Judges: Per Curiam
Filed: Jul. 09, 2008
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued June 11, 2008 Decided July 9, 2008 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-3460 ARMEN TONOYAN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A97-883-903 MICHAEL B. MUKASEY, Attorney General of the United States,
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued June 11, 2008 Decided July 9, 2008 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-3460 ARMEN TONOYAN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A97-883-903 MICHAEL B. MUKASEY, Attorney General of the United States, ..
More
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 11, 2008
Decided July 9, 2008
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3460
ARMEN TONOYAN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A97‐883‐903
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
O R D E R
Armen Tonoyan, a native and citizen of Armenia, fled to the United States and
filed a petition for asylum, withholding of removal, and protection under the
Convention Against Torture, arguing that he had been subjected to political persecution
and would be again if he returned to Armenia. The immigration judge denied relief
and ordered that Tonoyan be removed, and the Board of Immigration Appeals
affirmed. Because the immigration judge’s decision is supported by substantial
evidence, we deny Tonoyan’s petition for review.
No. 07‐3460 Page 2
Before he fled to the United States in April 2004, Tonoyan lived in Yerevan,
Armenia, with his wife and daughter. He received a degree in teaching and composing
and began working at Dunn Kilikio Restaurant in June 2002 as the leader of a band that
entertained customers in the evenings. Although his application for asylum was based
on political persecution, he testified that he has never been involved in politics and has
“never been interested in the political affairs.” Dunn Kiliko is located near government
offices in Yerevan, and therefore its customers are mostly government officials.
The events leading Tonoyan to flee Armenia are related to elections that were
held there in 2004 for a local office similar to that of mayor in the United States. Three
candidates were running for the position—Gagik Peklaryan,1 who was the incumbent,
Artur Grigoryan, and Armen Mikaelyan. On February 9, 2004, Grigoryan dropped out
of the race and endorsed Mikaelyan. The next day when Tonoyan arrived at work he
saw a group of men talking about politics and recognized one of them as Grigoryan.
He then saw four men come into the restaurant and call over to Grigoryan. He
recognized one of these men as Serge Beglaryan, who is the incumbent Peklaryan’s
nephew. Grigoryan went with the men to a corner of the restaurant, out of Tonoyan’s
sight. Tonoyan soon heard loud noises and went to investigate. He found Grigoryan
on the floor, bleeding from his nose and mouth. The restaurant’s owner called the
police, but by the time they arrived, all of the men involved in the fight had left. The
owner told the police that Tonoyan was a witness, and the police took Tonoyan to their
headquarters for questioning. At first, he told the police that he did not know any of
the men who attacked Grigoryan because he was afraid of Beglaryan, but he eventually
gave them Beglaryan’s name after the police beat him. The police told Tonoyan that he
would have to testify in court and then released him. He heard that the police arrested
Beglaryan the next day. Several days later, Peklaryan won the election.
Tonoyan did not go into work for at least one day after being questioned by the
police. On February 15, however, shortly after he came home from work around 3:00
a.m., four men knocked on his door. When he opened the door, they pushed him to the
floor, held his hands behind his back, covered his mouth, and beat him. He recognized
1
The incumbent’s name may actually be Gagik Beglaryan. A search online of the
name Gagik Beglaryan shows that there is someone by that name who holds elected office
in Yerevan, Armenia, while a search of the name Gagik Peklaryan does not bring up any
links. We have used Peklaryan, though, because that is the name Tonoyan used in his
testimony.
No. 07‐3460 Page 3
one of his attackers as one of the men who had beaten up Grigoryan. While they hit
him, they said that they were doing it “for Serge” and threatened to kill Tonoyan if he
testified. They also told him to think about his wife and daughter. Tonoyan ended up
needing surgery to repair the broken nose he suffered as a result of this attack.
Tonoyan panicked because he felt stuck between the police, who were forcing
him to testify against Beglaryan, and Beglaryan’s men, whom he called the “mafia.” He
took a bus to the suburb where his mother‐in‐law lived and stayed there with his wife
and daughter until April 15. He did not contact the police to report what had happened
or to ask for protection because he did not trust them and was afraid that they were tied
to Peklaryan, Beglaryan’s uncle, and therefore would not help him. He and his wife
decided that he should flee to the United States because they were afraid that
Beglaryan’s men were still looking for him. He obtained a visitor’s visa, telling United
States officials that he wanted to come here to do research and study jazz music.
Tonoyan arrived in the United States around April 15, 2004, and was authorized
to stay until May 14, but he has not left. His wife and daughter continue to live in
Armenia, though they moved to a different home in Yerevan. As of May 2006,
Peklaryan was still in office, and Beglaryan had been released from custody. Tonoyan’s
wife told him that the trial against the men who beat Grigoryan is not moving forward
because there are no witnesses.
