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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  

--------------------------------------------------------------------------------
 
Case Name:
MARTIROSYAN V INS 
Case Number: Date Filed: 
98-70979 11/06/00 

--------------------------------------------------------------------------------
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MESROP MARTIROSYAN,                                   No. 98-70979
Petitioner,
                                                     INS No.
v.                                                    A73-986-818
IMMIGRATION AND NATURALIZATION                        ORDER AND
SERVICE,                                              AMENDED
Respondent.                                           DISSENT

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

Argued and Submitted
March 8, 2000--Pasadena, California

Filed October 23, 2000
Amended November 6, 2000

Before: J. Clifford Wallace, Harry Pregerson, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Pregerson;
Dissent by Judge Wallace

_________________________________________________________________


COUNSEL

Louis A. Gordon, Los Angeles, California, for the petitioner-
appellant.

Robbin K. Blaya, Office of Immigration Litigation, Civil
Division, Department of Justice, Washington, D.C., for the
respondent-appellee.

_________________________________________________________________

ORDER

The dissent to the opinion filed October 23, 2000 is
amended as follows. Slip Op. pg. 13361 from "furthermore,
this court recently emphasized that reports" at line 3 to "back-
ground material should command" at line 8, is deleted and
replaced with the following:

      Indeed, when Martirosyan himself was asked by the
      IJ whether he could point to anything in this back-
      ground material to support his claim that he would
      be forced to torture prisoners if sent to the camp, he
      replied, "No."

       This court recently emphasized that reports such
      as those relied upon by the majority "cannot estab-
      lish [a petitioner's] claim independently, " Zahedi v.
      INS, 2000 WL 1252095, at *4 (9th Cir. Sept. 6,
      2000), yet the only other evidence on which the
      majority rests its conclusion is the testimony of
      Martirosyan--testimony in which Martirosyan
      admitted that he had never been asked to torture and
      kill anyone and that his knowledge about general 
      conditions in prisoner of war camps were based
      solely on rumor. Martirosyan did not even claim to
      know as a matter of rumor that soldiers were being
      forced to torture prisoners; he simply "felt that[he]

                               14111


      might be ordered to mistreat [prisoners]." In order to
      reach its result, the majority has improperly given
      greater weight to background documents than such
      evidence should command.

The final paragraph, slip op. page 13363 at line 7,"One
final point" is deleted.

_________________________________________________________________

OPINION

PREGERSON, Circuit Judge:

Mesrop Martirosyan, a native and citizen of Armenia, peti-
tions for review of the Board of Immigration Appeals'
("BIA's") decision to adopt and affirm the Immigration
Judge's ("IJ's") denial of his request for asylum and with-
holding of deportation. The IJ found that Martirosyan failed
to establish a well-founded fear of persecution on account of
a protected ground. Martirosyan asserts that, under our hold-
ing in Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir. 1990),
he has a well-founded fear of persecution in Armenia on
account of his political opinion as a conscientious objector.
Martirosyan fled the country after refusing to serve in the
Armenian military at a prisoner-of-war ("POW") camp where
he would have been forced to perpetrate inhuman acts against
POWs. Despite finding Martirosyan credible, the IJ (and the
BIA) dismissed his claim as "speculative." On appeal, Mar-
tirosyan argues that the IJ and BIA erred in so ruling. We
agree.

Martirosyan also argues on appeal that the BIA violated his
due process rights by failing to examine adequately the docu-
mentary evidence that he presented in support of his request.
It is unclear from the record whether the BIA considered Mar-
tirosyan's documentary evidence in denying his application.
Nevertheless, because we hold that Martirosyan is eligible for

                               14112


asylum and withholding of deportation, remand to ensure the
fundamental fairness of the proceedings is unnecessary.

Accordingly, we grant the petition, vacate the BIA order,
and remand for further proceedings.

I.

Petitioner Mesrop Martirosyan trained to be a soldier in the
Soviet Army. In 1984 at the age of seventeen, he began his
military education at the Higher Political All Army School in
Minsk, Belorussia, one of Soviet Union's most well-respected
military academies. Because membership in the Communist
Party was required to enroll in this Academy, Martirosyan
became a communist and agreed to "propagandize for the
Communist Party." But he thought of himself as a dissident,
having listened to the Voice of America and read forbidden
Western literature when he was a child.

Martirosyan graduated from the Academy as a lieutenant in
June 1988, around the time of the Soviet withdrawal from
Afghanistan. He was immediately sent to Kazakhstan, as a
part of a special political unit in the Soviet Army. He spent
two years in Kazakhstan, serving in a position he described as
a "counselor" or "chaplain." His job was "to sell Commu-
nism" to Soviet soldiers returning from the "conflict" in
Afghanistan. Martirosyan had to "retrain" them in the ordered
ways of the Communist party and boost their morale in the
process. Each soldier had to be "retrained" for six months
before he could be sent home. As a result of his work, Mar-
tirosyan became deeply disillusioned with the Soviet Army
and its treatment of returning soldiers in particular. Mar-
tirosyan believed that the "retraining" amounted to little more
than isolation. He began to express his anti-communist views
openly. He also "had numerous arguments with other officers
against the rulings, laws and regulations" imposed by the
communists on the Army. As a result in 1989, his command-
ing officer gave him an unfavorable "political " report. The

                               14113


1989 report stated that Martirosyan "has looseness in his ideo-
logical structure."

