FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAREGIN KAMALYAN,
Petitioner, No. 05-76408
v.
Agency No.
A096-155-948
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 8, 2010—San Francisco, California
Filed August 25, 2010
Before: Cynthia Holcomb Hall, John T. Noonan and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Judge Hall
12831
KAMALYAN v. HOLDER 12833
COUNSEL
Jerry Wolf Stuchiner, Paladinlaw, Las Vegas, Nevada, for
petitioner Garegin Kamalyan.
Carol Federighi, Senior Litigation Counsel, U.S. Department
of Justice, Civil Division/Office of Immigration Litigation,
Washington, DC; Ronald E. LeFevre, Department of Home-
12834 KAMALYAN v. HOLDER
land Security, San Francisco, CA; Gregg I. Malawer, U.S.
Department of Justice, Washington, DC; William Clark Min-
ick, Trial Attorney, U.S. Department of Justice, Civil Divi-
sion/Office of Immigration Litigation, Washington, DC; Erica
Miles, U.S. Department of Justice, Civil Division/Office of
Immigration Litigation, Washington, DC, for respondent Eric
H. Holder, Jr.
OPINION
NOONAN, Circuit Judge:
Garegin Kamalyan, a Jehovah’s Witness, petitions for
review of the Board of Immigration Appeals (“BIA”) adopt-
ing and affirming the decision of the immigration judge
(“IJ”). We grant the petition and remand.
FACTS
Kamalyan is a native of the U.S.S.R. and a citizen of Arme-
nia. He applied for asylum on November 11, 2002, claiming
religious persecution based on his status as a Jehovah’s Wit-
ness.
Kamalyan’s asylum application was premised upon two
encounters with Armenian law enforcement in August 2001
and May 2002. In the first encounter, Kamalyan and four
other Jehovah’s Witnesses had gathered in his apartment to
read and interpret the main book of their faith. Five police
officers entered and began searching the apartment, confiscat-
ing the religious literature they found. When Kamalyan pro-
tested, one officer punched him in the face. The officers
detained Kamalyan and his associates and transported them to
a police station for interrogation because their activities were
considered proselytizing forbidden by Armenian law. At the
police station, the officers interrogated Kamalyan for three to
KAMALYAN v. HOLDER 12835
four hours while punching him and beating him with sticks.
After twelve hours of detention, he was released after his par-
ents paid $1000 as a bribe.
In the second encounter, Kamalyan and another Jehovah’s
Witness were proselytizing near a university. Four police offi-
cers told them that “the law in Armenia forbade proselytizing
except by the official church” and detained them separately.
The officers interrogated Kamalyan and beat him when he
refused to answer questions. After three to four hours, the
officers offered to drop the criminal charges against him in
exchange for a bribe of $1500. Kamalyan’s father brought the
bribe the following day, and the officers released Kamalyan.
PROCEEDINGS
The IJ found Kamalyan’s testimony to be credible and con-
cluded that he had suffered past persecution on account of his
religion. “This raises the presumption,” the IJ continued, “that
[he] would continue to have a well-founded fear of persecu-
tion if he returned to Armenia. That presumption may be
rebutted by changed country conditions.”
Kamalyan provided some testimony about current condi-
tions in Armenia. Portions of this testimony indicated that
conditions had improved. His religion was “legalized” or “be-
came official” approximately one month before the hearing.
The IJ asked if he knew whether Jehovah’s Witnesses could
now legally proselytize. He answered, “Should be, because
the faith itself is legal now.” Despite these changes, Kama-
lyan stressed that he would be persecuted if he returned to
Armenia, explaining, “[Armenia] accepted that law to be able
to join the European Union; but it is only on paper.” He testi-
fied that law enforcement still arrested Jehovah’s Witnesses
for proselytizing: “I’m very sure, I’m positive that such things
are still going on in Armenia.”
