Mgoian v. Immigration & Naturalization Serv.

• Decision Date: 04 November 1998
• Docket Number: No. 97-70134,97-70134
• Citation: 184 F.3d 1029
• Parties: (9th Cir. 1999) MAIANE MGOIAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1029

184 F.3d 1029 (9th Cir. 1999)

MAIANE MGOIAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-70134

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 4, 1998--Pasadena, California

Filed July 13, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Stuart I. Folinsky, Los Angeles, California, for the petitioner.

Marion E. Guyton, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals INS No. A-70-966-829.

Before: Myron H. Bright,* Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Bright; Dissent by Judge Rymer

OPINION

BRIGHT, Senior Circuit Judge:

Maiane Mgoian petitions this court for review of the Board of Immigration Appeals' ("BIA") denial of her application for asylum and refusal to withhold deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. SS 1158(a) and 1253(h), respectively. We have jurisdiction under 8 U.S.C. S 1105a(a), ¹ and, for the reasons which follow, we grant her petition.

I.

Maiane Mgoian is a Kurdish-Moslem citizen of Armenia. She was admitted to the United States as a non-immigrant visitor for pleasure on June 17, 1993. Under the terms of her visa she was authorized to stay here until December 31, 1993, but she remained in this country without permission beyond that date. She is therefore deportable under S 241(a)(1)(B) of the INA, 8 U.S.C. S 1227(a)(1)(B).

Mgoian filed her application for asylum and withholding of deportation on January 12, 1994 wherein she alleged that she suffered persecution in Armenia because of her Kurdish Moslem heritage and would fear for her life if ever forced to return to her homeland. Nevertheless, on June 6, 1995, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause why she should not be deported.

At a hearing held on January 12, 1996, an Immigration Judge ("IJ") found Mgoian to be deportable, as charged, and denied her application. The IJ, while crediting Mgoian's testimony, failed to find an objective basis for her claim of past persecution and instead determined that any abuse she suffered in Armenia, although ethnically motivated, was merely harassment or discrimination and not persecution. See Admin.R. at 38-45.

Mgoian promptly appealed the IJ's decision to the BIA and argued two points: first, that the IJ erred in finding that she was not eligible for asylum; and second, that her right to a fair hearing had been denied when the IJ forced her attorney to admit that she was deportable. On January 15, 1997, the BIA rejected both of Mgoian's arguments and ordered her to depart voluntarily from the United States. The BIA agreed in principle with the IJ's determination that the harassment and discrimination suffered by Mgoian did not constitute past persecution. The BIA further concluded that Mgoian did not establish a well-founded fear of future persecution because she failed to "link" serious events targeting other members of her immediate family "in any meaningful way to her fear of being persecuted." Admin.R. at 6. The BIA also held that, although the IJ's rough handling of Mgoian's attorney was "troubling," Mgoian had not been prejudiced by her attorney's concessions. See id. at 3-4. In her petition before this court, Mgoian renews both arguments.

We have held that where an IJ expressly finds the testimony of an applicant to be credible, and where the BIA makes no finding to the contrary, we accept the testimony given before the IJ as undisputed. See Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995). Because that is the case here, we accept the following facts elicited at Mgoian's immigration hearing at face value.

Born and raised in present-day Armenia, Mgoian is a Kurdish-Moslem woman in her late twenties. She is highly educated, with a master's degree in Russian language and culture, and she is a member of what was once perhaps the single most prominent Kurdish-Moslem family in Armenia--a fam- ily that included a number of well-known physicians, academics and publishers.

Prior to the disintegration of the Soviet Union, ethnic prejudice and strife in Armenia were seemingly rare and, even though she is a member of a small minority that differs both racially and religiously from the majority of Armenia's population,² Mgoian noticed no difference in how she was treated relative to her non-Kurdish Armenian peers. In post Soviet Armenia, however, tolerance for minority groups diminished greatly. Because of her family's place as perhaps the most prominent of the Kurdish intelligentsia, the Mgoians were among the "first who became a target." Admin.R. at 62.

In the months before she came to the United States, Mgoian was personally (and repeatedly) insulted and threatened by her Armenian neighbors. She received these threats both face to-face and over the telephone. While she was never physically attacked, her tormentors suggested, in essence, that: she should leave Armenia; that people like her were unwelcome there; and that, if she did not leave of her own accord, she would be forced to do so.

