FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTUR KARAPETYAN, 

Petitioner,

No. 05-75865

v.  Agency No.

MICHAEL B. MUKASEY, Attorney A95-179-012

General,

Respondent. 

ARTUR KARAPETYAN, 

Petitioner, No. 05-77141

v. Agency No. 

M A95-179-012 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 8, 2008—Pasadena, California

Filed September 16, 2008

Before: Harry Pregerson and Kim McLane Wardlaw,

Circuit Judges, and Glenn L. Archer, Jr.,*

Senior Circuit Judge.

*The Honorable Glenn L. Archer, Jr., Senior United States Circuit

Judge for the Federal Circuit, sitting by designation. 

12873
Opinion by Judge Pregerson

12874 KARAPETYAN v. MUKASEY
COUNSEL

Howard R. Davis, Davis, Miller & Neumeister, Van Nuys,

California, for the petitioner. 

KARAPETYAN v. MUKASEY 12877
Peter D. Keisler, Assistant Attorney General, Civil Division;

Richard M. Evans, Assistant Director; Nancy E. Friedman,

Office of Immigration Litigation, Civil Division, Washington,

D.C., for the respondent. 

OPINION

PREGERSON, Circuit Judge: 

Artur Karapetyan (“Karapetyan”), a native of the Soviet

Union and a citizen of Armenia, petitions for review of a final

order by the Board of Immigration Appeals (“BIA”) that summarily affirmed the Immigration Judge’s (“IJ”) denial of

Karepetyan’s application for asylum, withholding of removal,

and protection under the Convention Against Torture

(“CAT”) (No. 05-75865). Karapetyan also petitions for

review of the BIA’s denial of his motion to reconsider its

decision (No. 05-77141). We have jurisdiction under 8 U.S.C.

§ 1252. We grant relief and remand for further proceedings

consistent with this opinion. 

STANDARD OF REVIEW

Because the BIA adopted and affirmed the decision of the

IJ, this court also reviews the IJ’s decision. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). We review questions of law de novo, Baballah v. Ashcroft, 367 F.3d 1067,

1073 (9th Cir. 2004), and factual findings for substantial evidence, Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997).

We review the IJ’s decision to deny a request for continuance

for abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874,

883 n.6 (9th Cir. 2004); see also Baires v. INS, 856 F.2d 89,

91 (9th Cir. 1988). We also review a denial of a motion to

reconsider for abuse of discretion. INS v. Doherty, 502 U.S.

314, 324 (1992). We will reverse the denial of a motion to

reconsider if it is “arbitrary, irrational, or contrary to law.”

12878 KARAPETYAN v. MUKASEY
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (internal

quotation marks omitted).

PROCEDURAL AND FACTUAL BACKGROUND

I. KARAPETYAN’S BACKGROUND 

Karapetyan is a native of the Soviet Union and a citizen of

Armenia. He was admitted as a visitor to the United States on

December 25, 2000 and obtained permission to remain until

June 24, 2001. He remained in the United States beyond June

24, 2001 without authorization. On February 6, 2002, the

Department of Homeland Security (“DHS”) (formerly INS)

issued a Notice to Appear, which charged Karapetyan with

being present in the United States in violation of 8 U.S.C.

§ 1227(a)(1)(B). 

At a master calendar hearing on March 19, 2002, Karapetyan conceded the charge of removability. The IJ designated

Armenia as the country of removal. Karapetyan sought immigration relief in the form of asylum, withholding of removal,

CAT relief, and, alternatively, voluntary departure. 

On June 10, 2004, the IJ held a merits hearing. There,

Karapetyan testified and submitted documentary evidence in

support of his applications for relief. 

II. KARAPETYAN’S TESTIMONY 

The IJ determined that Karapetyan testified credibly during

the merits hearing, stating “the [IJ] notes that the [petitioner]

has testified in a credible manner.” Where the IJ finds the

applicant’s testimony to be credible and the BIA makes no

contrary finding, we accept as undisputed the applicant’s testimony. Baballah, 367 F.3d at 1073. Thus, we accept the testimony recounted below as true. 

Karapetyan was born to a family of mixed ethnicity, with

a Russian mother and an Armenian father. When he was a

KARAPETYAN v. MUKASEY 12879
teenager, Karapetyan and his family moved to Yerevan,

Armenia to escape the war in Chechnya. In Armenia, Karapetyan’s family suffered humiliation and discrimination on

account of its mixed ethnicity. Karapetyan was called a “Russian pig,” a “Chechnyan bastard,” and a “Chechnyan pig” by

people in his community and by members of the military. 

While completing mandatory military service, Karapetyan

was routinely assigned to dirty, demeaning tasks by supervisors who knew of his mixed ethnicity. He was also beaten by

military members. When the military officers learned that

Karapetyan submitted written complaints about his treatment,

Karapetyan was beaten and locked in a cell. 

