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Lkhagvasuren v. Lynch

United States Court of Appeals, Ninth Circuit

July 13, 2016

Otgonbayar Lkhagvasuren, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Submitted April 14, 2016 [*] San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-990-746

          Jeremiah Johnson, Johnson & McDermed, LLP, San Francisco, California, for Petitioner.

          Stuart F. Delery, Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Jeffrey R. Meyer, Attorney; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: J. Clifford Wallace, Mary M. Schroeder, and Alex Kozinski, Circuit Judges.

         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.

          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 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 ...


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