NINTH CIRCUIT ALLOWS ARMENIAN ORGANIZER TO SEEK ASYLUM
By Steven M. Ellis
Metropolitan News-Enterprise
10/bagh011410.htm
Jan 14 2010
A man who fled Armenia after being threatened, harassed, fined,
detained and beaten for fighting a corrupt government official’s
extortion scheme may proceed with his claim for asylum, the Ninth U.S.
Circuit Court of Appeals ruled yesterday.
Reversing the Board of Immigration Appeals, the court held that Armen
Baghdasaryan might have a well-founded fear of persecution if returned
because his past mistreatment at the hands of government officials
was due to his political opinion, not "criminal misconduct."
Baghdasaryan said he suffered retaliation at the hands of militia,
state security, the tax authority and criminal investigators after
he blew the whistle on a politician’s scheme to force him and other
vendors in a market to pay kickbacks in addition to rent for use of
the space.
In the mid-1990s, Baghdasaryan openly criticized General H. Hakopian,
filed a complaint against him with a judge, organized fellow vendors
into an informal union, and held several rallies and strikes to
publicize Hakopian’s corruption. However, fearing harm to his family,
Baghdasaryan eventually began paying a monthly $100 bribe.
Baghdasaryan resumed his whistleblowing activities in 2001 after
sending his wife and children to the United States, but fled that year
after his mother said she received calls from associates of Hakopian
who knew the address of Baghdasaryan’s family in the United States.
He sought asylum after arriving in the United States, but an
immigration judge denied relief, finding Baghdasaryan was not credible
and failed to show persecution on account of one the grounds protected
under U.S. immigration law.
The Board of Immigration Appeals found Baghdasaryan credible, but
otherwise agreed, finding "very little indication" the Armenian
government was imputing any political opinion to Baghdasaryan, and
that he was merely the "victim [of] criminal misconduct."
On appeal, however, Judge Harry Pregerson wrote that the BIA’s
conclusion was "contrary to the record and our case law, which
establishes that opposition to government corruption is an expression
of political opinion."
Under U.S. immigration law, he explained, a refugee seeking asylum
must demonstrate a well-founded fear of persecution on account of a
protected ground such as race, religion, nationality, membership in
a particular social group or political opinion. Individuals seeking
to do so through past persecution must show actual persecution by
the government and a nexus between that mistreatment and a protected
ground.
Pregerson rejected the government’s argument that Baghdasaryan was
merely "on the wrong side of a personal dispute with the powerful
owner of the market who was also a government official," and said
Baghdasaryan showed such a nexus.
"[A] reasonable factfinder would be compelled to conclude that
Baghdasaryan’s whistleblowing activity against extortion and
corruption was an expression of his political opinion…[and] to
conclude Baghdasaryan was mistreated, as least in part, because of
his whistleblowing activity," he wrote.
Concluding that Baghdasaryan was the victim of government misconduct,
Pregerson said remand to the BIA was required to consider whether the
mistreatment rose to the level of "persecution." The judge also wrote
that Baghdasaryan was entitled to a determination on whether he was
eligible for withholding of removal in addition to a determination
on his asylum bid.
Judges Stephen Reinhardt and Kim McLane Wardlaw joined Pregerson in
his opinion.
The case is Baghdasaryan v. Holder, 05-72416.