Ustyan v. Ashcroft , 94 F. App'x 774 ( 2004 )

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ARTUR USTYAN,
Petitioner,
v. No. 02-9596
JOHN ASHCROFT, Attorney General,
Respondent.
ORDER
May 17, 2004
Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
HENRY, Circuit Judge.
Respondent’s motion to publish the order and judgment dated April 8,
2004, is granted. A copy of the published opinion is attached.
Entered for the Court
Patrick Fisher, Clerk of Court
By:
Amy Frazier
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 8 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ARTUR USTYAN,
Petitioner,
v. No. 02-9596
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
(No. A 75-337-147)
Submitted on the briefs:
Beverly W. Oserow, Denver, Colorado, for Petitioner.
Michael P. Lindemann, Assistant Director, and Linda S. Wernery, Senior
Litigation Counsel, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for Respondent.
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
BRORBY , Circuit Judge.
Petitioner Artur Ustyan, an ethnic Armenian and Georgian citizen from the
separatist region of Abkhazia, seeks review of the denial of his applications for
asylum and withholding of deportation. The Immigration Judge (IJ) found that
Mr. Ustyan failed to demonstrate past persecution or a well-founded fear of future
persecution, primarily because he did not show that his alleged persecutors had
acted on the basis of his ethnic or political identity. The Board of Immigration
Appeals (BIA) summarily affirmed, leaving the IJ’s decision as the final agency
determination for review. See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235
(10 th Cir. 2003). We conclude that the IJ’s decision is free of any constitutional
or legal error, and is supported by substantial evidence. Accordingly, we deny
the petition for review and affirm. *
During armed conflict between Georgian forces and Abkhazian separatists
in the early 1990s, Mr. Ustyan resisted recruitment by either side because he had
friends on both. He suffered no reprisals by the Georgians, but the Abkhazians
responded by accusing him of fighting and/or hiding weapons for the Georgians
and, when he denied the accusation, beating him and putting him in a cell exposed
to chlorine gas. Upon his release, he was bedridden for more than a month.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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A year later, he received and again ignored a recruitment notice from the
Abkhazian commander. Shortly after that, at the very end of the open hostilities,
Abkhazian soldiers came to his home and accused him of hiding weapons for the
Georgian forces, who had pulled out of the region. Finding nothing, the soldiers
knocked him unconscious and burned his home. He then left for Russia.
Mr. Ustyan spent two years in Russia. Lacking official papers, he was
unable to secure legal status or obtain a steady job. He also evidently lived in
fear of persecution by Cossacks. In May 1996, he entered the United States and
subsequently overstayed his visa. In these immigration proceedings, he conceded
removability and applied for asylum and withholding of deportation.
The IJ denied the applications because Mr. Ustyan had not established that
any mistreatment he suffered, or feared he would suffer in future, at the hands of
the Abkhazians constituted persecution on account of ethnic identity or political
opinion. 1 The IJ was
persuaded by the fact that respondent’s confrontations all took part
not because of his Armenian heritage or his religion or his social
group, but because of the civil war. The fact that both sides in the
civil war wanted him to join, shows just that: that he was caught in
the middle, not because of his ethnic group, but simply because they
1
The IJ also held that Mr. Ustyan could, in any event, relocate to other parts
of Georgia uninvolved in the Abkhazian conflict. This alternative rationale has
generated a great deal of contention that is difficult to address properly in light of
the conclusory nature of the IJ’s analysis and the many factual details potentially
relevant to the issue. We need not pursue the matter further here.
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were looking for support and for soldiers. A very long line of cases
concerning Central American asylum seekers hold that one who
wishes to remain neutral cannot claim this as political opinion for his
asylum claim.
Admin. R. at 197-98. This passage correctly articulates a central tenet of INS v.
Elias-Zacarias , 502 U.S. 478 (1992), and its progeny. See, e.g. , Bartesaghi-Lay
v. INS , 9 F.3d 819, 822 (10 th Cir. 1993). As for the evidence relevant thereto,
we cannot say that the IJ’s assessment was “contrary to what a reasonable
factfinder would have been compelled to conclude,” and, hence, we may not
disturb the IJ’s decision. Vatulev v. Ashcroft , 354 F.3d 1207, 1211 (10 th Cir.
