Harutyunyan v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2207

ARTUR HARUTYUNYAN,

Petitioner,

v.

ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Siler,* Senior Circuit Judge.

Kevin MacMurray on brief for petitioner.
Michael J. Sullivan, United States Attorney, and Jeffrey M.
Cohen, Assistant United States Attorney, on brief for respondent.

September 2, 2005

__________
*Of the Sixth Circuit, sitting by designation.
 SELYA, Circuit Judge. The petitioner, Artur Harutyunyan,

a native of Armenia, seeks review of a final order of the Board of

Immigration Appeals (BIA) denying his application for asylum.1

Concluding, as we do, that the BIA's order is supported by

substantial evidence, we deny the petition.

The facts are uncomplicated. In June of 2001, the

petitioner, then twenty years old, entered the United States under

a J-1 visa to embark upon a work-study program. Having been

lawfully admitted, he proceeded (again, lawfully) to acquire B-2

visitor status, which entitled him to remain until April 10, 2002.

The petitioner overstayed his departure deadline and, in

June of 2002, applied for asylum. The Immigration and

Naturalization Service responded by instituting a removal

proceeding. The petitioner conceded removability.

At an ensuing hearing, an immigration judge (IJ) examined

the petitioner's asylum application and the supporting documents

submitted therewith (including the affidavit of an expert in

Armenian politics and the 2002 State Department country report on

human rights practices in Armenia). These exhibits showed a long

history of conflict between Armenia and Azerbaijan. Those historic

1
The petitioner originally sought withholding of removal as
well as asylum. The IJ and the BIA ruled against him with respect
to both claims. In this venue, the petitioner disputes only the
adverse ruling on asylum. His claim for withholding of removal is,
therefore, waived. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st
Cir. 2004).

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problems were exacerbated by a war that raged from 1988 to 1994.

During the war, both Armenians residing in Azerbaijan and Azeris

residing in Armenia were confronted with varying degrees of

violence and discrimination. As a result, many of the Azeris who

had resided in Armenia — upwards of 185,000 individuals — fled to

Azerbaijan. These ethnic tensions were heightened in 1998

following the election of a self-proclaimed chauvinist, Robert

Kocharian, as president of Armenia. Notwithstanding these

tensions, a few people of Azeri origin continue to reside in

Armenia.

The petitioner testified against this general background.

In his testimony, he noted that his mother is from Azerbaijan.

Building on that foundation, he alleged that, in early 2001, he

began experiencing attacks upon his person and assaults upon his

financial well-being due to his Azeri ethnicity. He further

alleged that these intrusions constituted ethnic persecution.

The petitioner mentioned three specific events. In

January of 2001, a group of men spouting anti-Azeri ethnic slurs

assaulted him. The men told him that he did not have a right to

live in Armenia. This assault occurred in Yerevan (where the

petitioner lived). The petitioner responded to it by altering his

daily routine; he left home earlier in the morning to travel to

class and he returned from work later at night in order to avoid

unwanted confrontations.

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 All was well until an evening in March, when a group of

men accosted the petitioner and struck him with knives and sticks.

The marauders told him that he had been forewarned that violence

would occur unless he and his Azeri relatives left Armenia. This

time, the petitioner suffered significant injuries, which required

a two-day hospital stay.

This incident prompted the petitioner's family to move to

their summer home in rural Ashtarakh, approximately fifteen miles

from Yerevan, in hopes of avoiding future trouble. The petitioner

resided there from March until June of 2001 and regularly attended

school. He experienced no further acts of violence against his

person. On April 24, 2001, however, arsonists burned down his

store in Yerevan. The petitioner testified that the same nucleus

of individuals who had been involved in the two prior assaults also

were involved in the arson.

The petitioner contemporaneously reported each of these

incidents to the police. The incidents were all investigated; one

case was closed for lack of evidence; and nothing has yet been

resolved in connection with the other two incidents. The

petitioner attributes this state of affairs to an unwillingness to

prosecute based on his Azeri ethnicity. He concedes, however, that

the police responded promptly to the news of the first incident,

investigated it, filed a report, and told the petitioner that they

would seek to find the miscreants and bring them to justice. He

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also concedes that, following the second incident, the police again

responded promptly, interviewed the petitioner in his hospital

room, tracked down the perpetrators, and initiated criminal

proceedings against them. These proceedings were pending when the

petitioner absconded. Criminal proceedings also were initiated

against the persons accused of committing the arson.

