Antonyan v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NUNE ANTONYAN, 

Petitioner, No. 07-72719

v.

 Agency No.

A098-461-609

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 12, 2011—San Francisco, California

Filed June 29, 2011

Before: Betty B. Fletcher and Sidney R. Thomas, Circuit

Judges, and Lee H. Rosenthal, District Judge.*

Opinion by Judge Thomas

*The Honorable Lee H. Rosenthal, District Judge for the U.S. District

Court for Southern Texas, Houston, sitting by designation.

8781

ANTONYAN v. HOLDER 8783

COUNSEL

Peter Hosharian (argued) and Areg Kazaryan, Glendale, Cali-

fornia, for the petitioner.

8784 ANTONYAN v. HOLDER

Anna Nelson (argued) and Annette M. Wietecha, Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C., for the respondent.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether the whistleblowing

doctrine extends to an asylum petitioner who faces retaliation

from a notorious criminal who is protected by corrupt govern-

ment officials. We conclude that it does, and we grant the

petition for review.

I

Nune Antonyan left Armenia for fear that a dangerous

criminal, with corrupt ties to high levels of the Armenian gov-

ernment, would retaliate against her for seeking his prosecu-

tion. Antonyan entered the United States on a non-immigrant

visitor visa, while her husband and children remained in

Armenia. She overstayed the visa, and a Notice to Appear

issued. Antonyan conceded removability and requested relief

in the form of asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”), or, alterna-

tively, voluntary departure.

Antonyan believes her life would be in danger if she

returned to Armenia because she “dared to stand up against”

Hovhannesyan Andranik and a “corrupt system” in which “[a]

person cannot feel . . . protected.” In her removal hearing tes-

timony, which the Immigration Judge (“IJ”) found credible,

Antonyan recounted events that began with her observing a

drug dispute involving Andranik and culminated with her tes-

tifying about Andranik’s drug dealing and his bribery of gov-

ernment officials who protected him. As she pursued her

ANTONYAN v. HOLDER 8785

complaints against Andranik up the chain of law enforcement

agencies, Antonyan and her husband endured physical beat-

ings, warnings to remain silent, and death threats from

Andranik and his henchmen, as well as threats and intransi-

gence from the government. Antonyan continues to fear

Andranik and “his friends” in the police and prosecutor’s

offices.

A

As Antonyan climbed the stairs to her apartment one day,

she heard a man cursing and a young woman crying. Upon

reaching her floor, Antonyan saw her neighbor Andranik

demanding payment from the woman before he would give

her more drugs. Antonyan scolded Andranik for his foul lan-

guage; he told her to “get lost.” Antonyan called the police,

but they did nothing.

A few days later, Antonyan ran into Andranik and several

of his men. Pointing her out, Andranik warned Antonyan to

“keep [her] mouth shut”—she “talk[ed] too much [and was]

asking for trouble.” Andranik pushed Antonyan. Following

the incident, she called the police again and reminded them of

her prior report. The police told her to “stop calling” and to

“not name that person ever again” or they would “come and

punish” Antonyan.

Upset by the police inaction, Antonyan pressed on, taking

the matter to the prosecutor’s office. There, she relayed her

story to an investigator who took Andranik’s name and prom-

ised to respond.

Shortly thereafter, Andranik and his friends confronted

Antonyan, demanding to know why she persisted in “com-

plaining” to the police and prosecutors. Gesturing to his

pocket, Andranik warned that “they all are depending on this”

and “are all here in my pocket”; Antonyan could do “nothing”

against him. Andranik pushed her and hit her face. When she

8786 ANTONYAN v. HOLDER

fell, he kicked her and warned that “everything” was in his

“hand.” If she continued “causing trouble,” Andranik and his

men would “deal” with Antonyan and her family.

When Antonyan’s husband saw her bruises, he rushed to

Andranik’s apartment. Andranik refused to see him, and

Andranik’s associates beat Antonyan’s husband, warned him

to “shut [his] wife’s mouth,” and threatened his life. They told

him to remind Antonyan of their influence with government

officials, and demanded that she “stop stirring water.”