After the 1989 report, Martirosyan's superiors considered
him "untrustable." As a result, he was transferred from his
"very good assignment" near the front counseling soldiers
returning from war to various assignments counseling non-
uniformed soldiers engaged in the "blue collar work" of disar-
mament. Martirosyan described these assignments as a kind
of "exile" because they had nothing to do with "military activ-
ity." During this time Martirosyan continued to express his
anti-communist beliefs. In June 1990, he was sent home for
a mandatory vacation of forty-five days. Upon his return, he
was "fired" from the Soviet Army because of his ideological
conflict with the Communist regime.

In July 1990, after being fired from the army, Martirosyan
returned to Armenia. From 1990 to 1992, he worked for a pri-
vate insurance company. He then began taking English
classes at the American University of Armenia. While there,
he and other young officers formed a group called "Officers
Against the War" ("OAW"). The members of this group
understood "[t]he meaning of officers [as ] men, defenders,
protectors, not as killing persons." The OAW were against the
ill treatment of any prisoner of war and, in particular, the tor-
ture of Azeri prisoners taking place in the POW camps in
Nagorno-Karabakh at the hands of the Armenian Army.
Nagorno-Karabakh is a predominantly Armenian region of
Azerbaijan. The Russians and the Armenian Army were at
war with the Azeris over the reunification of Nagorno-
Karabakh with the Republic of Armenia. Martirosyan and his
fellow officers in the OAW were disgusted by the atrocities
occurring on both sides of the war.

Martirosyan testified that he had seen with his own eyes
POWs who had been tortured or had body parts cut off at the
POW camps. "I have seen persons whose ears were cut off
. . . I have seen children playing with the ears. " Martirosyan

                               14114


also testified that his brother-in-law, a pilot who delivered
supplies daily to Nagorno-Karabakh, told him of the brutali-
ties and atrocities he had also seen firsthand. And Martirosyan
testified to the numerous television and newspapers reports he
had seen and read in both Armenia and Nagorno-Karabakh
that recounted the atrocities occurring on both sides of the
war.

In early 1991, Martirosyan decided to join voluntarily the
"Self-Defense Forces" of Nagorno-Karabakh. This group was
a militia of sorts that evolved into the Armenian National
Army. But Martirosyan changed his mind when he learned
that the militia would "dispatch [him] only to the prisoner's
camp according[ ] to [his] specialism " as a Soviet-trained
officer with a background in Communist "retraining."

Two years later, service in the Armenian Army became
mandatory, and Martirosyan was conscripted. In December
1993, three uniformed military deputies came to Martirosy-
an's home and "declared that [he] was a traitor of Pan Arme-
nian ideals and if [he] refused to go to war then [he] would
destroy [his] family and sentence them to starvation." They
also threatened him that if he did not join the Army, he would
be imprisoned, "or they would do something and nobody
would hear about it."

Martirosyan testified that "the National Armenia[n] Army
wanted only to send me to the war prisoners. . . . They told
me you either go to the camp of the prisoners or nowhere
else." He was not willing to do that. He testified, "I am a sol-
dier, I am not an executioner. All those stories which I heard
about brutalities I couldn't be one of them." He testified that
if the Army was willing to let him fight in the war, instead of
sending to him the camps, he "would have joined the army"
gladly. But the "commissariat" -- an Army official --
insisted that he serve in the POW camps.

After Martirosyan refused to serve at the army's POW
camps, his family began receiving daily threats from the mili-

                               14115


tary. They were denied any government subsidy or assistance,
which his father, a deaf mute, apparently depended on. Mar-
tirosyan himself was "not allowed to work or have sources of
income." It became "impossible" for him to "live and exist in
Armenia." So in January 1994 he fled to Russia.

A year later, Martirosyan's family was still persecuted for
his refusal to serve at the army's POW camps. In April 1995,
the Armenian military police seized his younger brother and
held him captive for two weeks. The police interrogated him
about Martirosyan's whereabouts and "physically forced [his
brother] to call" Martirosyan in Moscow to try to convince
him to submit to the Armenian Army's demands. His brother
escaped and fled to Poland, where he has since remained.

Shortly thereafter, the former Soviet Republics signed an
agreement that required all draft evaders to be taken into cus-
tody and returned to their home countries for prosecution and
imprisonment of up to seven years. Fearing that he would be
jailed or sent back to Armenia if he stayed in Russia, Mar-
tirosyan secretly returned to Armenia for one day to get a
passport and business visa to the U.S. Martirosyan entered the
United States in June 1995 and overstayed his visa.

In support of his application, Martirosyan introduced a
variety of documents. In addition to his Soviet Army records,
the documentation included Amnesty International's October
1995, Report, Armenia, Comments on the Initial Report Sub-
mitted to the United Nations Committee Against Torture; May
25, 1995, Media Advisory, Armenia: Death in Custody
Heightens Fears About Treatment of Political Detainees;
Hostages, Prisoners of War, and Other Captives, " from
Human Rights Watch's book, SEVEN YEARS OF CONFLICT IN
NAGORNO-KARABAKH; a 1995 Armenian News Service release;
and miscellaneous 1995 Amnesty International Press Releases
reporting on the murder of Azeri political prisoners of war
held in Armenia.