The arson proved to be the last straw for several of the

petitioner's relatives. His brother and sister-in-law emigrated to

Georgia and his parents moved to Russia. The petitioner claims

that he was unable to accompany either set of relatives because he

had not yet fulfilled Armenia's requirement for military service

(and, thus, could not obtain an exit stamp).2 The petitioner

further testified that he could not meet his military service

obligation because he would be murdered by anti-Azeri army

officers. Faced with this Hobson's choice, the petitioner fled to

the United States.

The IJ found the petitioner's testimony credible as to

the raw facts, but nevertheless denied the application for asylum.

In the IJ's view, the incidents that the petitioner described did

not amount to past persecution.3 The IJ also determined that the

2
It is undisputed that Armenian citizens who wish permanently
to relocate outside of Armenia must obtain such an exit stamp.
3
The parties' briefs indicate that the IJ determined that past
persecution did occur. This interpretation is flawed. While the
IJ stated preliminarily that the described acts "can" be deemed to
be past persecution, she ultimately concluded that "the harm being

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petitioner had failed to demonstrate a well-founded fear of future

persecution. The BIA upheld the IJ's decision without authoring an

independent opinion. This petition for judicial review followed.4

We have jurisdiction under 8 U.S.C. § 1252(b).

When the BIA summarily affirms, this court reviews the

IJ's decision "as if it were the decision of the BIA." Olujoke v.

Gonzáles, 411 F.3d 16, 21 (1st Cir. 2005). Consequently, we focus

the lens of our inquiry on the IJ's asylum determination. We

employ the highly deferential "substantial evidence" standard of

review. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st

Cir. 2005); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004).

This means that the IJ's findings of fact must stand "unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B).

In order to establish eligibility for asylum, an alien

first must demonstrate that he is a refugee. See id. § 1158(b)(1);

8 C.F.R. § 208.13(a); see also Makhoul, 387 F.3d at 79. An

immigrant is considered a refugee when he or she "is unable or

unwilling to return to, and is unable or unwilling to avail himself

or herself of the protection of, [the native] country because of

investigated by the authorities does not appear to constitute
persecution."
4
Alberto R. Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzales as the respondent in this matter. See
Fed. R. App. P. 43(c)(2).

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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). To

attain refugee status, therefore, an asylum applicant must satisfy

two fundamental criteria: he must (i) qualify under one of the

five protected grounds enumerated above and (ii) connect that

ground to a well-founded fear of future persecution. See 8 C.F.R.

§ 208.13; see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.

2005).

Here, the petitioner claims that he experienced bodily

injury and property damage due to his Azeri ethnicity. That

allegation, on its face, satisfies the "protected ground" element.

Still, it is not enough for an asylum applicant to show that he has

suffered harm on account of a protected ground; he also must

satisfy the "well-founded fear" requirement. This entails either

(i) a showing of past persecution (which establishes a rebuttable

presumption of a well-founded fear of future persecution) or (ii)

independent proof of a well-founded fear of future persecution.

See Da Silva, 394 F.3d at 4. Either route requires that the

applicant forge a link between the harm asserted and some

governmental act or omission. See id. at 7; Thomas v. Ashcroft,

359 F.3d 1169, 1179 (9th Cir. 2004).

Here, the IJ held that the petitioner had not

successfully traveled either route. In so holding, she emphasized

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that the petitioner's antagonists were not government actors, that

the Armenian government was responsive to and protective of Azeris

during the relevant time frame, that the violence of which the

petitioner complained was localized in nature, that the petitioner

could return to Armenia free of an objectively reasonable fear of

future attacks, and that his Azeri heritage posed no special danger

in connection with future service in the Armenian military.

Against this mise-en-scène, we first address the

petitioner's claim of past persecution. This claim rests on the

three incidents recounted above. Because the IJ found the

petitioner credible, we accept that those incidents occurred as

described.

Importantly, however, the IJ found that all three

incidents involved the same nucleus of individuals, under the

hegemony of a single ringleader, and that the authorities responded

appropriately on each occasion. These findings are supported by

substantial evidence in the record. Indeed, they are supported by

the petitioner's own testimony. These facts, in turn, adequately

ground the IJ's ultimate conclusion that the three incidents did

not add up to a showing of past persecution.

