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[U} Arshak Davtyan v. Eric H. Holder

March 4, 2011

ARSHAK DAVTYAN, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



(Petition for Review)

The opinion of the court was delivered by: Bobby R. Baldock Circuit Judge

ORDER AND JUDGMENT*fn1

Before LUCERO, ANDERSON,and BALDOCK, Circuit Judges.

Arshak Davtyan, a citizen of Armenia, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of his application for restriction on removal and relief under the Convention Against Torture. Because the agency's decision does not lend itself to meaningful review, we reverse and remand for further proceedings.

I.

As an adolescent, Mr. Davtyan converted from the Armenian Apostolic Church, the national church of Armenia, and joined the Jehovah's Witnesses, a minority religious community. While a university student, he was present at a neighborhood fight during which a young man died of a knife wound. The police arrived on the scene and arrested Mr. Davtyan and others. At the station, the police searched Mr. Davtyan's bag and found Jehovah's Witness literature.

Mr. Davtyan thought the police felt free to blame him for the fight "because of the attitude towards the Jehovah's Witnesses in society." Admin. R. at 139. A government bureaucrat, who was also the father of one of the combatants, tried to make Mr. Davtyan confess that he initiated the fight by advocating for his faith. When Mr. Davtyan refused to sign an admission, the bureaucrat punched him in the face and threatened to have him expelled from the university. Also, a police officer hit him with a club. He was then released from custody.

Shortly afterwards, Mr. Davtyan was expelled from the university. The expulsion meant that he was no longer deferred from service in Armenia's universal conscription system. But Jehovah Witnesses are conscientious objectors and it is "against their religion to serve in the military or . . . to swear or salute to a flag." Admin. R. at 144.

Fortuitously for Mr. Davtyan, he had already applied for a summer work-and-travel program in the United States. After the fight incident, he decided to participate in the program, obtained a temporary visitor's visa, and entered the United States. In Armenia, the police appeared at Mr. Davtyan's home, warning his mother that he must return at the end of the program or she herself would be jailed. His mother, who is also a Jehovah's Witness, left for Russia.

Mr. Davtyan remained in the United States, overstaying his visa. He graduated from college, received a master's degree, and became a certified public accountant. Some three years after he entered the United States, he was placed in removal proceedings. He admitted removability and applied for asylum, restriction on removal, and deferral of removal under the Convention against Torture (CAT).

In immigration proceedings, Mr. Davtyan argued that he had suffered past persecution, particularly with regard to the fight incident, and was likely to suffer future persecution in connection with his leaving the country and his refusal to comply with Armenia's universal conscription laws. The Immigration Judge (IJ) found that Mr. Davtyan's account of events in Armenia was credible, inherently plausible, and consistent with the Department of State Reports describing Armenian concerning human-rights practices and religious freedom. Nevertheless, he concluded that Mr. Davtyan had not demonstrated either past persecution or the likelihood of future persecution or torture in Armenia.

Therefore, the IJ denied restriction on removal and CAT relief. In a brief, one-member order the BIA agreed with the IJ and dismissed Mr. Davtyan's appeal.*fn2

II.

In his petition for review, Mr. Davtyan challenges the BIA's denial of restriction on removal and CAT relief. To show entitlement to restriction on removal, the alien "bears the burden of showing a clear probability of persecution attributable to race, religion, nationality, membership in a particular social group, or political opinion." Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004) (internal quotation marks omitted).*fn3 Because motive is a "critical" element, the alien must provide "direct or ...


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