Hayk Khudaverdyan v. Eric Holder, Jr.
2015 U.S. App. LEXIS 3094
| 9th Cir. | 2015Background
- Hayk Khudaverdyan, an Armenian restaurant manager, was beaten by the military police chief’s bodyguards after a verbal confrontation; a week later he met (but did not disclose information to) a reporter who sought an article on government officials pre‑election.
- Immediately after the second meeting with the reporter, Khudaverdyan was abducted, detained overnight, beaten, accused of espionage, threatened with life imprisonment and with his son’s conscription; he was released after a $3,000 payment and a promise to leave Armenia.
- The immigration judge (IJ) found Khudaverdyan credible but concluded his conduct was not whistleblowing about systemic corruption and that the harm was personal, not political; the IJ also found the treatment did not constitute torture under CAT.
- The Board of Immigration Appeals (BIA) affirmed, focusing on Hayk’s intent and concluding he failed to show nexus to an actual political opinion or to corruption targeted at a governing institution; BIA did not address whether the officers believed he was a whistleblower (imputed political opinion).
- The Ninth Circuit held the BIA erred by failing to consider imputed political opinion in the form of perceived whistleblowing (i.e., persecutor’s belief that petitioner sought to expose corruption) and remanded asylum and withholding claims to the BIA; CAT denial was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner was persecuted on account of political opinion | Khudaverdyan: military police mistreated him because they (or would) perceive him as a whistleblower after his contacts with an opposition reporter | Government/BIA: treatment was personal retaliation for insulting the police chief; petitioner did not seek to expose systemic corruption | Court: Remanded — BIA must evaluate whether persecutors imputed a political opinion (perceived whistleblowing) and whether that was a central reason for harm |
| Whether petitioner’s conduct amounted to protected whistleblowing (actual opinion) | Khudaverdyan: meeting with reporter was related to exposing official misconduct | BIA: single incident about one official is not directed to a governing institution; not whistleblowing | Court: Substantial evidence supports BIA that petitioner was not an actual whistleblower (no error) |
| Whether imputed political opinion (perceived whistleblowing) was considered | Khudaverdyan: evidence (officers’ statements, timing, reporter’s role) shows police may have believed he would expose corruption | BIA: focused on petitioner’s intent and treated retaliation as personal — did not analyze persecutors’ perceptions | Court: BIA erred by failing to address whether officers believed petitioner was trying to expose corruption; remand required for that analysis |
| Whether petitioner is entitled to CAT relief (torture) | Khudaverdyan: alleged detention, beatings, threats amount to torture | Government: harm did not meet CAT’s torture standard | Court: Denial of CAT relief affirmed — substantial evidence supports BIA finding no torture |
Key Cases Cited
- Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) (whistleblowing against systemic corruption can constitute political opinion)
- Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) (distinguishing acts directed at governing institutions from isolated complaints)
- Kumar v. Gonzales, 444 F.3d 1043 (9th Cir. 2006) (recognizing imputed political opinion as basis for asylum)
- INS v. Elias‑Zacarias, 502 U.S. 478 (1992) (persecutor’s belief may establish motive; some evidence of imputing opinion required)
- Singh v. Holder, 764 F.3d 1153 (9th Cir. 2014) (direct and indirect evidence can demonstrate imputed political opinion)
- Yan Xia Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008) (criticizing an official can reveal systemic corruption)
- Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004) (criticizing a single official can be directed at a governing institution when indicating systemic problems)
- Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007) (standards for CAT/torture determinations)
- Orlando Ventura v. INS, 537 U.S. 12 (2002) (court should remand when BIA has not considered an issue)
- Castillo v. INS, 951 F.2d 1117 (9th Cir. 1991) (boilerplate BIA opinions lacking individualized reasoning require remand)