The IJ began her oral decision by declaring:
12836 KAMALYAN v. HOLDER
General evidence of changed country conditions,
which does not relate specifically to the [applicant’s]
situation, may not overcome detailed and specific
testimony by the [applicant] regarding conditions in
the country of origin. In this case, the [applicant’s]
testimony about current conditions in Armenia was
not detailed and specific.
The IJ continued: “Because the [applicant’s] testimony was
somewhat vague with regard to very recent current conditions
in Armenia, the Court may look to general background docu-
ments for an explanation of those conditions.”
The IJ then reviewed two U.S. State Department country
reports on Armenia titled International Religious Freedom
Report 2004 (“2004 Report”) and Country Reports on Human
Rights Practices 2003 (“2003 Report”). From these reports,
the IJ drew several conclusions. First, Jehovah’s Witnesses
now had the ability to register as a recognized religion in
Armenia. Second, any ban on proselytizing “was not
enforced, and all denominations, including Jehovah’s Wit-
nesses, could advocate their point of view.” The IJ also found
that “there are no longer problems in renting meeting places
for Jehovah’s Witnesses” and they “are allowed to bring in
small quantities of printed materials for their own use.” The
IJ believed this information to be “relevant to [Kamalyan’s]
case because he indicated that his group of Jehovah’s Wit-
nesses had to meet in private homes because they were unable
to rent a meeting place and that his first arrest was precipi-
tated by the finding of small quantities of printed material
from the Jehovah’s Witnesses in his own home.” Finally, the
IJ noted that Armenia had passed a law accommodating con-
scientious objectors to military service.
From these facts, the IJ concluded that Kamalyan’s fear of
mistreatment by the police was no longer reasonable. The
BIA adopted and affirmed the IJ’s decision.
KAMALYAN v. HOLDER 12837
ANALYSIS
We review the denial of asylum for substantial evidence
and uphold the denial if it is “supported by reasonable, sub-
stantial, and probative evidence on the record considered as
a whole.” Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009).
Findings of fact are conclusive unless “any reasonable adjudi-
cator” would be compelled to conclude to the contrary. 8
U.S.C. § 1252(b)(4)(B).
The IJ found Kamalyan to be credible and concluded that
he had demonstrated past persecution on the basis of religion.
This created a presumption that he had a well-founded fear of
future persecution and was eligible for asylum, which could
be rebutted only if the government demonstrated—by a pre-
ponderance of the evidence—that a fundamental change in
country conditions dispelled any well-founded fear of future
persecution. See 8 C.F.R. § 208.13(b)(1); Deloso v. Ashcroft,
393 F.3d 858, 863-64 (9th Cir. 2005).
[1] We agree with the IJ that Kamalyan’s testimony about
current conditions in Armenia was unilluminating. We turn,
then, to the country reports.
[2] Our circuit has reiterated that “a State Department
report on country conditions, standing alone, is not sufficient
to rebut the presumption of future persecution when a peti-
tioner has established past persecution.” Garcia-Martinez v.
Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004) (quoting
Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002)).
Such reports are often “the most appropriate and perhaps the
best resource for information on political situations in foreign
nations.” Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir.
2008). Nonetheless, they typically are not amenable to an “in-
dividualized analysis” tailored to an asylum applicant’s par-
ticular situation. See, e.g., Garcia-Martinez, 371 F.3d at 1074;
Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004).
12838 KAMALYAN v. HOLDER
[3] The country reports indicated that Jehovah’s Witnesses
had obtained the ability to register as a recognized religion in
Armenia. No evidence explained the meaning or significance
of this event. The 2004 Report found “no overall change in
the status of respect for religious freedom” in Armenia. Both
Reports confirmed that even officially recognized religions
were prohibited from proselytizing in Armenia. While the
2003 Report advised that the ban was not enforced, the 2004
Report recounted that complaints were lodged against Jeho-
vah’s Witnesses “for proselytizing” and “some official warn-
ings sent to Jehovah’s Witnesses because of proselytizing
activities.”
