Ustyan v. Ashcroft

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTUR USTYAN,

Petitioner,

v. No. 02-9596

JOHN ASHCROFT, Attorney General,

Respondent.

ORDER
May 17, 2004

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
HENRY, Circuit Judge.

Respondent’s motion to publish the order and judgment dated April 8,

2004, is granted. A copy of the published opinion is attached.

Entered for the Court
Patrick Fisher, Clerk of Court

By:
Amy Frazier
Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 8 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ARTUR USTYAN,

Petitioner,

v. No. 02-9596

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
(No. A 75-337-147)

Submitted on the briefs:

Beverly W. Oserow, Denver, Colorado, for Petitioner.

Michael P. Lindemann, Assistant Director, and Linda S. Wernery, Senior
Litigation Counsel, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for Respondent.

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.

BRORBY , Circuit Judge.
 Petitioner Artur Ustyan, an ethnic Armenian and Georgian citizen from the

separatist region of Abkhazia, seeks review of the denial of his applications for

asylum and withholding of deportation. The Immigration Judge (IJ) found that

Mr. Ustyan failed to demonstrate past persecution or a well-founded fear of future

persecution, primarily because he did not show that his alleged persecutors had

acted on the basis of his ethnic or political identity. The Board of Immigration

Appeals (BIA) summarily affirmed, leaving the IJ’s decision as the final agency

determination for review. See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235

(10 th Cir. 2003). We conclude that the IJ’s decision is free of any constitutional

or legal error, and is supported by substantial evidence. Accordingly, we deny

the petition for review and affirm. *

During armed conflict between Georgian forces and Abkhazian separatists

in the early 1990s, Mr. Ustyan resisted recruitment by either side because he had

friends on both. He suffered no reprisals by the Georgians, but the Abkhazians

responded by accusing him of fighting and/or hiding weapons for the Georgians

and, when he denied the accusation, beating him and putting him in a cell exposed

to chlorine gas. Upon his release, he was bedridden for more than a month.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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A year later, he received and again ignored a recruitment notice from the

Abkhazian commander. Shortly after that, at the very end of the open hostilities,

Abkhazian soldiers came to his home and accused him of hiding weapons for the

Georgian forces, who had pulled out of the region. Finding nothing, the soldiers

knocked him unconscious and burned his home. He then left for Russia.

Mr. Ustyan spent two years in Russia. Lacking official papers, he was

unable to secure legal status or obtain a steady job. He also evidently lived in

fear of persecution by Cossacks. In May 1996, he entered the United States and

subsequently overstayed his visa. In these immigration proceedings, he conceded

removability and applied for asylum and withholding of deportation.

The IJ denied the applications because Mr. Ustyan had not established that

any mistreatment he suffered, or feared he would suffer in future, at the hands of

the Abkhazians constituted persecution on account of ethnic identity or political

opinion. 1 The IJ was

persuaded by the fact that respondent’s confrontations all took part
not because of his Armenian heritage or his religion or his social
group, but because of the civil war. The fact that both sides in the
civil war wanted him to join, shows just that: that he was caught in
the middle, not because of his ethnic group, but simply because they

1
The IJ also held that Mr. Ustyan could, in any event, relocate to other parts
of Georgia uninvolved in the Abkhazian conflict. This alternative rationale has
generated a great deal of contention that is difficult to address properly in light of
the conclusory nature of the IJ’s analysis and the many factual details potentially
relevant to the issue. We need not pursue the matter further here.

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 were looking for support and for soldiers. A very long line of cases
concerning Central American asylum seekers hold that one who
wishes to remain neutral cannot claim this as political opinion for his
asylum claim.

Admin. R. at 197-98. This passage correctly articulates a central tenet of INS v.

Elias-Zacarias , 502 U.S. 478 (1992), and its progeny. See, e.g. , Bartesaghi-Lay

v. INS , 9 F.3d 819, 822 (10 th Cir. 1993). As for the evidence relevant thereto,

we cannot say that the IJ’s assessment was “contrary to what a reasonable

factfinder would have been compelled to conclude,” and, hence, we may not

disturb the IJ’s decision. Vatulev v. Ashcroft , 354 F.3d 1207, 1211 (10 th Cir.