Tonoyan applied for asylum and withholding of removal in December 2004, and
at his first hearing in January 2005, Tonoyan conceded that he was present in the United
States without authorization and sought asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). His request for relief was based on the
beating he sustained from Beglaryan’s men, which he argued constituted political
persecution, and his fear that they would make good on their threats to harm him and
his family if he testified against Beglaryan, which he thought he would have to do if he
returned to Armenia. Tonoyan, representing himself, presented only his testimony,
documentation of his nose surgery, and country reports about conditions generally in
Armenia.
Though the immigration judge (IJ) credited Tonoyan’s testimony, she denied his
request for asylum, concluding that he had not shown that the men who beat him were
“motivated, at least in part, by an actual or imputed” political opinion. Pointing to the
statements that the men made to Tonoyan, the IJ reasoned that the men did not want
Tonoyan to testify against Beglaryan for his beating of Grigoryan and that they were
No. 07‐3460 Page 4
interested in him only because his testimony could land Beglaryan in prison. The IJ
recognized Tonoyan’s fear of returning to Armenia and even suggested that it was
objectively reasonable, but ultimately she found that Tonoyan’s attackers did not know
his political opinion and that they did not impute one to him. Having denied his
request for asylum, the IJ also denied his requests for withholding of removal and
protection under CAT, noting that both require higher standards that Tonoyan did not
meet.
Tonoyan hired counsel and appealed the IJ’s decision, arguing that he had
established a well‐founded fear of future persecution. The Board of Immigration
Appeals (BIA) adopted and affirmed the IJ’s decision, noting in particular that the IJ
correctly found that Tonoyan had not shown that Beglaryan’s men beat him “on
account of . . . an actual or imputed political opinion.” The BIA reasoned that
Tonoyan’s attackers said that they were beating him for Beglaryan, not because of any
political opinion against their cause that they had imputed to him.
In his petition for review, Tonoyan challenges only the denial of asylum. He
argues that the IJ and the BIA erred by not considering Tonoyan’s case under a mixed‐
motives analysis when they concluded that Beglaryan’s men beat Tonoyan only to keep
him from testifying against Beglaryan in a criminal prosecution. Tonoyan contends
that, to the contrary, he presented substantial evidence, which the IJ and BIA ignored,
showing that these men imputed to Tonoyan an anti‐Peklaryan opinion because he
spoke to the police and would possibly testify in the future against Peklaryan’s nephew
and that this opinion motivated the men to beat him. He bases this argument on the
context of the events, suggesting that the harm he suffered was politically motivated
because the men beat him on behalf of the incumbent’s nephew to prevent Tonoyan
from making public a crime committed by this nephew against his uncle’s political
rival, which could have hurt his uncle’s chance at re‐election.
Where, as here, the BIA adopts and affirms the IJ’s opinion and provides only
some additional reasoning, we review the IJ’s decision as supplemented by the BIA’s
opinion. Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006); Niam v. Ashcroft, 354 F.3d
652, 655‐56 (7th Cir. 2004). We uphold the denial of relief if it is supported by
substantial evidence considered on the record as a whole. See Zhang v. Gonzales, 495
F.3d 773, 776 (7th Cir. 2007); Boci v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007) (quoting
No. 07‐3460 Page 5
INS v. Elias‐Zacarias, 502 U.S. 478, 481 (1992)).2 We will reverse the BIA’s decision only
if no reasonable fact finder could fail to conclude that the petitioner should be granted
asylum. See Elias‐Zacarias, 502 U.S. at 481; Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir.
2006). To qualify for asylum, the applicant must show by a preponderance of the
evidence that he meets the definition of “refugee.” See 8 C.F.R. § 208.13(a); Sosnovskaia
v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005). A refugee is a person “who is unable or
unwilling to return to . . . [his 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.” 8 U.S.C. § 1101(a)(42); Gjerazi, 435 F.3d at 808.
The government properly notes in its brief that we may not consider Tonoyan’s
argument that the IJ and BIA failed to apply a mixed‐motives analysis to his case
because he did not administratively exhaust this claim. When an applicant fails to
present an argument to the BIA, he has failed to exhaust administrative remedies,
which precludes this court’s review. See 8 U.S.C. § 1252(d)(1); Pjetri v. Gonzales, 468 F.3d
478, 481 (7th Cir. 2006). Nevertheless, even if we were to consider Tonoyan’s argument,
it would fail. We have adopted the doctrine of mixed motives, under which an
applicant “may qualify for asylum if his or her persecutors have more than one motive
as long as one of the motives is” an enumerated ground. Mohideen v. Gonzales, 416 F.3d
567, 570 (7th Cir. 2005). Here, the IJ properly stated the law when she said that Tonoyan
was required to show that the men who beat him were “motivated, at least in part, by
an actual or imputed” political opinion. In cases where we have reversed an IJ’s
decision for failure to apply the mixed‐motives analysis, the IJ ignored evidence
showing that the persecutors were motivated in part by one of the enumerated grounds.