It is apodictic that, for asylum purposes, "not all

horrific experiences translate into persecution." Rodriguez-

Ramirez, 398 F.3d at 124. The incidents recounted here do not

compel a finding of past persecution. The basic reason is that the

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petitioner has not sufficiently connected them to the Armenian

government.

Although persecution is a term of art that lacks precise

definition in the immigration context, Negeya v. Gonzales, ___ F.3d

___, ___ (1st Cir. 2005) [No. 04-1983, slip op. at 8], persecution

always implies some connection to government action or inaction.

See Roman v. INS, 233 F.3d 1027, 1034 (7th Cir. 2000). This link

may be forged in one of three ways: (i) by evidence that

government actors committed or instigated the acts complained of;

(ii) by evidence that government actors condoned the acts; or (iii)

by evidence of an inability on the part of the government to

prevent the acts. See id. (citing Galina v. INS, 213 F.3d 955, 958

(7th Cir. 2000)). In other words, the necessary connection may

manifest itself in the execution of the persecuting acts

themselves, in the condonation of those acts, or in an inability to

prevent them. See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.

2004) (explaining that past persecution requires a showing either

that the acts were committed by the government or that the

government was unable or unwilling to control them); Bartesaghi-Lay

v. INS, 9 F.3d 819, 822 (10th Cir. 1993) (similar); see also Da

Silva, 394 F.3d at 7 ("Action by non-governmental actors can

undergird a claim of persecution only if there is some showing that

the alleged persecutors are in league with the government or are

not controllable by the government."). The record here does not

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compel a finding that any such governmental connection existed with

respect to the incidents of which the petitioner complains.

The most telling datum is that (as the petitioner

admitted) the local authorities responded immediately to each

incident. Following the initial brouhaha, the police "promised

[the petitioner] that they [would] definitely find and bring to

justice [the] people who beat [him] up." After the second

incident, the police succeeded in tracking down the malefactors and

initiated criminal proceedings against them. And when the arson

occurred, the police commenced an investigation, identified the

alleged ringleader, and again instituted criminal proceedings.

To be sure, the petitioner complains that these endeavors

did not pan out more favorably because of his Azeri ethnicity. But

that complaint is woven entirely out of the gossamer strands of

speculation and surmise. From aught that appears, the authorities

made strong efforts to bring those responsible to justice and the

absence of any convictions may have had more than a little to do

with the fact that the petitioner — presumably the government's

star witness — fled the jurisdiction.

To cinch matters, the petitioner experienced no violence

while residing at his family's summer home. The IJ rejected the

petitioner's proffered explanation for that phenomenon — that he

was "in hiding" — because the petitioner, during his stay in

Ashtarakh, made frequent public appearances, attended classes, and

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sat for final examinations at the university. Noting that the

incidents were confined to a particular area (Yerevan), the IJ

supportably found that the violence was localized and carried out

solely by a small band of local hoodlums. That is significant

because a finding that violence is localized supports a

determination that the violence does not constitute persecution.

See Galicia v. Ashcroft, 396 F.3d 446, 448 (1st Cir. 2005); Da

Silva, 394 F.3d at 7.

In sum, the IJ concluded that the incidents affecting the

petitioner, though regrettable, did not as a matter of law

constitute persecution at the hands of government officials, but,

rather, abuse at the hands of a coterie of local hooligans. Given

the lack of any connection between the incidents and any

discernible governmental action or inaction, we deem this

conclusion supported by substantial evidence. Consequently, we

must uphold it. See INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992).

The supportability of the "no past persecution"

determination brings us to the existence vel non of a well-founded

fear of future persecution. On that issue, as on the issue of past

persecution, the petitioner bears the burden of proof. See Negeya,

___ F.3d at ___ [slip op. at 6]. Because there is no sufficient

showing of past persecution, the petitioner must carry that burden

unaided by any affirmative presumption. Id. at __ [slip op. at 6].

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 A successful showing of a well-founded fear of future

persecution must survive scrutiny from both subjective (genuine

fear) and objective (objectively reasonable fear) standpoints. See

id. at ___ [slip op. at 6]; Laurent v. Ashcroft, 359 F.3d 59, 65

(1st Cir. 2004). Given the IJ's favorable credibility

determination, the petitioner easily satisfies the subjective

component of this test. The objective component presents a more

daunting challenge.

