Zamira Japarkulova v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0195p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner, -

ZAMIRA BARBAKOVNA JAPARKULOVA,

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No. 09-3583

v.

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Respondent. -

ERIC H. HOLDER, JR.,

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On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A095 574 202 Cincinnati.

Argued: June 8, 2010

Decided and Filed: July 8, 2010

Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: Charleston C. K. Wang, LAW OFFICES, Cincinnati, Ohio, for Petitioner.

Rosanne M. Perry, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: Charleston C. K. Wang, LAW OFFICES, Cincinnati, Ohio,

for Petitioner. Greg D. Mack, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

KETHLEDGE, J., delivered the opinion of the court, in which RYAN, J., joined.

MARTIN, J. (pp. 9-10), delivered a separate concurring opinion.

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OPINION

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KETHLEDGE, Circuit Judge. Zamira Japarkulova, a native and citizen of the

Kyrgyz Republic, petitions for review of an order of the Board of Immigration Appeals

denying her application for asylum. We conclude that the Board erred by failing to provide

a reasoned explanation for its conclusion that Japarkulova did not experience past

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persecution. But we also conclude that the error was harmless. We therefore deny the

petition.

I.

Japarkulova was admitted into the United States as a non-immigrant visitor in

September 2001. Her visa was due to expire in March 2003. In May 2002, however,

Japarkulova submitted an application for asylum and withholding of removal to the

Department of Homeland Security (DHS). An asylum officer denied her application in

August 2003, at which point DHS issued a Notice to Appear, alleging that Japarkulova was

removable for having overstayed her visa. See 8 U.S.C. § 1227(a)(1)(B). At a hearing

before an immigration judge (IJ), Japarkulova conceded removability but renewed her

requests for asylum and withholding of removal, and added an application for relief under

the Convention Against Torture.

At a subsequent hearing, Japarkulova testified in support of her requests for relief.

She claimed that she had been persecuted in the Kyrgyz Republic because of her opposition

to the corruption of Mariam Akayeva, the wife of then-President Askar Akayev. She

explained that, as a result of her advanced education and work as a university professor, she

had become involved with the Kelechek Foundation, an organization founded in 1991 to

provide educational support to gifted Kryrgz students. During her time with the Kelechek

Foundation, Japarkulova worked closely with Akayeva, the head of the Foundation.

In roughly 1993, Japarkulova learned that Akayeva was mishandling Foundation

funds. According to Japarkulova, Akayeva was selling scholarships to attend several

competitive universities in the United States, even though the scholarships were supposed

to be allocated based on merit. After Japarkulova raised the issue of Akayeva’s corruption

with the Kyrgyz Minister of Education, she was asked to visit the president’s office to

discuss the charge. When Japarkulova arrived for the meeting, however, security guards

seized the documentation that she had brought with her. She then met with the Minister of

National Security, who told her that she would be jailed if she did not abandon her efforts

to expose Akayeva’s corruption. The security minister also threatened that the government

would arrange a fatal “accident” for Japarkulova if she did not desist. Because of the history

of political violence in her country, Japarkulova took the threat seriously.

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Japarkulova also testified that she was fired from a series of jobs because of her

opposition to Akayeva’s corruption. Twice, her employer informed her that she was being

fired due to pressure from the president. On another occasion, Japarkulova was fired shortly

after Akayev visited her employer’s office and found her working there. On each occasion,

however, Japarkulova was able to find a new position shortly after being fired.

In 1997, Japarkulova came to the United States on a Fulbright Scholarship. She

testified that she did not seek asylum at that time because she hoped that Akayev would lose

an upcoming election. In 1999, she returned to the Kyrgyz Republic, where she began work

as a volunteer for the opposition Ar-Namys party. Akayev won the election, however, and

thereafter jailed the founder of the Ar-Namys party, Felix Kulov. Finally, in August 2001

Japarkulova received a subpoena to appear at what she later determined was a special

national security office in the local police station. Rather than obey the subpoena, she fled

to Moscow, where she stayed with a friend before ultimately coming to the United States.

At the close of the hearing, the IJ denied Japarkulova’s applications for relief.

Although the IJ credited her testimony and found that she had been mistreated because of

a political opinion, he concluded that the mistreatment did not rise to the level of past

persecution. The IJ also found that conditions in the Kyrgyz Republic had improved since

Japarkulova left, which meant that she could not demonstrate a well-founded fear of future

persecution.

The Board of Immigration Appeals affirmed in a two-page opinion. It first noted that

Japarkulova had abandoned her claims for withholding of removal and Torture Convention

relief by failing to discuss them in her brief. With respect to her asylum claim, the Board

adopted the IJ’s reasoning, concluding that Japarkulova had not shown past persecution or

a well-founded fear of future persecution.