After her husband’s beating, Antonyan called the investiga-

tor from the prosecutor’s office. The investigator told her that

his superiors had forbidden him from investigating the case,

and that Antonyan was “on [her] own.” He warned her to pro-

tect herself: “[I]t’s not a laughing matter. His threats are seri-

ous. He is a dangerous man. Beware.” It occurred to

Antonyan, at that moment, that Andranik was “absolutely free

doing what he wanted”—including “selling drugs” and “pay-

ing off the police”—and “so was not punishable at all.” She

asked the investigator for help, but his hands were tied. He

offered to share her story with his friend, an investigator with

the National Security agency.

The National Security investigator contacted Antonyan.

After hearing her story, he described Andranik as a “big scale

drug dealer” with “very influential protectors” who was “not

going to be easy to deal with.” Police officers covered for

Andranik because of their involvement in the drug trade and

because he provided them money and information. Andranik

was a “valuable man for them.” The investigator offered to

look into the matter only if Antonyan would agree to testify.

She agreed.

Some time later, the National Security investigator notified

Antonyan of Andranik’s arrest. She went to testify at the

National Security Building. When Andranik was escorted in,

he again threatened Antonyan. She testified about Andranik’s

ANTONYAN v. HOLDER 8787

threats and attacks, her husband’s beating, the inaction and

threats of the police, and Andranik’s statements about having

government officials in his pocket. She left with assurances of

protection from the National Security agency.

Notwithstanding those assurances, just a few days later,

while Antonyan visited family in another town, her husband

called to say that two police officers came by to ask about her.

The officers threatened to arrest him if Antonyan did not

appear at the station the following morning. Before calling

Antonyan, her husband had spoken with the National Security

investigator, who reported that high-ranking government offi-

cials had intervened on Andranik’s behalf, securing his

release and the closure of his case. The investigator warned

Antonyan’s husband that he could not protect them against

Andranik’s serious threats.

Antonyan and her husband resolved to move to another part

of Armenia. After Andranik’s release, he took over their for-

mer apartment and told neighbors that he would find and pun-

ish Antonyan’s family.

B

After the IJ denied her claims, Antonyan appealed to the

Board of Immigration Appeals (“BIA”). The BIA conducted

its own review of Antonyan’s claims and dismissed her

appeal. After acknowledging that the IJ found Antonyan cred-

ible, the BIA agreed with the IJ that she failed to establish a

nexus between her mistreatment and a statutorily protected

ground. Antonyan urged the BIA—as she had the IJ—that,

under Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) and

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004), her

exposure of corruption within the police department and other

government agencies established the nexus necessary to sup-

port her claims.

The BIA concluded that Andranik’s actions were not “inex-

tricably intertwined with a government operation,” but instead

8788 ANTONYAN v. HOLDER

“simply were the actions of an angry criminal who sought

revenge after [Antonyan] reported him to the police.” Because

she failed to show a relationship between the harms she suf-

fered and a protected ground, the BIA concluded that she

failed to satisfy her burden of proving eligibility for asylum

and, it followed, for withholding of removal. Finally, noting

the absence of record evidence showing a likelihood of torture

upon return to Armenia, the BIA held that Antonyan also

failed to satisfy her burden of proving eligibility for protec-

tion under the CAT.

Antonyan timely petitioned for review of the BIA’s deci-

sion. We have jurisdiction under 8 U.S.C. § 1252.

Where, as here, the BIA conducts its own review of the evi-

dence and law, “our review is limited to the BIA’s decision,

except to the extent that the IJ’s opinion is expressly adopt-

ed.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)

(citation and internal quotation marks omitted). The BIA’s

legal determinations are reviewed de novo. Wakkary v.

Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). Factual findings

are reviewed for substantial evidence, id., and thus “are con-

clusive unless any reasonable adjudicator would be compelled

to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). We

accept Antonyon’s factual testimony “as undisputed,” since

the BIA did not disagree with the IJ’s credibility finding. Gor-

mley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir. 2004).

II

[1] To demonstrate a nexus between the harm she suffered

and her political opinion, Antonyan must show (1) that she

held, or her persecutors believed that she held, a political

opinion; and (2) that she was harmed because of that political

opinion. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th

Cir. 2010). The record compels the conclusion that she has

made both showings; the BIA erred in holding otherwise.

