Razmik Hakhverdyan v. U.S. Attorney General ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2008
No. 07-15037 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A98-862-782
RAZMIK HAKHVERDYAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 19, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Razmik Hakhverdyan petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) order denying his
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). After review, we deny Hakhverdyan’s petition
for review.
I. BACKGROUND
On September 19, 2004, Hakhverdyan, a native of Iran and citizen of
Armenia, entered the United States without being admitted or paroled.1 On July 1,
2005, Hakhverdyan filed an application for asylum, withholding of removal and
CAT relief, claiming persecution in Armenia because of his nationality and
political opinion. On December 16, 2005, the government issued a notice to
appear charging Hakhverdyan with being an alien in the United States having not
been admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
A. Asylum Application
According to his application, Hakhverdyan worked in Armenia as an English
teacher. In 2003, during the presidential election between then-president Robert
Kocharyan and Stephan Demirchyan, Hakhverdyan supported Demirchyan. Prior
to the election, the school principal where Hakhverdyan worked confronted him
1
Hakhverdyan used a fraudulent Lithuanian passport to fly to Paris, France and then to
Mexico. From Mexico, Hakhverdyan entered the United States by car.
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about his voting choice and told him that, as a government employee, he was
expected to vote for Kocharyan and would be paid $200 for doing so. After
Kocharyan was re-elected, Hakhverdyan was called to the principal’s office and
fired because he had disobeyed the order to vote for Kocharyan.
Because many considered Kocharyan’s re-election to be the result of fraud,
Hakhverdyan and others protested to force Kocharyan to resign. During one
demonstration on April 12, 2004, police used stun grenades and electric shock
equipment against protesters. Police injured, arrested and detained Hakhverdyan
for three days. During detention, Hakhverdyan was subjected to physical and
mental abuse, called a Moslem dog and foreigner, and his life was threatened. At
one point, a guard put a unloaded gun to Hakhverdyan’s head and said, “I will kill
you here like a dog,” and pulled the trigger. On the third day, Hakhverdyan was
told that if he signed a paper saying that he was a hooligan and had disrespected
the president, he would be released. After release, Hakhverdyan received
threatening phone calls. Because he felt his life was in danger, Hakhverdyan fled
Armenia.
Attached to Hakhverdyan’s application were these documents: (1) a copy of
his Armenian passport; (2) an excerpt from his Labor Book, together with an
English translation, stating that Hakhverdyan was fired in March 2003; (3) a copy
of a false Lithuanian passport; (4) copies of his travel documents to Mexico; (5) a
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copy of a Human Rights Watch article discussing arrests and police violence
against political opposition supporters in Armenia; (6) a statement regarding his
residency in Alpharetta, Georgia since January 2005; and (7) excerpts from his
Armenian passport showing validity through May 9, 2006.
B. Country Reports and Other Documentation
The record before the IJ included the 2004 and 2005 Country Reports on
Human Rights Practices for Armenia. The 2004 Country Report indicated (1) that
in March and April 2004, Armenian authorities had denied the opposition parties
requests for permits to hold rallies and demonstrations, and (2) nonetheless, small
rallies took place without government interference. The Report noted that,
between April 13 and April 15, 2004, the police had detained and questioned
persons involved in April 12 and 13, 2004 protest rallies and used flash grenades,
water cannons and batons to disperse hundreds of protestors who blocked a major
city street for more than eight hours. In June 2003, a new law took effect that
lifted the requirement of obtaining a government permit to organize rallies or
demonstrations, although there are still limitations to location. According to the
Report, in the area of political rights, there were reports of harassment to
opposition supporters, but no reports of punitive job dismissals.
The 2005 Country Report indicated (1) there were no reports of politically
motivated arrests resulting in continued detention at year’s end, (2) there were no
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reports of political prisoners, and (3) although the law provided that the
government could interfere with illegal rallies and demonstrations, again, it did not
interfere with small rallies that took place without permission.
The record also contained an Amnesty International 2005 Report on
Armenia, which stated that, on April 13, 2004, police used water cannons and stun
grenades on protestors calling for Kocharyan’s resignation. According to the
Report, most of the activists were detained for up to 48 hours and were beaten and
ill-treated at the police station. The report noted that Edgar Arakelian, an
opposition activist at the April 13, 2004 demonstration, was arrested and admitted
hitting a police officer with an empty plastic bottle, although Arakelian claimed he
acted in self-defense after the officer hit him and broke his front teeth. Arakelian
was sentenced to 18 months’ imprisonment in May 2004 and served a third of his
sentence before being released.