This petition for review followed.

II.

To be eligible for asylum under the Immigration and Nationality Act (INA), an alien

must demonstrate that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A); see 8 C.F.R.

§ 1208.13(a) (“The burden of proof is on the applicant for asylum to establish that he or she

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is a refugee”). The INA defines “refugee” as an alien “who is unable or unwilling to return

to” his country of origin “because of 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). Here, the Board credited Japarkulova’s testimony and

accepted the IJ’s conclusion that the mistreatment she experienced was on account of a

political opinion. The only issues before us, therefore, are whether that mistreatment rose

to the level of past persecution and, if not, whether Japarkulova demonstrated a well-founded

fear of future persecution.

The INA does not define “persecution,” and to our knowledge the Board has not

either. See Sahi v. Gonzalez, 416 F.3d 587, 588-89 (7th Cir. 2005). Our cases have given

the term some content, but mostly by identifying what does not count. See, e.g., Ali v.

Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (“[P]ersecution is an extreme concept that does

not include every sort of treatment our society regards as offensive”) (alteration in original;

quotation marks omitted); Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)

(persecution “requires more than a few isolated incidents of verbal harassment or

intimidation, unaccompanied by any physical punishment, infliction of harm, or significant

deprivation of liberty”). And by way of example, we have explained that “actions that might

cross the line from harassment to persecution include: detention, arrest, interrogation,

prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings,

or torture.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.2005) (quotation marks omitted).

The Board was on solid ground in concluding that Japarkulova’s string of job losses

did not amount to persecution. Japarkulova contends that, in dismissing her claim of

economic persecution, the Board ignored our decision in Berdo v. INS, 432 F.2d 824 (6th

Cir. 1970), and its own precedential decision in In re T-Z-, 24 I. & N. Dec. 163 (B.I.A.

2007). But the Board acknowledged that economic deprivation will sometimes amount to

persecution; it held that Japarkulova’s job losses were not persecution because she did not

show that “‘the resulting conditions [were] sufficiently severe.’” Board Op. at 1 (quoting

Daneshvar v. Ashcroft, 355 F.3d 615, 624 n.9 (6th Cir. 2004)). As the Board noted, although

Japarkulova was fired from a series of jobs, on each occasion she moved quickly to another

high-level position in the Kyrgyz economy. This was not persecution. See Berdo, 432 F.2d

at 846 (observing that the “deliberate imposition of substantial economic disadvantage” may

No. 09-3583 Japarkulova v. Holder Page 5

constitute persecution) (emphasis added; quotation marks omitted); Daneshvar, 355 F.3d at

624 (finding no persecution where, because of discrimination, alien could not work for the

government but could find employment in the private sector).

More problematic, however, was the Board’s treatment of the threat Japarkulova

received from President Akayev’s security minister. After the IJ’s opinion failed to mention

the incident, the Board said that “the threats or harassment [Japarkulova] received do not

amount to persecution,” reasoning that persecution requires “‘more than a few isolated

incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty.’” Board Op. at 1-2 (quoting Ndrecaj

v. Mukasey, 522 F.3d 667, 674 (6th Cir. 2008)). But Japarkulova was threatened with death

(albeit implicitly) if she did not abandon her attempts to expose Akayeva’s corruption. The

threat, moreover, came from the highest reaches of her country’s government. Without

further explanation, it is hard to understand the Board’s conclusion that this treatment

amounted only to “verbal harassment or intimidation.”

Perhaps the Board read our cases to suggest that a threat, unaccompanied by physical

abuse, could never amount to persecution. But that proposition runs contrary to a number

of cases, from this circuit and others, which observe that physical abuse is not an absolute

prerequisite to a finding of persecution. See, e.g., Ouda v. INS, 324 F.3d 445, 454 (6th Cir.

2003); Li v. Attorney General, 400 F.3d 157, 164-65 (3d Cir. 2005); Lim v. INS, 224 F.3d

929, 936-37 (9th Cir. 2000); Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997). It is also a

doubtful reading of the statutory term. When members of a minority sect are credibly

threatened with death if they do not convert to the majority faith, it seems natural to say that

they have been persecuted even if they choose accommodation rather than martyrdom. See

Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (“A credible threat that causes a

person to abandon lawful political or religious associations or beliefs is persecution”).

So it fell to the Board to explain why the death threat Japarkulova received was not

of the sort that would qualify as past persecution—or to clarify, notwithstanding the cases

cited above, that a threat standing alone can never be persecution. Had it done so, its

resolution of the issue might have received Chevron deference, which we accord to the

Board “as it gives ambiguous statutory terms ‘concrete meaning through a process of

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case-by-case adjudication.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS

v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)); see Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). (We say might because the

Board’s decision here was a non-precedential, single-member order, which several courts

have held are not entitled to Chevron deference. See, e.g., Rotimi v. Gonzalez, 473 F.3d 55,

57 (2d Cir. 2007) (per curiam); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.

