapetyan described as "the national defense department's lead interrogator," id., tried to force her to sign a statement saying that she had accepted a bribe from opposition leaders. When she refused to sign, she was jailed for two days. When her husband tried to visit her, he was beaten by the police and refused visitation. When she was released, the police warned her to think carefully about her family before preparing any more reports. She took the threats seriously because other outspoken journalists in Armenia at the time were being attacked and murdered. Id. at 110.^** Ms. Hayrapetyan testified that she filed a complaint about this incident with the prosecutor's office, but that nothing came of it.

The next incident occurred on March 5, 2003, the day of Armenia's widely-criticized presidential run-off election.^*** Ms. Hayrapetyan testified that as she was preparing a report on ballot-box stuffing, the Yerkrapahs (Kocharian loyalists who were allegedly doing the stuffing) approached her assistants and told them to stop filming. When she tried to intervene, she was knocked to the ground and kicked by the Yerkrapahs. She sought the protection of the police, but they arrested her and took her to the police station. There, the chief of police told her "you already know who Kocharian is, we are not asking for your justice. He is the president." Id. at 113. He confiscated her tape, and slapped her. When she told him she would complain to international observers, he held her in a cell until the next morning. When she returned home, she learned that her husband, who had also been observing the election, had been hospitalized after being beaten by the Yerkrapahs in retaliation for his wife's "long tongue." Id. He was hospitalized for fifteen days.

After Ms. Hayrapetyan discovered her husband was in the hospital, she arranged a meeting with the co-chairman of the Helsinki Human Rights Association in Armenia on April 2. On March 27, however, Ms. Hayrapetyan was walking home when a car drove into her on the sidewalk, seemingly on purpose. She was injured as she attempted to move out of the way, hospitalized, and released the next morning. When she returned home, she discovered that someone had apparently attempted to kidnap her daughter from kindergarten. Individuals had approached her daughter and called out to her, but she was able to get away. Because Ms. Hayrapetyan had received telephone threats against her family prior to the kidnapping attempt, the incident distressed her and she did not allow her daughter to return to school. She also cancelled her planned meeting with human rights officials.

On April 30, 2003, Ms. Hayrapetyan was fired from her job at the television station. She was told by the director of the station that he was firing her because the Ministry of Defense threatened to revoke the station's license due to the nature of her reporting. Shortly thereafter, she and her family left Hrazdan and moved to another city in Armenia to stay with her husband's family. Even there, however, she continued to receive telephone threats. After a short while, she decided it was not safe to stay in Armenia. Thus, in May 2003, she and her family went to Russia. While there, Ms. Hayrapetyan testified, they suffered harsh discrimination on account of being Armenian. On September 2, 2003, Ms. Hayrapetyan traveled to Mexico on a tourist visa, and from there she surreptitiously crossed the border into the United States. Her husband and daughter remained in Russia.

II.

The IJ generally found Ms. Hayrapetyan to be a credible witness. He nevertheless concluded that she failed to establish she was a refugee within the meaning of the INA. He dismissed her claims of past persecution and characterized what happened to her as mistreatment by disgruntled individuals rather than retaliatory acts of the Kocharian regime:

The respondent described the incidents which occurred ... in the past. She was accosted on two occasions while doing her journalistic work. She was detained for what the Court believes are brief periods of time by the authorities. She was slapped. She had a nose bleed at one time. However, I don't find that these incidents are serious enough to rise to the level of persecution. They seem to be hostile actions by people feeling they are being adversely affected by the news media. I don't believe they rise to the level of persecution and I don't think that the respondent has shown that she suffered persecution in the past.

Id. at 81 (emphasis added). The IJ also determined that Ms. Hayrapetyan failed to show a well-founded fear of future persecution reasoning that it was unlikely she would continue her career in journalism and that there was no evidence of a pattern or practice of persecution against ex-journalists in Armenia. Finally, he denied her requests for restriction on removal under the INA and CAT, concluding that she failed to show it was more likely than not that she would be persecuted or tortured upon her return to Armenia.

Because the BIA summarily affirmed the IJ's decision, we treat that decision as if it were the BIA's. Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003), superceded on other ground by statute, 8 U.S.C. § 1252(a)(2)(D). We review the BIA's findings of fact under the substantial evidence standard, and its legal determinations de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.2005). "In this circuit, the ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution." Vicente-Elias v. Mukasey, Case Nos. 07-9542, 07-9545, 2008 WL 2699399, at *4, 532 F.3d 1086 (10th Cir. July 11, 2008), citing Nazaraghaie v. INS, 102 F.3d 460, 463 n. 2 (10th Cir.1996). The BIA's determination must be upheld 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) (quoting 8 U.S.C. § 1105a(a)(4)). Thus, we may reverse the BIA's decision "only if the evidence presented by [the alien] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Id. We are also ...