NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARSEN VARDANYAN, No. 19-72580
Petitioner, Agency No. A215-911-366
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 5, 2020 Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and CARDONE,** District Judge.
Arsen Vardanyan, a native of the former Soviet Union and citizen of
Armenia, petitions for review of the Board of Immigration Appeals’ (BIA) order
dismissing his appeal from an immigration judge’s (IJ) decision denying asylum,
withholding of removal, and protection under the Convention Against Torture
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. (CAT). The parties are familiar with the facts, so we do not recite them here,
except as necessary to provide context to our ruling. We have jurisdiction under 8
U.S.C. § 1252. We review the BIA’s legal conclusions de novo and its factual
findings for substantial evidence. Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir.
2019) (citing Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011)). Applying
the substantial evidence standard, we uphold the agency’s determination unless
“compelled to conclude to the contrary.” Id. (quoting Ali, 637 F.3d at 1029). And
if the BIA relies in part on the IJ’s reasoning, we review both decisions. Singh v.
Holder, 753 F.3d 826, 830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685
F.3d 857, 861 (9th Cir. 2012)). We grant the petition in part, deny the petition in
part, and remand.
1. Vardanyan argues the BIA erred in finding that the government
established a fundamental change in country conditions warranting his removal. It
is undisputed that Vardanyan experienced past persecution and is entitled to the
presumption of a well-founded fear of future persecution. See Parada v. Sessions,
902 F.3d 901, 911 (9th Cir. 2018) (citing 8 C.F.R. § 1208.13(b)(1)). Where the
government seeks to rebut a presumption of well-founded fear through evidence of
changed country conditions, “the IJ must make an ‘individualized determination’ of
how the changed circumstances affect the alien’s specific situation.” Id. at 912
(quoting Ali, 637 F.3d at 1030). “The hallmark of an ‘individualized determination’
2 is a tailored analysis of the petitioner’s specific harms and circumstances.” Ali, 637
F.3d at 1030. While information about country-wide conditions may be useful and,
even decisive, such information is not sufficient on its own. See id. Rather, “the IJ
and BIA must apply the findings from the reports to the petitioner’s specific harms
and circumstances.” Id. (citations omitted).
Here, the IJ and BIA failed to analyze Vardanyan’s specific circumstances in
finding a fundamental change in circumstances. The IJ relied on evidence that
“[Vardanyan’s] previous persecutors [were] no longer the dominant political
party.” The IJ found that Vardanyan’s fear of return—which it ascribed to his
“activism against Republican Party members and his support of the Yelk
Alliance”—was no longer justified, because the Yelk Alliance had subsequently
assumed power, the Republican Party no longer controlled parliament, and the
corrupt oligarch who had extorted Vardanyan, Mihran Poghosyan, was “no longer
in a position of political power.”
It is true that the first several instances of persecution against Vardanyan
were due to his public support of the opposition movement. However, this was not
the full extent of Vardanyan’s persecution. Prior to the so-called “Velvet
Revolution,” Vardanyan was taken by force to meet with Poghosyan in February
2018 and was brutally beaten and threatened into selling his automobile repair
business to Poghosyan at a price Poghosyan set, and which Poghosyan never paid.
3 Vardanyan was also persecuted by the police after attempting to file a
criminal complaint against Poghosyan in June 2018. Upon checking on the status
of his complaint after several months, Vardanyan was beaten and held in police
custody for two days because he refused to retract his complaint and said he would
report the police to the prosecutor’s office. Then, a few days after his release from
custody, the police questioned and beat Vardanyan at his home. An anonymous
caller subsequently threatened to kill Vardanyan if he remained in Armenia. It was
this series of events that ultimately led Vardanyan to flee the country. Notably,
Vardanyan’s persecution by police occurred after the spring 2018 elections which
purportedly “end[ed] the reign of . . . the Republican party of Armenia,” and “the
new government launched a series of investigations to prosecute systemic
government corruption.”
The BIA and IJ largely failed to consider the foregoing evidence of
Vardanyan’s persecution.1 As a result, the BIA and IJ’s findings were not
sufficiently individualized. See Chand v. I.N.S., 222 F.3d 1066, 1079 (9th Cir.
1 “Whistle-blowing against government corruption is an expression of political opinion.” Baghdasaryan v. Holder, 592 F.3d 1018, 1024 (9th Cir. 2010); see also Fedunyak v. Gonzales, 477 F.3d 1126, 1129–30 (9th Cir. 2007) (finding, where the petitioner was persecuted by police for reporting extortion by a public official, that petitioner’s conduct was political activity opposing institutional corruption); Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“Retaliation for investigating or publicizing corruption by political figures is by its very nature a political act.”).
4 2000) (“[W]e have long held that the determination of whether or not a particular
applicant’s fear is rebutted by general country conditions information requires an
individualized analysis that focuses on the specific harm suffered[.]”).