Armenia’s attempt to accommodate Jehovah’s Witnesses’
objections to military service is not germane to the persecu-
tion experienced by Kamalyan. As the dissent acknowledges,
“[a]t no time has Kamalyan claimed he was persecuted for
refusing conscription.” The IJ’s reliance on this aspect of the
reports evinces an analysis that strains to appear “individual-
ized.”
[4] Overall, the country reports were expressly inconclu-
sive regarding the significance or permanence of the improve-
ments identified by the IJ. The 2004 Report summarized:
There was no overall change in the status of respect
for religious freedom during the period covered by
this report. According to legislation passed in
November 2003, the Law on Alternative Military
Service took effect on June 1, but had not been
implemented by the end of the period covered by
this report. . . . In June, the Government again denied
the Jehovah’s Witnesses application for formal regis-
tration as a religious organization. The registrar’s
office cited technical problems with the application.
Other denominations occasionally report acts of dis-
crimination, usually by mid-level or lower level gov-
ernment officials.
KAMALYAN v. HOLDER 12839
Similarly, the 2003 Report concluded:
The Government’s human rights record remained
poor; although there were some improvements in a
few areas, serious problems remained. . . . Security
forces beat pretrial detainees. Impunity remained a
problem. There were reports of arbitrary arrest and
detention. Lengthy pretrial detention remained a
problem. . . . The law placed some restrictions on
religious freedom. The Government continued to
deny registration to and detain Jehovah’s Witnesses.
[5] “Any reasonable adjudicator” would agree that the
government did not establish a fundamental change in country
conditions by a preponderance of the evidence. We grant
Kamalyan’s petition for review. We remand the matter to the
BIA with instructions to remand for further proceedings as to
whether a fundamental change in country conditions has over-
come the presumption that Kamalyan has a well-founded fear
of future persecution. The dissent references the 2005 Coun-
try Report and the 2010 Country Report to show that Kama-
lyan faces no danger. Those reports were not before the IJ or
the Board. On remand, they may be properly considered.
PETITION GRANTED; REMANDED.
HALL, Circuit Judge, dissenting:
I believe a fair reading of the evidence before the Immigration
Judge (“IJ”) supports her findings that country conditions in
Armenia had “fundamentally changed” between 2002 and
2004 for Jehovah’s Witnesses who, like petitioner Garegin
Kamalyan, were persecuted in the past for proselytizing, and
that petitioner no longer has a “well-founded fear of future
persecution.” I disagree with the majority that any reasonable
12840 KAMALYAN v. HOLDER
adjudicator would be compelled to reach a contrary conclu-
sion. Accordingly, I respectfully dissent.
I.
In ruling on the petition in this case, the IJ found that
Kamalyan, a Jehovah’s Witness and citizen of Armenia, had
suffered “past persecution” on account of his religion, based
on two incidents of beatings by Armenian police in 2001 and
2002 while in detention after being arrested for “proselytiz-
ing” in violation of Armenian law. The IJ specifically found
Kamalyan to be credible, and found his showing of past per-
secution sufficient to gave rise to a presumption of a “well-
founded fear of future persecution.” See Zehayte v. Gonzales,
453 F.3d 1182, 1185 (9th Cir. 2006). The IJ found the pre-
sumption of future persecution rebutted, however, by Kamal-
yan’s own testimony and two U.S. State Department reports—
Armenia: International Religious Freedom Report 2004
(Sept. 15, 2004) (“2004 Religious Freedom Report”), and
Armenia: Country Reports on Human Rights Practices —
2003 (Feb. 25, 2004) (“2003 Human Rights Report”) —which
indicated that the status and official treatment of Jehovah’s
Witnesses and other minority religions in Armenia had funda-
mentally changed by the time of the hearing on the petition
on November 24, 2004. The BIA adopted and affirmed the
decision of the IJ because “the country information in the
record . . . confirms improved conditions for Jehovah’s Wit-
nesses[,] . . . the evidence of improved country conditions
went unrebutted, and . . . [Kamalyan] consequently has failed
to meet his burden of proof for eligibility for asylum, with-
holding of removal, and relief pursuant to the Convention
Against Torture.”