In April 2000, Karapetyan joined the 21st Century Party, a

political association led by Arkady Vardanyan (“Vardanyan”)

that sought governmental change and championed human

rights. In October 2000, Karapetyan participated, as a member

of the 21st Century Party, in a large protest involving at least

10,000 attendees. Several protesters were arrested, including

the 21st Century Party leader, Vardanyan, and his attorney.1

The day following the protest, military officers searched

Karapetyan’s home and arrested him. He was detained in isolation for three days.2

 While in prison, Karapetyan was interrogated regarding his involvement with the 21st Century

Party. The military officers called Karapetyan a “Russian

pig.” They used batons to beat the soles of Karapetyan’s feet

1Although credible testimony need not be corroborated, Ladha v. INS,

215 F.3d 889, 901 (9th Cir. 2000), this testimony was corroborated by a

newspaper article from Armenian New Armenia, vol. X, issue 7, Jan. 11,

2001, that describes the detention of Vardanyan. Additionally, the State

Department Report confirms that roughly 10,000 people attended Vardanyan’s rally to seek governmental change. 

2This testimony was corroborated by a letter from the Ministry of

National Security of Republic of Armenia, which confirms that Karapetyan was arrested and detained in isolation for three days for his association with the 21st Century Party. 

12880 KARAPETYAN v. MUKASEY
until he eventually agreed to sign false papers stating that the

21st Century Party was an illegal organization and its leader,

Vardanyan, was a Russian spy. 

After his release from prison, Karapetyan spoke out against

his treatment on a radio station on November 10, 2000. He

criticized the Armenian government and called upon others to

demonstrate against the government. 

Two days later, on November 12, 2000, four law enforcement officers came to Karapetyan’s home and beat him “like

a dog,” leaving bruises on his face and other parts of his body.

Karapetyan was hospitalized for injuries caused by those beatings.3

 The law enforcement officers told Karapetyan to leave

the country. They told him that, if he refused to leave, he

would be put in prison or “something else [would] happen” to

him. Karapetyan believed he was in grave danger if he

remained in Armenia, and so he obtained a B-1/B-2 visa from

the United States Embassy on December 6, 2000. He arrived

in the United States on December 25, 2000. 

Thereafter, Karapetyan applied for asylum, withholding of

removal, and CAT relief. He applied for voluntary departure

in the alternative. 

III. IJ AND BIA DECISIONS 

The IJ denied Karapetyan’s request for asylum, withholding of removal, and CAT relief, but granted the limited relief

of voluntary departure. As a basis for the decision, the IJ

found that Karapetyan was not statutorily eligible for asylum

because he had failed to show that he was a refugee. Alternatively, the IJ found that Karapetyan was ineligible for asylum

because he had failed to submit his fingerprints for a security

3This testimony was corroborated by an Armenia Republican Hospital

report stating that Karapetyan had been beaten in his residence, “suffered

numerous bruises and injuries,” and was hospitalized for one day. 

KARAPETYAN v. MUKASEY 12881
check. Karapetyan moved for a continuance so that he could

submit the fingerprints, but the IJ denied his request. 

Karapetyan appealed to the BIA, which affirmed the results

without opinion. The BIA subsequently denied Karapetyan’s

motion to reconsider. Karapetyan timely appealed both decisions.

DISCUSSION

I. THE IJ ERRONEOUSLY REQUIRED CORROBORATING EVIDENCE DESPITE FINDING THAT

KARAPETYAN HAD TESTIFIED CREDIBLY 

We begin by recognizing that the IJ erred when she

required corroborating evidence despite finding that Karapetyan had testified credibly. At the conclusion of Karapetyan’s

merits hearing, the IJ made an express finding that Karapetyan had testified credibly. The IJ concluded, “the [petitioner]

has testified in a credible manner.”

4

Yet, the IJ failed to credit Karapetyan’s testimony, in part

because he did not provide corroborating documentary evidence of his persecution. Pointing to the lack of corroborating

documentary evidence, the IJ concluded that Karapetyan had

failed to show that he was statutorily eligible for relief. The

IJ’s oral decision is laden with references to the lack of certain documents. See Administrative Record (noting petitioner’s “fail[ure] to present any documents establishing that

[petitioner] was a member of the 21st Century Party”) (noting

petitioner “brought no documents establishing that he was

4The IJ’s remark that she did “not know what to believe about [Karapetyan’s] claim” does not constitute a specific adverse credibility finding.

See Kalubi v. Ashcroft, 364 F.3d 1134, 1137-38 (9th Cir. 2004) (“[I]t is

clearly our rule that when the IJ makes implicit credibility findings in

passing, . . . this does not constitute a credibility finding.”) (internal quotation and citation omitted). 

