Javhlan v. Eric H. Holder Jr
| Decision Date | 03 December 2010 |
| Docket Number | Agency No. A096-364-930,Agency No. A096-364-969,No. 06-71565,06-71565 |
| Parties | Dashdavaa Javhlan and Lhayajav Tumurbaatar, Petitioners, v. Eric H. Holder Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
FOR PUBLICATION
On Petition for Review of an Order of the
Board of Immigration Appeals
Before: Harry Pregerson, Dorothy W. Nelson and
Opinion by Judge Pregerson;
Louis A. Gordon (argued), Law Offices of Louis A. Gordon, Los Angeles, California, and David B. Gardner, Law Offices of David B. Gardner, Los Angeles, California, for the petitioners.
Norah Ascoli Schwarz (argued), Senior Litigation Counsel, U.S. Department of Justice Office of Immigration Litigation, Washington, D.C., and Michael E. Davitt, U.S. Dept. of Justice, Criminal Division, Washington, DC., for the respondent.
Dashdavaa Javhlan1 ("Javhlan "), a native and citizen of Mongolia, petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge ("IJ") denied Javhlan's applications for relief and the BIA affirmed without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Thus, we review the IJ's decision as the BIA's final determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand to the BIA for further proceedings.
We review a decision that an applicant has not established eligibility for asylum and withholding of removal under the substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). "[The BIA] can be reversed only if the evidence presented... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Id.
Because the IJ did not make an adverse credibility determination, we take Javhlan's testimony as true. Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000). The following facts are thusdrawn from Javhlan's testimony at her hearing before the IJ and from Javhlan's supporting documents.
Javhlan grew up hearing her grandparents talk about their fears of communist rule in Mongolia. She also heard the story of how her deceased paternal grandfather, a Buddhist Monk, was tortured and killed by agents of the communist government in 1937. As an adult, Javhlan refused to join the Communist Party. She also refused to serve as a spy for the communist Secret Police by acting as their "eyes and ears" at the Mongolian British and Indian embassies where the Mongolian Ministry of Foreign Affairs had placed her. At another time, Javhlan worked at the United Nations Development Programme (UNDP) in Mongolia where again she was pressured and refused to spy for the Secret Police.
Secret Police agents approached Javhlan frequently on her way to and from work and threatened her with assault, imprisonment, rape, and death because she refused to act as a spy for them. Secret Police agents told her, In June 1995, a Secret Police Captain named Ganbold arrested Javhlan and took her to a prison, where she was interrogated for four to five hours. Captain Ganbold shouted at Javhlan that she was a traitor for not helping her country. Javhlan was terrified that she would not survive. Eventually, Javhlan was released from custody without any explanation. As Javhlan was leaving the prison, the agents warned her that she was fortunate this time, but that she would not come out alive next time. Javhlan continued to receive phone calls and in-person threats from Secret Police agents after this unexplained detention. Javhlan was stopped by Secret Police agents on the street and interrogated about why she was not cooperating with the Secret Police. Javhlan was warned that her family would face serious consequences if she did not cooperate with the Secret Police.
From 1996 to 2000, the People's Democratic Party was in power in the government and the Secret Police called Javhlan less frequently. But when the Mongolian Communist Party regained power in 2000, Javhlan testified that the threats from the Secret Police agents "became more powerful." At this time, Javhlan was working for the UNDP and the Secret Police agents wanted her to provide information about United Nations representatives. Captain Ganbold threatened to tell Javhlan's supervisors at the UNDP that she was a prostitute and a spy. Javhlan was very afraid that Captain Ganbold would carry out these threats and, even worse, that she would be arrested and jailed again. Javhlan was accosted by Secret Police agents in the streets, who threatened Javhlan with assault, imprisonment, torture, rape, and death. Javhlan began to change her work habits, hoping that she would escape these continuing threats and harassment from Secret Police agents. As a result of these constant threats and harassment, Javhlan contemplated suicide.2
Javhlan suffered mentally and physically as a result of the Secret Police harassment and threats. In September 2001, Javhlan developed a paralysis on the left part of her face because of the stress of the threats and thinking about what would happen to her as a result of her refusal to cooperate. In May 2002, Javhlan's husband was suddenly fired from his job at the Water Supply Economy Company without explanation.
This followed a phone call Javhlan received from the Secret Police warning her that after she had refused for so many years to do her "duty" for her country, "it was time for [her] country to 'deal' with [her]." She was also told during this same conversation that the next time she was arrested she would be raped. Javhlan and her husband decided to flee Mongolia because they believed this was the only way to avoid harm.
After Javhlan and her husband left the country, the Secret Police contacted Javhlan's mother and brother demanding to know Javhlan and her husband's new location. When Javh-lan's mother and brother refused to provide the requested information, the Secret Police threatened that they would be punished. On December 20, 2002, Javhlan's brother's car was firebombed one day after the Secret Police visited him demanding to know Javhlan's whereabouts.
Javhlan submitted to the IJ an affidavit from a native Mongolian, Gonchigdamba Bayarsaikhan ("Bayarsaikhan"), who suffered constants threats and survived an assassination attempt when his car exploded after he refused to act as a spy for the communist Secret Police at the foreign embassies where he worked. Bayarsaikhan stated in his affidavit that the Mongolian Secret Police are "capable of visiting untold acts of horror and devastation on its targets...." The IJ did not question the credibility of Bayarsaikhan's affidavit.
Although the IJ did not question Javhlan's credibility, the IJ denied Javhlan's applications for asylum, withholding of removal, and CAT protection because the IJ concluded that Javhlan had not suffered past persecution and had not established that she had a well-founded fear of persecution if she were to return to Mongolia. The IJ concluded that Javhlan's subjective fear of returning to Mongolia was genuine, but that "there is no objectively reasonable basis" for a fear of future persecution. The IJ cited no cases to support her legal conclu-sions, nor did the BIA. The BIA affirmed without opinion. We disagree.
A reasonable factfinder would have to conclude that Javh-lan suffered past persecution on account of her political opinion. The evidence demonstrates that Javhlan suffered multiple in-person confrontations with communist Secret Police agents, and that she was frequently threatened over a period of years with assault, imprisonment, rape, and death because she refused to act as a spy for them. The threats by the Secret Police, and the mental anguish and physical paralysis that Javhlan suffered as a result, constitute persecution. We find that the cumulative effect of these events qualifies as an offensive suffering or harm that rises to the level of persecution.
[1] We have held that threats of serious harm may constitute persecution. Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004), amended by 2004 U.S. App. LEXIS 22712 (9th Cir. 2004). Although we have found that unfulfilled threats alone generally do not rise to the level of persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003), we have held that ongoing threats, harassment, and close confrontations amount to persecution. See Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir. 2004) () (internal quotation marks and citation omitted); Ruano v. Ashcroft, 301 F.3d 1155, 1160-61 (9th Cir. 2002) (); Sangha v. INS, 103 F.3d 1482, 1487-88 (9th Cir. 1997) ().
[2] In determining whether multiple threats and incidents of harassment constitute persecution, we view them cumulatively. Mashiri, 383 F.3d at 1120-21; Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996). "[T]he severity of harm is com-pounded when incidents of persecution have occurred on more than one occasion, particularly where an applicant is victimized at different times over a period of years." Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (); see also Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1075 (9th Cir. 2004) (...
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