Armenians’ Plea for Asylum Rejected

Over a strong dissent, a federal appeals court Wednesday rejected the bid of an Armenian couple, now living in Glendale, to be granted political asylum in the United States.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals ruled that Grachik Rostomian, 80, and Anik Rostomian, 77, had not demonstrated a “well-founded fear of persecution based on their [Christian] ethnicity.”

The case of the elderly couple illustrates two facts well known to practitioners, but often overlooked in public discussions of immigration issues: Requests for asylum in the United States are generally quite difficult to win, and those who lose before immigration judges have only limited ability to challenge the rulings in court.

The majority in the case--Judges William Schwarzer and Diarmuid O’Scannlain--stressed in their ruling that they were obliged to defer to the Board of Immigration Appeals, which had turned down the couple’s asylum request, unless the evidence offered by the Rostomians “was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.”

The Rostomians can seek a review of Wednesday’s decision by a larger panel of 9th Circuit judges in an effort to avoid deportation.

The Rostomians fled Armenia seven years ago after Grachik Rostomian was beaten and knifed in the back by Muslim Azeris near the disputed region of Nagarno-Karabakh, a separatist Armenian enclave surrounded by Azerbaijan, according to the court ruling.

The Rostomians said that after the attack, the Azeris returned repeatedly to their town just inside Armenia and they were forced to flee. After stopping briefly in two other Armenian towns, the Rostomians came to the United States, where their only daughter lives.

The couple said they feared further persecution if they returned, noting that “old animosities between Azeris and Armenians still exist.”

But the court majority said the immigration board concluded that the Rostomians had not proved “the attack was anything more than an act of random violence during a period of significant strife. This is insufficient to establish persecution.”

In his dissent, Judge Stephen Reinhardt said the conduct of Immigration Judge Jay Segal, whose findings were reviewed by the immigration board, had been deplorable because Segal had prevented the Rostomians from fully presenting their case, interrupting Grachik Rostomian and barring Anik Rostomian from speaking at all.

Reinhardt also emphasized that the immigration board did not question the Rostomians’ credibility and, to the contrary, noted that the couple presented “a sympathetic fact situation.”

The liberal jurist said it was understandable that Grachik Rostomian was not able to provide detailed documentary evidence about the attack, quoting another judge who stated in an earlier decision: “Persecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution.” Reinhardt said he favored granting asylum to the Rostomians on the grounds that the relevant statute prohibits denying asylum to individuals unable to present relevant evidence because an immigration judge prohibits them from doing so.

Reinhardt asserted that it would be inhumane for the government to deport an elderly couple that had suffered “a terrible act of violence.” He issued a plea to Atty. Gen. Janet Reno, noting that she “still retains discretion as to when and indeed whether deportation will take place. Perhaps it is not too much to hope that she will exercise that discretion wisely.”

Hiroshi Motomura, a University of Colorado law professor who is an expert on immigration law, said the opinions in this case reflect the “fundamental tension in asylum law between the broad view and the narrow view.”

In many instances, he said, judges are unsympathetic to asylum applicants who are viewed as merely having been “caught in the cross-fire of civil war.”

“It is difficult to prove these claims because they involve events that occurred thousands of miles away and much [of the process] is at the whim of an immigration judge,” Motomura said.

Joseph J. Rose, the Rostomians’ attorney, said he is considering seeking a rehearing before a larger panel of 9th Circuit judges. “I think the dissent was correct in how the [immigration judge’s] hearing was conducted. These people did not have an adequate opportunity to fully present the case.”

Russ Bergeron, a spokesman for the Immigration and Naturalization Service, said: “We’re pleased that the government’s position prevailed before the circuit.”