Otgonbayar Lkhagvasuren v. Loretta E. Lynch
2016 U.S. App. LEXIS 12858
9th Cir.2016Background
- Petitioner Otgonbayar Lkhagvasuren, a Mongolian national, applied for asylum, withholding of removal, and CAT relief after entering the U.S. on a visitor visa in 2010.
- In Mongolia he worked for a private alcoholic-beverage company he believed engaged in corrupt/unsafe practices; he was later fired, joined a consumer-activist group, and publicly criticized the company.
- Lkhagvasuren alleges his whistleblowing led to threats and harm by private actors and that government officials either participated in or acquiesced to retaliation.
- The Immigration Judge denied relief; the Board of Immigration Appeals affirmed, finding insufficient nexus between the alleged persecution and a protected ground and rejecting a likelihood of torture.
- The Ninth Circuit adopted the BIA’s Matter of N–M– three-factor framework for whistleblower/political-opinion nexus analysis and reviewed the Board’s factual findings for substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner’s whistleblowing constituted a political opinion protected for asylum/withholding | Lkhagvasuren: public anticorruption activity and whistleblowing reflect political opinion and caused retaliation | Government: petitioner’s actions targeted a private company; no evidence government persecutors or acquiescence; no political nexus | Held: No — substantial evidence supports Board that whistleblowing was not shown to be political opinion tied to government actors |
| Whether alleged persecutors were motivated by petitioner’s anticorruption beliefs | Lkhagvasuren: retaliation by private actors and a conspiratorial cabal shows motive tied to his anticorruption stance | Government: record lacks direct or circumstantial evidence showing persecutors were motivated by political opinion | Held: No — petitioner failed to show motive linking harm to his perceived or actual political opinion |
| Whether the private corruption was connected to government such that persecution is attributable to the state | Lkhagvasuren: observed meetings between company director and officials imply ties and acquiescence | Government: no proof of direct ties between corrupt private actors and higher-level officials; government publicly opposed the misconduct | Held: No — substantial evidence that corruption was not shown to be inextricably intertwined with government |
| Whether petitioner faces a likelihood of torture in Mongolia (CAT) | Lkhagvasuren: returned risk of torture from actors who previously harmed him | Government: government opposition to the private corruption undercuts claim of likely torture by state actors | Held: No — Board reasonably concluded CAT relief unlikely; substantial evidence supports denial |
Key Cases Cited
- Grava v. I.N.S., 205 F.3d 1177 (9th Cir. 2000) (whistleblowing may constitute political activity if directed at corrupt government officials)
- Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005) (persecution can be on account of actual or imputed political opinion)
- Khudaverdyan v. Holder, 778 F.3d 1101 (9th Cir. 2015) (applicant bears burden to prove nexus between persecution and protected ground)