RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
Petitioner, -
ZAMIRA BARBAKOVNA JAPARKULOVA,
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No. 09-3583
v.
,
>
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Respondent. -
ERIC H. HOLDER, JR.,
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On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A095 574 202 Cincinnati.
Argued: June 8, 2010
Decided and Filed: July 8, 2010
Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Charleston C. K. Wang, LAW OFFICES, Cincinnati, Ohio, for Petitioner.
Rosanne M. Perry, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Charleston C. K. Wang, LAW OFFICES, Cincinnati, Ohio,
for Petitioner. Greg D. Mack, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
KETHLEDGE, J., delivered the opinion of the court, in which RYAN, J., joined.
MARTIN, J. (pp. 9-10), delivered a separate concurring opinion.
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OPINION
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KETHLEDGE, Circuit Judge. Zamira Japarkulova, a native and citizen of the
Kyrgyz Republic, petitions for review of an order of the Board of Immigration Appeals
denying her application for asylum. We conclude that the Board erred by failing to provide
a reasoned explanation for its conclusion that Japarkulova did not experience past
1
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persecution. But we also conclude that the error was harmless. We therefore deny the
petition.
I.
Japarkulova was admitted into the United States as a non-immigrant visitor in
September 2001. Her visa was due to expire in March 2003. In May 2002, however,
Japarkulova submitted an application for asylum and withholding of removal to the
Department of Homeland Security (DHS). An asylum officer denied her application in
August 2003, at which point DHS issued a Notice to Appear, alleging that Japarkulova was
removable for having overstayed her visa. See 8 U.S.C. § 1227(a)(1)(B). At a hearing
before an immigration judge (IJ), Japarkulova conceded removability but renewed her
requests for asylum and withholding of removal, and added an application for relief under
the Convention Against Torture.
At a subsequent hearing, Japarkulova testified in support of her requests for relief.
She claimed that she had been persecuted in the Kyrgyz Republic because of her opposition
to the corruption of Mariam Akayeva, the wife of then-President Askar Akayev. She
explained that, as a result of her advanced education and work as a university professor, she
had become involved with the Kelechek Foundation, an organization founded in 1991 to
provide educational support to gifted Kryrgz students. During her time with the Kelechek
Foundation, Japarkulova worked closely with Akayeva, the head of the Foundation.
In roughly 1993, Japarkulova learned that Akayeva was mishandling Foundation
funds. According to Japarkulova, Akayeva was selling scholarships to attend several
competitive universities in the United States, even though the scholarships were supposed
to be allocated based on merit. After Japarkulova raised the issue of Akayeva’s corruption
with the Kyrgyz Minister of Education, she was asked to visit the president’s office to
discuss the charge. When Japarkulova arrived for the meeting, however, security guards
seized the documentation that she had brought with her. She then met with the Minister of
National Security, who told her that she would be jailed if she did not abandon her efforts
to expose Akayeva’s corruption. The security minister also threatened that the government
would arrange a fatal “accident” for Japarkulova if she did not desist. Because of the history
of political violence in her country, Japarkulova took the threat seriously.
No. 09-3583 Japarkulova v. Holder Page 3
Japarkulova also testified that she was fired from a series of jobs because of her
opposition to Akayeva’s corruption. Twice, her employer informed her that she was being
fired due to pressure from the president. On another occasion, Japarkulova was fired shortly
after Akayev visited her employer’s office and found her working there. On each occasion,
however, Japarkulova was able to find a new position shortly after being fired.
In 1997, Japarkulova came to the United States on a Fulbright Scholarship. She
testified that she did not seek asylum at that time because she hoped that Akayev would lose
an upcoming election. In 1999, she returned to the Kyrgyz Republic, where she began work
as a volunteer for the opposition Ar-Namys party. Akayev won the election, however, and
thereafter jailed the founder of the Ar-Namys party, Felix Kulov. Finally, in August 2001
Japarkulova received a subpoena to appear at what she later determined was a special
national security office in the local police station. Rather than obey the subpoena, she fled
to Moscow, where she stayed with a friend before ultimately coming to the United States.
At the close of the hearing, the IJ denied Japarkulova’s applications for relief.
Although the IJ credited her testimony and found that she had been mistreated because of
a political opinion, he concluded that the mistreatment did not rise to the level of past
persecution. The IJ also found that conditions in the Kyrgyz Republic had improved since
Japarkulova left, which meant that she could not demonstrate a well-founded fear of future
persecution.
The Board of Immigration Appeals affirmed in a two-page opinion. It first noted that
Japarkulova had abandoned her claims for withholding of removal and Torture Convention
relief by failing to discuss them in her brief. With respect to her asylum claim, the Board
adopted the IJ’s reasoning, concluding that Japarkulova had not shown past persecution or
a well-founded fear of future persecution.