                               14116


The record also contains the United States State Depart-
ment Bureau of Democracy, Human Rights and Labor's
report entitled Armenia - Profile of Asylum Claims and Coun-
try Conditions (May 1996) (the "Report"). The State Depart-
ment provided the Report to INS, which the IJ incorporated
into the administrative record as an exhibit pursuant to 8
C.F.R. S 208.11(d). Moreover, the Report incorporated by ref-
erence other State Department publications, including the
Country Reports on Human Rights Practices ("the Country
Reports"), which are prepared by country and updated annu-
ally. The Report specifically advises immigration "adjudica-
tors" to consult the applicable Country Report "to provide
context for [the Report's] comments . . .[and] provide addi-
tional and current information relevant to the specific stan-
dards set forth in the INA."

Martirosyan applied for asylum and withholding of depor-
tation, with an alternative request for voluntary departure. In
an oral decision, the IJ found Martirosyan credible, denied his
application for asylum and withholding of deportation, and
granted his request for voluntary departure, designating
Armenia as the country of deportation. Despite finding Mar-
tirosyan credible, that his written application was consistent
with his testimony, and that his testimony was corroborated
by the documentary evidence, the IJ found Martirosyan's
claim that he would be required to commit inhuman acts at
POW camps "speculative." On this basis, the IJ ruled that
Martirosyan's claim is distinguishable from that of the peti-
tioner in Barraza Rivera v. INS, 913 F.2d 1143 (9th Cir.
1990). The BIA affirmed and adopted the reasoning of the IJ,
adding only that Martirosyan only "assumed" that he would
be forced to participate in any kind of torture or ill-treatment
of prisoners. Martirosyan timely petitioned for review of the
BIA's decision.1 We have jurisdiction under 8 U.S.C. S 1105a.2
_________________________________________________________________
1 Martirosyan also filed a Motion for a Stay of Deportation pending
review of his separate Motions to Reconsider and to Reopen, filed August

                               14117


II.

We review the BIA's factual findings underlying its deci-
sion to deny asylum and withholding of deportation under the
substantial evidence standard. See Singh v. INS , 134 F.3d 962,
966 (9th Cir. 1998). Where, as here, the BIA clearly adopts
and incorporates the IJ's reasoning, we review the IJ's deci-
sion. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.
1996). "[I]f `supported by reasonable, substantial, and proba-
tive evidence on the record considered as a whole,' " the
BIA's decision can be reversed only if the applicant shows
"that the evidence he presented was so compelling that no rea-
sonable factfinder could fail to find the requisite fear of perse-
cution." INS v. Elias-Zacharias, 502 U.S. 478, 481, 483-84
(1992) (quoting 8 U.S.C. S 1105a(a)(4). If, however, "the
issues presented [on] appeal involve the application of estab-
lished legal principals to undisputed facts, [this court's]
review of the BIA's asylum and withholding of deportation
determinations is de novo." Singh v. Ilchert , 63 F.3d 1501,
1506 (9th Cir. 1995).

A. Martirosyan's Claims of a Well-Founded Fear of
      Persecution

[1] Under 8 U.S.C. S 1158, the Attorney General has dis-
cretion to grant asylum to aliens who qualify as "refugees"
within the meaning of section 101(a)(42)(A) of the Immigra-
_________________________________________________________________
26 and October 23, 1998, respectively. This court granted the Motion to
Stay Deportation on October 15, 1998.
2 Because Martirosyan's deportation proceedings began before April 1,
1997, and his final deportation order was issued after October 31, 1996,
his petition for review is governed by the Illegal Immigration Reform and
Immigrant Responsibility Act's ("IIRIRA's") transitional rules. See Kalaw
v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997). Martirosyan filed his petition
for review within the thirty-day filing period set by IIRIRA 309(c)(4)(C).
We therefore have jurisdiction to review his petition under 8 U.S.C.
S 1105a(a), as amended by IIRIRA S 309(c).

                               14118


tion and Nationality Act ("INA"), 8 U.S.C.S1101(a)(42)(A).
A "refugee" is defined as a person who is unwilling or unable
to return to his or her home country "because of persecution
or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. S 1101(a)(42)(A). "Establishing a
well-founded fear of persecution sufficient to qualify for asy-
lum requires a `subjectively genuine' and `objectively reason-
able' fear of persecution." Velarde v. INS , 140 F.3d 1305,
1309 (9th Cir. 1998) (quoting Arriaga-Barrientos v. INS, 937
F.2d 411, 413 (9th Cir. 1991)). The objective component
requires a showing by "credible, direct, and specific evidence
in the record that persecution is a reasonable possibility."
Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998). Proof
that there is a "one in ten chance" of persecution if returned
to his or her native country is sufficient to qualify for asylum.
Id. at 1310 (quoting Montecino v. INS., 915 F.2d 518, 520
(9th Cir. 1990)).

[2] In addition, where there is a "clear probability of perse-
cution" if the applicant is forced to return to his or her home
country, "the Attorney General must withhold deportation."
Maini v. INS, 212 F.3d 1167, 1173 (9th Cir. 2000). To qualify
for the mandatory relief of withholding deportation, the appli-
cant must show that it is "more likely than not " that his or her
"life or freedom would be threatened on account of" a pro-
tected ground if he or she were deported. Id. at 1074 (citing
8 C.F.R. S 208.16 (b)). Thus, "[a]n alien must satisfy a more
stringent standard for withholding deportation than for asy-
lum." Id. at 1073; see also Velarde , 140 F.3d at 1309 (citing
INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).