2003). Mr. Ustyan insists the IJ should have found that the Abkhazians targeted

him because of his ethnic heritage (or, what amounts to the same thing, a political

allegiance to the Georgians imputed to him on account of that heritage), but such

a finding is not compelled by our record. It was not unreasonable for the IJ to

conclude, rather, that the Abkhazians simply sought him out as a young male

recruit, pressured him when he resisted, and then interrogated him for suspected

assistance to the Georgians on account of his refusal to join their ranks.

Mr. Ustyan relies heavily on a recent decision by the Ninth Circuit,

Melkonian v. Ashcroft , 320 F.3d 1061 (9 th Cir. 2003), which recognized the

validity of an asylum claim by an Armenian who was persecuted by Abkhazian

separatists in the same area of Georgia. But each case must be decided on its own

record and the suggested comparison with the facts presented in Melkonian only

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points up the deficiencies in the record offered to support Mr. Ustyan’s claims.

In Melkonian , the applicant established that his “family felt bound to side with the

Georgians . . . [and] demonstrated its loyalty by supplying the Georgian fighters

with fruit and with money for weapons;” that his father-in-law “spoke out against

the Muslim [i.e., Abkhazian] tactics and in favor of [Georgian] Christianity;” and

that the Abkhazians “specifically targeted Armenian men to conscript and send to

the front line where casualties ordinarily are the highest.” Id. at 1066, 1068. This

evidence was specifically cited by the Ninth Circuit to distinguish the general rule

of Elias-Zacarias , noted above, that coercive recruitment tactics and an

applicant’s resistance thereto do not reflect the kind of social/political animus

necessary to support an asylum claim. Id. at 1068. Mr. Ustyan has not cited to

any comparable evidence in the record developed for this case.

In addition to asserting–without record support, as we have seen–that the

Abkhazians imputed to him a pro-Georgian political opinion based on his ethnic

heritage , Mr. Ustyan suggests alternatively that suspicions about his assistance to

the Georgians based on his resistance to Abkhazian recruitment efforts reflect the

imputation of such an opinion. While it may generally be true, as some circuits

have held, “that imputed political opinion is still a valid basis for relief after

Elias-Zacarias ,” Canas-Segovia v. INS , 970 F.2d 599, 601 (9 th Cir. 1992);

see, e.g., Najjar v. Ashcroft , 257 F.3d 1262, 1289 (11 th Cir. 2001); Morales v.

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INS , 208 F.3d 323, 331 (1 st Cir. 2000), this particular argument for imputed

opinion would eviscerate the central tenet of Elias-Zacarias . That is, when

a refusal to fight for a group–which, per Elias-Zacarias , is not in itself enough

to attribute a political character to attendant coercive or punitive acts by that

group–is the only predicate for an alleged imputation of a political stance (loyalty

to an opposing group), acceptance of an imputed-opinion claim would effectively

elevate the refusal to fight into an actionable basis for asylum. Mr. Ustyan has

not cited any case law directly undermining Elias-Zacarias in this way, nor has

he persuaded us through argument that such a step is appropriate.

We therefore agree with the IJ that Mr. Ustyan’s claim for asylum fails

because he has not tied his allegations of persecution to an actionable ethnic or

political basis. See 8 U.S.C. § 1253(h) (asylum may be granted from persecution

on account of applicant’s “race, religion, nationality, membership in a particular

social group, or political opinion”). Having failed to establish that he is entitled

to discretionary consideration for asylum, Mr. Ustyan has perforce failed to

establish that he is entitled to mandatory withholding of removal, “which, we

have acknowledged, requires a petitioner to meet a higher standard than that for

asylum.” Batalova v. Ashcroft , 355 F.3d 1246, 1255 (10 th Cir. 2004).

Finally, Mr. Ustyan objects to the streamlined review process used by the

BIA in this case. His constitutional objections are foreclosed by recent decisions.

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See Sviridov v. Ashcroft , 358 F.3d 722, 727 (10 th Cir. 2004) (discussing Yuk v.

Ashcroft , 355 F.3d 1222, 1232 (10 th Cir. 2004), and Batalova , 355 F.3d at 1253).

His administrative objection–that this case was inappropriate for streamlined

review in light of significant errors in the IJ’s analysis–is undercut by our

conclusion that the IJ’s determination was in fact correct.

The petition for review is DENIED. The inappropriate and redundant

Motion for Remand to the Board of Immigration Appeals is likewise DENIED.

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