Block on Trump's Asylum Ban Upheld by Supreme Court
The Ninth Circuit has ruled that the Board of Immigration Appeals (BIA) erred in not considering imputed political opinion as a ground for asylum in an Armenian man's case.
Petitioner Hayk Khudaverdyan sought asylum in the United States. He claimed that he was unable to return to Armenia because he was persecuted by the military police for whistleblowing to the press.
Khudaverdyan, a manager at a hotel restaurant, was beaten by a local police chief's bodyguards after the chief was dissatisfied with the food and service. A week later, Khudaverdyan was approached by a reporter who wanted to interview him about the beating. At a second meeting with the reporter, Khudaverdyan refused to speak about the incident because he was afraid of retaliation. Immediately after this meeting, Khudaverdyan was kidnapped, interrogated, beaten, and accused of espionage by the military police. Khudaverdyan was also threatened with life imprisonment.
2 Interesting Issues
Khudaverdyan's case brings up two interesting issues: imputed political opinion and nexus.
1. Imputed Political Opinion.
To prove a claim for asylum, petitioners must show that they were persecuted because of one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.
A protected ground can be actual or imputed. For example, the terror group ISIS recently kidnapped over 200 people because they were Christians, with plans to either convert the captives or execute them, Fox News reports. If any of the captives weren't actually Christian, but ISIS thought they were, this would be an imputed religion.
Another important requirement for asylum is that the persecutor must have been motivated by a protected ground. This is called nexus. So for example, if ISIS had kidnapped those people just because they were trying to take over the town, there would be no nexus between the religion and the persecution. But if ISIS specifically chose the captives because of their belief in Christianity, then there would be nexus.
What the Immigration Judge and the BIA Got Wrong
The Immigration Judge (IJ) and the BIA both found that Khudaverdyan didn't actually tell the reporter about the military police beating and didn't actually have any political opinion against the police. As such, there was no nexus, and Khudaverdyan was not persecuted for any political opinion.
However, the Ninth Circuit found that the IJ and BIA failed to consider an imputed political opinion: Although Khudaverdyan refused to tell the reporter about the beating, the BIA should have considered that the military police believed that Khudaverdyan had divulged details of the beating. The Ninth Circuit has held that perceived whistleblowing is one form of imputed political opinion.
The Ninth Circuit also found that Khudaverdyan did show both direct and indirect evidence of nexus. The military police did accuse Khudaverdyan of dishonoring the military police; Khudaverdyan was also picked up immediately after a meeting with a reporter writing an article about corruption in the government.
The Ninth Circuit remanded the case to the BIA to consider whether Khudaverdyan showed evidence of an imputed political opinion.