See, e.g., Gjerazi, 435 F.3d at 812‐13; Mohideen, 416 F.3d at 570‐71. The IJ here, however,
recounted and considered all of Tonoyan’s testimony, credited that testimony, and then
2
The “substantial evidence” standard was reflected in the former 8 U.S.C.
§ 1105a(a)(4), which the Supreme Court interpreted in INS v. Elias‐Zacarias to provide that a
“determination that [the petitioner] was not eligible for asylum must be upheld if
‘supported by reasonable, substantial, and probative evidence on the record considered as a
whole.’” 502 U.S. at 481 (quoting 8 U.S.C. § 1105a(a)(4)). Section 1105a(a)(4) was repealed in
1996 and replaced by 8 U.S.C. § 1252(b)(4)(B), which provides that on appeal “the
administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Although this language differs from that in the
subsection it replaced, this court has continued to characterize its review in terms of
“substantial evidence.” See Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 157 n.9 (2d Cir. 2006).
No. 07‐3460 Page 6
concluded that the evidence did not show that the persecutors had any motive other
than preventing Tonoyan from testifying against Beglaryan.
Moreover, substantial evidence supports the IJ’s and BIA’s conclusion that
Tonoyan was not persecuted on account of an imputed political opinion. To
successfully base an asylum claim on an imputed political opinion, the applicant must
show that his persecutors attributed a political opinion to him, see Lwin v. INS, 144 F.3d
505, 509 (7th Cir. 1998), and that this opinion motivated the persecution, see Elias‐
Zacarias, 502 U.S. at 482‐83. Mema v. Gonzales, 474 F.3d 412, 417 (7th Cir. 2007). The IJ
and BIA correctly concluded that Tonoyan did not show that the men who beat him
attributed a political opinion to him or that a political opinion motived them. Tonoyan
argues that they must have attributed a political opinion to him—that he was anti‐
Peklaryan because he identified Peklaryan’s nephew for the police and was going to
testify against him, thereby hurting Peklaryan’s re‐election bid. This argument is based
entirely on the fact that political actors were involved in the crime he witnessed and
also were possibly involved in the beating he sustained. But “the mere existence of a
generalized ‘political’ motive . . . is inadequate to establish” that persecution was on
account of a political opinion. Elias‐Zacarias, 502 U.S. at 482. Moreover, none of
Tonoyan’s testimony even suggested that this so‐called imputed political opinion was
anything more than speculation. Tonoyan recounted that the men said that they were
attacking him for Beglaryan and threatened to kill him if he testified against Beglaryan;
they did not mention Peklaryan or the upcoming election, and Tonoyan did not offer
any other evidence to suggest that they had imputed a political opinion to him, much
less that they were motivated by it.
Though Tonoyan’s situation is sympathetic, it is not one that qualifies him for
asylum. He was the unfortunate witness to a crime that happened to involve
politicians. Although the attack on Grigoryan may have been politically motivated, that
does not mean that the attack on Tonoyan at the hands of those trying to keep him quiet
amounted to political persecution. See Djouma v. Gonzales, 429 F.3d 685, 688 (7th Cir.
2005) (reasoning that “[b]eing a material witness, even to a political crime . . . is no more
a status that the asylum law protects than being a criminal suspect is”); Carmenatte‐
Lopez v. Mukasey, 518 F.3d 540, 542 (8th Cir. 2008) (holding that petitioner’s “alleged
status as a witness or informant, even with respect to a political crime, would not
qualify him for asylum or withholding of removal on the basis of political opinion”).
Tonoyan tries to distinguish Djouma by arguing that the police were persecuting
Djouma for not cooperating as a material witness to a political crime, whereas Tonoyan
was being persecuted by non‐governmental actors. In his reply brief, he backs away
No. 07‐3460 Page 7
from this argument and contends that Djouma does not apply because Djouma was
seeking asylum as a material witness whereas Tonoyan applied for asylum based on
persecution for an imputed political opinion. Neither interpretation is persuasive. The
first—the difference between who was persecuting the applicants—makes no difference
on the issue of whether an imputed political opinion motivated his persecution, and the
second presupposes that Tonoyan was actually persecuted because of an imputed
political opinion, which, as discussed above, he did not demonstrate.
Tonoyan also argues that his situation is similar to that in Deloso v. Aschcroft, 393
F.3d 858 (9th Cir. 2005), in which the son of an elected official from a democratic
political party who personally participated in pro‐democratic political events was
persecuted by a hit man for the Communist party. But that case is not similar to
Tonoyan’s, most notably because Tonoyan did not participate in politics or make his
political opinion known publicly.
For the foregoing reasons, we DENY Tonoyan’s petition for review.