2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-28-2008

Musaylyan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4273

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 06-4273

________________

ARMEN SAMSONOVICH MUSAYLYAN,

 Petitioner

vs.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals

Agency No. A98 415 541 on August 31, 2006

Immigration Judge: Henry Dogin

_____________________________________

Submitted Under Third Circuit LAR 34.1(a)

September 5, 2007

Before: FISHER, ALDISERT AND WEIS, Circuit Judges

Filed: August 28, 2008

_______________________

OPINION

_______________________

PER CURIAM.

Armen Samsonovich Musaylyan petitions for review of an order of the

Board of Immigration Appeals (BIA), dismissing his appeal from an order by an

Immigration Judge (IJ), which ordered his removal to Uzbekistan and denied his
 1

 As Musaylyan makes no argument in his brief regarding the decision to deny him

statutory withholding of removal and protection under the Convention Against Torture,

we do not address these issues. Konan v. Attorney General, 432 F.3d 497, 500 n.2 (3d

Cir. 2005).

 2

 He was born in the area which is now Azerbaijan. A.R. 125.

 3

 Musaylyan’s brief states that his asylum claim is based on persecution due to his

membership in a particular social group, i.e., ethnic Armenian males living in Uzbekistan. 

The Administrative Record does not reflect that Musaylyan argued before the IJ or the

BIA that he was a member of a particular social group. Rather, he based his claims on his

ethnicity and religion. In a case such as this, the concepts of ethnicity, religion and

particular social group may overlap. As his appellate brief in essence argues that he was

persecuted on the ground of his ethnicity and religion, we will continue to use that

terminology in discussing his claims.

2

application for asylum and related relief.1 We will deny the petition for review.

I.

Musaylyan is a native of the former Soviet Union2

 and a citizen of

Uzbekistan. He is ethnically Armenian and is a member of the Armenian Christian

religion. He entered the United States on a visitor’s visa in 2003 and made an affirmative

application for asylum before the visa expired. An IJ denied relief on May 20, 2005, and

the BIA affirmed the denial on August 31, 2006. Musaylyan filed a timely petition for

review.

Musaylyan based his asylum claim on his alleged persecution on account of

his ethnicity and religion.3

 Musaylyan testified that in 1991, while on tour in Moscow as

a member of the Uzbek State Philharmonic, he was required to play his instruments

behind a curtain because the orchestra officials felt it was inappropriate for an Armenian

to be a member of the orchestra. A.R. 135-36. He also testified that his daughter, who
3

got good grades, was not accepted to the Economic Institute because she was Armenian,

and that kids spit on his children when they were in school. A.R. 141.

Musaylyan also testified concerning two incidents involving the police. 

The first occurred in the summer of 1997 at the marketplace. Musaylyan was arguing

with a vegetable seller, believing that the seller raised the price simply because

Musaylyan was not an Uzbek. The sellers began pinching him and passersby joined in

and began beating him. The police came. Rather than helping Musaylyan, they took him

to the police station, emptied his pockets, and took his wallet. After about 40 minutes,

they let him go. A.R. 45-47. The second incident occurred in 2003, when police came

and rounded up people in the marketplace under the premise of fighting terrorism. 

Musaylyan was taken along with seven Koreans. The police took him to the precinct and

beat him for a long time, fracturing his fingers, his toes and his hip. A.R. 148-52. They

kept asking him for money and also were cursing, saying things like “stinking Armenian

swine.” A.R. 152. Musaylyan needed medical help, but was afraid to ask for help,

because the police threatened to kill his family if he complained. Id. He tried to heal

himself through Hatha yoga, and also saw an acupuncturist friend for help. A.R. 153.

Musaylyan also presented the testimony of an expert witness, Igor Abraham

Kotler, who the IJ accepted as an expert regarding the treatment of minorities in the

former Soviet Union. A.R. 79-80. Kotler testified that the number of Armenians living in
 4

 Kotler was testifying telephonically, and the hearing transcript shows the notation

“indiscernible” in several places. The transcript reflects that Kotler said something about

60,000 Armenians living in Uzbekistan at some point. A.R. 178. The IJ’s decision states

that Kotler testified that there were 36,000 Armenians in the area that is now Uzbekistan

in 1989. A.R. 80. In any event, it is clear that Kotler testified that there are now only

about 8,000 to 10,000 Armenians living in Uzbekistan. A.R. 80, 178.

