Martirosyan v. Immigration & Naturalization Service

WALLACE, Circuit Judge,

dissenting:

The majority opinion invites a stern rebuke from the Supreme Court by conflicting with controlling case law and for misapplying the proper standard of review. The majority orders asylum for a draft dodger who offered no evidence in support of his claim that he would have been forced to commit war crimes had he not fled Armenia. Accordingly, I must dissent.

I

The majority’s factual review is extensive. However, the only relevant question before us is whether Martirosyan proved he would have been forced to commit war crimes had he not evaded the draft in his home country. We should focus on the facts dealing with this issue.

As an officer in the Soviet army, Marti-rosyan was sent to Kazakhstan in 1988 to work as a “counselor.” He described himself as the Soviet equivalent of an Aneri-can Army’s “chaplain” and testified that his job was to boost the morale of soldiers returning from the conflict in Afghanistan and to reindoctrinate those who had strayed from the ideals of Communism.

Despite his orders, Martirosyan felt that the best way to improve the morale of the troops returning from the front would have been to send them home to their families instead of isolating them for an additional six months. Martirosyan chose to send a letter outlining his feelings on the matter directly to the Soviet Deputy Defense Minister.

When the army learned of his action, it issued him a negative evaluation and transferred him to a different post. At this post, Martirosyan was not responsible for counseling soldiers returning from active combat, but rather for soldiers responsible for transporting arms that were being dismantled. Martirosyan saw the assignment of counseling soldiers “engaged in blue collar work” as “an exile.” He continued to speak out, and within a year he was fired from the Army for “looseness in his ideological structure.”

After spending a few years in Armenia employed by a private insurance company, Martirosyan was apparently drafted while working towards earning an MBA at the American University. The Armenian military commissariat for Martirosyan’s region told him that he was to be sent to a prisoner of war camp to try to influence some of the prisoners to become double agents in Armenia’s conflict with Azerbaijan.

Martirosyan had no interest in this posting. Although he was willing to serve as a soldier, Martirosyan did not want to work with prisoners of war. His pleas, however, fell on deaf ears: the military said his *915assignment would not be discussed and he was going to the prisoner of war camp. The military wanted him for the post because of his past training and experience as a counselor.

Martirosyan responded by sneaking into Russia, where he lived and worked for several years. During this time, Martiro-syan did not apply for asylum. It was only when Russia signed a pact with Armenia promising to return deserters and draft dodgers such as Martirosyan that he went back to Armenia, paid a government official $100 to get a passport, and fled to the United States rather than face seven years of jail time for draft dodging.

Once in the United States, Martirosyan claimed asylum on the basis of his “assumption” that, had he' reported to the prisoner of war camp as ordered, he would have been forced to commit human rights violations.

II

The factual basis for Martirosyan’s “assumption” is a mystery to me. The record upon which we make our review contains no reference to any Armenian or Soviet soldier ever being forced to commit a human rights violation. Martirosyan admitted that he was never asked to participate in any kind of torture or ill-treatment and at no time in his testimony did he even state that any soldier in his army had ever been forced to commit such illegal acts.

Martirosyan attempted to support his claim for asylum by submitting articles from Amnesty International and Human Rights Watch along with a State Department report on Armenia. Not one of these documents contains even a single allegation of soldiers being forced to commit an atrocity. The majority responds to this charge in footnote 5, but still does not quote even one statement reporting an Armenian or Soviet soldier ever being forced to commit a human rights violation. The majority quotes these documents without grasping that generalized human rights abuse is not the issue in this case. The issue is whether this particular counselor, trained in the art of boosting morale and tasked with the job of recruiting double agents, would be forced to commit unspeakable war crimes himself There is not one shred of record evidence to support such a claim, nor has the majority quoted any for our benefit. Indeed, when Martirosyan himself was asked by the IJ whether he could point to anything in this background material to support his claim that he would be forced to torture prisoners if sent to the camp, he replied, “No.”

