# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 11, 2008

Decided July 9, 2008

Before

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 07

‐ 3460

ARMEN TONOYAN,

Petitioner

,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals.

No. A97

‐ 883

‐ 903

O R D E R

Armen Tonoyan, a native and citizen of Armenia, fled to the United States and

filed a petition for asylum, withholding of removal, and protection under the

Convention Against Torture, arguing that he had been subjected to political persecution

and would be again if he returned to Armenia. The immigration judge denied relief

and ordered that Tonoyan be removed, and the Board of Immigration Appeals

affirmed. Because the immigration judge’s decision is supported by substantial

evidence, we deny Tonoyan’s petition for review. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 3460 Page 2

1 The incumbent’s name may actually be Gagik Beglaryan. A search online of the

name Gagik Beglaryan shows that there is someone by that name who holds elected office

in Yerevan, Armenia, while a search of the name Gagik Peklaryan does not bring up any

links. We have used Peklaryan, though, because that is the name Tonoyan used in his

testimony

. Before he fled to the United States in April 2004, Tonoyan lived in Yerevan,

Armenia, with his wife and daughter. He received a degree in teaching and composing

and began working at Dunn Kilikio Restaurant in June 2002 as the leader of a band that

entertained customers in the evenings. Although his application for asylum was based

on political persecution, he testified that he has never been involved in politics and has

“never been interested in the political affairs.” Dunn Kiliko is located near government

offices in Yerevan, and therefore its customers are mostly government officials.

The events leading Tonoyan to flee Armenia are related to elections that were

held there in 2004 for a local office similar to that of mayor in the United States. Three

candidates were running for the position—Gagik Peklaryan, 1 who was the incumbent,

Artur Grigoryan, and Armen Mikaelyan. On February 9, 2004, Grigoryan dropped out

of the race and endorsed Mikaelyan. The next day when Tonoyan arrived at work he

saw a group of men talking about politics and recognized one of them as Grigoryan.

He then saw four men come into the restaurant and call over to Grigoryan. He

recognized one of these men as Serge Beglaryan, who is the incumbent Peklaryan’s

nephew. Grigoryan went with the men to a corner of the restaurant, out of Tonoyan’s

sight. Tonoyan soon heard loud noises and went to investigate. He found Grigoryan

on the floor, bleeding from his nose and mouth. The restaurant’s owner called the

police, but by the time they arrived, all of the men involved in the fight had left. The

owner told the police that Tonoyan was a witness, and the police took Tonoyan to their

headquarters for questioning. At first, he told the police that he did not know any of

the men who attacked Grigoryan because he was afraid of Beglaryan, but he eventually

gave them Beglaryan’s name after the police beat him. The police told Tonoyan that he

would have to testify in court and then released him. He heard that the police arrested

Beglaryan the next day. Several days later, Peklaryan won the election.

Tonoyan did not go into work for at least one day after being questioned by the

police. On February 15, however, shortly after he came home from work around 3:00

a.m., four men knocked on his door. When he opened the door, they pushed him to the

floor, held his hands behind his back, covered his mouth, and beat him. He recognizedNo. 07

‐ 3460 Page 3

one of his attackers as one of the men who had beaten up Grigoryan. While they hit

him, they said that they were doing it “for Serge” and threatened to kill Tonoyan if he

testified. They also told him to think about his wife and daughter. Tonoyan ended up

needing surgery to repair the broken nose he suffered as a result of this attack.

Tonoyan panicked because he felt stuck between the police, who were forcing

him to testify against Beglaryan, and Beglaryan’s men, whom he called the “mafia.” He

took a bus to the suburb where his mother

‐ in

‐ law lived and stayed there with his wife

and daughter until April 15. He did not contact the police to report what had happened

or to ask for protection because he did not trust them and was afraid that they were tied

to Peklaryan, Beglaryan’s uncle, and therefore would not help him. He and his wife

decided that he should flee to the United States because they were afraid that

Beglaryan’s men were still looking for him. He obtained a visitor’s visa, telling United

States officials that he wanted to come here to do research and study jazz music.

Tonoyan arrived in the United States around April 15, 2004, and was authorized

to stay until May 14, but he has not left. His wife and daughter continue to live in

Armenia, though they moved to a different home in Yerevan. As of May 2006,

Peklaryan was still in office, and Beglaryan had been released from custody. Tonoyan’s

wife told him that the trial against the men who beat Grigoryan is not moving forward

because there are no witnesses.

Tonoyan applied for asylum and withholding of removal in December 2004, and

at his first hearing in January 2005, Tonoyan conceded that he was present in the United

States without authorization and sought asylum, withholding of removal, and relief

under the Convention Against Torture (CAT). His request for relief was based on the

beating he sustained from Beglaryan’s men, which he argued constituted political

persecution, and his fear that they would make good on their threats to harm him and

his family if he testified against Beglaryan, which he thought he would have to do if he

returned to Armenia. Tonoyan, representing himself, presented only his testimony,

documentation of his nose surgery, and country reports about conditions generally in

Armenia.

