Lkhagvasuren v. Lynch, No. 13-71778 (9th Cir. 2016)
Annotate this CasePetitioner, a native and citizen of Mongolia, seeks review of the BIA's decision to deny his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner asserts that his whistleblowing activities constituted a political opinion for which he was persecuted with either the consent or acquiescence of government actors. The court adopted 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. Under this framework, the court concluded that substantial evidence supports 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 even connected to government actors. In this case, petitioner 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. In regard to CAT relief, the court agreed with the Board that it was unlikely that petitioner would face torture at the hands of the government if returned to Mongolia. Accordingly, the court denied the petition for review.
Court Description: 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. LKHAGVASUREN V. LYNCH 3
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