12882 KARAPETYAN v. MUKASEY
[ ]ever a member of the 21st Century Party.”) (noting petitioner “has presented no documents establishing that there

ever was . . . a rally”)5 (noting petitioner “did not present his

passport”) (noting petitioner “has supplied no documents,

whatsoever, to establish that he ever served in the military”)

(noting petitioner “did not present anything from his friends

at the radio station that he ever gave any kind of speech or

talk on the radio”). The IJ denied Karapetyan relief, in part

because he did not produce these corroborating documents.6

[1] Because the IJ made a finding that Karapetyan testified

credibly, the IJ’s failure to credit Karapetyan’s testimony was

improper. We have repeatedly held that, when an applicant

has been found to testify credibly, the facts are deemed to be

true, and no further corroboration is required.7See, e.g.,

5Contrary to the IJ’s assertion, Karapetyan had submitted a State

Department Report, which states, “[i]n October 2000, Arkady Vardanyan

[the leader of the 21st Century Party], a Moscow-based Armenian businessman who is a Russian citizen, led a demonstration in Yerevan of

approximately 10,000 persons calling for the removal of the Government.”

6

It is worth noting that the IJ erred in her evaluation of the corroborating

documents that were submitted. In her oral decision, the IJ remarked,

“[t]he [petitioner] did have some documents that would help establish his

claim, but he failed to have them authenticated.” Yet, the IJ never ruled

on the admissibility of several documents — including his birth certificate,

the hospital report, and the letter from the Ministry of National Security

— and instead gave Karapetyan an opportunity to authenticate them

through his testimony. Moreover, failure to obtain consular certification of

foreign official records under 8 C.F.R. § 287.6 is not a basis to exclude

corroborating documents. Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.

2001). Finally, some documents sought by the IJ were not easily available.

See Sidhu, 220 F.3d at 1091-92 (“[C]orroborating affidavits from relatives

or acquaintances living outside of the United States . . . [are] almost never

easily available.”). 

7

In limited circumstances, the failure to corroborate testimony with documentary evidence can justify an adverse credibility determination, see

Sidhu v. INS, 220 F.3d 1085, 1090 n.2 (9th Cir. 2000) (upholding an

adverse credibility determination where the “applicant inexplicitly fail[ed]

to present easily available, material, non-duplicative, corroborating evidence to support his asylum claim), but that is clearly not the case here.

In this case, the IJ specifically found Karapetyan to have testified credibly.

See Ladha v. INS, 215 F.3d 889, 900 n.11 (9th Cir. 2000). 

KARAPETYAN v. MUKASEY 12883
Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000) (“[W]e

must accept testimony as true in the absence of an explicit

adverse credibility finding.”); Ladha v. INS, 215 F.3d 889,

901 (9th Cir. 2000) (reaffirming that “corroboration of credible testimony is not necessary”); Lopez-Alvarado v. Ashcroft,

381 F.3d 847, 855 (9th Cir. 2004). In fact, the IJ acknowledged, “[t]he [petitioner’s] testimony alone can establish that

he is a refugee.” 

[2] Because corroborating evidence is not necessary in the

face of a credibility finding, we accept Karapetyan’s testimony as true. 

II. THE IJ’S CONCLUSION THAT KARAPETYAN WAS

INELIGIBLE FOR ASYLUM RELIEF IS NOT

SUPPORTED BY SUBSTANTIAL EVIDENCE 

Accepting Karapetyan’s testimony as true, we must next

address whether substantial evidence supported the IJ’s finding that Karapetyan’s testimony was insufficient to warrant

asylum relief.8 We find that the harm suffered by Karapetyan

compels a finding of past persecution and, accordingly, we

remand the case to the BIA to exercise its discretion in deciding whether to grant asylum. 

This court reviews for substantial evidence the IJ’s decision

that an applicant has failed to establish past persecution or a

well-founded fear of persecution. INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992). To obtain reversal under this standard,

the petitioner must demonstrate that the evidence presented

was such that a reasonable fact finder would be compelled to

conclude that the requisite past persecution, or well-founded

fear of future persecution, existed. Id.

[3] To be eligible for a grant of asylum, Karapetyan must

show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee

8The government’s brief avoids this issue entirely. 

12884 KARAPETYAN v. MUKASEY
is one who is “unable or unwilling to avail himself or herself

of the protection of [his or her native] 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)(A). 

“Either past persecution or a well-founded fear of future

persecution provides eligibility for a discretionary grant of

asylum.” Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998).

To show past persecution, Karapetyan must demonstrate that

(1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds;

and (3) the persecution was committed by either the government or by forces that the government was unable or unwilling to control. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.

2000). To show a well-founded fear of persecution, Karapetyan must demonstrate that (1) he has a fear of persecution in

his country; (2) there is a reasonable possibility of suffering

such persecution; and (3) he is unable or unwilling to return

to that country because of such fear. See 8 C.F.R.

§ 1208.13(b)(2). The demonstration of past persecution

creates a rebuttable presumption that the applicant has a wellfounded fear of persecution on the basis of the original claim.

See id. § 208.13(b)(1). 

[4] Here, Karapetyan provided uncontroverted evidence of

his past persecution — which included physical and verbal

abuse — on account of his mixed Armenian-Russian ethnicity

and membership in a disfavored political party. He testified

that he was detained by the military, beaten by officers, called

derogatory names, and assigned to demeaning tasks because

his mother was Russian. Karapetyan further testified that he

was detained in isolation, beaten, hospitalized for injuries, and

warned to leave the country because of his association with

the 21st Century Party, a political organization that sought

political change in Armenia and advocated for human rights.