Though the immigration judge (IJ) credited Tonoyan’s testimony, she denied his

request for asylum, concluding that he had not shown that the men who beat him were

“motivated, at least in part, by an actual or imputed” political opinion. Pointing to the

statements that the men made to Tonoyan, the IJ reasoned that the men did not want

Tonoyan to testify against Beglaryan for his beating of Grigoryan and that they wereNo. 07

‐ 3460 Page 4

interested in him only because his testimony could land Beglaryan in prison. The IJ

recognized Tonoyan’s fear of returning to Armenia and even suggested that it was

objectively reasonable, but ultimately she found that Tonoyan’s attackers did not know

his political opinion and that they did not impute one to him. Having denied his

request for asylum, the IJ also denied his requests for withholding of removal and

protection under CAT, noting that both require higher standards that Tonoyan did not

meet.

Tonoyan hired counsel and appealed the IJ’s decision, arguing that he had

established a well

‐ founded fear of future persecution. The Board of Immigration

Appeals (BIA) adopted and affirmed the IJ’s decision, noting in particular that the IJ

correctly found that Tonoyan had not shown that Beglaryan’s men beat him “on

account of

. . . an actual or imputed political opinion.” The BIA reasoned that

Tonoyan’s attackers said that they were beating him for Beglaryan, not because of any

political opinion against their cause that they had imputed to him.

In his petition for review, Tonoyan challenges only the denial of asylum. He

argues that the IJ and the BIA erred by not considering Tonoyan’s case under a mixed

‐

motives analysis when they concluded that Beglaryan’s men beat Tonoyan only to keep

him from testifying against Beglaryan in a criminal prosecution. Tonoyan contends

that, to the contrary, he presented substantial evidence, which the IJ and BIA ignored,

showing that these men imputed to Tonoyan an anti

‐ Peklaryan opinion because he

spoke to the police and would possibly testify in the future against Peklaryan’s nephew

and that this opinion motivated the men to beat him. He bases this argument on the

context of the events, suggesting that the harm he suffered was politically motivated

because the men beat him on behalf of the incumbent’s nephew to prevent Tonoyan

from making public a crime committed by this nephew against his uncle’s political

rival, which could have hurt his uncle’s chance at re

‐ election.

Where, as here, the BIA adopts and affirms the IJ’s opinion and provides only

some additional reasoning, we review the IJ’s decision as supplemented by the BIA’s

opinion. Gjerazi v. Gonzales

, 435 F.3d 800, 807 (7th Cir. 2006); Niam v. Ashcroft

, 354 F.3d

652, 655

‐ 56 (7th Cir. 2004). We uphold the denial of relief if it is supported by

substantial evidence considered on the record as a whole. See Zhang v. Gonzales

, 495

F.3d 773, 776 (7th Cir. 2007); Boci v. Gonzales

, 473 F.3d 762, 766 (7th Cir. 2007) (quotingNo. 07

‐ 3460 Page 5

2 The “substantial evidence” standard was reflected in the former 8 U.S.C.

§ 1105a(a)(4), which the Supreme Court interpreted in INS v. Elias

‐ Zacarias to provide that a

“determination that [the petitioner] was not eligible for asylum must be upheld if

‘supported by reasonable, substantial, and probative evidence on the record considered as a

whole.’” 502 U.S. at 481 (quoting 8 U.S.C. § 1105a(a)(4)). Section 1105a(a)(4) was repealed in

1996 and replaced by 8 U.S.C. § 1252(b)(4)(B), which provides that on appeal “the

administrative findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Although this language differs from that in the

subsection it replaced, this court has continued to characterize its review in terms of

“substantial evidence.” See Chen v. U.S. Dep’t of Justice

, 434 F.3d 144, 157 n.9 (2d Cir. 2006). INS v. Elias

‐ Zacarias

, 502 U.S. 478, 481 (1992)). 2 We will reverse the BIA’s decision only

if no reasonable fact finder could fail to conclude that the petitioner should be granted

asylum. See Elias

‐ Zacarias, 502 U.S. at 481; Margos v. Gonzales

, 443 F.3d 593, 597 (7th Cir.

2006). To qualify for asylum, the applicant must show by a preponderance of the

evidence that he meets the definition of “refugee.” See 8 C.F.R. § 208.13(a); Sosnovskaia

v. Gonzales

, 421 F.3d 589, 593 (7th Cir. 2005). A refugee is a person “who is unable or

unwilling to return to

. . . [his home country] because of persecution or a well

‐ founded

fear of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42); Gjerazi

, 435 F.3d at 808.