This court recently emphasized that reports such as those relied upon by the majority “cannot establish [a petitioner’s] claim independently,” Zahedi v. INS, 222 F.3d 1157, 1163 (9th Cir.2000), yet the only other evidence on which the majority rests its conclusion is the testimony of Martiro-syan-testimony in which Martirosyan admitted that he had never been asked to torture and kill anyone and that his knowledge about general conditions in prisoner of war camps were based solely on rumor. Martirosyan did not even claim to know as a matter of rumor that soldiers were being forced to torture prisoners; he simply “felt that [he] might be ordered to mistreat [prisoners].” In order to reach its result, the majority has improperly given greater weight to background documents than such evidence should command.

At his hearing before the immigration judge (IJ), the burden was on Martirosyan to present “credible, direct, and specific evidence” that he was going to be forced to commit human rights violations. Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir.1998) (emphasis added, internal quotations omitted). The record makes it clear that Martirosyan so utterly failed to carry his burden that had this been a civil trial, summary judgment in favor of the INS would have been proper. For the majority to hold that the evidence in favor of Marti-rosyan was so overwhelming that it “compelled” reversing the Board of Immigration Appeals (Board) and ordering asylum shows a complete jettisoning of the standard of review set by the Supreme Court for asylum cases. We are supposed to be *916“highly deferential” to the Board, Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000), and reverse its decisions only when our review of the evidence convinces us that the Board’s analysis was so wrong that it reached a conclusion wholly unsupported by logic: in other words, one that no reasonable factfinder could ever have reached. Id. at 1244.

To make matters worse, the Supreme Court has already made it perfectly clear that a desire to avoid military service, without more, is not a valid ground for asylum. INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This circuit recognized this proposition before Elias-Zacarias, and has followed the precedent ever since. See, e.g., Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir.1991); Rodriguez-Rivera v. U.S. Dept. of Immigration and Naturalization, 848 F.2d 998, 1005 (9th Cir.1988) (per curiam) (“RodrigueznRivera ignores ... that the government’s effort to recruit him into the military does not constitute political persecution.”); Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986) (per curiam) (“Even petitioners admit that being drafted [into the] army does not amount to persecution.”).

In spite of this unbroken line of precedent, which should control the outcome of this case, the majority feels it can go the opposite direction based on the pre-Elias-Zacarias case of Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir.1990). In Barraza Rivera, the petitioner was ordered by a military officer, under threat of death, to participate in the paid killing of two men. In that case, “a Salvadoran military official gave Barraza a terrifying choice: to murder others, or to be murdered himself.” Id. at 1453. To the extent Barraza Rivera survives after Elias-Zacarias, it does not assist Martirosyan.1

To argue that Martirosyan’s situation is even remotely analogous to the situation in Batraza Rivera strains credulity. Marti-rosyan was never ordered to hurt anjmne, and he was certainly never threatened with harm if he refused. To the contrary, there is no doubt that Martirosyan was perfectly willing to kill people as a soldier. What he wanted to avoid was another un-glamourous posting:

Question: From what you’ve said, sir, you’re perfectly happy to pick up a weapon [and] shoot people in a battle.... You’re qualified to be [a] soldier and shoot people. But you didn’t want to be [at] a prisoner of war camp and deal with them. Isn’t that correct?
Answer: Absolutely.

Martirosyan was not persecuted. He fled because he feared prosecution for draft dodging. To reverse the Board, I would need to engage in speculation. Reasoned judicial analysis leads me to conclude that I am not compelled to overturn the Board.

I would deny the petition.

. The majority also cites Ramos-Vasquez v. INS, 57 F.3d 857 (9th Cir.1995), in its footnote 3 as additional support of its position. However, Ramos-Vasquez also does not aid Martirosyan since in it the petitioner deserted after refusing to obey a direct order to execute his friend. Id. at 860. Clearly, there is no such evidence in the record of this case.