ANTONYAN v. HOLDER 8789

A

[2] “Whistle-blowing against government corruption is an

expression of political opinion.” Baghdasaryan, 592 F.3d at

1024. In determining whether an act of whistle-blowing is

political, “ ‘the salient question’ ” is “whether it was ‘directed

toward a governing institution, or only against the individuals

whose corruption was aberrational.’ ” Hasan v. Ashcroft, 380

F.3d 1114, 1120 (9th Cir. 2004) (quoting Grava, 205 F.3d at

1181).

[3] In pursuing Andranik’s prosecution, Antonyan sought

more than an end to his drug-dealing and violence in her com-

munity; she also hoped to expose his crooked ties to law

enforcement agencies who refused to protect the citizenry. As

Antonyan explained before the IJ, she directed her testimony

against Andranik, a corrupt police department, and a prosecu-

tor’s office that refused to help her.1

[4] The record belies the Government’s suggestion that

Antonyan aimed at only a private criminal or a few public

officials. To be sure, when she first contacted police,

Antonyan did not know of Andranik’s “very influential pro-

tectors.” That her initial reports stemmed from a “personal

dispute” does not render her later acts any less “political,”

however. See Zhu v. Mukasey, 537 F.3d 1034, 1045 (9th Cir.

2008) (“Although petitioner’s dispute with the factory man-

ager started out as a ‘personal dispute’ when he raped her, her

complaint to the town government about the manager’s pro-

tection was interpreted as an act of political dissent, and the

police repeatedly sought to arrest her in response to that

1

Antonyan’s characterization of corruption in Armenian law enforce-

ment finds support in the 2005 state department country report on Arme-

nia. See Zhu v. Mukasey, 537 F.3d 1034, 1045 (9th Cir. 2008) (noting state

department report as corroborating evidence). The report identifies corrup-

tion as a “significant problem in the police force and security service,”

perceived to be “widespread” in the Armenian government.

8790 ANTONYAN v. HOLDER

act.”). As she pursued the matter up the chain of law enforce-

ment agencies, the warnings, threats, and beatings she and her

husband suffered made clear Andranik’s corrupt ties to, and

the protection he enjoyed from, the government. When she

served as a witness against Andranik, Antonyan testified,

inter alia, that: the police threatened to punish her if she did

not “forget” Andranik; Andranik told her that the police and

prosecutors were in his pocket; and the National Security

agent told her that the police would cover for Andranik

because they were themselves involved in the drug trade.

[5] “When the alleged corruption is inextricably inter-

twined with government operation, the exposure and prosecu-

tion of such an abuse of public trust is necessarily political.”

Grava, 205 F.3d at 1181; see, e.g., Sagaydak v. Gonzalez, 405

F.3d 1035, 1043 (9th Cir. 2005) (holding that uncovering cor-

ruption within a private organization “was undeniably a politi-

cal statement in the context of the country’s evolving

politics”); Njuguna v. Ashcroft, 374 F.3d 765, 770-71 (9th

Cir. 2004) (finding political opinion where petitioner charac-

terized his aid to enslaved women “as an act against the . . .

regime’s corruption”). Here, the record compels the conclu-

sion that Antonyan expressed a political opinion in her unsuc-

cessful attempts to have Andranik prosecuted.

B

Antonyan must also show that her persecutors were “ ‘mo-

tivated, at least in part, by a [ ] . . . protected ground.’ ” Sinha

v. Holder, 564 F.3d 1015, 1021 (9th Cir. 2009) (explaining

pre-REAL ID Act standards) (quoting Borja v. INS, 175, F.3d

732, 736 (9th Cir. 1999) (en banc)).2

2

Were this a post-REAL ID Act case, Antonyan would shoulder the

“additional burden” of demonstrating “that one of the five protected

grounds will be at least one central reason for [her] persecution.” Zetino

v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (emphasis added).

