Aleksanyan v. Gonzales

246 F. App'x 471

Opinions

MEMORANDUM

**

Samvel Aleksanyan petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”).

Because the IJ made no express adverse credibility determination, we accept Aleksanyan’s testimony as true, see Mamouzian v. Ashcroft, 390 F.3d 1129, 1133 (9th Cir.2004), and hold that past persecution has been established. See Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.2000) (holding that where physical harm was combined with threats, the harm is severe enough to rise to the level of persecution). The circumstances surrounding the car accident that injured Aleksanyan and his wife, coupled with the threatening phone calls referencing the accident, compel the conclusion that the accident was a response to Aleksanyan’s refusal to participate in the scam and his plan to testify regarding the scam. See Chouchkov v. INS, 220 F.3d 1077, 1081, 1083 (9th Cir.2000). Thus, the harm was at least in part on account of political opinion. See Mamouzian, 390 F.3d at 1134 (reaffirming that “retaliation against an individual who opposes government corruption can constitute persecution on account of a political opinion”); Grava v. INS, 205 F.3d 1177, 1180-81 (9th Cir. 2000) (holding with regard to a petitioner who had testified against his corrupt supervisor, that “[w]hen the alleged corruption is inextricably intertwined with governmental operation,” opposition to that corruption is “necessarily political”); Chouchkov, 220 F.3d at 1084. Aleksanyan has also shown the requisite government involvement because the principal agent of his persecution was the director of a state-owned diamond factory who has familial ties to the government and who is now an elected official. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir.2005) (“[Pjersecutory acts by a single governmental or quasi-governmental official are sufficient to establish state action.”); Shoafera v. INS, 228 F.3d 1070, 1072-73 & n. 1 (9th Cir.2000) (holding a petitioner was eligible for asylum where she was persecuted by a supervisor who was also a high-ranking member of an organization affiliated with the government). Aleksanyan also demonstrated that the police were either unable or unwilling to control his persecutors. See Borja v. INS, 175 F.3d 732, 736 n. 1 (9th Cir.1999) (en banc).

Once a petitioner demonstrates persecution, he or she is entitled to a presumption of a well-founded fear of future persecution. Mamouzian, 390 F.3d at 1135. Where, as here, the government did not present rebuttal arguments to the IJ concerning changed country conditions, we do not remand to resolve the question. Id.

Because Aleksanyan is statutorily eligible for asylum, the Attorney General must determine whether he is entitled to asylum as a matter of discretion. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004). In addition, because the IJ’s denial of Aleksanyan’s applications for withholding of removal and relief under the Convention Against Torture relies solely on his determination that Aleksanyan failed to meet statutory eligibility for asylum, those denials should be reconsidered.¹ Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004) (per curiam) (explaining that if the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case).

Accordingly, we grant the petition for review, and remand to the BIA for an exercise of statutory discretion and reconsideration of Aleksanyan’s applications for withholding of removal and relief under the Convention Against Torture.

PETITION FOR REVIEW GRANTED and REMANDED.

This disposition is not appropriate for publication and is not precedent.

1 . In his brief to the BIA, Aleksanyan stated that “the Immigration Judge denied asylum as well as Withholding of Deportation and Convention Against Torture relief. The Respondent appealed and has filed this appellant brief for your review and requests affirmative relief by having this case remanded to the IJ with instructions to reevaluate the findings of fact relating to nexus and plausibility.” Because the IJ had denied CAT relief based upon the same "nexus and plausibility” findings that supported his denial of Aleksanyan’s asylum claim, we find that Aleksanyan "sufficiently raised the [CAT] issue before the BIA to permit us to review the issue on appeal.” See Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir.2001) (enbanc).