Lkhagvasuren v. Lynch, Attorney General

United States Court of Appeals, Ninth Circuit.

Otgonbayar Lkhagvasuren, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.

No. 13-71778

Decided: July 13, 2016

Before: J. Clifford Wallace, Mary M. Schroeder, and Alex Kozinski, Circuit Judges.Jeremiah Johnson, Johnson & McDermed, LLP, San Francisco, California, for Petitioner. Stuart F. Delery, Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Jeffrey R. Meyer, Attorney; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

OPINION

Petitioner Otgonbayar Lkhagvasuren petitions for review of the Board of Immigration Appeals' (Board) decision to deny his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the Board's factual determinations for substantial evidence and deny the petition.

Lkhagvasuren is a native and citizen of Mongolia who entered the United States with a visitor's visa in 2010 and subsequently applied for asylum. In Mongolia he was employed by an alcoholic-beverage company that he believed was engaged in corrupt activities, was subsequently fired from his job, joined a non-governmental consumer activist group, and later publicly voiced objections to the company's business practices. Lkhagvasuren asserts that his whistleblowing activities constituted a political opinion for which he was persecuted with either the consent or acquiescence of government actors.

A petitioner seeking asylum must establish that "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for" persecution that the government is unable or unwilling to control. 8 U.S.C. § 1158 (b)(1)(B)(i). The petitioner has the burden to prove that a nexus exists between the persecution and a protected ground. Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015). Whistleblowing "may constitute political activity sufficient to form the basis of persecution" where petitioner's whistle blew against corrupt government officials, Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000), and he was targeted for persecution on account of that political opinion, whether actual or imputed. See Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005).

The Board follows its precedential decision in Matter of N-M-, which identified a three-factor standard to determine whether retaliation for whistleblowing amounts to persecution on account of a political opinion: (1) "whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs;" (2) "any direct or circumstantial evidence that the alleged persecutor was motivated by the alien's perceived or actual anticorruption beliefs;" and (3) "evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials." 25 I. & N. Dec. 526, 532-33 (BIA 2011). These factors assist the courts in analyzing the political nature, if any, of the whistleblowing activity and resulting persecution.

We adopt the analytical framework of Matter of N-M- for the purpose of identifying whether an applicant has established the required factual nexus between any purported political whistleblowing and actual persecution as those terms are defined in the REAL ID Act. Grava, 205 F.3d at 1181 (requiring the petitioner to show that "the alleged corruption [was] inextricably intertwined with governmental operation.")

Substantial evidence supports the Board's conclusion that Lkhagvasuren failed to present evidence that his purported persecutors were motivated by his anticorruption beliefs, or that the corruption was even connected to government actors. He spoke publicly as a member of a consumer-activist group opposed to the advertising and sale of unsafe alcohol by a private company. He alleges that he saw government officials meeting with the director of the company when they had no reason to do so, but does not allege or prove any actual government connection to his former employer's scandalous business practices of selling poisonous alcohol, which were later publicly opposed by the government. Nor has he shown that the alleged harm inflicted upon him or his family involved government officials or their acquiescence. Lkhagvasuren's theory that a cabal of private and government officials conspired to silence him is unsupported in the record. He thus failed to establish that his whistleblowing amounted to political opinion as a protected ground, or that he was persecuted by or at the acquiescence of government officials.

Where persecution did not occur on account of a protected ground, Lkhagvasuren's claims for asylum and withholding of removal necessarily fail. Further, the immigration judge's conclusion, as adopted by the Board, that it is unlikely that Lkhagvasuren would face torture at the hands of the government if returned to Mongolia is supported by substantial evidence that the government publicly opposed the private corruption Lkhagvasuren sought to expose, and thus his claim for relief under the Convention Against Torture also fails.

The petition for review is DENIED.

PER CURIAM: