NIJC - 10th Cir Reverses IJ Findings on Political Opinion and Persecution, Grants PFR

10th Cir Reverses IJ Findings on Political Opinion and Persecution, Grants PFR

Tuesday, 29 July 2008

Hayrapetyan v. Mukasey, No. 06-9538 (10th Cir. 2008) July 28, 2008

Tymkovich, McKay, Seymour

Tenth Circuit Grants Petition for Review, Reverses IJ’s Findings As to Persecution on Account of Political Opinion and Reiterates its Definition of What Constitutes Persecution

In Hayrapetyan, the Tenth Circuit reversed the Immigration Judge’s denial of asylum to an Armenian journalist. Ms. Hayrapetyan had worked as a television reporter for a private television station in Armenia on stories that exposed the corruption and human rights abuses of the Armenian government under President Korcharian. On various occasions, officials of the Korcharian government had threatened or harmed Ms. Hayrapetyan and her family. The IJ denied asylum and the BIA summarily affirmed.

The Tenth Circuit found that 1) the IJ applied the wrong legal standard in finding that Ms. Hayrapetyan was not persecuted by government actors on account of her political opinion and that 2) the IJ erred in finding that the Ms. Hayrapetyan had not suffered past persecution. The Court noted that the IJ had overlooked crucial evidence that Ms. Hayrapetyan had been harmed by the Armenian government and groups within its control because of her investigative work, and not merely by “individuals whose corruption was aberrational.” (citing Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)). The Court stated its concurrence with other circuits “…that official retaliation against one who threatens to expose governmental corruption may, in certain circumstances, amount to political persecution.” The Court also found that, when considered in its totality, the record evidence that Ms. Hayrapetan had been jailed on two occasions, once overnight; beaten; nearly run over by a car; lost her job; that her husband had been beaten twice, resulting in his hospitalization for 15 days after attempting to visit her in jail; and that government actors had attempted to kidnap her daughter did indeed amount to persecution. Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991), distinguished.

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