Although the BIA did mention Vardanyan’s persecution by the police, its
reasoning was insufficient. Both the IJ and BIA failed to properly analyze how
these changed conditions impacted Vardanyan, such that law enforcement and
Poghosyan would not again persecute him for attempting to expose Poghosyan’s
extortion. See Garrovillas v. I.N.S., 156 F.3d 1010, 1017 (9th Cir. 1998) (“In the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARSEN VARDANYAN, No. 19-72580
Petitioner, Agency No. A215-911-366
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 5, 2020 Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and CARDONE,** District Judge.
Arsen Vardanyan, a native of the former Soviet Union and citizen of
Armenia, petitions for review of the Board of Immigration Appeals’ (BIA) order
dismissing his appeal from an immigration judge’s (IJ) decision denying asylum,
withholding of removal, and protection under the Convention Against Torture
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. (CAT). The parties are familiar with the facts, so we do not recite them here,
except as necessary to provide context to our ruling. We have jurisdiction under 8
U.S.C. § 1252. We review the BIA’s legal conclusions de novo and its factual
findings for substantial evidence. Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir.
2019) (citing Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011)). Applying
the substantial evidence standard, we uphold the agency’s determination unless
“compelled to conclude to the contrary.” Id. (quoting Ali, 637 F.3d at 1029). And
if the BIA relies in part on the IJ’s reasoning, we review both decisions. Singh v.
Holder, 753 F.3d 826, 830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685
F.3d 857, 861 (9th Cir. 2012)). We grant the petition in part, deny the petition in
part, and remand.
1. Vardanyan argues the BIA erred in finding that the government
established a fundamental change in country conditions warranting his removal. It
is undisputed that Vardanyan experienced past persecution and is entitled to the
presumption of a well-founded fear of future persecution. See Parada v. Sessions,
902 F.3d 901, 911 (9th Cir. 2018) (citing 8 C.F.R. § 1208.13(b)(1)). Where the
government seeks to rebut a presumption of well-founded fear through evidence of
changed country conditions, “the IJ must make an ‘individualized determination’ of
how the changed circumstances affect the alien’s specific situation.” Id. at 912
(quoting Ali, 637 F.3d at 1030). “The hallmark of an ‘individualized determination’
2 is a tailored analysis of the petitioner’s specific harms and circumstances.” Ali, 637
F.3d at 1030. While information about country-wide conditions may be useful and,
even decisive, such information is not sufficient on its own. See id. Rather, “the IJ
and BIA must apply the findings from the reports to the petitioner’s specific harms
and circumstances.” Id. (citations omitted).
Here, the IJ and BIA failed to analyze Vardanyan’s specific circumstances in
finding a fundamental change in circumstances. The IJ relied on evidence that
“[Vardanyan’s] previous persecutors [were] no longer the dominant political
party.” The IJ found that Vardanyan’s fear of return—which it ascribed to his
“activism against Republican Party members and his support of the Yelk
Alliance”—was no longer justified, because the Yelk Alliance had subsequently
assumed power, the Republican Party no longer controlled parliament, and the
corrupt oligarch who had extorted Vardanyan, Mihran Poghosyan, was “no longer
in a position of political power.”
It is true that the first several instances of persecution against Vardanyan
were due to his public support of the opposition movement. However, this was not
the full extent of Vardanyan’s persecution. Prior to the so-called “Velvet
Revolution,” Vardanyan was taken by force to meet with Poghosyan in February
2018 and was brutally beaten and threatened into selling his automobile repair
business to Poghosyan at a price Poghosyan set, and which Poghosyan never paid.
3 Vardanyan was also persecuted by the police after attempting to file a
criminal complaint against Poghosyan in June 2018. Upon checking on the status
of his complaint after several months, Vardanyan was beaten and held in police
custody for two days because he refused to retract his complaint and said he would
report the police to the prosecutor’s office. Then, a few days after his release from
custody, the police questioned and beat Vardanyan at his home. An anonymous
caller subsequently threatened to kill Vardanyan if he remained in Armenia. It was
this series of events that ultimately led Vardanyan to flee the country. Notably,
Vardanyan’s persecution by police occurred after the spring 2018 elections which
purportedly “end[ed] the reign of . . . the Republican party of Armenia,” and “the
new government launched a series of investigations to prosecute systemic
government corruption.”
The BIA and IJ largely failed to consider the foregoing evidence of
Vardanyan’s persecution.1 As a result, the BIA and IJ’s findings were not
sufficiently individualized. See Chand v. I.N.S., 222 F.3d 1066, 1079 (9th Cir.
1 “Whistle-blowing against government corruption is an expression of political opinion.” Baghdasaryan v. Holder, 592 F.3d 1018, 1024 (9th Cir. 2010); see also Fedunyak v. Gonzales, 477 F.3d 1126, 1129–30 (9th Cir. 2007) (finding, where the petitioner was persecuted by police for reporting extortion by a public official, that petitioner’s conduct was political activity opposing institutional corruption); Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“Retaliation for investigating or publicizing corruption by political figures is by its very nature a political act.”).