[3] Martirosyan asserts that he has a well-founded fear of
persecution as a conscientious objector. Generally speaking,
compulsory military service or prosecution for desertion does
not constitute persecution within the meaning of the INA. See
id. at 1450; see also Elias-Zacarias, 502 U.S. at 481 (holding
that "a guerrilla organization's attempt to coerce a person into

                               14119


performing military service does not necessarily constitute
`persecution on account of . . . political opinion' "). But "con-
scientious objection to military service" is a valid ground for
relief from deportation where compulsory military service
would require the alien "to engage in inhuman conduct."
Ramos-Vasquez v. INS, 57 F.3d 857, 864 (9th Cir. 1995).
Indeed, the BIA recognizes conscientious objector status as an
exception to the general rule that forced recruitment into the
military is not persecution in " `those rare cases . . . where the
alien would necessarily be required to engage in inhuman
conduct as a result of military service required by the govern-
ment.' " Barraza Rivera, 913 F.2d at 1451 (quoting In re A-
G-, 19 Interim Dec. ("I & N Dec.") 3040 (BIA 1987), aff'd
sub nom. M.A. v. United States INS, 899 F.2d 304, 312 (4th
Cir. 1990) (en banc)); see also Gomez-Mejia v. INS, 56 F.3d
700, 703 & n.1 (5th Cir. 1995) (recognizing the conscientious
objector status exception in certain circumstances). 3

In Barraza Rivera, we explicitly held that "punishment
based on objection to participation in inhuman acts as part of
forced military service is `persecution' within the meaning of
8 U.S.C. S 1101(a)(42)(A). Id. at 1453-54 (citing, inter alia,
Office of the United Nations Commissioner for Refugees'
_________________________________________________________________
3 Despite the dissent's contrary belief, our 1995 decision in Ramos-
Vasquez reaffirmed the conscientious objector exception three years after
the Supreme Court's 1992 decision in Elias-Zacarias. The conscientious
objector exception is not at odds with the decision in Elias-Zacarias. To
the contrary, the exception is in harmony with the statement in Elias-
Zacarias that forced recruitment into the military without more does not
necessarily constitute persecution on account of political opinion.

Here, Martirosyan did not simply "desire to avoid military service," as
the dissent incorrectly suggests. If that were the case, we would agree with
the dissent that he would not be eligible for political asylum under Elias-
Zacarias. Instead, Martirosyan fled forced military recruitment that would
necessarily require him to engage in the inhuman treatment of POWs at
the Armenian Army's POW camps. Under Barraza Rivera and Ramos-
Vasquez, that additional fact qualifies him for political asylum and distin-
guishes his case from that in Elias-Zacarias .

                               14120


Handbook on Procedures and Criteria for Determining Refu-
gee Status, at (1979)). Thus,

      [i]f a soldier deserts in order to avoid participating in
      acts condemned by the international community as
      contrary to the basic rules of human conduct, and is
      reasonably likely to face persecution should he
      return to his native country, his desertion may be
      said to constitute grounds for asylum based on politi-
      cal opinion.

Ramos-Vasquez, 57 F.3d at 864.

[4] Here, the IJ found Martirosyan's fear of persecution as
a conscientious objector "speculative" and denied his requests
for relief from deportation on this basis. We hold that the IJ's
finding is not "supported by reasonable, substantial, and pro-
bative evidence on the record as whole," and is therefore
untenable. Elias-Zacharias, 502 U.S. at 480. There is no evi-
dence in the record that refutes any of Martirosyan's testi-
mony. To the contrary, the record contains ample testimonial
and documentary evidence that would compel a reasonable
fact finder to conclude that Martirosyan's fear of persecution
is well-founded and based on a more than "reasonable possi-
bility" that it "would occur if he was returned to" Armenia.
Barraza Rivera, 913 F.2d at 1452.

1. Martirosyan's Subjective Fear of Persecution

Here, it is undisputed that Martirosyan's fear of persecution
is "subjectively genuine." He established this component by
"credibly testifying that [he] fears persecution" if returned to
Armenia. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.
1999). Indeed, the IJ expressly found him credible, and the
BIA made no contrary finding. Under such circumstances, we
must "accept the testimony given before the IJ as undisputed,"
id. at 1033, and presume it to be true, see Briones v. INS, 175
F.3d 727, 730 (9th Cir. 1999) (en banc).

                               14121


2. Martirosyan's Objective Fear of Persecution

Martirosyan's "credible, direct, and specific " testimony
establishes more than a "reasonable possibility " that Mar-
tirosyan's mandatory military service would require him to
engage in the inhuman treatment of POWs under orders from
the Armenian military. Meza-Manay, 139 F.3d at 763. More-
over, Martirosyan corroborated his testimony with multiple
articles and press releases issued by Amnesty International
and the Human Rights Watch. As the IJ acknowledged, these
articles detailed the "egregious violations of the rules of war"
committed by the armies of Armenia, the Republic of Azer-
baijan and the "self-proclaimed Republic of Nagorno-
Karabakh." The atrocities "included forced displacement,
looting and burning of homes, hostage taking and holding,
mistreatment and summary execution of prisoners of war and
indiscriminate use of air power against the civilian targets."
According to Human Rights Watch, between 1993 and 1994,
"Karabakh Armenian forces with the support of the Republic
of Armenia were responsible for the majority of abuses during
that period."