The IJ’s conclusion that Karapetyan is not statutorily eligible for asylum is not supported by substantial evidence. As

KARAPETYAN v. MUKASEY 12885
we discuss further below, the IJ made a series of factual and

legal errors in reaching her conclusion that Karapetyan was

not statutorily eligible for asylum. 

A. Past Persecution

[5] The IJ’s conclusion that Karapetyan failed to show past

persecution is not supported by substantial evidence. The

record indicates that the IJ arrived at this conclusion only by

misunderstanding the record and misapplying the law. See

Smolniakova v. Gonzales, 422 F.3d 1037, 1045-46 (9th Cir.

2005) (granting relief and criticizing IJ for misconstruing the

record). 

[6] For example, with regard to Karapetyan’s three-day

detention, the IJ stated, “his testimony did not indicate that he

was beaten.”

9

 This pronouncement overlooks the facts in the

record. On direct examination, Karapetyan stated, “For three

days, they would not let me talk to anybody, no phone calls,

anything, nothing. They [sic] investigating person was [sic]

beating me in their cells.” 

The IJ also assumed that Karapetyan’s injuries, which

resulted from his three-day detention in early November

2000, were not significant because Karapetyan did not seek

medical attention.10 But Karapetyan never testified as to

whether he sought medical treatment on that occasion. The

IJ’s conclusion that Karapetyan did not seek treatment was

nothing more than conjecture and, thus, cannot support the

IJ’s decision. See, e.g., Lopez-Reyes v. INS, 79 F.3d 908, 912

(9th Cir. 1996) (explaining that “conjecture is not a substitute

for substantial evidence”). 

9Later in her decision, the IJ stated that Karapetyan’s testimony “did not

establish that he was at any time beaten.” And, again, she stated, “the

[petitioner] did not testify that he was beaten during detention . . . .” 

10The IJ accepted as true Karapetyan’s testimony that he was hospitalized after another series of beatings that took place in his home. 

12886 KARAPETYAN v. MUKASEY
Moreover, an applicant’s failure to “seek medical treatment

for the [injury] suffered is hardly the touchstone of whether

[the harm] amounted to persecution.” Lopez v. Ashcroft, 366

F.3d 799, 803 (9th Cir. 2004). We have repeatedly found that

threats and attacks constitute past persecution even where an

applicant has not been beaten or physically harmed. See, e.g.,

Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (concluding

that the petitioner had established persecution when the evidence showed that she had been robbed numerous times in the

course of seven to ten days but not physically harmed). 

Misconstruing the record again, the IJ stated that there were

“no documents” establishing that the October 2000 demonstration, involving the 21st Century Party leader, Vardanyan,

had occurred. The IJ specifically stated that Karapetyan had

produced no reports regarding the rally. However, contrary to

the IJ’s assertion, Karapetyan submitted the State Department

Report, which the IJ admitted into the record. The Report

states: 

In October 2000, Arkady Vardanyan [the leader of

the 21st Century Party], a Moscow-based Armenian

businessman who is a Russian citizen, led a demonstration in Yerevan of approximately 10,000 persons

calling for the removal of the Government. After the

demonstration, security forces searched Vardanyan’s

house and took him into custody; he was sentenced

to 11 days detention on the charge that he had a permit for a demonstration but not a march. In November 2000, Vardanyan was charged with attempting a

coup. . . . In February Vardanyan was released,

cleared of charges and his case was closed. Soon

after his release, Vardanyan left the country. 

[7] The IJ also erred by failing to consider the cumulative

impact of the various incidents. Although the IJ described the

beatings, threats, and verbal abuse inflicted upon Karapetyan,

she erroneously dismissed each incident alone as insufficient

KARAPETYAN v. MUKASEY 12887
to establish persecution. Addressing each incident separately,

the IJ stated, “a short detention with no injuries does not

establish that the [petitioner] was persecuted on account of his

political opinion.” Later in the decision, the IJ stated, “offensive names . . . do[ ] not rise to the level of persecution.” And,

again later in the decision, the IJ remarked, “[petitioner’s]

claim that he served in the military and was given poor treatment does not rise to the level of persecution.” 

[8] An applicant may suffer persecution because of the

cumulative impact of several incidents even where no single

incident would constitute persecution on its own. ShiraziParsa v. INS, 14 F.3d 1424, 1428 (9th Cir. 1994), overruled

on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.

1996). The court “look[s] at the totality of the circumstances

in deciding whether a finding of persecution is compelled.”

Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (finding

persecution where Chinese Christian was arrested, detained

twice, physically abused, and forced to renounce religion).