This petition for review followed.
II.
To be eligible for asylum under the Immigration and Nationality Act (INA), an alien
must demonstrate that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A); see 8 C.F.R.
§ 1208.13(a) (“The burden of proof is on the applicant for asylum to establish that he or she
No. 09-3583 Japarkulova v. Holder Page 4
is a refugee”). The INA defines “refugee” as an alien “who is unable or unwilling to return
to” his 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.” 8 U.S.C. § 1101(a)(42)(A). Here, the Board credited Japarkulova’s testimony and
accepted the IJ’s conclusion that the mistreatment she experienced was on account of a
political opinion. The only issues before us, therefore, are whether that mistreatment rose
to the level of past persecution and, if not, whether Japarkulova demonstrated a well-founded
fear of future persecution.
The INA does not define “persecution,” and to our knowledge the Board has not
either. See Sahi v. Gonzalez, 416 F.3d 587, 588-89 (7th Cir. 2005). Our cases have given
the term some content, but mostly by identifying what does not count. See, e.g., Ali v.
Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (“[P]ersecution is an extreme concept that does
not include every sort of treatment our society regards as offensive”) (alteration in original;
quotation marks omitted); Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)
(persecution “requires more than a few isolated incidents of verbal harassment or
intimidation, unaccompanied by any physical punishment, infliction of harm, or significant
deprivation of liberty”). And by way of example, we have explained that “actions that might
cross the line from harassment to persecution include: detention, arrest, interrogation,
prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings,
or torture.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.2005) (quotation marks omitted).
The Board was on solid ground in concluding that Japarkulova’s string of job losses
did not amount to persecution. Japarkulova contends that, in dismissing her claim of
economic persecution, the Board ignored our decision in Berdo v. INS, 432 F.2d 824 (6th
Cir. 1970), and its own precedential decision in In re T-Z-, 24 I. & N. Dec. 163 (B.I.A.
2007). But the Board acknowledged that economic deprivation will sometimes amount to
persecution; it held that Japarkulova’s job losses were not persecution because she did not
show that “‘the resulting conditions [were] sufficiently severe.’” Board Op. at 1 (quoting
Daneshvar v. Ashcroft, 355 F.3d 615, 624 n.9 (6th Cir. 2004)). As the Board noted, although
Japarkulova was fired from a series of jobs, on each occasion she moved quickly to another
high-level position in the Kyrgyz economy. This was not persecution. See Berdo, 432 F.2d
at 846 (observing that the “deliberate imposition of substantial economic disadvantage” may
No. 09-3583 Japarkulova v. Holder Page 5
constitute persecution) (emphasis added; quotation marks omitted); Daneshvar, 355 F.3d at
624 (finding no persecution where, because of discrimination, alien could not work for the
government but could find employment in the private sector).
More problematic, however, was the Board’s treatment of the threat Japarkulova
received from President Akayev’s security minister. After the IJ’s opinion failed to mention
the incident, the Board said that “the threats or harassment [Japarkulova] received do not
amount to persecution,” reasoning that persecution requires “‘more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.’” Board Op. at 1-2 (quoting Ndrecaj
v. Mukasey, 522 F.3d 667, 674 (6th Cir. 2008)). But Japarkulova was threatened with death
(albeit implicitly) if she did not abandon her attempts to expose Akayeva’s corruption. The
threat, moreover, came from the highest reaches of her country’s government. Without
further explanation, it is hard to understand the Board’s conclusion that this treatment
amounted only to “verbal harassment or intimidation.”
Perhaps the Board read our cases to suggest that a threat, unaccompanied by physical
abuse, could never amount to persecution. But that proposition runs contrary to a number
of cases, from this circuit and others, which observe that physical abuse is not an absolute
prerequisite to a finding of persecution. See, e.g., Ouda v. INS, 324 F.3d 445, 454 (6th Cir.
2003); Li v. Attorney General, 400 F.3d 157, 164-65 (3d Cir. 2005); Lim v. INS, 224 F.3d
929, 936-37 (9th Cir. 2000); Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997). It is also a
doubtful reading of the statutory term. When members of a minority sect are credibly
threatened with death if they do not convert to the majority faith, it seems natural to say that
have been persecuted even if they choose accommodation rather than martyrdom. See
Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (“A credible threat that causes a
person to abandon lawful political or religious associations or beliefs is persecution”).