Even the State Department's Report and the Armenian
Country Report, which was incorporated into the record by
reference, add support to Martirosyan's testimony. The State
Department Report stated that: "Major violations of human
rights occurred in connection" with the expulsion of Azeris
from the Nagorno-Karabakh region of Azerbaijan. The Arme-
nia Country Report, entitled Armenia Human Rights Practices
1994 (published in February 1995) stated that:

      there were several instances of police brutality
      toward detainees, many instances of forcible con-
      scription of draft-age men, and suspected executions
      of Azerbaijani prisoners of war.

      * * *

                               14122


      Representatives of independent international agen-
      cies maintain that many would-be prisoners of war
      on both sides in the Nagorno-Karabakh conflict are
      summarily executed . . . .

      * * *

      Information on prison conditions is not available, but
      they are believed to be harsh. The International
      Committee of the Red Cross had access to prisoners
      of war from the Nagorno-Karabakh conflict until
      October.

      * * *

      There were many instances of interference with pri-
      vacy during waves of army conscription in 1994.
      Military recruiters appeared at houses where draft-
      age men were reported to live and often threatened
      or detained the occupants or inflicted material dam-
      age. They seized draft-age men in public places,
      such as markets, theaters, and the subway. There are
      credible reports that Armenian and Nagorno-
      Karabakh officials forcibly conscripted refugees
      from Nagorno-Karabakh and Azerbaijan.

The March 1996 update of the State Department report on
Armenia's Human Rights Practices, 1995, draws a similar
picture of the inhuman treatment of prisoners of war by
Armenia:

      The Government has not improved the prison sys-
      tem, which still uses Soviet-era "Kartser," which are
      outdoor, cement cells where prisoners are often
      incarcerated for weeks at a time, receiving food once
      every 3 days.

       The Government has not facilitated independent
      monitoring of prison conditions. It has denied

                               14123


      requests by foreign embassy officials, the Interna-
      tional Committee of the Red Cross (ICRC), and oth-
      ers to conduct unescorted visits with detainees . . . .

Despite this corroborating documentary evidence, the con-
sistency between Martirosyan's credible testimony and appli-
cation, and the lack of any contrary evidence in the record, the
IJ concluded that Martirosyan "merely speculates that if he
were drafted into the army he would be sent to a prisoner of
war camp and if all that happened, he would be required to
mistreat prisoners of war." It appears, however, that the IJ
here, like the IJ we reversed in Ramos-Vasquez , found Mar-
tirosyan's claim "incredible simply because [she did] not wish
to believe him."4 57 F.3d at 861. Such a ruling "is not based
_________________________________________________________________
4 Indeed, throughout the hearing, the IJ appears to have been somewhat
patronizing and argumentative toward Martirosyan. The following
exchange typifies the IJ's argumentative attitude toward Martirosyan.
When Martirosyan testified that the Soviet Army "dismissed" or "fired"
him because of his anti-Soviet attitude, the IJ responded:

      IJ: What do you mean by dismissed, sir, court-martial, resign,
      term of service expired?

      M: By the order of the Ministry of Defense, they just fired me.

      IJ: Ok, well, sir, let me share with you my background. I am in
      the U.S. Army, right now a National Guardsman with the
      California National Guard. I was on active duty with that
      Army and so I have some knowledge of military things. But
      what I don't understand is the Soviet Army and I don't
      understand the Armenian Army. But I can tell you in the
      American Army, people just don't get dismissed like that,
      there is usually some sort of process they go through. Either
      administrative or a disciplinary process. Is it different in the
      Russian Army?

      M: According to the laws of the Soviet Union from the Army,
      a person can be -- an officer can be fired, but the order of
      the officer that admitted him or by the Ministry of Defense.

      IJ: What did they say, were there papers that reflected this fir-
      ing? Written documents?

                               14124


on substantial evidence of record," and therefore "must be
rejected." Id.; see also Lopez-Reyes v. INS, 79 F.3d 908, 912
(9th Cir. 1996) (stating that "conjecture is not a substitute for
substantial evidence").

The following exchange illustrates the improper basis upon
which the IJ rejected Martirosyan's claim: Martirosyan testi-
fied that "it was impossible for him" to participate in the inhu-
man treatment of POWs. He said that such treatment included
severing ears and holding the mothers of POWs hostage while
the Armenian Army sent their sons into Azerbaijan to commit
terrorist acts on citizens. In response, the IJ stated:

      "Well, sir, I don't frankly believe you that the mili-
      tary commissioner said he wanted you to cut off ears
      and blackmail people with their money . . . so I want
      you to show me the documents that you've submit-
      ted which are somewhat numerous where that hap-
      pens, what you've just said happens. Do you have
      any documents recording that? About people getting
      blackmailed to do terrorist acts? Cutting off ears of
      the prisoners, what you said, do you?
_________________________________________________________________
      M: No.

      IJ: So they just called you in one day and said you're fired?

