Mkrtchyan v. Gonzales

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

Before LAY, REINHARDT, and THOMAS, Circuit Judges.

MEMORANDUM

Amalya Mkrtchyan and her husband Bosinyan Hovhannes, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals' ("BIA") affirmance without opinion of the immigration judge's ("IJ") denial of her application for asylum and withholding of removal. Because the BIA affirmed without opinion, we review the IJ's decision.

We grant the petition with respect to Mkrtchyan's eligibility for asylum because her credible testimony compels a finding of past persecution and because the government has failed to rebut the resultant presumption of a well-founded fear of future persecution. First, contrary to the IJ's conclusions, the combination of job loss, vandalism, confrontation with a violent mob, harassment, detention, beatings, and threats of arrest compel a finding that the harm rises to the level of persecution. See Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir.2004); see also Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir.2004); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004), as amended.

Second, the record compels the conclusion that the harm suffered by Mkrtchyan was on account of her religion. The IJ did not find otherwise, nor did the government, in its briefs, contest that the harm was inflicted on that account. During oral argument, however, the government advanced the novel claim that the persecution Mkrtchyan endured was not on account of religion because it stemmed from Mkrtchyan's proselytizing--and the record fails to establish that proselytizing is required by her religion. Even were we to ignore the procedural problems created by the government's belated announcement of this bizarre theory, we would resoundingly reject the argument. Whether or not Pentecostalism does in fact require proselytizing is irrelevant. A religious practice need not be mandatory for the persecution it prompts to be considered "on account of religion."

Third, contrary to the IJ's conclusions, the record compels a finding that Mkrtchyan's persecution was committed in part by government officials--Armenian police and military officials--and in part by forces that the government was unwilling to control, even after repeated requests for help and the filing of police reports. See, e.g., Mashiri, 383 F.3d at 1122; Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir.1998).

As Mkrtchyan has established past persecution on account of a protected ground, a presumption arises than she has a well-founded fear of future persecution. See Guo v. Ashcroft, 361 F.3d 1194, 1204 (9th Cir.2004). The government has made no argument and presented no evidence documentary or otherwise for the purpose of demonstrating changed circumstances. Accordingly, we find that Mkrtchyan is statutorily eligible for asylum.

We also grant the petition with respect to withholding of removal. See Halaim v.

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INS, 358 F.3d 1128, 1132 (9th Cir.2004). As a result of Mkrtchyan's establishment of past persecution, a presumption also arises that she is entitled to that form of relief. See Ndom, 384 F.3d at 756 (citing Baballah, 367 F.3d at 1079). As noted, the government has not rebutted this presumption. We therefore conclude that it is more likely than not that Mkrtchyan would be subject to persecution if returned to Armenia. Mkrtchyan is thus entitled to withholding of removal. See id.

For the foregoing reasons, we find Mkrtchyan statutorily eligible for asylum and entitled to withholding of removal. We GRANT withholding of removal and REMAND to the attorney general solely for an exercise of discretion as to the grant of asylum.

Petition GRANTED; REMANDED.