Svetlana Stepanyan v. Jefferson Sessions

705 F. App'x 562
Court of Appeals for the Ninth Circuit·Decided August 25, 2017·No. 14-71891·Unpublished

Opinions

MEMORANDUM **

Svetlana Stepanyan, a native and citizen of Armenia, petitions for review of the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition with respect to the application for asylum and withholding of removal, but we vacate and remand the CAT claim for further review.

I. Background

Because the Immigration Judge determined that Stepanyan was credible, we assume that her testimony and declaration are true. See Navas v. INS, 217 F.3d 646, 667 (9th Cir. 2000).

Stepanyan testified that she worked as a journalist and editor at a TV station in Armenia, where she was responsible for approving news broadcasts. The owner and operator of the station, her direct superior, was a prominent member of an opposition political party and was critical of the Armenian government. In 2006, an agent of the Armenian National Security Service (NSS) recruited Stepanyan to become an informant against the opposition party and the TV station’s owner. She initially refused, but was coerced into helping the NSS by threats and an involuntary overnight detention.

The NSS eventually became dissatisfied with Stepanyan’s efforts, and after she refused to help any longer, said the old regime was gone, and told them she was not their “puppet,” the agent threatened to use “another language” to secure her cooperation. Two days later, Stepanyan was assaulted near her apartment by “two men who looked like bandits” or “thieves,” who said they would make her disappear if she did not do as she was told. Stepanyan fled to the United States. After she left, her husband sent a letter to the prosecutor’s office on her behalf, NSS agents and police then ransacked her house and beat her husband when he refused to help them, and they told him he would not see her again. NSS agents were again looking for her at home in Armenia as recently as the month before her asylum hearing. In the years since Stepanyan left Armenia, the TV station closed.

The IJ denied Stepanyan’s petition for asylum, withholding of removal, and CAT relief. The Board of Immigration Appeals affirmed. It concluded that Stepanyan “did not demonstrate that any harm she may have experienced on account of her political opinion, even if considered in the aggregate, rose to the level of persecution.” It also concluded that the possibility of future persecution was not sufficient to demand relief. The BIA considered the country conditions report, but it concluded that the report did not support Stepa-nyan’s application; she had not proven “that any of the other reporters or journalists at her television station were persecuted.” The BIA also affirmed the denial of Stepanyan’s application for withholding of [564] removal for the same reasons, and it affirmed the IJ’s decision not to grant Stepa-nyan relief under the CAT without further explanation, although it did cite our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007). In Arteaga, we upheld the denial of CAT relief because the appellant had “failed to prove that any potential torture he might experience in El Salvador would be at the hands of the government.” Id. at 948.

Stepanyan petitioned for review, challenging the BIA’s decision on each of her three claims for relief. Because the BIA “agreed with the IJ’s decision but did not adopt it,” we limit our review to the BIA’s written opinion. Maldonado v. Lynch, 786 F.3d 1155, 1160 (9th Cir. 2015) (en banc). We consider each of Stepanyan’s claims in turn.

II.Asylum

“To qualify for asylum, an applicant must show that she ... ‘is unable or unwilling to return to [her home country] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting 8 U.S.C. § 1101(a)(42)(A)). “We review factual findings ... under the deferential substantial evidence standard.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). “We may -reverse factual determinations only when ‘any reasonable adjudicator would be compelled to conclude to the contrary' based on the evidence in the record.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). “Although the basis for our review is limited to the administrative record, we consider that record in its entirety, including evidence which contradicts the BIA’s findings.” Mgoian v. INS, 184 F.3d 1029, 1034 (9th Cir. 1999).

Here, the administrative record does not as a whole compel a conclusion contrary to that of the BIA, skeptical though we are of that conclusion. Although Stepanyan was assaulted outside her home, the identity and purposes of her attackers was uncertain. Nor was she harmed at the hands of the NSS during her overnight detention, and her former boss and co-workers have not been harmed, at least as far as she knows. The BIA was wrong to say that Stepanyan was never threatened—quite clearly she was, and her husband says he was even beaten by the NSS—but the threats were nonspecific and do not compel the conclusion that she was persecuted because of her political opinions. ■ In addition, because many years have passed since Stepanyan left Armenia, no one else at the TV station has been harmed, and the TV station is no longer in service, we are not compelled to conclude that Stepanyan has a well-founded fear of future persecution. We therefore deny Stepanyan’s petition for review of the BIA’s decision on her asylum application.

III. Withholding of Removal

Because the standard for withholding of removal is “more stringent than the well-founded fear standard governing asylum,” Al-Harbi v. INS, 242 F.3d 882, 889 (9th Cir. 2001), we also deny review of the agency’s decision not to grant withholding of removal.

IV. The Convention Against Torture

To obtain relief under the CAT, a respondent must show she is more likely than not to be tortured by the government (or with the government’s consent or acquiescence) if she is returned to her home country. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078-79 (9th Cir. 2015). But “an application for CAT relief need not show that he will be tortured ‘on account [565] of any particular ground.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).

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Svetlana Stepanyan v. Jefferson Sessions, 705 F. App'x 562 (9th Cir. 2017).

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