The government properly notes in its brief that we may not consider Tonoyan’s

argument that the IJ and BIA failed to apply a mixed

‐ motives analysis to his case

because he did not administratively exhaust this claim. When an applicant fails to

present an argument to the BIA, he has failed to exhaust administrative remedies,

which precludes this court’s review. See 8 U.S.C. § 1252(d)(1); Pjetri v. Gonzales

, 468 F.3d

478, 481 (7th Cir. 2006). Nevertheless, even if we were to consider Tonoyan’s argument,

it would fail. We have adopted the doctrine of mixed motives, under which an

applicant “may qualify for asylum if his or her persecutors have more than one motive

as long as one of the motives is” an enumerated ground. Mohideen v. Gonzales

, 416 F.3d

567, 570 (7th Cir. 2005). Here, the IJ properly stated the law when she said that Tonoyan

was required to show that the men who beat him were “motivated, at least in part, by

an actual or imputed” political opinion. In cases where we have reversed an IJ’s

decision for failure to apply the mixed

‐ motives analysis, the IJ ignored evidence

showing that the persecutors were motivated in part by one of the enumerated grounds.

See, e.g., Gjerazi

, 435 F.3d at 812

‐ 13; Mohideen

, 416 F.3d at 570

‐ 71. The IJ here, however,

recounted and considered all of Tonoyan’s testimony, credited that testimony, and thenNo. 07

‐ 3460 Page 6

concluded that the evidence did not show that the persecutors had any motive other

than preventing Tonoyan from testifying against Beglaryan.

Moreover, substantial evidence supports the IJ’s and BIA’s conclusion that

Tonoyan was not persecuted on account of an imputed political opinion. To

successfully base an asylum claim on an imputed political opinion, the applicant must

show that his persecutors attributed a political opinion to him, see Lwin v. INS

, 144 F.3d

505, 509 (7th Cir. 1998), and that this opinion motivated the persecution, see Elias

‐

Zacarias

, 502 U.S. at 482

‐ 83. Mema v. Gonzales

, 474 F.3d 412, 417 (7th Cir. 2007). The IJ

and BIA correctly concluded that Tonoyan did not show that the men who beat him

attributed a political opinion to him or that a political opinion motived them. Tonoyan

argues that they must have attributed a political opinion to him—that he was anti

‐ Peklaryan because he identified Peklaryan’s nephew for the police and was going to

testify against him, thereby hurting Peklaryan’s re

‐ election bid. This argument is based

entirely on the fact that political actors were involved in the crime he witnessed and

also were possibly involved in the beating he sustained. But “the mere existence of a

generalized ‘political’ motive

. . . is inadequate to establish” that persecution was on

account of a political opinion. Elias

‐ Zacarias

, 502 U.S. at 482. Moreover, none of

Tonoyan’s testimony even suggested that this so

‐ called imputed political opinion was

anything more than speculation. Tonoyan recounted that the men said that they were

attacking him for Beglaryan and threatened to kill him if he testified against Beglaryan;

they did not mention Peklaryan or the upcoming election, and Tonoyan did not offer

any other evidence to suggest that they had imputed a political opinion to him, much

less that they were motivated by it.

Though Tonoyan’s situation is sympathetic, it is not one that qualifies him for

asylum. He was the unfortunate witness to a crime that happened to involve

politicians. Although the attack on Grigoryan may have been politically motivated, that

does not mean that the attack on Tonoyan at the hands of those trying to keep him quiet

amounted to political persecution. See Djouma v. Gonzales

, 429 F.3d 685, 688 (7th Cir.

2005) (reasoning that “[b]eing a material witness, even to a political crime

. . . is no more

a status that the asylum law protects than being a criminal suspect is”); Carmenatte

‐ Lopez v. Mukasey

, 518 F.3d 540, 542 (8th Cir. 2008) (holding that petitioner’s “alleged

status as a witness or informant, even with respect to a political crime, would not

qualify him for asylum or withholding of removal on the basis of political opinion”).

Tonoyan tries to distinguish Djouma by arguing that the police were persecuting

Djouma for not cooperating as a material witness to a political crime, whereas Tonoyan

was being persecuted by non

‐ governmental actors. In his reply brief, he backs awayNo. 07

‐ 3460 Page 7

from this argument and contends that Djouma does not apply because Djouma was

seeking asylum as a material witness whereas Tonoyan applied for asylum based on

persecution for an imputed political opinion. Neither interpretation is persuasive. The

first—the difference between who was persecuting the applicants—makes no difference

on the issue of whether an imputed political opinion motivated his persecution, and the

second presupposes that Tonoyan was actually persecuted because of an imputed

political opinion, which, as discussed above, he did not demonstrate.

Tonoyan also argues that his situation is similar to that in Deloso v. Aschcroft

, 393

F.3d 858 (9th Cir. 2005), in which the son of an elected official from a democratic

political party who personally participated in pro

‐ democratic political events was

persecuted by a hit man for the Communist party. But that case is not similar to

Tonoyan’s, most notably because Tonoyan did not participate in politics or make his

political opinion known publicly.

For the foregoing reasons, we DENY Tonoyan’s petition for review.