Artak Hayrapetyan v. Eric Holder, Jr. , 586 F. App'x 367 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ARTAK HAYRAPETYAN, No. 11-70601
Petitioner, Agency No. A098-534-831
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 19, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON,
Senior District Judge.**
Petitioner Artak Hayrapetyan, a native and citizen of Armenia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
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asylum, withholding of removal, and protection under the Convention Against
Torture. We grant the petition for review and remand for further proceedings
consistent with this disposition.
Hayrapetyan asks us to decide, among other things, whether the BIA could
reasonably conclude that the government has shown by a preponderance of the
evidence that he no longer faces persecution in Armenia. The BIA concluded that
the government carried its burden because the foreign minister whom
Hayrapetyan’s father accused of corruption is no longer in power and because
Hayrapetyan’s family members who remain in Armenia have not been harmed
since that minister left office.
We cannot confirm that Hayrapetyan faces no future threat of persecution if
we do not know who targeted him in the past. If the now-departed foreign minister
was solely responsible for the harm inflicted on Hayrapetyan in the past, then the
BIA might be right that the minister’s departure from the government means that
Hayrapetyan is now safe. But if other government officials in the still-ruling
political party were also behind the attacks on Hayrapetyan, then the minister’s
departure may not eliminate the threat of future persecution.
The BIA simply assumed without elaboration that Hayrapetyan suffered past
persecution. It did not make a reasoned finding. The evidence before
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us—including Hayrapetyan’s credible testimony—strongly supports a finding of
past persecution. But it is the agency’s responsibility, and not ours, to make this
determination in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam). If the agency finds that Hayrapetyan has suffered past persecution and
provides a reasoned explanation for the basis of this persecution, we will be able to
meaningfully review whether substantial evidence supports the BIA’s finding that
circumstances have sufficiently changed to allay Hayrapetyan’s fear of future
persecution. Cf. Arredondo v. Holder, 623 F.3d 1317, 1320 (9th Cir. 2010)
(“Based upon the BIA’s failure to engage in a substantive analysis of its decision,
we have no ability to conduct a meaningful review of its decision.”).
We therefore grant the petition and remand to the BIA to determine if
Hayrapetyan has suffered past persecution, and, if it finds that he has, to make
clear the factual bases upon which such a finding rests.
GRANTED and REMANDED.
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