Mgoian also testified at her asylum hearing that many of her closest relatives had been the victims of direct, and even deadly, attacks. Her uncle, Said Eboian, a famed physician and educator, was murdered in his office. A witness to that crime was harassed into silence and, according to Mgoian, the government never investigated the murder or prosecuted Eboian's assailant. A second uncle, Sharko Mgoian, a distinguished history professor, fled to Russia after his office was twice ransacked and he received persistent death threats. Yet a third uncle, Agit Mgoian, publisher of a Kurdish newspaper, also left Armenia for Belarus after the Armenian government forcibly closed his paper. Finally, Mgoian's father, Georgi Mgoian, also a widely respected physician, fled to the Republic of Georgia with her mother after repeated threats on their lives. In short, Mgoian testified that virtually all of her surviving family had been forced to leave Armenia, under threat, in order to find refuge in other countries.

Mgoian testified that the Armenian government had done nothing to combat or redress attacks on its Kurdish citizens. Instead, it chose to turn a blind eye and "just wash [its] hands" of them. Admin.R. at 70.

In addition to Mgoian's oral testimony, the record contains documentary evidence including: Mgoian's affidavit; several notarized translations from the Armenian newspaper "Henchak Haystan"; an August 1995 State Department Profile of Asylum Claims for Armenia; and a 1995 Amnesty International Report on Armenia. While Mgoian's affidavit essentially restates the substance of her oral testimony, the other documents do add additional insight into her claim for asylum.

The newspaper translations (see generally, Admin.R. at 100-12)--excerpts though they are--suggest that Armenian Kurds have become convenient scapegoats for many of the ills that have befallen Armenia since 1991. The excerpts, dated from 1994 and 1995, paint the Kurds in dehumanizing terms as "non-Armenian" and "illiterate", as "wolves" and "snakes", as "cunning" and "fearless, with criminal inhumanity." The excerpts also describe attacks on Kurds in general terms and draw specific and inflammatory connections between the Kurds and other acknowledged enemies of Armenia: the Kurds are said to be under the influence of Azerbaijan ³ and complicit in the Turkish-led genocide of Armenians in the early part of this century. Specifically, the newspapers blame the Kurdish "intelligentsia" for such evils. See id. at 112.

For its part, the State Department Profile notes the widespread political turbulence in post-Soviet Armenia and specifically comments that "[i]n recent months, there have been disturbing indications of declining tolerance for political opposition and for religious diversity." Admin.R. at 118. The Profile, as a whole, focuses primarily on those asylum claims likely to be made by Christian Armenians seeking better economic conditions in the United States and it mentions the Kurds only in passing. In a brief section, the Profile notes that "[t]he small communities of Russians, Jews, Kurds, Yezids, Georgians, Greeks and Assyrians [who are] still resident in Armenia do not complain of discrimination." Admin.R. at 123 (emphasis added) (implying that many in those communities have already left Armenia). Nevertheless, the Profile makes no explicit mention of persecution aimed at Kurdish-Moslems in Armenia.

Finally, the Amnesty International Report describes incidents that corroborate the claims of persecution by minority groups in Armenia. The Report asserts, inter alia, that "members of religious minorities have been physically assaulted by people they strongly believe have links with official structures, and [have been involved] in incidents they feel have not been sufficiently rigorously investigated by the police." Admin.R. at 29. The Report does not, however, discuss specific claims of persecution targeting Armenian-Kurds per se.

II.

When the BIA has conducted its own review of the record, as is the case here, we review the BIA's decision rather than the IJ's. We review the BIA's factual conclusions regarding asylum eligibility under a substantial evidence standard, and we reverse only if the evidence presented to the BIA was so compelling that no reasonable trier of fact could fail to find the requisite fear of persecution. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); Garrovillas v. I.N.S., 156 F.3d 1010, 1013 (9th Cir. 1998). Although the basis for our review is limited to the administrative record, we consider that record in its entirety, including evidence which contradicts the BIA's findings. See Velarde v. I.N.S., 140 F.3d 1305, 1309 (9th Cir. 1998).

The Attorney General has...