4

Uzbekistan has drastically dropped since Uzbekistan became independent.4 He also

testified that Armenians are readily identifiable by appearance and that official documents

would also reflect Armenian ethnicity. A.R. 179-80. He testified that it would be

difficult for any Armenian to relocate because one must obtain permission to relocate. 

A.R. 182. Kotler testified that most Armenians would be discriminated against in

Uzbekistan, and that there were many cases of persecution. He acknowledged that he

could not say that all Armenians are persecuted, because each case must be considered

individually. A.R. 185.

II.

Where the BIA issues a decision on the merits, we review the BIA’s order,

and not the IJ’s. Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). Because this

Court reviews the decision of the BIA, unless the BIA adopts the IJ’s finding concerning

credibility or makes its own credibility finding, this Court must proceed as if the alien

were credible, and must review whether the BIA’s decision was supported by substantial

evidence, assuming that credibility. Kayembe v. Ashcroft, 334 F. 3d 231, 234-35 (3d Cir.

2003). 

Here, the BIA noted that the IJ had not expressly made a credibility finding,
 5

 The BIA also denied Musaylyan’s “Motion to Admit Evidence on Appeal,” which it

construed as a motion to remand, and denied withholding of removal and protection under

the Convention Against Torture. As Musaylyan does not contest these portions of the

decision, we do not discuss them. See supra, n.1.

5

and thus assumed that Musaylyan was credible. The BIA found that Musaylyan failed to

establish past persecution based on two reasons: first, it found that incidents Musaylyan

described constituted discrimination rather than persecution; second, it affirmed the IJ’s

conclusion that Musaylyan failed to establish a nexus between the harm he reported “and

an actual or imputed protected ground.” A.R. 3.5

 We will discuss each basis in turn.

In noting that not all unfair treatment constitutes persecution, the BIA cited

Musaylyan’s testimony regarding his treatment by the Uzbek Philharmonic and the fact

that his daughter was not admitted to the Uzbekistan Institute of Economics. We agree

that these incidents to not rise to the level of persecution. See Fatin v. INS, 12 F.3d 1233,

1240 n. 10 (3d Cir.1993) (holding that persecution denotes “extreme conduct”). 

Musaylyan accurately notes that the BIA did not directly address

Musaylyan’s incidents with the police when discussing whether he experienced

discrimination rather than persecution. However, we read the BIA’s decision as holding

that even if these incidents could constitute persecution, Musaylyan failed to establish

that there was a nexus between the harm he suffered and his ethnicity or religion.

We review the BIA’s finding of a lack of connection between Musaylyan’s

ethnicity and his mistreatment by the Uzbeki police for substantial evidence. Gjolaj v.
6

Bureau of Citizenship and Immigration Services, 468 F.3d 140, 143 (2d Cir. 2006). The

BIA properly noted that an alien need only show that his persecutors were motivated, at

least in part, by a protected ground. Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir. 2005). 

However, the BIA found that Musaylyan’s testimony supported a finding that his

mistreatment by police was motivated largely by money. The BIA quoted Musaylyan as

stating that in the second incident the police “as usual, . . . were looking to get money.”

A.R. 4, 35-39. The BIA found further support for this finding in the 2004 Country Report

on Human Rights Practices, which reported that “[p]olice routinely and arbitrarily

detained citizens to extort bribes.” A.R. 4, 278.

Musaylyan notes that the BIA quoted only a portion of his comment about

the second incident; in addition to saying that the police were looking for money, he

added “They also–they also were cursing, saying like stinking Armenian swine.” A.R. 

152. We find that this single reference to Musaylyan’s ethnicity does not establish that he

was beaten because of his ethnicity. Cf. Lie, 396 F.3d at 533-34 (robber’s statement,

“you Chinese pig, I want your money” insufficient to establish nexus between ethnicity

and persecution).

Musaylyan also argues that he established a well-founded fear of future

persecution. The BIA properly noted that the fact that members of Musaylyan’s family

remained in Uzbekistan without harm diminished his claim of possible future persecution. 

Lie, 396 F.3d at 537. Musaylyan also argued that he established a fear of future

persecution because he showed that there is a pattern or practice of persecuting
7

Armenians in Uzbekistan. Musaylyan failed to raise his pattern or practice claim before

the BIA and has thus failed to exhaust administrative remedies as to this claim. We are

therefore precluded from reviewing the claim. 8 U.S.C. § 1252(d)(1); Abdulrahman v.

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).

For the foregoing reasons, we will deny the petition for review.