This court has found that the severity of harm is compounded

when incidents of persecution have occurred on more than

one occasion, particularly when “an applicant . . . is victimized at different times over a period of years.” Chand, 222

F.3d at 1073-74. Taken cumulatively, the brutal beatings, the

hospitalization, the threats of harm, the isolated detention, and

the verbal insults compel a finding of persecution in this case.

B. On Account of Mixed Ethnicity and Political Opinion

[9] Likewise, the facts in the record compel the finding that

Karapetyan was persecuted on account of his mixed ethnicity

and political opinion.11

11The persecution of children due to their mixed parentage is on account

of a protected ground. Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000);

see also Shoafera v. INS, 228 F.3d 1070, 1074 n.2 (9th Cir. 2000) (“[T]he

term ethnicity describes a category which falls somewhere between and

within the protected grounds of race and nationality.”) (internal quotation

marks omitted). 

12888 KARAPETYAN v. MUKASEY
The IJ acknowledged that Karapetyan “was always being

ignored and being ordered to carry out the most dirtiest jobs,

such as cleaning restrooms and polishing military boots of the

officers.” Nonetheless, the IJ determined that “it is not clear”

that Karapetyan was assigned insulting tasks during his military service on account of his mixed ethnicity. 

[10] The IJ erred when she required Karapetyan to clearly

establish the motives of his persecutors. Because it is difficult

to conclusively prove motive, Karapetyan need only “provide

some evidence of [motive], direct or circumstantial,” EliasZacarias, 502 U.S. at 483, and demonstrate the connection

between the government’s actions and his membership in a

protected group, Fisher, 79 F.3d at 962. “[U]ncontroverted

and credible testimony is sufficient to establish that [an asylum applicant] was persecuted on account of ethnicity.”

Shoafera v. INS, 228 F.3d 1070, 1075 (9th Cir. 2000). Under

this standard, Karapetyan need only provide some evidence

that his persecutors were motivated by his mixed ethnicity or,

alternatively, his political opinion. 

[11] Karapetyan was called a “Russian pig,” a “Chechnyan

bastard,” and a “Chechnyan pig” while being persecuted. The

use of these slurs amply establishes the connection between

the acts of persecution and Karapetyan’s ethnicity. See, e.g.,

Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir. 1999)

(noting that motivation was on account of ethnicity where

persecution was “coupled with explicit expressions of ethnic

hatred”). 

[12] Additionally, there is an undeniable connection

between Karapetyan’s political activities and his persecution.

His arrest occurred just one day after he attended the 21st

Century Party protest. Karapetyan’s captors physically abused

Karapetyan to coerce him to confess that the 21st Century

Party was an illegal organization. The nexus between Karapetyan’s political activism and the persecution is also estabKARAPETYAN v. MUKASEY 12889
lished by the beatings he endured in his home just a few days

after he criticized the government over the radio. 

[13] We find that Karapetyan has shown credible, nonspeculative insight into the motivation of his persecutors. See

Shoafera, 228 F.3d at 1075. The use of derogatory slurs and

the close connection between political events and persecution

demonstrate that Karapetyan’s abusers were motivated to persecute him based on his mixed ethnicity and political opinion.

C. Perpetuated by the Armenian Government

We further conclude that the IJ’s conclusion that the persecution was not perpetuated by the Armenian government is

not supported by substantial evidence. 

[14] The applicant must demonstrate that the persecutor

was the government, a quasi-official group, or persons or

groups that the government is unwilling or unable to control

to qualify for asylum. See Avetova-Elisseva v. INS, 213 F.3d

1192, 1196 (9th Cir. 2000). Affirmative state action is not

necessary to establish a well-founded fear of persecution if

the government is unable or unwilling to control the agents of

persecution. Siong v. INS, 376 F.3d 1030, 1039 (9th Cir.

2004). We will presume that the persecution was perpetrated

by government agents where there is no evidence to the contrary and where there is no evidence of hostility between the

applicant and non-governmental actors. See Njuguna v. Ashcroft, 374 F.3d 765, 772 (9th Cir. 2004). 

The IJ expressed disbelief that the Armenian government

would persecute Karapetyan and other members of the 21st

Century Party — stating, as the basis for her decision, “[i]t

simply makes no sense that . . . authorities in Armenia would

then come after [Karapetyan] after he is a member of an illegal organization.”

12

12The IJ also denied CAT relief on this ground, citing Karapetyan’s failure to establish that the perpetrators were public officials. 

12890 KARAPETYAN v. MUKASEY
[15] But the State Department Report corroborates the

human rights violations in Armenia during the relevant time.

The Report specifically discusses the Armenian government’s

targeting of Vardanyan, the 21st Century Party’s leader, who

was detained, accused of starting a coup, and coerced to leave

Armenia.13

[16] The IJ also expressed doubt that the men who invaded

Karapetyan’s home and beat him on November 10, 2000 were

government actors. Yet, Karapetyan testified that he knew

that the men were police officers. Karapetyan also testified,

and the IJ accepted as true, that he had endured beatings at the

hands of the Armenian military earlier that month. And the

State Department Report confirms that the Armenian government did not always respect the constitutional prohibition of

unauthorized searches. The IJ provided no reason for rejecting

these facts, and it is pure speculation to assume that the later

beating of Karapetyan was perpetrated by non-governmental

agents, unlike the earlier beating, where no testimony or evidence supports that finding. 