So it fell to the Board to explain why the death threat Japarkulova received was not
of the sort that would qualify as past persecution—or to clarify, notwithstanding the cases
cited above, that a threat standing alone can never be persecution. Had it done so, its
resolution of the issue might have received Chevron deference, which we accord to the
Board “as it gives ambiguous statutory terms ‘concrete meaning through a process of
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case-by-case adjudication.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS
v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)); see Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). (We say might because the
Board’s decision here was a non-precedential, single-member order, which several courts
have held are not entitled to Chevron deference. See, e.g., Rotimi v. Gonzalez, 473 F.3d 55,
57 (2d Cir. 2007) (per curiam); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.
2006).) But the Board bypassed the issue altogether, leaving us without the reasoned
explanation that is a predicate to deferential review. Berhane v. Holder, 606 F.3d 819, 825
(6th Cir. 2010); Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004).
In the ordinary case that error would require a remand to the Board for further
consideration, since under the Chenery doctrine a reviewing court ordinarily should not
uphold administrative action based on reasons different from those given by the agency. See
SEC v. Chenery Corp., 318 U.S. 80, 88-89 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196
(1947); see also INS v. Ventura, 537 U.S. 12, 16-17 (2002); Shkabari v. Gonzales, 427 F.3d
324, 327-28 (6th Cir. 2005). But even when the agency’s reasoning was inadequate, its
decision may be upheld on the basis of harmless error if the petitioner’s prospects are
otherwise so weak that there is no “reason to believe that . . . remand might lead to a
different result.” Shkabari, 427 F.3d at 328 (quotation marks omitted); see Kadia v.
Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). And for several reasons, we conclude that the
Board’s error was harmless here.
The cases recognizing that threats can sometimes amount to persecution emphasize
that they will do so only in exceptional cases. “In the vast majority of cases, . . . mere threats
will not, in and of themselves, compel a finding of past persecution.” Boykov, 109 F.3d at
416. Instead, so-called “unfulfilled threats” will ordinarily be “more properly viewed as
indicative of the danger of future persecution.” Id.; see also Lim, 224 F.3d at 936 (“Threats
standing alone . . . constitute past persecution in only a small category of cases”); Li, 400
F.3d at 165 (same). Only “threats of a most immediate and menacing nature” can possibly
qualify as past persecution. Boykov, 109 F.3d at 416; see also Lim, 224 F.3d at 936 (threats
will qualify as persecution only when they “are so menacing as to cause significant actual
suffering or harm”) (quotation marks omitted); Li, 400 F.3d at 165 (to qualify as persecution,
threats must be “sufficiently imminent or concrete”).
No. 09-3583 Japarkulova v. Holder Page 7
Here, the security minister threatened that, if Japarkulova continued her efforts to
expose Akayeva’s corruption, the government would arrange for a fatal “accident.”
Although the threat was ominous, particularly in a country with a history of political
violence, it was not the sort of “immediate and menacing” threat that amounts to persecution
standing alone. Boykov, 109 F.3d at 416. Moreover, the incident occurred in either 1993
or 1994, and Japarkulova did not flee the Kyrgyz Republic for good until 2001. That long
delay, during which Japarkulova did not suffer any physical mistreatment from the
government, lessens the severity of the threat. See Lim, 224 F.3d at 936. Finally, the
minister’s threat did not lead Japarkulova to abandon her political opposition to the Akayev
regime. Indeed, she later worked as a volunteer for the Ar-Namys opposition party. Thus,
there is no indication that Japarkulova was able to avoid violence only by abandoning her
“lawful political . . . associations or beliefs.” Kantoni, 461 F.3d at 898. Under these
circumstances, we see no reasonable prospect that “remand might lead to a different result,”
Shkabari, 427 F.3d at 328, and we therefore conclude that the Board’s error was harmless.
That leaves only the Board’s conclusion that Japarkulova did not establish a well-
founded fear of future persecution if removed to the Kyrgyz Republic. We give that decision
substantial-evidence review. See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). The
Board’s conclusion was based on the IJ’s finding that conditions in the Kyrgyz Republic had
improved since Japarkulova departed in 2001. Citing the State Department’s 2006 country
report, the IJ noted that President Akayev’s regime was ousted in March 2005 and that a new
president, Kurmanbek Bakiyev, was elected in July 2005. The IJ also discussed the
government’s treatment of the Ar-Namys party, relying on a supplemental letter filed by the
State Department. The IJ observed that the party’s founder, Felix Kulov, had been released
from prison when Akayev’s regime fell, and that he later served as prime minister for several
years. The IJ also noted that the party remained active in the Kyrgyz Republic and that the
State Department was not aware of residual discrimination against its members. He thus saw
no risk of persecution on account of Japarkulova’s membership in the party.
In contending that she continues to face persecution in the Kyrgyz Republic even
though President Akayev is no longer in power, Japarkulova suggested that Akayev’s
successor, President Bakiyev, maintained ties to Akayeva and was implicated in some of her
corrupt dealings. But that argument suggests, at most, that conditions did not improve as
No. 09-3583 Japarkulova v. Holder Page 8
much as one might have expected given that President Akayev is out of power; it offers no
reason to think that conditions have actually gotten worse. Substantial evidence supports the
Board’s conclusion that Japarkulova did not establish a well-founded fear of future
persecution.
