Muradin v. Gonzales

494 F.3d 1208, 7 Cal. Daily Op. Serv. 8612, 2007 U.S. App. LEXIS 17443
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 23, 2007
Docket03-74587
StatusPublished
Cited by38 cases

This text of 494 F.3d 1208 (Muradin v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muradin v. Gonzales, 494 F.3d 1208, 7 Cal. Daily Op. Serv. 8612, 2007 U.S. App. LEXIS 17443 (9th Cir. 2007).

Opinion

BRIGHT, Circuit Judge:

Aram Muradin, a citizen and native of Armenia, petitions for review of the Board of Immigration Appeals’ (BIA) order removing him to Armenia. The BIA affirmed the Immigration Judge’s (IJ) denial of Muradin’s applications for asylum and withholding of removal but reversed the IJ’s decision granting Muradin relief pursuant to Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 1 For the reasons set forth herein, we affirm in part and reverse in part.

*1209 Although the IJ did not enter an order of removal or make an explicit finding of removability, Muradin conceded remova-bility before the IJ. See Lolong v. Gonzales, 484 F.3d 1173, 1176 (9th Cir.2007) (en banc) (noting finding of removability was based on petitioner’s concession of removability). Further, the IJ’s grant of relief necessarily requires the IJ to have already determined Muradin is removable. See id. at 1177. We therefore have jurisdiction to review the BIA’s order of removal in this case because it followed an initial determination of removability by the IJ. See id. at 1178 (overruling Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), to conclude that “where the IJ has previously determined that the alien is removable but grants cancellation of removal, the BIA’s decision to reverse the cancellation of removal reinstates the initial finding of removability, which, under the statute, is effectively an order of removal.”)

Background

In August 2000, Muradin attempted to enter the United States using an alien card belonging to another individual. The Immigration and Naturalization Service placed him in removal proceedings. Mura-din conceded removability but sought asylum, withholding of removal, and relief under CAT.

Before the IJ, Muradin testified that he had been mistreated by Armenian military officers and feared the military would persecute, torture, or kill him if he returned to Armenia. Muradin recounted how he was abused and beaten while in the military. He testified that after he witnessed three officers beat a soldier to death, the head of his military unit threatened and starved him, and locked him in isolation. He also stated that in 1998, a senior officer left Muradin and five others in a tent in the mountains without food. When, after eleven days, the soldiers left the mountains to seek food in a village, the officer arrested them for violating his orders. Muradin testified that he was then kept in custody for two months. Although Muradin’s service was scheduled to end in August 1999, he was forced to work on the construction of his officer’s house until he escaped in April 2000. He testified that during this time he was beaten, tortured, and kept in a basement. After he escaped to his parents’ house, the military police came looking for him and assaulted his parents. Muradin left Armenia shortly thereafter.

The IJ found Muradin credible, but denied his requests for asylum and withholding of removal because Muradin had not shown his persecution was on account of race, nationality, membership in a particular social group, or political opinion. At the hearing, Muradin’s counsel argued that he should be eligible for relief based on imputed political opinion — his mother was a member of an organization that supported the rights of Armenian soldiers. The IJ rejected this argument, stating that “there is no evidence in the recordfthat] points to this ground.”

The IJ nonetheless granted Muradin’s application for protection pursuant to CAT, determining that Muradin would face torture at the hands of the military establishment if he returned to Armenia. The IJ based this decision in large part on the State Department report on Armenia, saying the report made clear “that the conditions that exist for common soldiers in the Armenian army are best described as dire[,]” and indicated “that the manner in which prisoners are treated, both in military custody and in civilian custody in the prisons, involve the use of torture.... ”

Muradin appealed to the BIA the IJ’s denial of asylum and withholding of removal, and the Department of Homeland Security cross-appealed the IJ’s decision to grant CAT protection. The BIA adopted and affirmed the IJ’s determinations with *1210 respect to Muradin’s ineligibility for asylum or withholding of removal, but vacated the IJ’s decision insofar as it granted Mu-radin’s request for protection under CAT. The BIA reasoned that although Muradin claimed to fear torture at the hands of the military police, the record did not show that he had been tortured or would likely be tortured upon return to Armenia.

Analysis

Where the BIA expressly adopts the IJ’s findings and reasoning, as it did in this case with respect to Petitioner’s request for asylum or withholding of removal, we review the decision of the IJ as if it were that of the Board. AV-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). We review for substantial evidence the factual findings underlying the BIA’s determination that Muradin was ineligible for relief under CAT. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). This court must uphold the IJ’s findings and conclusions if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To prevail, Petitioner must demonstrate that evidence in the record compels reversal. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001).

Asylum

Muradin first argues that the IJ erred in finding him ineligible for asylum and withholding of removal. To qualify for asylum, an alien must show he is a “refugee” by providing evidence of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Muradin asserts that he was persecuted either on account of his membership in a particular social group, specifically former soldiers, or because of imputed political opinion.

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Bluebook (online)
494 F.3d 1208, 7 Cal. Daily Op. Serv. 8612, 2007 U.S. App. LEXIS 17443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muradin-v-gonzales-ca9-2007.