Hakhverdyan submitted several articles discussing police interference with
the opposition demonstrations on or around April 12, 2004. One article, dated
April 12, 2004, stated that opposition supporters were stopped from approaching
Kocharyan’s residence by police wearing riot gear who were ready to use water
cannons, tear gas and stun grenades and that the demonstrators and the police were
in a standoff. Another article, dated April 13, 2004, stated that police had broken
up the demonstration overnight by charging the participants with truncheons, water
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cannons and stun grenades and that opposition leaders and activists had been
rounded up in raids and arrested. Approximately thirty people were treated for
injuries resulting from clashes with the police, although some people were
avoiding seeking treatment for fear of police reprisals.
C. IJ Hearing
At the hearing, Hakhverdyan testified that, although he attended
demonstrations supporting Demirchyan, he was not a member of any political
party. Hakhverdyan was told that if he voted for Kocharyan that he would get a
raise in his teacher salary. Hakhverdyan voted for Demirchyan. Because the vote
in the first election was very close, a second election was held. When the school
found out that Hakhverdyan had voted for Demirchyan in the first election, it cut
his teaching hours. After the second election, the school’s director told
Hakhverdyan that he was fired because “we are satisfying the way of your teaching
and the student they don’t like you.” Hakhverdyan was told he was being fired
because “you didn’t come to your senses” which he took as a comment about his
voting. Hakhverdyan said that two other teachers who voted for Demirchyan were
fired.
At the April 12 demonstration attended by Hakhverdyan, the demonstrators
walked toward the president’s house at midnight, shaking police cars as they went.
At some point, all the lights in the street were turned off, and cars with water
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cannons came and squirted the demonstrators with water. The military arrived and
caused an explosion that Hakhverdyan described as a bright light accompanied by
a loud noise that caused people not to be able to hear. The explosion shot small
bits of plastic around that injured people. Hakhverdyan stated that he was hit by
the plastic pieces, and, although he was not severely injured, the plastic burned.
Hakhverdyan attempted to come to the aid of another and was beaten on his back
and legs with a baton, tied up and taken to the police station.
Upon arrival, police searched Hakhverdyan, took his money and cell phone
and questioned him about his political affiliation. The police told Hakhverdyan
that he was being arrested because he was part of an illegal demonstration, and
thus a hooligan, and told him to sign a document which said as much.
Hakhverdyan refused. Hakhverdyan was detained in a very dark, wet room with
metal bunk beds and no mattresses. During the course of his detention, he was
kicked by several police officers, and questioned repeatedly. When Hakhverdyan
told the police that it was a calm demonstration and that some of the participants
were dancing and singing, an officer put a gun to Hakhverdyan’s head and told him
“now dance and sing.” Although Hakhverdyan was given food, the police beat
him and did not let him use the bathroom. Prior to releasing Hakhverdyan, police
accused him of hitting a police officer with a bottle, and, when he was being
handcuffed, pulling the police officer’s shirt. Further, the police implied that they
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were going to harm Hakhverdyan because he had touched a police officer’s
uniform. When Hakhverdyan asked about his money and cell phone, he was told
that maybe he was drunk and did not remember what happened to them.
After being released, Hakhverdyan, with the help of his brother and friends,
was able to get a fake Lithuanian passport and travel to Paris. From Paris,
Hakhverdyan flew to Mexico, where he stayed for about ten days before entering
the United States. Hakhverdyan believed he would be arrested if deported to
Armenia because he had fled the country illegally.
During cross-examination, Hakhverdyan explained that his Armenian and
Lithuanian passports, although issued ten years apart, contain the same picture
because he had extra photos. The government then asked Hakhverdyan, in light of
the fact that he was carrying around passport photos and several pages were
missing from the Armenian passport, why one should believe that his Armenian
passport was authentic. Hakhverdyan explained that he cut out several pages after
his nephew had drawn on them.
D. Decisions of the IJ and the BIA
The IJ denied Hakhverdyan’s asylum application. The IJ found that
Hakhverdyan lacked credibility after considering his “demeanor, candor,
responsiveness, and the rationality and internal consistency and inherent
persuasiveness of his testimony.” Specifically, the IJ found it troubling that
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Hakhverdyan was unable to answer simple “yes or no” questions and that his
hearing testimony with regard to the April 12 demonstration and his arrest was
considerably more detailed than the statement attached to his asylum application or
his statements to the Asylum Office in his credible fear interview. The IJ stated
that he had reviewed all of Hakhverdyan’s supplemental documentation and noted
the following inconsistencies: (1) in Hakhverdyan’s application statement,
Hakhverdyan did not provide details about his injuries or harm that occurred to
him during the police interference with the April 12 demonstration; (2) in that
statement, Hakhverdyan said that the police used stun grenades and electric shock
equipment; however, at the hearing, he testified that the police used water cannons
and an explosive device that shot small pieces of plastic; (3) although Hakhverdyan
testified that an officer held a gun to his head, he did not indicate that the trigger
was pulled, as he had in his application statement; (4) although Hakhverdyan stated
in his application statement that he received threatening phone calls after he was
released, he failed to mention such calls in his hearing testimony; (5) Hakhverdyan
testified at the hearing that police had taken his money and cell phone, but failed to
note this in his application statement; and (6) Hakhverdyan stated for the first time
at the hearing that he was accused of hitting a police officer with a bottle. As to
this last inconsistency, the IJ noted that the 2005 Amnesty International report
contained a similar account of an arrested demonstrator who admitted hitting a
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police officer with a plastic bottle.