[17] An IJ’s unsupported speculations regarding the likely

actions of a foreign government are not substantial evidence.

Such conjecture is an invalid basis for the decision. See Bandari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000). Thus, we

conclude that the evidence in the record compels the conclusion that Karapetyan’s mistreatment was at the hands of the

government. 

D. Well-Founded Fear of Future Persecution

[18] Because Karapetyan has established past persecution

on account of his mixed ethnicity and political opinion, there

is a rebuttable presumption that he has a well-founded fear of

13The Report states, “After [the October 2000] demonstration, security

forces searched Vardanyan’s house and took him into custody . . . . In

November 2000, Vardanyan was charged with attempting a coup.” 

KARAPETYAN v. MUKASEY 12891
future persecution. The government bears the burden of demonstrating by a preponderance of the evidence that changed

country conditions rebut the presumption of a well-founded

fear of future persecution. 8 C.F.R. § 208.13(b)(1)(i). The

government has never claimed that country conditions have

changed, and nothing in the record suggests that they have.

Accordingly, the government has failed to meet its burden.

See, e.g., Chand, 222 F.3d at 1078 (“[R]emand is not appropriate where the record clearly shows that the country conditions material in the record will not serve to rebut the

presumption.”); Navas v. INS, 217 F.3d 646, 662 (9th Cir.

2000) (holding that a remand is unnecessary where past persecution has been established “but the INS has failed to introduce the requisite country conditions information and thus has

failed to meet its evidentiary burden on that issue . . . .”). 

[19] We therefore conclude that Karapetyan is statutorily

eligible for asylum and remand solely for the Attorney General to exercise his discretion to grant asylum.

III. THE IJ’S CONCLUSION THAT KARAPETYAN IS

INELIGIBLE FOR OTHER FORMS OF RELIEF IS

NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 

[20] The IJ based her finding that Karapetyan was ineligible for withholding of removal and CAT relief upon her faulty

conclusion that Karapetyan had failed to meet the more

lenient standard for asylum relief. For the reasons discussed

in Section II, the IJ erred as to the substance of the asylum

claim. Thus, we remand for a determination of whether

Karapetyan is eligible for withholding of removal and CAT

relief. 

IV. THE IJ IMPROPERLY DENIED KARAPETYAN’S

MOTION FOR A CONTINUANCE TO COMPLY

WITH THE FINGERPRINTING REQUIREMENTS 

As an alternate basis for the denial of relief, the IJ found

that Karapetyan was ineligible for relief because he had not

12892 KARAPETYAN v. MUKASEY
submitted fingerprints. Karapetyan moved for a continuance

so that he could submit his fingerprints. The IJ denied the

motion for a continuance. 

A. The IJ Abused Her Discretion in Denying the

Continuance

The IJ abused her discretion in denying Karapetyan’s

request for a continuance so that he could submit fingerprints.

[21] Under 8 C.F.R. § 1003.29, an IJ “may grant a motion

for continuance for good cause shown.” In the context of

immigration proceedings, the decision to grant or deny continuances is in the sound discretion of the trial judge. See

Nakamoto, 363 F.3d at 883 n.6 (9th Cir. 2004); see also

Baires, 856 F.2d at 91. But the IJ’s discretion is limited.

Baires, 856 F.2d at 91 (quoting Ungar v. Sarafite, 376 U.S.

575, 589 (1964)). We will reverse an IJ’s decision should we

conclude that her ruling results from “an abuse of discretion.”

Id.

When evaluating an IJ’s denial of a motion for continuance

we consider a number of factors — including, for example,

(1) the importance of the evidence; (2) the reasonableness of

the immigrant’s conduct; (3) the inconvenience to the court;

and (4) the number of continuances previously granted in the

case. See Baires, 856 F.2d at 92-93; cf. United States v. Flynt,

756 F.2d 1352, 1358-59 (9th Cir. 1985) (listing factors appellate court considers when reviewing district court’s denial of

request for continuance), amended, 764 F.2d 675 (9th Cir.

1985). 

[22] We recently evaluated these factors in a similar case,

Cui v. Mukasey, No. 05-72185, slip op. 11043 (9th Cir. Aug.

19, 2008), in which we held that the IJ abused his discretion

in denying the immigrant’s request for a short continuance to

submit fingerprints. Although a decision whether a denial of

a continuance constitutes an abuse of discretion must be

KARAPETYAN v. MUKASEY 12893
resolved on a case by case basis, Baires, 856 F.2d at 91, Cui

established that “it is clearly an abuse of discretion for an IJ

to deny a request from an otherwise diligent applicant for a

short continuance to submit fingerprints, particularly where

the applicant was faced with an unclear fingerprint requirement and where the applicant was disserved by an IJ’s inadequate guidance on the requirement.” Cui, slip op. at 11056. 

