Hayk Khudaverdyan v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAYK KHUDAVERDYAN; NADEZHDA No. 10-73346

KHUDAVERDYAN,

Petitioners, Agency Nos.

A099-901-673

v. A099-901-674

ERIC H. HOLDER, JR., Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 10, 2014* Pasadena, California

Filed February 27, 2015

Before: Andrew J. Kleinfeld, Susan P. Graber, and John B. Owens, Circuit Judges.

Opinion by Judge Graber; Concurrence by Judge Owens; Dissent by Judge Kleinfeld

* The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). SUMMARY**

Immigration

The panel granted, in part, a petition for review of the Board of Immigration Appeals’ denial of asylum and withholding of removal, holding that the Board erred by failing to consider whether the lead petitioner had established the requisite nexus to a protected ground based on his imputed whistleblowing, and denied the petition, in part, holding…

dissenting:

I respectfully dissent.

Khudaverdyan supervised the waiters at a restaurant frequented by government officials, foreign visitors and business people. One night at the restaurant, Khudav-erdyan responded to a complaint by the police chief that “the food doesn’t taste good” and was “served late.” Rather than apologizing and giving the deferential response that the police chief may have expected, Khudaverdyan said that “our food is good ... [it] requires a long time [to prepare] and ... we have other guests.” Khudaverdyan says that his response “humiliated” the police chief because he was with “ladies and friends.” Khudaverdyan’s own testimony is that because of his response, the chiefs two bodyguards took him outside and beat him up. A week after the restaurant beating, a reporter approached Khudaverdyan for information about the incident. He agreed to meet with her, but ultimately decided not to tell her anything. Later that day, he was picked up by the police, held overnight, and accused of espionage the following morning. He was beaten and threatened with life in prison and with the conscription of his son into the military for “dishonoring the military police.” The…

concurring:

I concur in Judge Graber’s thoughtful opinion. I write separately to emphasize that the United States Department of Justice’s position in this and other immigration cases clashes with its own campaign against foreign corruption.

The Justice Department does not limit corruption to “bribery.” Rather, it correctly defines corruption as the “abuse of entrusted power for personal gain.” Shortly after the Arab Spring, former Assistant Attorney General Lanny Breuer recounted the tragic story of Mohammed Bouazizi, who lit himself on fire in Tunisia after suffering the abuse of a corrupt local official.

Bouazizi’s tale is unfortunately a .global one, shared by Khudaverdyan and many others. A guard who demands sexual favors from a prisoner is corrupt. 2 So is a police officer who brutalizes a local com *1110 munity. 3 And so is a police chief who, to impress his “ladies and friends,” uses his bodyguards to beat up a restaurant manager who refuses to kowtow to his demands. None of these violations feature bribes, but all involve the abuse of entrusted power for personal gain, which can be as petty as trying to look like a big shot in front of friends and members of the…

Opinion by Judge GRABER; Concurrence by Judge OWENS; Dissent by Judge KLEINFELD.

OPINION

Petitioners Hayk and Nadezhda Khu-daverdyan seek asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, 1465 U.N.T.S. 85. The Armenian military police detained, beat, and threatened Petitioner 1 after he was seen talking to a reporter following a personal confrontation with the city’s military police chief. The Board of Immigration Appeals (“BIA”) held that, because Petitioner failed to prove that he intended to expose corruption when he talked to the reporter, he did not demonstrate that he was persecuted because of his actual political opinion. The BIA further held that Petitioner failed *1104 to show that his mistreatment at the hands of the military police rose to the level of torture within the meaning of the CAT. Although we find no error in those rulings, the BIA failed to address evidence in the record that Petitioner was persecuted on account of an imputed, political opinion, that is, because military police officials thought that he was talking to the…