                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     March 4, 2011
                              FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                      Clerk of Court

    ARSHAK DAVTYAN,

                Petitioner,

    v.                                                   No. 10-9534
                                                     (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



         Arshak Davtyan, a citizen of Armenia, petitions for review of an order of

the Board of Immigration Appeals (BIA) affirming the denial of his application

for restriction on removal and relief under the Convention Against Torture.

Because the agency’s decision does not lend itself to meaningful review, we

reverse and remand for further proceedings.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             I.

       As an adolescent, Mr. Davtyan converted from the Armenian Apostolic

Church, the national church of Armenia, and joined the Jehovah’s Witnesses, a

minority religious community. While a university student, he was present at a

neighborhood fight during which a young man died of a knife wound. The police

arrived on the scene and arrested Mr. Davtyan and others. At the station, the

police searched Mr. Davtyan’s bag and found Jehovah’s Witness literature.

Mr. Davtyan thought the police felt free to blame him for the fight “because of

the attitude towards the Jehovah’s Witnesses in society.” Admin. R. at 139. A

government bureaucrat, who was also the father of one of the combatants, tried to

make Mr. Davtyan confess that he initiated the fight by advocating for his faith.

When Mr. Davtyan refused to sign an admission, the bureaucrat punched him in

the face and threatened to have him expelled from the university. Also, a police

officer hit him with a club. He was then released from custody.

       Shortly afterwards, Mr. Davtyan was expelled from the university. The

expulsion meant that he was no longer deferred from service in Armenia’s

universal conscription system. But Jehovah Witnesses are conscientious objectors

and it is “against their religion to serve in the military or . . . to swear or salute to

a flag.” Admin. R. at 144.

       Fortuitously for Mr. Davtyan, he had already applied for a summer

work-and-travel program in the United States. After the fight incident, he

                                            -2-
decided to participate in the program, obtained a temporary visitor’s visa, and

entered the United States. In Armenia, the police appeared at Mr. Davtyan’s

home, warning his mother that he must return at the end of the program or she

herself would be jailed. His mother, who is also a Jehovah’s Witness, left for

Russia.

      Mr. Davtyan remained in the United States, overstaying his visa. He

graduated from college, received a master’s degree, and became a certified public

accountant. Some three years after he entered the United States, he was placed in

removal proceedings. He admitted removability and applied for asylum,

restriction on removal, and deferral of removal under the Convention against

Torture (CAT).

      In immigration proceedings, Mr. Davtyan argued that he had suffered past

persecution, particularly with regard to the fight incident, and was likely to suffer

future persecution in connection with his leaving the country and his refusal to

comply with Armenia’s universal conscription laws. The Immigration Judge (IJ)

found that Mr. Davtyan’s account of events in Armenia was credible, inherently

plausible, and consistent with the Department of State Reports describing

Armenian concerning human-rights practices and religious freedom.

Nevertheless, he concluded that Mr. Davtyan had not demonstrated either past

persecution or the likelihood of future persecution or torture in Armenia.




                                          -3-
Therefore, the IJ denied restriction on removal and CAT relief. In a brief, one-

member order the BIA agreed with the IJ and dismissed Mr. Davtyan’s appeal. 1

                                         II.

      In his petition for review, Mr. Davtyan challenges the BIA’s denial of

restriction on removal and CAT relief. To show entitlement to restriction on

removal, the alien “bears the burden of showing a clear probability of persecution

attributable to race, religion, nationality, membership in a particular social group,

or political opinion.” Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004)

(internal quotation marks omitted). 2 Because motive is a “critical” element, the

alien must provide “direct or circumstantial” evidence of intent to persecute

“because of” one of the listed grounds. INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992).

      This circuit considers the “determination whether an alien has demonstrated

persecution [to be] a question of fact.” Ritonga v. Holder, ___ F.3d. ___,

No. 09-9539, 2011 WL 258380, *2 (10th Cir. Jan. 28, 2011) (internal quotation


1
      The agency also decided that Mr. Davtyan’s asylum application was
untimely, in that it was filed well after the statutory one-year limit and did not
demonstrate either changed or extraordinary circumstances.
See 8 U.S.C. § 1158(a)(2). In his petition for review, Mr. Davtyan does not
challenge this determination.
2
       Protections of the CAT are available if the alien demonstrates “that it is
more likely than not that he will be subject to torture by a public official, or at the
instigation or with the acquiescence of such an official” upon removal.”
Sidabutar v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2007) (internal quotation
marks omitted).