Similarly, when Martirosyan testified to his disillusionment with the
Soviet Army's treatment of soldiers returning from Afghanistan, his belief
that the "retraining" programs were useless and that the Army should have
let the soldiers return to their homes immediately, the IJ said:

      IJ: Well if I understand what you've complained about, it was
      that you thought it was a waste of your time and the army's
      time to keep these soldiers for six months when all they
      could do was be sent home since the fighting was over . . . .
      Okay so you were disillusioned that you had to waste your
      time with all the scraggly old people coming out of Afghani-
      stan . . . .

                               14125


[5] This court has repeatedly ruled that documentary evi-
dence is not required to corroborate an asylum claim. See
Lopez-Reyes, 79 F.3d at 912.5 It is patently absurd to expect
an applicant like Martirosyan to produce the documentary evi-
dence demanded by the IJ in this case "[b]ecause `persecutors
are hardly likely to provide their victims with affidavits attest-
ing to their acts of persecution.' " Ramos-Vasquez, 57 F.3d at
862-63 (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277,
1285 (9th Cir. 1984)). For this reason, "an alien's own testi-
mony, if unrefuted and credible, is . . . sufficient[to grant asy-
lum and] for withholding of deportation." Id. In Barraza
Rivera, the petitioner's claim to conscientious objection status
"rest[ed] in large part on his own testimony." 913 F.2d at
1449. Nevertheless, because his testimony was "[c]redible
and persuasive," we deemed it sufficient to "establish eligibil-
ity for political asylum and withholding of deportation." Id.
_________________________________________________________________
5 The dissent's argument that we should deny Martirosyan's petition
because "[n]ot one of the documents in the record contains even a single
allegation of soldiers being forced to commit an atrocity" reflects an
unwillingness to accept this well-established rule of law. The dissent also
ignores the evidence to the contrary quoted supra from the March 1996
update to the State Department's Report on Armenia's Human Rights
Practices, 1995, the State Department's Armenia Country Report entitled
Armenia Human Rights Practices 1994, as well as the many articles and
press reports issued by Amnesty International and the Human Rights
Watch contained in the record. To use the language of the dissent, it
"strains credulity" to believe that the "summary executions of prisoners of
war" are committed by anyone other than soldiers assigned to POW
camps.

Moreover, as we recently explained in Zahedi v. INS, _______ F.3d _______,
2000 WL 1252095 (9th Cir. Sept. 6, 2000), while"[t]hese materials . . .
cannot establish [a petitioner's] claim independently," such documentary
evidence may "help [the petitioner] establish the objective basis for his
claim by placing his testimony into context." Id. at *4 (granting the peti-
tion and finding the petitioner eligible for asylum and entitled to withhold-
ing of deportation). Indeed, " `the purpose of country conditions evidence
. . . is not to corroborate specific acts of persecution (which can rarely be
corroborated through documentation), but to provide information about
the context in which the alleged persecution took place, in order that the
factfinder may intelligently evaluate the petitioner's credibility." Id. (quot-
ing Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999)).

                               14126


(citing Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th
Cir. 1985), aff'd, 480 U.S. at 421).

[6] Key to the IJ's decision to reject Martirosyan's claim is
her attempt to distinguish his case from that of the petitioner
in Barraza Rivera. In Barraza Rivera,  the petitioner aban-
doned military service and fled from El Salvador after he was
ordered by a military officer, under the threat of death, to par-
ticipate in the paid killing of two men. See 913 F.2d at 1450.
The IJ here noted that Barraza Rivera "had actually been
placed in a situation where he was going to be required to vio-
late the laws of war and perform inhumane acts outside the
ordinary course of war," whereas Martirosyan was not. It is
true that Martirosyan was never directly asked to "cut the ear
off" a POW or otherwise torture a POW. But he did present
credible, specific, and unrefuted evidence that he was con-
scripted into military service, that he would be sent to the
Army's POW camps, and that POWs are systematically
treated inhumanely at the camps. Indeed, there is no evidence
in the record -- let alone substantial evidence -- casting any
doubt that Martirosyan's case is one of "those rare cases"
where mandatory military service " `would necessarily . . .
require[ ] [him] to engage in inhuman conduct' " of POWs.
Bazzara Rivera, 913 F.2d at 1451 (quoting In re A-G-, 19
I & N Dec. 3040).6 Given the compelling evidence supporting
Martirosyan's claim to conscientious objector status, it makes
_________________________________________________________________
6 The dissent dismisses Martirosyan's plea for asylum as an attempt "to
avoid . . . another unglamorous posting." Dissent at 14133. In support, the
dissent cites Martirosyan's admission that he did not object to killing peo-
ple as a soldier in battle, but "didn't want to be at a prisoner of war camp
and deal with them." The dissent's willingness to disparage Martirosyan
on this basis as a mere draft dodger is not only unfortunate, it shows an
unwillingness to acknowledge the distinction recognized in Barraza
Rivera between "forced recruitment" into general military service and
"forced recruitment" into a specific military "position that requires [con-
scriptees] to betray their conscience by engaging in inhuman conduct."
913 F.2d at 1451. This distinction is at the heart of our decisions in both
Barraza Rivera and Ramos-Vasquez.