II.
We review a denial of asylum eligibility for substantial evi-
dence and must uphold the denial if it is supported by reason-
able, substantial, and probative evidence on the record
KAMALYAN v. HOLDER 12841
considered as a whole. Li v. Holder, 559 F.3d 1096, 1102 (9th
Cir. 2009); Zehayte, 453 F.3d at 1185. “[A]dministrative find-
ings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). “This ‘strict standard’ precludes us from
‘independently weighing the evidence and holding that the
petitioner is eligible for asylum, except in cases where com-
pelling evidence is shown.’ ” Gu v. Gonzales, 454 F.3d 1014,
1018-19 (9th Cir. 2006) (quoting Kotasz v. INS, 31 F.3d 847,
851 (9th Cir.1994)).
In order to meet its burden of proving a fundamental
change of circumstances, the government is “obligated to
introduce evidence that, on an individualized basis, rebuts a
particular applicant’s specific grounds for his well-founded
fear of future persecution.” Popova v. INS, 273 F.3d 1251,
1259 (9th Cir. 2001). Where past persecution has been estab-
lished, generalized information from a State Department
report on country conditions is not sufficient to rebut the pre-
sumption of future persecution. Molina-Estrada v. INS, 293
F.3d 1089, 1096 (9th Cir. 2002) (emphasis added). However,
an analysis of changed country conditions tailored to the peti-
tioner’s individual claims of persecution is sufficient to rebut
the presumption. Gonzalez-Hernandez v. Ashcroft, 336 F.3d
995, 997-1000 (9th Cir. 2003); see also Sowe v. Mukasey, 538
F.3d 1281, 1285 (9th Cir. 2008) (rejecting petitioner’s argu-
ment that State Department country reports are “generalized
materials” that are insufficient to rebut a presumed well-
founded fear of future persecution).
III.
In concluding that the evidence before the IJ did not estab-
lish a fundamental change in conditions for Jehovah’s Wit-
nesses in Armenia, the majority brushes aside Kamalyan’s
testimony, and considers only the two country reports issued
by the State Department in 2004. The majority then proceeds
12842 KAMALYAN v. HOLDER
to discount the information from the 2003 Human Rights
Report and the 2004 Religious Freedom Report on which the
IJ relied, describing them as “inconclusive.” Maj. Op. at
12838. I believe the majority misapprehends the IJ’s decision
and misapplies relevant Ninth Circuit law.
First, the majority suggests that Kamalyan’s testimony at
the November 2004 hearing provides no support for the IJ’s
decision. Although the IJ commented that Kamalyan’s testi-
mony was “somewhat vague,” and that he did not have any
“specific information” about the “very recent current condi-
tions” in Armenia,1 she did credit testimony in which he “ad-
mitted that he [was] aware that it became ‘legal’ to be a
Jehovah’s Witness in Armenia within approximately the past
month.” Kamalyan’s testimony on this point was that the
Jehovah’s Witness religion had become “legal” about a month
before the hearing, and he said he knew this because “it was
announced on TV that [his] religion had been officially
allowed in the country,” and that he had read on the Internet
that “Jehovah’s Witness is now a recognized religion” in
Armenia. Kamalyan added that he believed it was thereafter
legal for Jehovah’s Witnesses to proselytize in Armenia.
Relying on the 2004 Religious Freedom Report, the IJ took
notice of “the change in the ability of Jehovah’s Witnesses to
register as a recognized religion in Armenia,” and the fact that
Armenian Jehovah’s Witnesses had “expressed satisfaction
that they were making progress towards registration.”
