Melkonyan v. Gonzales

225 F. App'x 693

Opinions

MEMORANDUM

**

Haik Melkonyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA’s”) decision affirming the immigration judge’s (“IJ’s”) deportation order. The BIA affirmed the IJ’s finding that country conditions in Armenia have changed sufficiently that Melkonyan no longer has a well-founded fear of future persecution. It also affirmed the IJ’s adverse credibility determination, but did not rely on all of the grounds listed by the IJ. Because the BIA discussed the adverse credibility determination but adopted much of the IJ’s decision, we review both decisions. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000).

We agree with Melkonyan that the changed country conditions determination is not supported by substantial evidence.¹ Where, as here, the petitioner has established past persecution, there is a presumption of eligibility for asylum, including a presumption of a well-founded fear of future persecution. Ali v. Ashcroft, 394 F.3d 780, 788 (9th Cir.2005). The government bears the burden of rebutting the presumption. Id. One way it can do so is with a showing of changed country conditions. Id. We have “repeatedly found that the DHS has not rebutted the presumption of a well-founded fear of persecution when evidence in country reports indicates that persecution similar to that experienced by the petitioner still exists.” Id. at 789. Here, the country conditions reports state that the same type of persecution suffered by Melkonyan, unlawful detention accompanied by physical abuse, continues in Armenia. Accordingly, as in Ali, the government has not demonstrated that country conditions have changed.

The BIA held that, notwithstanding the fact that the type of persecution experienced by Melkonyan still occurs in Armenia, the dissolution of the ANM and election of President Kocharian was sufficient to rebut Melkonyan’s well-founded fear of future persecution. However, under Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir.2004), the relevant question is whether persecution of the type suffered by Melkonyan continues, not whether the particular regime remains in power. In that case, we held that an individual who, like Melkonyan, was persecuted by the ANM continued to have a well-founded fear of persecution because the State Department reports stated that detention and abuse, like that suffered by the petitioner, continued in Armenia. We reached this conclusion without discussing the fate of the ANM, even though the country conditions report on which the BIA relied in Mamouzian stated that the ANM-supported president had been “forced to resign” and “most of the ANM members had deserted the party.” U.S. Dept, of State, Armenia Country Report on Human Rights Practices for 1998 at 1.

The State Department reports before us contain descriptions of detention and physical abuse that are virtually identical to those before the BIA in Mamouzian. As we explained in that case, unlawful detention and abuse remain common in Armenia. Political changes are of minimal im-portanee, particularly as the testimony and reports show that many former ANM members continue to hold positions of power. Thus, the BIA’s determination that Melkonyan no longer suffers a well-founded fear of persecution is not supported by substantial evidence.

In addition to the evidence relied on by the BIA, the dissent relies on evidence of general improvements in the areas of free speech, free association, prison monitoring, and official accountability. However, “[i]n-formation about general changes in the country is not sufficient.” See Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001) (quoting Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir.1998)). Moreover, the BIA did not consider these changes and failed to conduct any individualized analysis of how they would affect Melkonyan. See Borja v. INS, 175 F.3d 732, 738 (9th Cir.1999) (en banc) (requiring the BIA to conduct individualized analysis as a matter of law). The changes described by the dissent, when considered in the context of the country reports as a whole, merely support the conclusion that, although the “tide of violence may be receding, based on this record it still exists.” Id. Thus, were we to consider the improvements discussed by the dissent, the record would still compel the conclusion that the government has not carried its burden of showing that Melkonyan no longer experiences a well-founded fear of future persecution. See id.

We also agree with Melkonyan that the adverse credibility determination was not based on substantial evidence. The IJ relied on the fact that Melkonyan stated that he was widowed in his asylum application, although he testified that he was divorced. This cannot be the basis for an adverse credibility determination because Melkonyan was not asked about the discrepancy at the hearing and thus was not given the opportunity to explain it. Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004). Moreover, neither this discrepancy nor Melkonyan’s willingness to enter into a fraudulent marriage can be the basis for an adverse credibility determination as the marriage did not enhance his claims of persecution and, thus, did not go to the heart of his asylum claim. See Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003); Marcos v. Gonzales, 410 F.3d 1112, 1117-18 (9th Cir.2005).

The IJ also supported the adverse credibility determination with several instances in which he found that Melkonyan’s testimony was vague and non-responsive. However, there is no support for any of these conclusions in the record. The IJ stated that Melkonyan was “evasive” regarding the nature of his marriage when, in fact, Melkonyan forthrightly volunteered that he had entered into the marriage solely for the purpose of obtaining a visa. The IJ did not point to a single question regarding the marriage that Mel-konyan failed to answer directly. Nor was there any inconsistency in Melkonyan’s statement that he got married in the hospital. To the contrary, this was consistent with his other statements regarding his haste to leave Armenia and the timing of his departure. The IJ also erred by finding that Melkonyan failed to answer a question that he was never asked: “What part of your body was injured?”² The inconsistency noted by the IJ regarding whether Melkonyan “went to the DA” is likewise illusory because a person may say that he “went” to a legal body when he raises a claim with that body even though he does not physically travel there.³ Finally, the IJ found that Melkonyan was not sufficiently specific regarding his job with the party. However, Melkonyan’s answer that he was “doing paperwork” and “working with a lot of documents” is at least as specific as “preparing documents” and “organizing people,” answers the IJ suggested would have been acceptable. In light of the above, we conclude that the IJ’s determination that Melkonyan’s testimony was vague and non-responsive was not supported by sufficiently cogent reasons. Aguilera-Cota v. INS, 914 F.2d 1375, 1381-82 (9th Cir.1990).

Thus, we grant the petition, reverse the BIA’s determination as to changed country conditions and credibility, and remand to the BIA for further proceedings consistent with this decision.

GRANT and REMAND.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Although Melkonyan listed the changed country conditions issue among the issues in his opening brief and referred to that issue in his conclusion, we need not decide whether that discussion would be adequate under our cases, e.g., Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir.2004), as the government briefed the issue and, thus, suffers no prejudice as a result of our reaching it. Ndom v. Ashcroft, 384 F.3d 743, 751 (9th Cir.2004).

2 . Melkonyan was asked, by his own attorney, "What were you treated for in the hospital?” His testimony was directly responsive to that question.

3 . We also note that the interpreter had difficulty translating both from English to Armenian and from Armenian to English. Although it is not necessary to support our decision, we recognize that there is a strong possibility that the testimony relied upon in reaching the adverse credibility finding was not precisely translated.