                               14127


little sense for this court to hold that relief from deportation
should be denied simply because he fled Armenia before
being given the direct order to torture or execute an Azeri
POW. We therefore conclude that Martirosyan has demon-
strated a well-founded fear of persecution as a conscientious
objector and is eligible for political asylum and withholding
of deportation on that basis.

B. Martirosyan's Alleged Due Process Violation

Martirosyan claims that the BIA violated his due process
rights by failing to mention, let alone examine, the documen-
tation in the record that supports his application. We recently
held that "an alien attempting to establish that the Board vio-
lated his right to due process by failing to consider relevant
[documentary] evidence must overcome the presumption that
[the Board] did review the evidence." Larita-Martinez v. INS,
220 F.3d 1092, 1095 (9th Cir. 2000); cf. Zahedi , 2000 WL
1252095, at *4 n.8 (holding Larita-Martinez inapplicable
because Zahedi had not challenged the BIA's decision on due
process grounds and because "Zahedi introduced evidence
aimed at making out the objective element of his claim . . .
and . . . the IJ based her finding in part on an explicit rejection
of the validity of his evidence"). Nevertheless, because we
hold that the BIA's decision is not supported by substantial
evidence and that Martirosyan is eligible for asylum and with-
holding of deportation, consideration of this issue is unneces-
sary.

III.

For the foregoing reasons, Martirosyan's petition is
granted. The INS's decision that he was ineligible for refugee
status is not supported by substantial evidence. To the con-
trary, we find that Martirosyan presented compelling evidence
that demonstrates a well-founded fear of persecution based on
his conscientious objection to serving in the Armenian Army
where he "would necessarily be required to engage in inhu-

                               14128


man" treatment of prisoners of war. Barraza Rivera, 913 F.2d
at 1451 (quoting In re A-G-, 19 I & N Dec. 3040). Accord-
ingly, we remand to the BIA for further proceedings consis-
tent with this opinion.

PETITION FOR REVIEW GRANTED. The decision of
the BIA is VACATED and the case is REMANDED.

_________________________________________________________________

WALLACE, Circuit Judge, dissenting:

The majority opinion invites a stern rebuke from the
Supreme Court by conflicting with controlling case law and
for misapplying the proper standard of review. The majority
orders asylum for a draft dodger who offered no evidence in
support of his claim that he would have been forced to com-
mit war crimes had he not fled Armenia. Accordingly, I must
dissent.

I

The majority's factual review is extensive. However, the
only relevant question before us is whether Martirosyan
proved he would have been forced to commit war crimes had
he not evaded the draft in his home country. We should focus
on the facts dealing with this issue.

As an officer in the Soviet army, Martirosyan was sent to
Kazakhstan in 1988 to work as a "counselor." He described
himself as the Soviet equivalent of an American Army's
"chaplain" and testified that his job was to boost the morale
of soldiers returning from the conflict in Afghanistan and to
reindoctrinate those who had strayed from the ideals of Com-
munism.

Despite his orders, Martirosyan felt that the best way to
improve the morale of the troops returning from the front

                               14129


would have been to send them home to their families instead
of isolating them for an additional six months. Martirosyan
chose to send a letter outlining his feelings on the matter
directly to the Soviet Deputy Defense Minister.

When the army learned of his action, it issued him a nega-
tive evaluation and transferred him to a different post. At this
post, Martirosyan was not responsible for counseling soldiers
returning from active combat, but rather for soldiers responsi-
ble for transporting arms that were being dismantled. Mar-
tirosyan saw the assignment of counseling soldiers "engaged
in blue collar work" as "an exile." He continued to speak out,
and within a year he was fired from the Army for "looseness
in his ideological structure."

After spending a few years in Armenia employed by a pri-
vate insurance company, Martirosyan was apparently drafted
while working towards earning an MBA at the American Uni-
versity. The Armenian military commissariat for Martirosy-
an's region told him that he was to be sent to a prisoner of war
camp to try to influence some of the prisoners to become dou-
ble agents in Armenia's conflict with Azerbaijan.

Martirosyan had no interest in this posting. Although he
was willing to serve as a soldier, Martirosyan did not want to
work with prisoners of war. His pleas, however, fell on deaf
ears: the military said his assignment would not be discussed
and he was going to the prisoner of war camp. The military
wanted him for the post because of his past training and expe-
rience as a counselor.

Martirosyan responded by sneaking into Russia, where he
lived and worked for several years. During this time, Mar-
tirosyan did not apply for asylum. It was only when Russia
signed a pact with Armenia promising to return deserters and
draft dodgers such as Martirosyan that he went back to Arme-
nia, paid a government official $100 to get a passport, and

                               14130


fled to the United States rather than face seven years of jail
time for draft dodging.

Once in the United States, Martirosyan claimed asylum on
the basis of his "assumption" that, had he reported to the pris-
oner of war camp as ordered, he would have been forced to
commit human rights violations.

II

The factual basis for Martirosyan's "assumption " is a mys-
tery to me. The record upon which we make our review con-
tains no reference to any Armenian or Soviet soldier ever
being forced to commit a human rights violation. Martirosyan
admitted that he was never asked to participate in any kind of
torture or ill-treatment and at no time in his testimony did he
even state that any soldier in his army had ever been forced
to commit such illegal acts.

