Mirzoyan v. Gonzales

• Decision Date: 20 July 2006
• Docket Number: Docket No. 05-0866-AG NAC.
• Citation: 457 F.3d 217
• Parties: Serine MIRZOYAN, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

457 F.3d 217

Serine MIRZOYAN, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.

Docket No. 05-0866-AG NAC.

United States Court of Appeals, Second Circuit.

Calendar: February 27, 2006.

Decided: July 20, 2006.

Warren N. Stone, Brooklyn, NY, for Petitioner.

Rodger A. Heaton, United States Attorney for the Central District of Illinois, Patrick D. Hansen, Assistant United States Attorney, Springfield, IL, for Respondent.

Before STRAUB, SOTOMAYOR, and KATZMANN, Circuit Judges.

PER CURIAM.

In this case, the petitioner's applications for asylum and withholding of removal were denied, in part, because Immigration Judge Barbara A. Nelson ("the IJ") concluded that the economic mistreatment the petitioner claims to have suffered in her native country does not constitute "persecution" under 8 U.S.C. § 1101(a)(42)(A). The Board of Immigration Appeals ("BIA") has not clearly identified the statutory construction of the word "persecution" it applies when assessing claims of economic persecution. We remand so that the BIA may address this important question.

BACKGROUND

Serine Mirzoyan petitions for review of a February 4, 2005, decision of the BIA affirming the decision of the IJ denying Mirzoyan's applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT").¹

Mirzoyan is an ethnic Armenian and a citizen of the republic of Georgia. In June 2002, she entered the United States on a nonimmigrant visa, which she overstayed. In January 2003, she filed an application for asylum, withholding of removal, and CAT relief. Mirzoyan claimed to fear persecution in Georgia on the basis of her Armenian ethnicity.² At a hearing before the IJ, Mirzoyan offered the testimony of an expert witness concerning the treatment of Armenians in Georgia. In her own testimony, Mirzoyan recounted various incidents of mistreatment that she had suffered in Georgia, including having twice been physically attacked by pairs of men who made derogatory references to her ethnicity. Her family had also suffered repeated racially motivated attacks.

Mirzoyan also testified that she had been denied the opportunity to earn a livelihood because of her ethnicity. Having received an unfairly low score on the entrance exam for the university to which she applied, she was told to apply elsewhere because the school was "too prestigious for Armenians." Mirzoyan found admission at a less prestigious school, where she studied sewing and design. When she applied for jobs in her profession, however, she was repeatedly turned down because of her ethnicity. Unable to find work in her profession, Mirzoyan was forced to take a job as a courier at a furniture plant, but anti-Armenian sentiment rose in Georgia, and eventually she was fired even from this job because of discrimination against ethnic Armenians. After losing her job at the plant, Mirzoyan worked from home, making clothes and selling them to wholesalers.

On October 9, 2003, the IJ found that "both the respondent and her expert witness offered credible testimony," but denied Mirzoyan's applications and ordered her removed to Georgia. The IJ concluded that the harm Mirzoyan had suffered did not constitute persecution, because "discrimination such as mistreatment by school authorities, having trouble finding or maintaining employment, or being harassed does not rise to the level of persecution." The IJ did not discuss or identify the standard she applied in concluding that Mirzoyan's treatment did not constitute past persecution, except by citing two BIA cases, which, as discussed below, appear to refer to conflicting standards for economic persecution claims. The IJ also found that the background materials and expert testimony submitted did not show a danger of persecution should Mirzoyan return to Georgia.

On February 4, 2005, BIA Board Member Roger Pauley summarily affirmed, stating that the BIA "agree[d] that the respondent failed to meet her burden of establishing past persecution or a well-founded fear of persecution on account of one of the statutorily protected grounds, or that it is more likely than not that she will be persecuted or subjected to torture upon her return to Georgia." Mirzoyan filed a timely petition for review.

DISCUSSION

When the BIA issues a short opinion adopting an IJ's decision, we review the two decisions together, including "the portions [of the IJ's decision] not explicitly discussed by the BIA." Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005) (per curiam).

To be eligible for asylum, see 8 U.S.C. § 1158(b)(1)(A), an applicant must be a "refugee" under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(42)(A). The INA defines a refugee as a person who is unwilling or unable to return to his or her country of origin "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." Id. § 1101(a)(42)(A).

There are three ways to establish refugee status. First, an applicant may demonstrate that he or she has suffered past persecution, in which case a presumption arises that he or she has a well-founded fear of future persecution. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006). Second, the applicant may establish a well-founded fear of persecution independent of any past persecution. Id. To qualify for withholding of removal, an applicant must meet the higher burden of showing that his or her "life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see Paul, 444 F.3d at 154-55. Third, in certain rare cases, an applicant may have suffered such severe past persecution as to constitute a "compelling reason[] for being unwilling or unable to return to the country." 8 C.F.R. § 208.13(b)(1)(iii)(A); see also Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989).

Mirzoyan challenges the IJ's conclusion that she did not suffer past persecution. This conclusion rests solely on legal grounds because the IJ found that Mirzoyan's testimony was credible, i.e., that Mirzoyan had in fact experienced the mistreatment she described. This factual finding, like all factual findings, is entitled to deference. See 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. . . ."); Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 563 (2d Cir.2006).

The IJ determined, however, that the mistreatment Mirzoyan suffered was not "persecution," i.e., that the facts did not meet the legal definition of persecution in the INA. This is a mixed question of law and fact, which we review de novo. See Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004) (noting that although findings of fact are reviewed under the substantial evidence standard, "[t]he BIA's application of law to undisputed facts is reviewed de novo"); see, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (noting that the application of inappropriately stringent standards in the context of adverse credibility determinations is reviewed de novo).

If the INA unambiguously explained what the word "persecution" means in the context of economic persecution claims such as the one before us, we would review de novo the BIA's interpretation of that term. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."); Khouzam, 361 F.3d at 164-65 ("If Congress clearly established the standard, then we review the BIA's interpretation of that standard de novo."). But the INA does not address the specific statutory interpretation question presented in this case—what level of treatment constitutes "persecution" in the context of economic mistreatment claims such as Mirzoyan's—and so we are obligated to defer to any agency's construction of the term "persecution" insofar as it is reasonable. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778 ("[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."); Khouzam, 361 F.3d at 164 ("[I]f the statute is silent or ambiguous with respect to the precise standard, we must defer to the Attorney General's construction of it, so long as that construction is reasonable.").

"We defer to the BIA's reasonable constructions of the immigration laws," Kyaw Zwar Tun, 445 F.3d at 562, but we do not apply Chevron deference to statutory construction by an IJ. Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191 (2d Cir.2005). To give deference to a BIA construction, however, we must first be able to determine what construction the BIA has adopted. Where we are unable to make this determination, we may remand to the BIA for clarification. See Gui Ci Pan v. U.S. Att'y Gen., 449 F.3d 408 (2d Cir.2006) (remanding to the BIA for clarification of whether an unmarried partner of a refugee can also qualify as a refugee under 8 U.S.C. § 1101(a)(42)(B)—which provides that any person who is victimized by or engages in "other resistance to a coercive population control program" is deemed to have a well-founded fear—or under any other statutory provision); Ucelo-Gomez v. Gonzales, 448 F.3d 180 (2d Cir.2006) (remanding so that the BIA could determine in the first instance whether "affluent Guatemalans" constitute a "particular social group" under § 1101(a)(42)(A)); Shi Liang Lin, 416 F.3d at 192 (remanding a series of cases to the BIA so that the BIA could "more precisely explain its rationale" behind its construction of § 1101(a)(42) as...