2006).) But the Board bypassed the issue altogether, leaving us without the reasoned

explanation that is a predicate to deferential review. Berhane v. Holder, 606 F.3d 819, 825

(6th Cir. 2010); Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004).

In the ordinary case that error would require a remand to the Board for further

consideration, since under the Chenery doctrine a reviewing court ordinarily should not

uphold administrative action based on reasons different from those given by the agency. See

SEC v. Chenery Corp., 318 U.S. 80, 88-89 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196

(1947); see also INS v. Ventura, 537 U.S. 12, 16-17 (2002); Shkabari v. Gonzales, 427 F.3d

324, 327-28 (6th Cir. 2005). But even when the agency’s reasoning was inadequate, its

decision may be upheld on the basis of harmless error if the petitioner’s prospects are

otherwise so weak that there is no “reason to believe that . . . remand might lead to a

different result.” Shkabari, 427 F.3d at 328 (quotation marks omitted); see Kadia v.

Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). And for several reasons, we conclude that the

Board’s error was harmless here.

The cases recognizing that threats can sometimes amount to persecution emphasize

that they will do so only in exceptional cases. “In the vast majority of cases, . . . mere threats

will not, in and of themselves, compel a finding of past persecution.” Boykov, 109 F.3d at

416. Instead, so-called “unfulfilled threats” will ordinarily be “more properly viewed as

indicative of the danger of future persecution.” Id.; see also Lim, 224 F.3d at 936 (“Threats

standing alone . . . constitute past persecution in only a small category of cases”); Li, 400

F.3d at 165 (same). Only “threats of a most immediate and menacing nature” can possibly

qualify as past persecution. Boykov, 109 F.3d at 416; see also Lim, 224 F.3d at 936 (threats

will qualify as persecution only when they “are so menacing as to cause significant actual

suffering or harm”) (quotation marks omitted); Li, 400 F.3d at 165 (to qualify as persecution,

threats must be “sufficiently imminent or concrete”).

No. 09-3583 Japarkulova v. Holder Page 7

Here, the security minister threatened that, if Japarkulova continued her efforts to

expose Akayeva’s corruption, the government would arrange for a fatal “accident.”

Although the threat was ominous, particularly in a country with a history of political

violence, it was not the sort of “immediate and menacing” threat that amounts to persecution

standing alone. Boykov, 109 F.3d at 416. Moreover, the incident occurred in either 1993

or 1994, and Japarkulova did not flee the Kyrgyz Republic for good until 2001. That long

delay, during which Japarkulova did not suffer any physical mistreatment from the

government, lessens the severity of the threat. See Lim, 224 F.3d at 936. Finally, the

minister’s threat did not lead Japarkulova to abandon her political opposition to the Akayev

regime. Indeed, she later worked as a volunteer for the Ar-Namys opposition party. Thus,

there is no indication that Japarkulova was able to avoid violence only by abandoning her

“lawful political . . . associations or beliefs.” Kantoni, 461 F.3d at 898. Under these

circumstances, we see no reasonable prospect that “remand might lead to a different result,”

Shkabari, 427 F.3d at 328, and we therefore conclude that the Board’s error was harmless.

That leaves only the Board’s conclusion that Japarkulova did not establish a well-

founded fear of future persecution if removed to the Kyrgyz Republic. We give that decision

substantial-evidence review. See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). The

Board’s conclusion was based on the IJ’s finding that conditions in the Kyrgyz Republic had

improved since Japarkulova departed in 2001. Citing the State Department’s 2006 country

report, the IJ noted that President Akayev’s regime was ousted in March 2005 and that a new

president, Kurmanbek Bakiyev, was elected in July 2005. The IJ also discussed the

government’s treatment of the Ar-Namys party, relying on a supplemental letter filed by the

State Department. The IJ observed that the party’s founder, Felix Kulov, had been released

from prison when Akayev’s regime fell, and that he later served as prime minister for several

years. The IJ also noted that the party remained active in the Kyrgyz Republic and that the

State Department was not aware of residual discrimination against its members. He thus saw

no risk of persecution on account of Japarkulova’s membership in the party.

In contending that she continues to face persecution in the Kyrgyz Republic even

though President Akayev is no longer in power, Japarkulova suggested that Akayev’s

successor, President Bakiyev, maintained ties to Akayeva and was implicated in some of her

corrupt dealings. But that argument suggests, at most, that conditions did not improve as

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much as one might have expected given that President Akayev is out of power; it offers no

reason to think that conditions have actually gotten worse. Substantial evidence supports the

Board’s conclusion that Japarkulova did not establish a well-founded fear of future

persecution.

