NOONAN, Circuit Judge:
Garegin Kamalyan, a Jehovah's Witness, petitions for review of the Board of Immigration Appeals ("BIA") adopting and affirming the decision of the immigration judge ("IJ"). We grant the petition and remand.
Kamalyan is a native of the U.S.S.R. and a citizen of Armenia. He applied for asylum on November 11, 2002, claiming religious persecution based on his status as a Jehovah's Witness.
Kamalyan's asylum application was premised upon two encounters with Armenian law enforcement in August 2001 and May 2002. In the first encounter,
In the second encounter, Kamalyan and another Jehovah's Witness were proselytizing near a university. Four police officers told them that "the law in Armenia forbade proselytizing except by the official church" and detained them separately. The officers interrogated Kamalyan and beat him when he refused to answer questions. After three to four hours, the officers offered to drop the criminal charges against him in exchange for a bribe of $1500. Kamalyan's father brought the bribe the following day, and the officers released Kamalyan.
The IJ found Kamalyan's testimony to be credible and concluded that he had suffered past persecution on account of his religion. "This raises the presumption," the IJ continued, "that [he] would continue to have a well-founded fear of persecution if he returned to Armenia. That presumption may be rebutted by changed country conditions."
Kamalyan provided some testimony about current conditions in Armenia. Portions of this testimony indicated that conditions had improved. His religion was "legalized" or "became official" approximately one month before the hearing. The IJ asked if he knew whether Jehovah's Witnesses could now legally proselytize. He answered, "Should be, because the faith itself is legal now." Despite these changes, Kamalyan stressed that he would be persecuted if he returned to Armenia, explaining, "[Armenia] accepted that law to be able to join the European Union; but it is only on paper." He testified that law enforcement still arrested Jehovah's Witnesses for proselytizing: "I'm very sure, I'm positive that such things are still going on in Armenia."
The IJ began her oral decision by declaring:
The IJ continued: "Because the [applicant's] testimony was somewhat vague with regard to very recent current conditions in Armenia, the Court may look to general background documents for an explanation of those conditions."
The IJ then reviewed two U.S. State Department country reports on Armenia titled International Religious Freedom Report 2004 ("2004 Report") and Country Reports on Human Rights Practices 2003 ("2003 Report"). From these reports, the IJ drew several conclusions. First, Jehovah's Witnesses now had the ability to register as a recognized religion in Armenia. Second, any ban on proselytizing "was not enforced, and all denominations, including Jehovah's Witnesses, could advocate their point of view." The IJ also found that "there are no longer problems
From these facts, the IJ concluded that Kamalyan's fear of mistreatment by the police was no longer reasonable. The BIA adopted and affirmed the IJ's decision.
We review the denial of asylum for substantial evidence and uphold the denial if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.2009). Findings of fact are conclusive unless "any reasonable adjudicator" would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B).
The IJ found Kamalyan to be credible and concluded that he had demonstrated past persecution on the basis of religion. This created a presumption that he had a well-founded fear of future persecution and was eligible for asylum, which could be rebutted only if the government demonstrated—by a preponderance of the evidence—that a fundamental change in country conditions dispelled any well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1); Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir.2005).
We agree with the IJ that Kamalyan's testimony about current conditions in Armenia was unilluminating. We turn, then, to the country reports.
Our circuit has reiterated that "a State Department report on country conditions, standing alone, is not sufficient to rebut the presumption of future persecution when a petitioner has established past persecution." Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir.2004) (quoting Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002)). Such reports are often "the most appropriate and perhaps the best resource for information on political situations in foreign nations." Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir.2008). Nonetheless, they typically are not amenable to an "individualized analysis" tailored to an asylum applicant's particular situation. See, e.g., Garcia-Martinez, 371 F.3d at 1074; Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.2004).
The country reports indicated that Jehovah's Witnesses had obtained the ability to register as a recognized religion in Armenia. No evidence explained the meaning or significance of this event. The 2004 Report found "no overall change in the status of respect for religious freedom" in Armenia. Both Reports confirmed that even officially recognized religions were prohibited from proselytizing in Armenia. While the 2003 Report advised that the ban was not enforced, the 2004 Report recounted that complaints were lodged against Jehovah's Witnesses "for proselytizing" and "some official warnings sent to Jehovah's Witnesses because of proselytizing activities."
Armenia's attempt to accommodate Jehovah's Witnesses' objections to military service is not germane to the persecution experienced by Kamalyan. As the dissent acknowledges, "[a]t no time has Kamalyan claimed he was persecuted for refusing conscription." The IJ's reliance on this
Overall, the country reports were expressly inconclusive regarding the significance or permanence of the improvements identified by the IJ. The 2004 Report summarized:
Similarly, the 2003 Report concluded:
"Any reasonable adjudicator" would agree that the government did not establish a fundamental change in country conditions by a preponderance of the evidence. We grant Kamalyan's petition for review. We remand the matter to the BIA with instructions to remand for further proceedings as to whether a fundamental change in country conditions has overcome the presumption that Kamalyan has a well-founded fear of future persecution. The dissent references the 2005 Country Report and the 2010 Country Report to show that Kamalyan faces no danger. Those reports were not before the IJ or the Board. On remand, they may be properly considered.