ANTONYAN v. HOLDER 8791

[6] While the BIA correctly found that “revenge” moti-

vated Andranik, significant credible evidence establishes that

he also acted because Antyonyan sought to expose his corrupt

relationships to the government. Andranik’s bribes, drug busi-

ness, and work as an informant made him “valuable” to the

police and prosecutors, and won him protection from high-

ranking officials.3 By erroneously characterizing Andranik’s

acts as wholly unconnected from government, the BIA failed

to credit evidence that his motives were not exclusively “per-

sonal.” Antonyan “need only produce evidence from which it

is reasonable to believe that the harm was motivated, at least

in part, by an actual or implied ground.” Mamouzian, 390

F.3d at 1134 (emphasis added). In his initial attacks and

threats against Antonyan and her family, Andranik referred to

Antonyan’s reports and to his influence over law enforce-

ment. His threats continued at her testimony against him,

where Andranik heard Antonyan recount his boasts of bribery

and immunity. And after his release, Andranik told Antony-

an’s neighbors that he would find and punish her family.

[7] “Purely personal retribution is, of course, not persecu-

tion on account of political opinion.” Grava, 205 F.3d at 1181

n.3. But “where a persecutor has both personal and political

motives for retaliating against a political opponent, the perse-

cutor’s mixed motives do ‘not render the opposition any less

political, or the opponent any less deserving of asylum.’ ”

Zhu, 537 F.3d at 1043 (quoting Grava, 205 F.3d at 1181 n.3);

see, e.g., id. at 1045 (nexus established where Chinese woman

harmed because of a personal dispute with a government offi-

cial and the political act of whistleblowing); Fedunyak v.

Gonzalez, 477 F.3d 1126, 1130 (9th Cir. 2007) (nexus estab-

lished where persecution was motivated by both personal

3

Andranik’s influence was evident in his statements, in statements from

all three law enforcement agencies, and in the agencies’ refusal to help

Antonyan. Antonyan’s actions drew threats not only from Andranik, but

also from the police, who threatened her when she called and came search-

ing for her after Andranik’s release from prison.

8792 ANTONYAN v. HOLDER

greed and petitioner’s complaints about government extor-

tion). The record makes clear that Andranik had inside infor-

mation of Antonyan’s interactions with the police, the

prosecutors, and, finally, the National Security agency. Given

what Andranik knew and what he said to Antonyan, we must

conclude that her whistleblowing efforts fueled Andranik’s

retaliation.

[8] “[A] victim who is targeted for exposing government

corruption is persecuted ‘on account of’ political opinion.”

Sagaydak, 405 F.3d at 1042. The record compels a finding

that in his threats and attacks on Antonyan and her family,

Andranik was motivated, in part, by the knowledge that she

was exposing his corrupt ties to law enforcement agencies.

III

[9] Antonyan also asserts that the BIA did not address her

CAT claim, but the record shows otherwise. The BIA must

provide “a statement of its reasons for denying the petitioner

relief adequate for us to conduct our review, and we must

remand for clarification if the Board fails to provide an ade-

quate statement of the reasons for its decision.” Ghaly v. INS,

58 F.3d 1425, 1430 (9th Cir. 1995); see also She v. Holder,

629 F.3d 958, 963 (9th Cir. 2010) (“Due process and this

court’s precedent require a minimum degree of clarity in dis-

positive reasoning and in the treatment of a properly raised

argument.”). Here, after addressing Antonyan’s claims for

asylum and withholding of removal, the BIA went on to find

that the record does not show a likelihood that she will face

torture upon returning to Armenia. As a result, the Board con-

cluded, Antonyan failed to satisfy her burden of establishing

eligibility for CAT relief. The BIA did not ignore Antonyan’s

CAT claim, as she suggests, and she points to no record evi-

dence that would compel a different finding. See Wakkary,

558 F.3d at 1068 (affirming BIA’s denial of CAT claim

where petitioner provided no record evidence “that he is

likely to be tortured by the actors he fears”).

ANTONYAN v. HOLDER 8793

IV

[10] We grant Antonyan’s petition as to the BIA’s denial

of her claims for asylum and withholding of removal, deny

her petition to the extent she seeks a remand for adequate con-

sideration of her CAT claim, and remand to the BIA for fur-

ther proceedings.

Costs are awarded to the Petitioner.

PETITION GRANTED IN PART; DENIED IN PART;

REMANDED.