Abovian v. INS

Soghomon Abovian (plaintiff) and his wife and daughter were Armenian citizens who went to the United States, seeking asylum and withholding of removal due to Abovian’s well-founded fear of persecution for his refusal to work for the KGB. Abovian indicated that his father had been a leader in the Communist Party and a member of the KGB from 1934 to 1947. Abovian resisted Communism and left Armenia when he was 16 to get away from his father’s legacy. However, Abovian testified that while living in various Russian cities, he was harassed and threatened for 26 years for not working for the KGB as his father had. Even after Abovian moved back to Armenia in 1988, he was interrogated by the KGB, then known by another name, about his membership in a group seeking Armenian independence. Abovian reported threatening phone calls, his daughter being intentionally hit by a car and hospitalized, and his daughter being kidnapped. Although not mentioned in Abovian’s asylum application, Abovian testified that the newly elected president of Armenia, Levon Ter-Petrosyan, who Abovian said everyone knew served the Russians, met with Abovian at least 15 times to recruit him to work for the KGB. Abovian alleged the driver of the car that hit his daughter was connected to Ter-Petrosyan. The state department’s country report indicated that Ter-Petrosyan led Armenia to independence and opposed the Communists. Abovian presented no evidence, hospital records, articles, or witnesses to support his story, which the Board of Immigration Appeals (BIA) found uncorroborated, not plausible, and not credible. There were numerous inconsistencies. For example, Abovian’s application indicated that he was once placed in a hole that contained water and snakes by the KGB to convince him to work for them, but he testified to not knowing if it was the KGB. Abovian’s application indicated that his daughter was completely paralyzed by the car accident, but his daughter testified to only partial paralysis. The BIA denied relief. Abovian petitioned for review. Without either party raising the issue, the Ninth Circuit ruled that the BIA violated Abovian’s due-process rights because the immigration judge had not made a credibility finding; therefore, Abovian did not have notice that he should explain discrepancies. The Ninth Circuit also found that the BIA erred on other grounds.