To be sure, the IJ did not give great weight to Kamalyan’s
testimony for the reasons stated, but also because he, a non-
lawyer, did not seem to have a clear understanding of what it
1
For example, when the IJ inquired about the factual basis for his belief
that “law enforcement [was] still arrest[ing] Jehovah’s Witnesses for
proselytizing,” Kamalyan candidly admitted he had no personal knowl-
edge of any facts to support that claim, saying: “I don’t know anybody
who has been arrested during the last [month], personally; but I’m very
sure, I’m positive that such things are still going on in Armenia.”
KAMALYAN v. HOLDER 12843
meant that the Jehovah’s Witness religion was now “legal.”2
In fact, however, Kamalyan was correct that the Armenian
government had already granted the Jehovah’s Witnesses for-
mal registration as a religion in October 2004. See U.S. Dept.
of State, Armenia: International Religious Freedom Report
2005 (Nov. 8, 2005) (“2005 Religious Freedom Report”) at 3.3
As a result, Armenian Jehovah’s Witnesses were thereafter
free to publish newspapers or magazines, rent meeting places,4
broadcast programs on television or radio, and officially spon-
sor visas for visitors. Id.; see also 2004 Religious Freedom
Report at 3. Whereas Armenian Jehovah’s Witnesses had pre-
viously been able to import only “small quantities of printed
materials for their own use,” they were also, as of and after
October 2004, allowed to import large quantities of religious
materials. Id.5
2
For example, the IJ noted Kamalyan’s opinion that “the recent change
[did] not make any difference to his situation,” because “it was always on
paper legal to be a Jehovah’s Witness but that still they were persecuted
in Armenia.”
3
We have previously taken judicial notice of creditable, well-publicized
accounts of changes in country conditions occurring after the BIA decision
—albeit in a case where conditions had significantly worsened while the
appeal was pending. Gafoor v. INS, 231 F.3d 645, 654-56 (9th Cir. 2000),
superseded by statute on other grounds as stated in Parussimova v.
Mukasey, 555 F.3d 734, 739-40 (9th Cir.2009). Of course, we may not
determine the issue of changed country conditions in the first instance, INS
v. Ventura, 537 U.S. 12, 16 (2002), but there is no reason to ignore State
Department country reports that merely confirm that the “changed condi-
tions” found by the IJ continued to unfold as the IJ believed they would—
i.e., in the direction of expanded religious freedoms for Armenian Jeho-
vah’s Witnesses in general, and for Kamalyan in particular.
4
As the IJ found, this new freedom was especially relevant to Kamal-
yan’s case because he indicated that his group of Jehovah’s Witnesses had
to meet in private homes because they were unable to rent a public meet-
ing place. Indeed, his first arrest was precipitated when the police found
small quantities of printed religious materials during a meeting in his
home, which he said was for personal use even though he admitted he was
also proselytizing at the time.
5
In addition, the IJ found that the “official attitude” toward Jehovah’s
Witnesses had improved even before the registration process was com-
12844 KAMALYAN v. HOLDER
On the other hand, Kamalyan was not correct in believing
that the 1991 ban on proselytizing was lifted as to Jehovah’s
Witnesses after they obtained official recognition from the
Armenian government, as the ban technically applied and
continues to apply to all religious groups in Armenia—albeit
with phrasing that appears to exempt the national religion,
that of the Armenian Apostolic Church. See 2004 Religious
Freedom Report at 3. As stated in the 2003 Human Rights
Report, however, the proselytizing ban was not being
enforced at the time of the hearing, and “all denominations,
including Jehovah’s Witnesses, could advocate their point of
view.”6 Id. at 8. Moreover, except for a report of a few “offi-
cial warnings” to individual Jehovah’s Witnesses regarding
their “illegal” proselytizing activities, there was no evidence
of any detentions or active prosecutions of Jehovah’s Wit-
nesses for violating that law. 2004 Religious Freedom Report
at 5. That religious freedoms for Armenian Jehovah’s Wit-
nesses (including, arguably, their freedom to proselytize) had
already improved by the time of Kamalyan’s hearing is rein-
forced by the fact that they were the only religious minority
to claim an increase in the number of adherents—from
approximately 7,500 to 8,500 between September 2004 and
November 2005—as a result of their “missionary program.”