1. Nature of the Excluded Evidence

[23] We first consider the evidence that was excluded as a

result of the IJ’s denial of Karapetyan’s motion for a continuance. The denial of the continuance meant that Karapetyan

was unable to submit fingerprints for the required security

check. Without a security check, Karapetyan could not be

granted relief under the law. Thus, when the IJ denied his

request for a continuance to submit fingerprints, the IJ effectively pretermitted any hope Karapetyan had of obtaining

relief. The vital importance of the excluded fingerprint evidence counsels in favor of granting a continuance. See Cui,

slip op. at 11051. 

2. Petitioner’s Conduct

Another factor we consider is whether the need for a continuance arose because the petitioner behaved unreasonably.

We find that Karapetyan’s conduct was not unreasonable,

given the circumstances. 

First, Karapetyan showed that exceptional circumstances

prevented him from complying with the fingerprint requirement. See Baires, 856 F.2d at 92-93; see also 8 C.F.R.

§ 1208.10 (requiring the applicant to show “good cause” for

a continuance). When Karapetyan was asked by the IJ why he

did not submit fingerprints, he explained that he suffered a

debilitating injury from a car accident on April 4, 2004 —

about two months prior to the merits hearing, which was held

on June 10, 2004. Karapetyan explained that he had injured

12894 KARAPETYAN v. MUKASEY
his back and neck as a result of the car accident. He had regular doctor appointments twice per week and experienced difficulty sitting upright for the first two months. As of June 10,

2004, the date of the merits hearing, Karapetyan was still taking antibiotics and painkillers for his injuries. 

Second, as we have previously recognized, the ability of

otherwise diligent applicants, like Karapetyan, to comply with

the fingerprint requirement was frustrated by the legal

uncertainties surrounding the fingerprint laws. See Cui, slip

op. at 11051. The IJ denied Karapetyan’s motion for a continuance in June 2004, when the laws addressing fingerprinting

were still unclear.14

Third, Karapetyan did not receive adequate notice regarding the fingerprint requirement. On May 8, 2003, the government informed the IJ that Karapetyan had not been

fingerprinted. The IJ told Karapetyan’s attorney, Rita Mahdessian, “before we conclude this case, you need to have your

client fingerprinted.” (emphasis added). Attorney Mahdessian

replied, “I will.” The IJ never said that the fingerprints had to

be submitted before the beginning of the merits hearing. 

The vague statement made by the IJ certainly would not

meet the notice standards under existing law. As a result of

the confusion over the fingerprint requirement, the EOIR pro14In January 2005, the Executive Office for Immigration Review

(“EOIR”) acknowledged that the consequences of failing to complete fingerprint security checks in advance of the merits hearing were unclear

under existing regulations. See 70 Fed. Reg. 4743, 4744 (Jan. 31, 2005).

The EOIR proposed changes to the existing regulations while acknowledging that 8 C.F.R. § 1003.29 “leaves numerous questions unanswered in

the complicated area of criminal history checks and national security

investigations.” Id. The EOIR admitted, “[t]he current regulations are also

unclear as to the scope of an immigration judge’s authority to act to grant

relief in situations where a background investigation is ongoing.” Id. In

practice, IJs did not always require fingerprint checks be completed in

advance of the merits hearing. The state of the law is described in greater

detail in our recent decision, Cui, slip op. at 11051-52. 

KARAPETYAN v. MUKASEY 12895
posed a new rule, effective April 1, 2005, that required IJs to

ensure that applicants understand the fingerprint requirements

and the consequences of noncompliance by specifying for the

record (1) when the applicant received the fingerprint notice

and instructions from DHS, and (2) the consequences for failing to submit the required fingerprints. See 8 C.F.R.

§ 1003.47(d). Neither was done in this case.15

[24] Under the totality of the circumstances, we conclude

that Karapetyan’s failure to submit fingerprints prior to his

merits hearing was reasonable. 

3. Inconvenience to the Court

We also consider whether the requested continuance would

inconvenience the immigration court. Here, it is quite clear

that neither the IJ nor the government would have been inconvenienced by a short continuance. The IJ had already heard

the merits of Karapetyan’s claims. If she had found Karapetyan worthy of relief, she could have simply held the decision

in abeyance pending submission of Karapetyan’s fingerprints

15Moreover, it is questionable whether Karapetyan received adequate

guidance from his trial counsel on this issue of unsettled law. During the

proceedings before the IJ, Karapetyan was represented by Rita Mahdessian. Mahdessian has been disciplined by the State Bar of California and

was issued an actual suspension in September 1996 and, again, in November 2005. See State Bar of California, Attorney Search, Rita Mahdessian,

http://members.calbar.ca.gov/search/member_detail.aspx?x=141901. In

September 1996, Mahdessian was found culpable of an act of moral turpitude, filing fraudulent amnesty applications, and possession of a counterfeit employment authorization card. Id. In November 2005, Mahdessian

stipulated to six counts of misconduct in two cases. She admitted that she

aided in the unauthorized practice of law by abdicating control of her

office to her staff, failed to perform legal services competently, failed to

keep her client informed of developments in his case, and “employed . . .

means inconsistent with the truth” by telling the court she had just been

hired. Stipulation Regarding Facts, Conclusions of Law and Disposition

and Order Approving, No. 02-O-14394, at 10 (effective Nov. 12, 2005),

available at http://members.calbar.ca.gov/courtDocs/02-O-14394.pdf. 

