Otgonbayar Lkhagvasuren v. Eric Holder, Jr.

Filing

Filed order and amended opinion (J. CLIFFORD WALLACE, MARY M. SCHROEDER and ALEX KOZINSKI).The last paragraph of page four of the slip opinion filed on July 13, 2016, is hereby amended as follows: (SEE ORDER FOR FULL TEXT) With this amendment, the Petition for Panel Rehearing is DENIED. Judge Kozinski has voted to deny the Petition for Rehearing En Banc, and Judges Wallace and Schroeder so recommend. The full court has been advised of the Petition for Rehearing En Banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the Petition for Rehearing En Banc is DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed. Respondent s unopposed motion for an extension of time to respond to the Petition for Panel Rehearing and for Rehearing En Banc is DENIED AS MOOT. Petitioner s motion to hold proceedings in abeyance pending a decision on his motion to reopen by the Board of Immigration Appeals is DENIED. [10250293]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OTGONBAYAR LKHAGVASUREN,
Petitioner,

No. 13-71778

v.

Agency No.
A200-990-746

LORETTA E. LYNCH, Attorney
General,
Respondent.

ORDER AND
AMENDED
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2016*
San Francisco, California
Filed July 13, 2016
Amended December 30, 2016
Before: J. Clifford Wallace, Mary M. Schroeder,
and Alex Kozinski, Circuit Judges.
Order;
Per Curiam Opinion

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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LKHAGVASUREN V. LYNCH
SUMMARY**

Immigration
The panel denied a petition for review brought by a
Mongolian citizen who sought asylum and other relief from
removal based on his actions whistleblowing corruption by a
privately-owned former employer.
The panel adopted the three-factor framework of Matter
of N–M–, 25 I. & N. Dec. 526 (BIA 2011), 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.
Applying that framework, the panel held that substantial
evidence supported the Board’s conclusion that petitioner
failed to present evidence that his purported persecutors were
motivated by his anticorruption beliefs, or that the corruption
was connected to government actors.
The panel held that petitioner also failed to establish a
sufficient likelihood of torture.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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LKHAGVASUREN V. LYNCH

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COUNSEL
Jeremiah Johnson, Johnson & McDermed, LLP, San
Francisco, California; Robert B. Jobe, Law Office of Robert
B. Jobe, San Francisco, California; for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; John W. Blakeley, Assistant Director; Kiley Kane
and Jesi J. Carlson, Senior Litigation Counsel; Jeffrey R.
Meyer, Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.

ORDER
The last paragraph of page four of the slip opinion filed
on July 13, 2016, is hereby amended as follows:
We assume without deciding that Matter of
N–M– may be applied 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”).
With this amendment, the Petition for Panel Rehearing is
DENIED.

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Judge Kozinski has voted to deny the Petition for
Rehearing En Banc, and Judges Wallace and Schroeder so
recommend. The full court has been advised of the Petition
for Rehearing En Banc and no judge of the court has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35. Accordingly, the Petition for Rehearing
En Banc is DENIED. No subsequent petitions for rehearing
or rehearing en banc may be filed.
Respondent’s unopposed motion for an extension of time
to respond to the Petition for Panel Rehearing and for
Rehearing En Banc is DENIED AS MOOT.
Petitioner’s motion to hold proceedings in abeyance
pending a decision on his motion to reopen by the Board of
Immigration Appeals is DENIED.

OPINION
PER CURIAM:
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

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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

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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 assume without deciding that Matter of N–M– may be
applied 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

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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.