* * *
In closing, we acknowledge that current events may have overtaken our decision in
this case. President Bakiyev’s regime was itself overthrown in April 2010, following bloody
antigovernment protests throughout the Kyrgyz Republic. But that development is beside
the point for the purposes of our decision, because a court of appeals must decide an alien’s
petition for review “only on the administrative record.” 8 U.S.C. § 1252(b)(4)(A). If
Japarkulova believes that recent events in the Kyrgyz Republic have affected her eligibility
for asylum, her proper recourse is to file a motion to reopen her removal proceedings with
the Board.
The petition for review is denied.
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CONCURRING
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BOYCE F. MARTIN, JR., Circuit Judge, concurring. I must concur in full with the
lead opinion’s reasoning and conclusion. I write separately to explain the counterintuitive
result required by the law in this case and to highlight a potential release valve.
Those who have read a newspaper or watched the news recently may be startled by
1
the outcome of this case. Certainly the State Department’s Country Report for the
Kyrgyz Republic from 2006 no longer describes the current Kyrgyzstan. Kyrgyzstan has
ousted President Kurmanbek Bakiyev in a violent revolt, and a new government has
been installed. As such, it would be hard to state that changed country conditions as of
2006 should definitively compel the conclusion that Zamira Japarkulova does not have
a well-founded fear of future persecution in the situation that will exist in the new
administration.
However, there is no statutory basis for this Court to remand an immigration case
for additional fact finding to avoid a result, such as this one, based on a stale, false
factual predicate. Fang Huang v. Mukasey, 523 F.3d 640, 656 (6th Cir. 2008). Despite
the fact that our immigration system moves at an unconscionably glacial pace, Congress
has “‘explicitly revoked [the court’s] authority to remand to the [Board] for the taking
of additional evidence.’” Id. (quoting Xiao Xing Ni v. Gonzales, 494 F.3d 260, 264-65
(2d Cir. 2007)). The Board frequently only reviews appeals several years after the
relevant immigration proceedings have taken place, so the administrative record is
perpetually stale. See Berishaj v. Ashcroft, 378 F.3d 314, 329-32 (3d Cir. 2004)
(explaining in detail the problems involved with the review of stale administrative
records). Thus, and although we possess an inherent equitable power to remand a matter
for fact-finding in some situations, Nesterov v. Dep’t of Homeland Sec., 335 F. App’x
1
Recently, the New York Times reported days of violence in Kyrgyzstan, with
Uzbeks and Kyrgyz rioting in the south. Michael Schwirtz, Ethnic Rioting Ravages
Kyrgyzstan, THE NEW YORK TIMES, at A1 (June 15, 2010) (available at
http://www.nytimes.com/2010/06/14/world/asia/14kyrgyz.html).
No. 09-3583 Japarkulova v. Holder Page 10
590, 594 (6th Cir. 2009) (citing Fang Huang, 523 F.3d at 656), it is inappropriate for the
court to exercise its equitable power when there is an alternative procedure in place to
consider this new evidence. Id.
However, while I may not cut through this Gordian Knot, it is possible for
petitioners to untie it themselves. Congress has left open a procedure by which a
petitioner like Ms. Japarkulova, whose country conditions may have changed drastically
subsequent to the relevant State Department Country Report, may have her claim
addressed by the Board. Congress permits reopening of asylum proceedings “based on
changed country conditions arising in the country of nationality or the country to which
removal has been ordered.” 8 U.S.C. § 1229a(c)(6)(C)(ii) (permitting aliens to move to
reopen proceedings on the basis of “new facts”); see also 8 C.F.R. § 1003.2(c)(3)(ii)
(permitting an alien or the government to move the Board to reopen proceedings, and
authorizing the Board to do so sua sponte “based on changed circumstances arising in
the country of nationality or in the country to which deportation has been ordered”). A
petitioner may file a motion to reopen with the Board “within 90 days of the date of
entry of a final administrative order of removal.” Nesterov, 335 F. App’x at 591
(citation omitted); see also 8 U.S.C. § 1229a(c)(7)(C)(i)). If a petitioner is beyond the
ninety-day time limit, an exception may exist where the motion “is based on changed
country conditions arising in the country of nationality or the country to which removal
has been ordered, if such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
Thus, while the law prohibits me from voting to provide Ms. Japarkulova relief
in this case. I take some comfort in the fact that hers would appear to be a prime
candidate for a motion to reopen so as to address this obvious failing in our Byzantine
immigration laws.