Thursday, January 14, 2010
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Ninth Circuit Allows Armenian Organizer to Seek Asylum
By STEVEN M. ELLIS, Staff Writer
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.
Copyright 2010, Metropolitan News Company