Compare 2004 Religious Freedom Report at 2, with 2005
Religious Freedom Report at 2.
As the majority notes, the 2003 and 2004 country reports
admitted into evidence during the hearing do contain some
bits of information that cut against the IJ’s finding of changed
country conditions—as the majority highlights by selectively
pleted. Specifically, during the year prior to the hearing, there were no
reports of Jehovah’s Witnesses losing their jobs because of their religion,
as they had in the past; and there was no officially sponsored violence or
harassment of Jehovah’s Witnesses during the reporting period. See 2004
Religious Freedom Report at 4-5.
6
Indeed, the proselytizing ban remains on the books to this day, but is
still not being enforced. See Armenia: Country Reports on Human Rights
Practices – 2009 (Mar. 11, 2010) at 27.
KAMALYAN v. HOLDER 12845
quoting from very general, introductory passages in the two
reports.7 Maj. Op. at 12838-39. But a sizeable body of Ninth
Circuit case law suggests not only that State Department
country reports are “the most important and perhaps the best
source of information” on conditions in foreign nations, Sowe,
538 F.3d at 1285, but also that this court must defer to indi-
vidualized findings by the IJ regarding “changed conditions”
that are supported by the country reports, even where the rele-
vant country reports contain contradictory information. Id. at
1286 (this court is not in a position to second-guess the IJ’s
construction of a “somewhat contradictory” country report).
Indeed, “where the [IJ] rationally construes an ambiguous or
somewhat contradictory country report and provides an indi-
vidualized analysis of how changed conditions will affect the
specific petitioner’s situation, substantial evidence will sup-
port the agency determination.” Id. (quoting Gonzalez-
Hernandez, 336 F.3d at 1000). Thus, even if the contradictory
portions of the country reports were weighty—which they are
not—we would not be free to second-guess the IJ’s findings
to the extent they are based on those reports.
IV.
In sum, when the portions of the two country reports deal-
ing with the religious freedoms of Jehovah’s Witnesses are
read carefully and objectively, and viewed together with
Kamalyan’s testimony, it is clear that substantial evidence
7
The statement quoted by the majority about Jehovah’s Witnesses being
“detain[ed]” comes from the introduction to the 2003 Human Rights
Report and refers to Jehovah’s Witnesses imprisoned for draft evasion in
violation of Armenia’s universal conscription laws prior to the enactment
of a statute allowing for “alternative military service,” which took effect
on June 1, 2004, but had not yet been implemented at the time of Kamal-
yan’s hearing. See id. at 1. There is no other reference in that report to
unlawful detentions or any other type of abuse of Jehovah’s Witnesses by
the government for any other reason. At no time has Kamalyan claimed
he was persecuted for refusing conscription; thus, these detentions are not
germane to Kamalyan’s asylum claim.
12846 KAMALYAN v. HOLDER
supports the IJ’s finding of significant improvements in the
conditions germane to Kamalyan’s claim of a well-founded
fear of future persecution. In addition, Kamalyan’s testimony
about recent events that made it “legal” to be a Jehovah’s
Witness, and the IJ’s finding of a positive change in the abil-
ity of Armenian Jehovah’s Witnesses to register as a religion,
were confirmed in the 2005 Religious Freedom Report, where
it was noted that, approximately one month before Kamal-
yan’s asylum hearing, they had secured substantial religious
freedoms by successfully completing the registration process.
Id. at 1.
On this record, the majority’s conclusion that the govern-
ment did not carry its burden of proving a “fundamental
change” in conditions for Jehovah’s Witnesses in Armenia,
and in particular for those who, like Kamalyan, were perse-
cuted in the past for proselytizing, is simply not “compelled”
by the evidence. I would deny the petition.