                                          -4-
marks omitted). “Agency findings of fact are reviewed under the substantial

evidence standard. Under this standard of review, agency findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Id. (citations and internal quotation marks omitted).

      “Although always deferential to agency fact-finding, we must ensure that

BIA conclusions are sufficiently supported by the available evidence.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “Our duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Id. (internal quotation

marks and alteration omitted).

      Additionally, “[t]he scope of our review is governed by the form of the BIA

decision. Where the BIA issues its own opinion dismissing the appeal in a

single-member decision . . . , the order constitutes the final order of removal” for

our review. Ritonga, 2011 WL 258380 at *1 (internal quotation marks omitted).

But “we also may consult the IJ’s explanation,” especially if the BIA

“incorporates by reference the IJ’s rationale” or “repeats a condensed version of

[the IJ’s] reasons while also relying on the IJ’s more complete discussion.” Id.

(internal quotation marks omitted). We are “confined to the reasoning given by

the agency, and we will not independently search the record for alternative bases

to affirm.” Id. (internal quotation marks and alterations omitted). “[I]f our

review is to have any meaning, it must be based on the Board’s own articulation


                                         -5-
of its reasons for denying relief, not on our assumptions about what the Board

considered and decided.” Turri v. INS, 997 F.2d 1306, 1310 (10th Cir. 1993)

(unrelated jurisdictional determination superseded by statute, as stated in

Escalera v. INS, 222 F,3d 753, 756 (10th Cir. 2000)) (quotation omitted)

                                          III.

      Mr. Davtyan contests the substantiality of the evidence underlying the

BIA’s determination that he failed to demonstrate the probability of persecution

upon his return to Armenia. Primarily, he claims that he will be persecuted for

refusing to comply with Armenia’s compulsory conscription laws. It is against

his religious beliefs to serve either in the military or alternative labor service,

which is administered by the military and is “still . . . something [he] can’t do.”

Admin. R. at 150. The State Department International Religious Freedom Report

2007 corroborates Mr. Davtyan’s testimony on this issue. It notes faith leaders’

statements that Jehovah’s Witnesses imprisoned for refusal to serve in the

military were offered the alternate service, but “all refused.” Id. at 223. And the

Country Report on Human Rights Practices in Armenia 2007 states that “since

2005 there have been no applications for alternative service.” Id. at 212.

      Concerning punishment for failure to serve, Mr. Davtyan testified that his

friend, another Jehovah’s Witness, was imprisoned, beaten, and denied adequate

food. The friend eventually died in jail. Prison conditions are “poor and

threaten[] inmates’ health.” Id. at 205 (Country Rep’t on Human Rights


                                           -6-
Practices). “Chronic problems” include overcrowded cells, lack of basic hygiene

supplies, high risk of contracting tuberculosis, poor food quality, denial of visitor

privileges, medical neglect, and some physical abuse. Id. And the International

Religious Freedom Report includes Jehovah Witnesses’ complaints “that the

courts handed down tougher sentences for evasion of alternative labor service.”

Id. at 223.

      Faced with this evidence, the BIA first described the legal framework for

its analysis. “[T]he exercise of th[e] sovereign right” to require military service

“does not constitute persecution.” Admin. R. at 3-4 (citing In re A-G-, 19 I. & N.

Dec. 502, 506 (BIA 1987). “Persecution for failure to serve in the military may

be established only in those rare cases where a disproportionately severe

punishment would result in account of one of the five grounds enumerated” in the

Immigration and Naturalization Act. Admin. R. at 4 (citing A-G-, 19 I.&N. Dec.

at 506). The BIA’s decision relied on two additional cases with relevant

holdings, but it omitted passages applicable to claims of disproportionate

punishment. Admin. R. at 4. See In re Canas, 19 I. & N. Dec. 697, 709 (BIA

1988) (stating that an alien may demonstrate persecution by showing “the

Government’s conscription laws are carried out in a manner which punishes a

person because of his particular religious beliefs or his religious affiliation”); In

re Vigil, 19 I. & N. Dec. 572, 579 (BIA 1988) (stating “an alien who has refused

to perform military service could qualify as a ‘refugee’ by showing that, if


                                          -7-
returned to a certain country, he might suffer disproportionate punishment for his

military offense ‘on account of’ one of the five enumerated grounds”).