* * *

In closing, we acknowledge that current events may have overtaken our decision in

this case. President Bakiyev’s regime was itself overthrown in April 2010, following bloody

antigovernment protests throughout the Kyrgyz Republic. But that development is beside

the point for the purposes of our decision, because a court of appeals must decide an alien’s

petition for review “only on the administrative record.” 8 U.S.C. § 1252(b)(4)(A). If

Japarkulova believes that recent events in the Kyrgyz Republic have affected her eligibility

for asylum, her proper recourse is to file a motion to reopen her removal proceedings with

the Board.

The petition for review is denied.

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CONCURRING

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BOYCE F. MARTIN, JR., Circuit Judge, concurring. I must concur in full with the

lead opinion’s reasoning and conclusion. I write separately to explain the counterintuitive

result required by the law in this case and to highlight a potential release valve.

Those who have read a newspaper or watched the news recently may be startled by

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the outcome of this case. Certainly the State Department’s Country Report for the

Kyrgyz Republic from 2006 no longer describes the current Kyrgyzstan. Kyrgyzstan has

ousted President Kurmanbek Bakiyev in a violent revolt, and a new government has

been installed. As such, it would be hard to state that changed country conditions as of

2006 should definitively compel the conclusion that Zamira Japarkulova does not have

a well-founded fear of future persecution in the situation that will exist in the new

administration.

However, there is no statutory basis for this Court to remand an immigration case

for additional fact finding to avoid a result, such as this one, based on a stale, false

factual predicate. Fang Huang v. Mukasey, 523 F.3d 640, 656 (6th Cir. 2008). Despite

the fact that our immigration system moves at an unconscionably glacial pace, Congress

has “‘explicitly revoked [the court’s] authority to remand to the [Board] for the taking

of additional evidence.’” Id. (quoting Xiao Xing Ni v. Gonzales, 494 F.3d 260, 264-65

(2d Cir. 2007)). The Board frequently only reviews appeals several years after the

relevant immigration proceedings have taken place, so the administrative record is

perpetually stale. See Berishaj v. Ashcroft, 378 F.3d 314, 329-32 (3d Cir. 2004)

(explaining in detail the problems involved with the review of stale administrative

records). Thus, and although we possess an inherent equitable power to remand a matter

for fact-finding in some situations, Nesterov v. Dep’t of Homeland Sec., 335 F. App’x

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Recently, the New York Times reported days of violence in Kyrgyzstan, with

Uzbeks and Kyrgyz rioting in the south. Michael Schwirtz, Ethnic Rioting Ravages

Kyrgyzstan, THE NEW YORK TIMES, at A1 (June 15, 2010) (available at

http://www.nytimes.com/2010/06/14/world/asia/14kyrgyz.html).

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590, 594 (6th Cir. 2009) (citing Fang Huang, 523 F.3d at 656), it is inappropriate for the

court to exercise its equitable power when there is an alternative procedure in place to

consider this new evidence. Id.

However, while I may not cut through this Gordian Knot, it is possible for

petitioners to untie it themselves. Congress has left open a procedure by which a

petitioner like Ms. Japarkulova, whose country conditions may have changed drastically

subsequent to the relevant State Department Country Report, may have her claim

addressed by the Board. Congress permits reopening of asylum proceedings “based on

changed country conditions arising in the country of nationality or the country to which

removal has been ordered.” 8 U.S.C. § 1229a(c)(6)(C)(ii) (permitting aliens to move to

reopen proceedings on the basis of “new facts”); see also 8 C.F.R. § 1003.2(c)(3)(ii)

(permitting an alien or the government to move the Board to reopen proceedings, and

authorizing the Board to do so sua sponte “based on changed circumstances arising in

the country of nationality or in the country to which deportation has been ordered”). A

petitioner may file a motion to reopen with the Board “within 90 days of the date of

entry of a final administrative order of removal.” Nesterov, 335 F. App’x at 591

(citation omitted); see also 8 U.S.C. § 1229a(c)(7)(C)(i)). If a petitioner is beyond the

ninety-day time limit, an exception may exist where the motion “is based on changed

country conditions arising in the country of nationality or the country to which removal

has been ordered, if such evidence is material and was not available and would not have

been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).

Thus, while the law prohibits me from voting to provide Ms. Japarkulova relief

in this case, I take some comfort in the fact that hers would appear to be a prime

candidate for a motion to reopen so as to address this obvious failing in our Byzantine

immigration laws.