HALL, Circuit Judge, dissenting:
I believe a fair reading of the evidence before the Immigration Judge ("IJ") supports her findings that country conditions in Armenia had "fundamentally changed" between 2002 and 2004 for Jehovah's Witnesses who, like petitioner Garegin Kamalyan, were persecuted in the past for proselytizing, and that petitioner no longer has a "well-founded fear of future persecution." I disagree with the majority that any reasonable adjudicator would be compelled to reach a contrary conclusion. Accordingly, I respectfully dissent.
In ruling on the petition in this case, the IJ found that Kamalyan, a Jehovah's Witness and citizen of Armenia, had suffered "past persecution" on account of his religion, based on two incidents of beatings by Armenian police in 2001 and 2002 while in detention after being arrested for "proselytizing" in violation of Armenian law. The IJ specifically found Kamalyan to be credible, and found his showing of past persecution sufficient to gave rise to a presumption of a "well-founded fear of future persecution." See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006). The IJ found the presumption of future persecution rebutted, however, by Kamalyan's own testimony and two U.S. State Department reports—Armenia: International Religious Freedom Report 2003 (Sept. 15, 2004) ("2004 Religious Freedom Report"), and Armenia: Country Reports on Human Rights Practices—2003 (Feb.
We review a denial of asylum eligibility for substantial evidence and must uphold the denial if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009); Zehatye, 453 F.3d at 1185. "[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). "This `strict standard' precludes us from `independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown.'" Gu v. Gonzales, 454 F.3d 1014, 1018-19 (9th Cir.2006) (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994)).
In order to meet its burden of proving a fundamental change of circumstances, the government is "obligated to introduce evidence that, on an individualized basis, rebuts a particular applicant's specific grounds for his well-founded fear of future persecution." Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001). Where past persecution has been established, generalized information from a State Department report on country conditions is not sufficient to rebut the presumption of future persecution. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002) (emphasis added). However, an analysis of changed country conditions tailored to the petitioner's individual claims of persecution is sufficient to rebut the presumption. Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 997-1000 (9th Cir.2003); see also Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (rejecting petitioner's argument that State Department country reports are "generalized materials" that are insufficient to rebut a presumed well-founded fear of future persecution).
In concluding that the evidence before the IJ did not establish a fundamental change in conditions for Jehovah's Witnesses in Armenia, the majority brushes aside Kamalyan's testimony, and considers only the two country reports issued by the State Department in 2004. The majority then proceeds to discount the information from the 2003 Human Rights Report and the 2004 Religious Freedom Report on which the IJ relied, describing them as "inconclusive." Maj. Op. at 1058. I believe the majority misapprehends the IJ's decision and misapplies relevant Ninth Circuit law.
First, the majority suggests that Kamalyan's testimony at the November 2004 hearing provides no support for the IJ's decision. Although the IJ commented that Kamalyan's testimony was "somewhat vague," and that he did not have any "specific information" about the "very recent current conditions" in Armenia,
To be sure, the IJ did not give great weight to Kamalyan's testimony for the reasons stated, but also because he, a nonlawyer, did not seem to have a clear understanding of what it meant that the Jehovah's Witness religion was now "legal."
As the majority notes, the 2003 and 2004 country reports admitted into evidence during the hearing do contain some bits of information that cut against the IJ's finding of changed country conditions—as the majority highlights by selectively quoting from very general, introductory passages in the two reports.
In sum, when the portions of the two country reports dealing with the religious freedoms of Jehovah's Witnesses are read carefully and objectively, and viewed together with Kamalyan's testimony, it is clear that substantial evidence supports the IJ's finding of significant improvements in the conditions germane to Kamalyan's claim of a well-founded fear of future persecution. In addition, Kamalyan's testimony about recent events that made it "legal" to be a Jehovah's Witness, and the IJ's finding of a positive change in the ability of Armenian Jehovah's Witnesses to register as a religion, were confirmed in the 2005 Religious Freedom Report, where it was noted that, approximately one month before Kamalyan's asylum hearing, they had secured substantial religious freedoms by successfully completing the registration process. Id. at 1.
On this record, the majority's conclusion that the government did not carry its burden of proving a "fundamental change" in conditions for Jehovah's Witnesses in Armenia, and in particular for those who, like Kamalyan, were persecuted in the past for proselytizing, is simply not "compelled" by the evidence. I would deny the petition.