Martirosyan attempted to support his claim for asylum by
submitting articles from Amnesty International and Human
Rights Watch along with a State Department report on Arme-
nia. Not one of these documents contains even a single allega-
tion of soldiers being forced to commit an atrocity. The
majority responds to this charge in footnote 5, but still does
not quote even one statement reporting an Armenian or Soviet
soldier ever being forced to commit a human rights violation.
The majority quotes these documents without grasping that
generalized human rights abuse is not the issue in this case.
The issue is whether this particular counselor, trained in the
art of boosting morale and tasked with the job of recruiting
double agents, would be forced to commit unspeakable war
crimes himself. There is not one shred of record evidence to
support such a claim, nor has the majority quoted any for our
benefit. Indeed, when Martirosyan himself was asked by the
IJ whether he could point to anything in this background
material to support his claim that he would be forced to tor-
ture prisoners if sent to the camp, he replied,"No."

                               14131


This court recently emphasized that reports such as those
relied upon by the majority "cannot establish[a petitioner's]
claim independently," Zahedi v. INS, 2000 WL 1252095, at
*4 (9th Cir. Sept. 6, 2000), yet the only other evidence on
which the majority rests its conclusion is the testimony of
Martirosyan--testimony in which Martirosyan admitted that
he had never been asked to torture and kill anyone and that
his knowledge about general conditions in prisoner of war
camps were based solely on rumor. Martirosyan did not even
claim to know as a matter of rumor that soldiers were being
forced to torture prisoners; he simply "felt that[he] might be
ordered to mistreat [prisoners]." In order to reach its result,
the majority has improperly given greater weight to back-
ground documents than such evidence should command.

At his hearing before the immigration judge (IJ), the burden
was on Martirosyan to present "credible, direct, and specific
evidence" that he was going to be forced to commit human
rights violations. Meza-Manay v. INS, 139 F.3d 759, 763 (9th
Cir. 1998) (emphasis added, internal quotations omitted). The
record makes it clear that Martirosyan so utterly failed to
carry his burden that had this been a civil trial, summary judg-
ment in favor of the INS would have been proper. For the
majority to hold that the evidence in favor of Martirosyan was
so overwhelming that it "compelled" reversing the Board of
Immigration Appeals (Board) and ordering asylum shows a
complete jettisoning of the standard of review set by the
Supreme Court for asylum cases. We are supposed to be
"highly deferential" to the Board, Lata v. INS, 204 F.3d 1241,
1245 (9th Cir. 2000), and reverse its decisions only when our
review of the evidence convinces us that the Board's analysis
was so wrong that it reached a conclusion wholly unsupported
by logic: in other words, one that no reasonable factfinder
could ever have reached. Id. at 1244.

To make matters worse, the Supreme Court has already
made it perfectly clear that a desire to avoid military service,
without more, is not a valid ground for asylum. INS v. Elias-

                               14132


Zacarias, 502 U.S. 478, 482 (1992). This circuit recognized
this proposition before Elias-Zacarias, and has followed the
precedent ever since. See, e.g., Castillo v. INS, 951 F.2d 1117,
1122 (9th Cir. 1991); Rodriguez-Rivera v. INS , 848 F.2d 998,
1005 (9th Cir. 1988) (per curiam) ("Rodriguez-Rivera ignores
. . . that the government's effort to recruit him into the mili-
tary does not constitute political persecution."); Kaveh-
Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir. 1986) (per
curiam) ("Even petitioners admit that being drafted [into the]
army does not amount to persecution.").

In spite of this unbroken line of precedent, which should
control the outcome of this case, the majority feels it can go
the opposite direction based on the pre-Elias-Zacarias case of
Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir. 1990). In Bar-
raza Rivera, the petitioner was ordered by a military officer,
under threat of death, to participate in the paid killing of two
men. In that case, "a Salvadoran military official gave Barraza
a terrifying choice: to murder others, or to be murdered him-
self." Id. at 1453. To the extent Barraza Rivera survives after
Elias-Zacarias, it does not assist Martirosyan. 1

To argue that Martirosyan's situation is even remotely anal-
ogous to the situation in Barraza Rivera strains credulity.
Martirosyan was never ordered to hurt anyone, and he was
certainly never threatened with harm if he refused. To the
contrary, there is no doubt that Martirosyan was perfectly
willing to kill people as a soldier. What he wanted to avoid
was another unglamourous posting:

      Question: From what you've said, sir, you're per-
      fectly happy to pick up a weapon [and]
_________________________________________________________________
1 The majority also cites Ramos-Vasquez v. INS, 57 F.3d 857 (9th Cir.
1995), in its footnote 3 as additional support of its position. However,
Ramos-Vasquez also does not aid Martirosyan since in it the petitioner
deserted after refusing to obey a direct order to execute his friend. Id. at
860. Clearly, there is no such evidence in the record of this case.

                               14133


      shoot people in a battle . . . . You're
      qualified to be [a] soldier and shoot peo-
      ple. But you didn't want to be [at] a pris-
      oner of war camp and deal with them.
      Isn't that correct?

      Answer: Absolutely.

Martirosyan was not persecuted. He fled because he feared
prosecution for draft dodging. To reverse the Board, I would
need to engage in speculation. Reasoned judicial analysis
leads me to conclude that I am not compelled to overturn the
Board.

I would deny the petition.

                               14134




	


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