The petitioner rests his fear of future persecution

principally on the fact that he will have to undergo compulsory

military service should he return to Armenia (without performing

military service, he would be unable to join his family in

Russia).5 The IJ disagreed that the petitioner had succeeded in

showing that he would be unable to fulfill his military commitment

safely. On that basis, she concluded that the petitioner's

professed fear was not objectively reasonable. We test the

validity of that conclusion.

Determining whether a fear of future persecution is

objectively reasonable turns on "whether a reasonable person in the

5
It would not profit the petitioner to switch the focus of his
"well-founded fear" argument from his obligation to perform
military service to the incidents of violence that transpired in
2001. For one thing, as we have just explained, the IJ supportably
found that those incidents did not amount to persecution. For
another thing, the IJ's supportable finding that the violence was
localized would itself refute such an argument, as it would mean
that the petitioner retained a viable option of avoiding harassment
by relocating elsewhere within Armenia.

-12-
asylum applicant's circumstances would fear persecution on account

of a statutorily protected ground." Aguilar-Solis v. INS, 168 F.3d

565, 572 (1st Cir. 1999). In an effort to meet that benchmark, the

petitioner presented the testimony of an expert in Armenian

politics and testimony about his brother's past experience in the

Armenian army. These presentations comprised a mixed bag.

The IJ did not consider the petitioner's expert to be an

expert on Armenian military conditions. She nonetheless allowed

him to testify, on the petitioner's behalf, that the Armenian army

is a rough-and-tumble environment, in which a whole host of

individuals, not just those of Azeri descent, are routinely

harassed. Harassment occurs based on a wide variety of

infelicitous causes, such as religion, sexual preference, failure

to pay bribes, and a perceived lack of patriotism. The expert also

testified that he had no knowledge of any Azeris being killed in

the course of such harassment.

The evidence anent the petitioner's brother is not

helpful to the petitioner's case. For two years, at the height of

the hostilities between Armenia and Azerbaijan (1991-1993), the

petitioner's brother served in the Armenian military without any

untoward incident. This fact is some evidence that the petitioner

could do the same.6

6
The fact that the petitioner's brother may have been assisted
by his father's officer-friend while in the army does not alter
this conclusion. There has been no showing that the petitioner

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 On these facts, the IJ found that the petitioner could

keep his military commitment without an objectively reasonable fear

of persecution on account of his Azeri heritage. Given the

evidentiary tapestry of the case as a whole, we cannot say that a

reasonable factfinder would be compelled to reach a contrary

conclusion. When the threat of violence afflicts all persons in a

given situation, not just a particular social group or class, that

threat will not support a finding of a well-founded fear of future

persecution. See Ravindran v. INS, 976 F.2d 754, 759 (1st Cir.

1992) ("Generally, evidence of widespread violence and human rights

violations affecting all citizens is insufficient to establish

persecution."); Khalaf v. INS, 909 F.2d 589, 592-93 (1st Cir. 1990)

(similar); Rodriguez-Rivera v. U.S. Dep't of Immig. & Natural'n,

848 F.2d 998, 1006 (9th Cir. 1988) (similar).

Our journey is not yet complete. In his brief to this

court, the petitioner laments that his testimony was improperly

interpreted. Despite his generalized claim that improper

interpretation occurred "throughout the [asylum] hearing," his

brief specifically mentions only one instance of allegedly improper

interpretation — the petitioner's statement that "the case didn't

get any closure" — and does not suggest a more precise translation.

When examining a claim of improper interpretation, we

must ask whether a more proficient or more accurate interpretation

could not benefit from such family connections as well.

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would likely have made a dispositive difference in the outcome of

the proceeding. See Singh v. Ashcroft, 367 F.3d 1139, 1144 (9th

Cir. 2004); Perez-Lastor v. INS, 208 F.3d 773, 780 (9th Cir. 2000).

Here, we answer that question in the negative, as the IJ's "no past

persecution" finding is amply supported by unchallenged evidence in

the record.

The fact that the BIA adopted the IJ's opinion without

addressing the petitioner's improper interpretation claim does not

alter our conclusion. The BIA is free to take such a stance when

it reasonably concludes that "any errors in the decision under

review were harmless or nonmaterial," 8 C.F.R. 1003.1(e)(4)(i).

That principle applies here.

We need go no further. After careful evaluation of the

briefs, the record, and the petitioner's claims, we conclude that

the IJ's decision (and, thus, the BIA's affirmance of that

decision) is both supported by substantial evidence and not

otherwise infected by reversible error.

The petition for judicial review is denied.

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