2003). Mr. Ustyan insists the IJ should have found that the Abkhazians targeted
him because of his ethnic heritage (or, what amounts to the same thing, a political
allegiance to the Georgians imputed to him on account of that heritage), but such
a finding is not compelled by our record. It was not unreasonable for the IJ to
conclude, rather, that the Abkhazians simply sought him out as a young male
recruit, pressured him when he resisted, and then interrogated him for suspected
assistance to the Georgians on account of his refusal to join their ranks.
Mr. Ustyan relies heavily on a recent decision by the Ninth Circuit,
Melkonian v. Ashcroft , 320 F.3d 1061 (9 th Cir. 2003), which recognized the
validity of an asylum claim by an Armenian who was persecuted by Abkhazian
separatists in the same area of Georgia. But each case must be decided on its own
record and the suggested comparison with the facts presented in Melkonian only
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points up the deficiencies in the record offered to support Mr. Ustyan’s claims.
In Melkonian , the applicant established that his “family felt bound to side with the
Georgians . . . [and] demonstrated its loyalty by supplying the Georgian fighters
with fruit and with money for weapons;” that his father-in-law “spoke out against
the Muslim [i.e., Abkhazian] tactics and in favor of [Georgian] Christianity;” and
that the Abkhazians “specifically targeted Armenian men to conscript and send to
the front line where casualties ordinarily are the highest.” Id. at 1066, 1068. This
evidence was specifically cited by the Ninth Circuit to distinguish the general rule
of Elias-Zacarias , noted above, that coercive recruitment tactics and an
applicant’s resistance thereto do not reflect the kind of social/political animus
necessary to support an asylum claim. Id. at 1068. Mr. Ustyan has not cited to
any comparable evidence in the record developed for this case.
In addition to asserting–without record support, as we have seen–that the
Abkhazians imputed to him a pro-Georgian political opinion based on his ethnic
heritage , Mr. Ustyan suggests alternatively that suspicions about his assistance to
the Georgians based on his resistance to Abkhazian recruitment efforts reflect the
imputation of such an opinion. While it may generally be true, as some circuits
have held, “that imputed political opinion is still a valid basis for relief after
Elias-Zacarias ,” Canas-Segovia v. INS , 970 F.2d 599, 601 (9 th Cir. 1992);
see, e.g., Najjar v. Ashcroft , 257 F.3d 1262, 1289 (11 th Cir. 2001); Morales v.
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INS , 208 F.3d 323, 331 (1 st Cir. 2000), this particular argument for imputed
opinion would eviscerate the central tenet of Elias-Zacarias . That is, when
a refusal to fight for a group–which, per Elias-Zacarias , is not in itself enough
to attribute a political character to attendant coercive or punitive acts by that
group–is the only predicate for an alleged imputation of a political stance (loyalty
to an opposing group), acceptance of an imputed-opinion claim would effectively
elevate the refusal to fight into an actionable basis for asylum. Mr. Ustyan has
not cited any case law directly undermining Elias-Zacarias in this way, nor has
he persuaded us through argument that such a step is appropriate.
We therefore agree with the IJ that Mr. Ustyan’s claim for asylum fails
because he has not tied his allegations of persecution to an actionable ethnic or
political basis. See 8 U.S.C. § 1253(h) (asylum may be granted from persecution
on account of applicant’s “race, religion, nationality, membership in a particular
social group, or political opinion”). Having failed to establish that he is entitled
to discretionary consideration for asylum, Mr. Ustyan has perforce failed to
establish that he is entitled to mandatory withholding of removal, “which, we
have acknowledged, requires a petitioner to meet a higher standard than that for
asylum.” Batalova v. Ashcroft , 355 F.3d 1246, 1255 (10 th Cir. 2004).
Finally, Mr. Ustyan objects to the streamlined review process used by the
BIA in this case. His constitutional objections are foreclosed by recent decisions.
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See Sviridov v. Ashcroft , 358 F.3d 722, 727 (10 th Cir. 2004) (discussing Yuk v.
Ashcroft , 355 F.3d 1222, 1232 (10 th Cir. 2004), and Batalova , 355 F.3d at 1253).
His administrative objection–that this case was inappropriate for streamlined
review in light of significant errors in the IJ’s analysis–is undercut by our
conclusion that the IJ’s determination was in fact correct.
The petition for review is DENIED. The inappropriate and redundant
Motion for Remand to the Board of Immigration Appeals is likewise DENIED.
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