4 2000) (“[W]e have long held that the determination of whether or not a particular
applicant’s fear is rebutted by general country conditions information requires an
individualized analysis that focuses on the specific harm suffered[.]”).
Although the BIA did mention Vardanyan’s persecution by the police, its
reasoning was insufficient. Both the IJ and BIA failed to properly analyze how
these changed conditions impacted Vardanyan, such that law enforcement and
Poghosyan would not again persecute him for attempting to expose Poghosyan’s
extortion. See Garrovillas v. I.N.S., 156 F.3d 1010, 1017 (9th Cir. 1998) (“In the
absence of any explanation as to how any change in conditions in the [country of
origin] would serve to rebut [the petitioner’s] particular fear of persecution, the
presumption stands unrebutted.”). The BIA and IJ failed to make an individualized
determination as to the effect of the changed conditions in Armenia after the
Velvet Revolution on Vardanyan’s situation. See Ali, 637 F.3d at 1030; Chand,
222 F.3d at 1079.
2. Vardanyan next argues that substantial evidence does not support the
IJ and BIA’s conclusion that Vardanyan could safely and reasonably relocate
within Armenia to avoid persecution. In addition to asserting changed country
conditions, the government may rebut a presumption of future persecution by
establishing that 1) the petitioner could safely escape persecution by relocating
internally within the country, and 2) it would be reasonable to expect the petitioner
5 to do so. Doe v. Holder, 736 F.3d 871, 879 (9th Cir. 2013). “[C]ompelling
evidence of past persecution shifts the burden to the government to prove, by a
preponderance of the evidence, that [the petitioner] could relocate safely and that it
would be reasonable to expect [him] to do so.” See Mashiri v. Ashcroft, 383 F.3d
1112, 1122 (9th Cir. 2004); see alsoBoer-Sedano v. Gonzales, 418 F.3d 1082, 1090
(9th Cir. 2005).
In this case, the BIA presumed that relocation would be reasonable. This
improperly shifted the government’s burden of establishing reasonableness to
Vardanyan, who, as a result, was required to establish the unreasonableness of
relocation. This was error. See Mashiri, 383 F.3d at 1122.
Further, the BIA failed to make the necessary individualized determination
as to the possibility of Vardanyan’s safe relocation within Armenia. See Singh v.
Whitaker, 914 F.3d at 661. The IJ’s conclusion that “[Vardanyan] has not
established that his persecutors were or are members of the national government”
is not only controverted by the evidence but is also not sufficiently individualized
as to the possibility of Vardanyan’s safe relocation. See id. Moreover, if
Vardanyan were persecuted by government officials he would be entitled to a
presumption that it would be unsafe for him to relocate nationwide. See id.; Boer-
Sedano, 418 F.3d at 1090. In addition, the IJ’s finding that Vardanyan was
previously able to safely relocate to a “different region in Armenia” is not
6 supported by substantial evidence, and Vardanyan’s hiding at a friend’s house for a
few days following the February 2018 incident provides little support that he could
safely relocate. As a result, the BIA erred.
3. Vardanyan also asks us to reverse the BIA’s determination that he is
entitled to humanitarian asylum and withholding of removal. The briefs and record
demonstrate that Vardanyan’s persecution did not rise to the level of persecution
warranting humanitarian asylum. See Singh v. Whitaker, 914 F.3d at 662 (citing
Hanna v. Keisler, 506 F.3d 933, 936–37, 939 (9th Cir. 2007); Marcu v. I.N.S., 147
F.3d 1078, 1080, 1083 (9th Cir. 1998)). Although the standard for withholding of
removal is more demanding than for statutory asylum, the finding of past
persecution creates a rebuttable presumption that Vardanyan has shown a clear
probability of future persecution. See Navas v. I.N.S., 217 F.3d 646, 663 (9th Cir.
2000). As with the statutory asylum claim, the BIA failed to accord Vardanyan
this rebuttable presumption and failed to perform an individualized analysis of the
clear probability of Vardanyan’s future persecution and ability to relocate within
Armenia. See Singh v. Whitaker, 914 F.3d at 659–61 n.2, 664; Navas, 217 F.3d at
663. As a result, the BIA erred as to this withholding of removal claim as well.
For the foregoing reasons, we grant the petition for review in part and remand
to the BIA for consideration of the statutory asylum and withholding of removal
7 claims. We deny the petition as to the humanitarian asylum claim.2 Vardanyan’s
pending motions to stay removal are accordingly denied as moot.
PETITION GRANTED AND REMANDED IN PART, DENIED IN PART.
2 Before this court, Vardanyan does not challenge the agency’s denial of his CAT claim.