Mihran Nersisyan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2020
• Docket: 14-71828
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 19 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIHRAN NERSISYAN, No. 14-71828

Petitioner, Agency No. A088-548-980

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 17, 2020** Pasadena, California

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Mihran Nersisyan is a native and citizen of Armenia. Nersisyan appeals

from a Board of Immigration (BIA) decision rejecting his asylum, withholding of

removal, and Convention Against Torture (CAT) claims. He does not challenge

the CAT finding, but argues the BIA erred by overlooking this circuit's

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). whistleblower precedent in connection with his asylum and withholding claims.

We have jurisdiction under 8 U.S.C. § 1252(a). We grant his petition and remand

to the BIA.

Although he did not make the precise argument to the BIA that he raises

here, Nersisyan argued facts sufficient to put the BIA on notice of his

whistleblower claim. See Diaz-Jimenez v. Sessions, 902 F.3d 955, 959–60 (9th

Cir. 2018). The BIA nonetheless failed to apply this circuit's precedent

recognizing perceived whistleblowing as a form of imputed political opinion. See

Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015); see also Grava v.

INS, 205 F.3d 1177, 1181 (9th Cir. 2000). The BIA’s analysis, which concluded

that Nersisyan was not persecuted on account of actual or imputed political

opinion, was therefore incomplete and not supported by substantial evidence. See

Khudaverdyan, 778 F.3d at 1106.

Taking Nersisyan's testimony as true, he has shown that he was targeted as a

perceived whistleblower. See Singh v. Barr, 935 F.3d 822, 824–26 (9th Cir. 2019).

First, his job as an assistant to the deputy director of the Yerevan Center of Human

Rights Protection involved elevating complaints of political figures' corruption and

could have been perceived as whistleblowing activity. Second, his attackers appear

to have been motivated by his perceived whistleblowing. The same day Nersisyan

2 referred to his supervisor a complaint of an unlawful eviction, he was attacked by

three men he recognized as Gagik Tsarukyan's bodyguards. Tsarukyan was both

the head of the Prosperous Armenia political party, and the person Nersisyan

believed was responsible for the eviction. During the attack, the bodyguards

warned Nersisyan he was “playing with [] fire.” More than two years later, after

fleeing and returning to Armenia, Nersisyan was arrested by the police. They

kicked him in the face and “told [him] that Tsarukyan doesn't like whoever

betrayed him.” Finally, the country report in the record indicates government

corruption is pervasive in Armenia, and the corrupt elements Nersisyan

encountered—the bodyguards and police—were directly associated with the head

of the Prosperous Armenia political party. Taken as true, Nersisyan's testimony

satisfies Singh's three-prong test. See id.

However, because the BIA expressly determined it did not need to reach the

immigration judge's alternative holding that Nersisyan was not credible, we must

remand for additional consideration. See INS v. Ventura, 537 U.S. 12, 16 (2002).

Accordingly, we remand to the BIA to determine (1) whether Nersisyan's

testimony was credible; and if so, (2) whether his mistreatment rose to the level of

persecution.

GRANTED and REMANDED.