      Apparently applying the standard described in its case law, the BIA made a

summary finding that the IJ “properly concluded that the respondent did not

satisfy his burden of demonstrating eligibility for . . . withholding of removal or

protection under the Convention Against Torture.” Admin. R. at 4. In a

statement unsupported by legal authority, the BIA also commented: “Although

the respondent may object to some aspects of [the] alternative service, its

existence further undermines his argument of persecution arising from his

religious belief.” Id.

      Because the BIA’s opinion is somewhat conclusory, we look to the IJ’s

more detailed discussion to illuminate the agency’s decision. At this point,

judicial review for substantial evidence becomes problematic. The IJ found “that

the respondent may probably face arrest upon his return to Armenia and will

probably be required to, in some way, comply with his failure to report for duty in

the military or the alternative program. . . .” Admin. R. at 48. He also found

“some evidence in the record that Jehovah’s Witnesses may be sentenced to a

longer term of imprisonment than others who have failed to comply with the

conscription laws.” Id. (emphasis added).

      These findings appear to recognize some circumstantial evidence of intent

to persecute on religious grounds, but the IJ followed them with contradictory and


                                         -8-
perhaps mis-transcribed observations. “[T]here is no evidence in the record that

this is made with the intent of persecuting [Mr. Davtyan] for his religious belief.”

Id. at 48-49 (emphasis added). “There’s no evidence in the record that the

respondent would just serve a disproportionate term or that the term of or the

punishment would be sever[e].” Id. at 49 (emphasis added). Though “there is

some evidence that the Court[]s and some judges in Armenia may sentence those

who belong to the Jehovah Witness religion to a term longer than others who are

convicted of that crime in Armenia,” the IJ found “no evidence in the Court as to

what, if any, the disproportionate punishment may be [meted] out to the

conscientious objector as those who fail to serve in the military of Armenia

because they are members of the Jehovah’s Witnesses and others who may also

find military services objectionable.” Id. at 49-50 (emphasis added).

      These rather baffling findings are accompanied by an impenetrable one:

“there is no evidence that the Armenia courts or upon conviction of their failure

to comply with conscription laws are sentenced to serve a prison sentence for just

illegal or inappropriate under the law of Armenia.” Id. at 48. A final finding is

“that the respondent’s fear is not of returning to Armenia, it involves the future

service in the Armenian military or paying punishment for not complying with the

conscription laws of Armenia.” Id. at 52.

      When this court consults the IJ’s decision, the IJ’s factual findings must be

conducive to meaningful review. See Razkane v. Holder, 562 F.3d 1283, 1288


                                         -9-
(10th Cir. 2009) (determining that the IJ’s stereotypical assumptions were

“unhinged from the prerequisite of substantial evidence” and would “inevitably

lead to unpredictable, inconsistent, and unreviewable results”); Wiransane v.

Ashcroft, 366 F.3d 889, 898 (10th Cir. 2004) (stating that this court “will reject an

adverse credibility finding for which an IJ gives virtually no reasoning”).

         In addressing Mr. Davtyan’s case, the BIA and the IJ may well have had

cogent reasons for finding that sentencing disparities between Jehovah’s

Witnesses and other conscientious objectors do not amount to a probability of

persecution upon his return to Armenia. But the agency’s failure to articulate

these reasons, precludes our review. 3 We are constrained to remand for

additional proceedings. In light of our decision to remand for more coherent

findings on the persecution issue, we determine it unnecessary at this time to

address the argument that the agency’s denial of Mr. Davtyan’s CAT claim was

not supported by substantial evidence.




3

            We note also the Supreme Court’s general holding that “it is not within the
    judicial ken to question the centrality of particular beliefs or practices to a faith,
    or the validity of particular litigants’ interpretations of those creeds.” Hernandez
    v. Com’r of Internal Revenue, 490 U.S. 680, 699 (1989). On the present record,
    it is undisputed that Jehovah’s Witnesses and Mr. Davtyan have religious
    objections to the alternative noncombat service. Thus, the BIA’s discounting of
    these objections, without any citation to legal authority, appears anomalous.

                                            -10-
                                       IV.

      The petition for review is GRANTED, and the case is remanded for

additional proceedings consistent with this order and judgment.



                                                  Entered for the Court


                                                  Bobby R. Baldock
                                                  Circuit Judge




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