12896 KARAPETYAN v. MUKASEY
and then scheduled a brief hearing to hear the results of the

security check. Thus, this factor also supports granting

Karapetyan’s request for a continuance. 

4. Previous Continuances

When evaluating the denial of a continuance, we also consider the length and number of continuances that have previously been granted in the case. Here, the proceedings had

been ongoing for about two years. On March 19, 2002,

Karapetyan requested a ninety-day continuance to supplement

his asylum application. On June 13, 2002, Karapetyan

requested another continuance to submit additional documents. On February 13, 2003, Karapetyan requested a continuance to submit additional documentation explaining that

country conditions had recently changed. On May 8, 2003, the

merits hearing was continued, by mutual agreement, to September 2, 2003. The record does not indicate why the merits

hearing did not take place on September 2, 2003 as scheduled.

On March 24, 2004, Karapetyan’s counsel withdrew. On

April 16, 2004, Karapetyan did not appear for the merits hearing because he had suffered debilitating injuries from a car

accident two weeks earlier, and the matter was reset for June

10, 2004. The merits hearing was eventually held on June 10,

2004, and the IJ denied Karapetyan’s motion for a short continuance to submit fingerprints after the hearing concluded. 

Although Karapetyan’s case had been continued previously, the interest in administrative efficiency cannot justify

the pretermission of Karapetyan’s claims where the other factors we have addressed — the importance of the evidence

excluded, the reasonableness of the petitioner’s conduct, and

the inconvenience to the immigration court — all militate

strongly in Karapetyan’s favor. 

Accordingly, we conclude that the IJ abused her discretion

when she denied Karapetyan’s motion for a continuance. 

KARAPETYAN v. MUKASEY 12897
B. The IJ’s Denial of the Continuance was Improper to the

Extent the Decision was Based on an Erroneous

Assessment of the Underlying Claim

The IJ indicated that the denial of the continuance was

based on her assessment of Karapetyan’s eligibility for relief.

The IJ suggested that she might reconsider the denial of the

continuance based on her assessment of the underlying claim.

She stated, “All right, we’ll [take] the testimony today and if

for any reason, it looks like a continuance might be required,

we’ll consider that at the end of the testimony.” In her oral

decision, following the merits hearing, the IJ revisited the

issue and denied the motion for a continuance because “after

hearing [Karapetyan’s] claim,” the IJ determined that he

“does not appear eligible for asylum in any event.” 

[25] In light of the legal errors committed by the IJ during

her evaluation of Karapetyan’s claim for asylum, we find the

IJ’s denial of a continuance is improper to the extent that the

decision was based on the IJ’s flawed analysis of Karapetyan’s claims for relief.

V. THE BIA ABUSED ITS DISCRETION WHEN IT

DENIED KARAPETYAN’S MOTION TO

RECONSIDER 

We also conclude that the BIA abused its discretion when

it denied Karapetyan’s motion to reconsider. The BIA

asserted that it was denying the motion to reconsider because

the motion failed to present new legal arguments. It stated,

“[w]e find no new legal argument presented nor any particular

aspect of [the] case that was overlooked in our previous decision. Accordingly, the motion will be denied.” 

[26] There is no basis for the BIA’s finding that “no new

legal argument” was presented. A comparison of petitioner’s

appellate brief to the BIA and his subsequent motion for

reconsideration demonstrates that although the motion for

12898 KARAPETYAN v. MUKASEY
reconsideration reiterated many of the arguments that had previously been presented to the BIA, it also raised new claims.

For example, it argued, for the first time, that the IJ had

improperly denied Karapetyan’s motion for a continuance to

take fingerprints. It also argued, for the first time, that the IJ

violated Karapetyan’s right to procedural due process in denying the motion for a continuance. Moreover, the motion for

reconsideration drew the BIA’s attention to additional facts

from the record and supplemental case citations. 

[27] We therefore conclude that the BIA abused its discretion in denying the motion for reconsider on the grounds that

the motion failed to present new arguments or aspects of the

case. Nonetheless, because we are granting Karapetyan’s

other petition, we need not remand to the BIA on these

grounds.

CONCLUSION

For these reasons, we conclude that Karapetyan is statutorily eligible for asylum relief. We also find that the IJ

abused her discretion in denying Karapetyan’s motion for a

continuance so that he could submit fingerprints. We remand

for proceedings consistent with this opinion.

REVERSED and REMANDED.

KARAPETYAN v. MUKASEY 12899