I do not often read about the DOJ Board of Immigration Appeals (“BIA”). Unless of course the decision contains the words “Foreign Corrupt Practices Act” in which case such a decision show up on my various searches.
An interesting recent case from the Ninth Circuit Court of Appeals in which Judge John Owens (pictured) wrote the words contained in the headline.
By way of background, an Armenian citizen sought asylum in the U.S. claiming “that the Armenian military police detained, beat, and threatened him after he was seen talking to a reporter following a personal confrontation with the city’s military police chief.” According to the Armenian citizen, his objective in talking to the reporter was to expose corruption after his wife and cousin were forced to pay a bribe.
A U.S. immigration judge (“IJ”) held that the individual was ineligible for asylum because he failed to establish that he was persecuted on account of political opinion. As noted in the Ninth Circuit opinion, the IJ concluded that the individual’s conversation with the reporter did not amount to whistleblowing because he “was telling about one incident with one police chief, not about the whole police force. It was not an act of corruption within the police department.”
On appeal, the BIA held that the individual was ineligible for asylum because he had not demonstrated a nexus between his actual political opinion and the harm that he experienced. According to the BIA, “to the extent that [the individual] sought to publicize his mistreatment, he has not demonstrated that his actions were meant to expose corruption in a governing institution, in this case the military police.”
On appeal to the Ninth Circuit, the court framed the issue as follows.
“The question thus presented is whether [the] direct and indirect evidence [of nexus offered by the individual] is sufficient proof that (1) the military police believed Petitioner to be a whistleblower who was attempting to expose corruption and, if so, (2) their belief motivated them to detain, beat, and threaten Petitioner. Even though the BIA couched a portion of its holding in terms of imputed political opinion, a close look at the BIA’s decision reveals that it did not address that key question at all.”
The Ninth Circuit noted that the “IJ concluded that there was no corruption to expose because the initial confrontation [with the police officer] did not involve bribery or extortion.” However, the Ninth Circuit concluded, “the concept of government corruption is broader than that, and efforts to expose something that begins as a personal dispute can be interpreted as political dissent.”
In other respects, the Ninth Circuit stated:
“Corruption broadly refers to an abuse of public trust. In common parlance, as well as in precedent, corruption means a lack of integrity and a use of a position of trust for dishonest gain, which need not be financial. One form of gain is the maintenance of a position of authority. We remand for the BIA to consider whether the evidence shows that the police chief, in an effort to keep his government job, used his position of power to silence a possible report about his abuse of that power.”
Concurring, Judge Owens stated in pertinent part as follows.
“I write separately to emphasize that the United States Department of Justice’s position in this and other immigration cases clashes with its own campaign against foreign corruption. The Justice Department does not limit corruption to “bribery.” Rather, it correctly defines corruption as the “abuse of entrusted power for personal gain.” Shortly after the Arab Spring, former Assistant Attorney General Lanny Breuer recounted the tragic story of Mohammed Bouazizi, who lit himself on fire in Tunisia after suffering the abuse of a corrupt local official.
Bouazizi faced corruption at the most personal level. His fruit stand and electronic scale were arbitrarily taken from him by a municipal inspector, who also humiliated him with a slap across the face, and authorities refused to give him back his property.
Bouazizi’s tale is unfortunately a global one, shared by [Petitioner] and many others. A guard who demands sexual favors from a prisoner is corrupt. So is a police officer who brutalizes a local community. And so is a police chief who, to impress his “ladies and friends,” uses his bodyguards to beat up a restaurant manager who refuses to kowtow to his demands. None of these violations feature bribes, but all involve the abuse of entrusted power for personal gain, which can be as petty as trying to look like a big shot in front of friends and members of the opposite sex. As [the majority] opinion ably demonstrates, this court has acknowledged that this abuse, not the exchange of money, is the essence of corruption. And I read our immigration laws as protecting (rather than deporting) those who protest (or are perceived as protesting) corrupt government officials. It is unclear why the Justice Department champions the fight against foreign corruption while it simultaneously tries to deport those perceived as fighting foreign corruption.” (emphasis added).