The IJ noted that Hakhverdyan presented no corroborating letters or
statements from others who helped him. The IJ also found that Hakhverdyan had
not established his identity and noted Hakhverdyan’s two passports with the same
picture.
Alternatively, the IJ concluded that, even if he accepted Hakhverdyan’s
testimony as true, Hakhverdyan had not established past persecution. Specifically,
the IJ determined that Hakhverdyan’s termination from his job and treatment by
the police for participating in an illegal demonstration did not rise to the level of
persecution. The IJ also concluded that Hakhverdyan had not shown a well-
founded fear of future persecution. Finally, the IJ determined that, even if
Hakhverdyan had established eligibility for asylum, he would deny asylum in the
exercise of discretion because of Hakhverdyan’s use of fraudulent passports.
Hakhverdyan appealed to the BIA. The BIA affirmed and adopted the IJ’s
decision. As to Hakhverdyan’s credibility, the BIA agreed that the missing pages
from Hakhverdyan’s passport were “sufficient to call into question his identity.”
The BIA agreed that the evidence was insufficient to show that Hakhverdyan had
suffered past persecution. The BIA stated that Hakhverdyan’s alleged
mistreatment “was not so severe as to constitute persecution” and that
Hakhverdyan had not shown that the mistreatment was on account of a protected
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ground.
Hakhverdyan filed this petition for review.2
II. DISCUSSION
On appeal, Hakhverdyan argues that the IJ erred in finding that he was not
credible.3 An applicant for asylum has the burden to show, with specific and
credible evidence, either past persecution or a well-founded fear of future
persecution on account of a protected ground. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284, 1287 (11th Cir. 2001); 8 U.S.C. § 1158(b)(1)(B)(i)-(ii). In
determining whether the applicant has sustained his or her burden, the IJ may
weigh the credibility of the applicant’s testimony along with other evidence in the
record. 8 U.S.C. § 1158(b)(1)(B)(ii). Hakhverdyan’s application was filed on
July 1, 2005, and thus is governed by the REAL ID Act’s new law regarding
2
Because the BIA’s decision adopted the IJ’s decision, we review the orders of both the
BIA and the IJ. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review factual
determinations regarding whether an applicant is eligible for asylum or withholding of removal
under the substantial evidence test. Id. at 1283-84. Under the substantial evidence test, “we
must find that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). A credibility determination, like any other fact
finding, may not be overturned unless the record compels it. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005).
3
Hakhverdyan’s appeal brief identifies as an issue whether the BIA erred in adopting and
affirming the IJ’s decision. However, the brief fails to offer any argument on this issue.
Accordingly, Hakhverdyan has abandoned the issue on appeal. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.1989) (deeming issue waived where party failed to
include substantive argument and only made passing reference to the issue in appeal brief).
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credibility determinations.4 Section 1158(b)(1)(B)(iii) states:
Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
any other relevant factor. There is no presumption of credibility,
however, if no adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable presumption of
credibility on appeal.
8 U.S.C. § 1158(b)(1)(B)(iii). Thus, the IJ may make an adverse credibility
determination based on the “totality of the circumstances” and deny an asylum
claim based on inconsistencies, inaccuracies and falsehoods contained in the
evidence without regard to whether they go to the heart of the claim. Id.“An IJ’s denial of asylum relief . . . can be supported solely by an adverse
credibility determination, especially if the alien fails to produce corroborating
evidence.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006).
4
In 2005, the REAL ID Act of 2005 amended 8 U.S.C. § 1158, changing the law
regarding credibility determinations. See Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303
(2005). The amendment to § 1158(b) took effect on May 11, 2005, the date of enactment, and
apply to applications of asylum and withholding of removal filed after that date. See id.
§ 101(h)(2), 119 Stat. at 305.
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However, the IJ must consider all the evidence submitted by the applicant,
including any documentation. Forgue, 401 F.3d at 1287. The IJ must make an
explicit credibility finding and offer “specific, cogent reasons for the finding.”
Chen, 463 F.3d at 1231. If the IJ makes an explicit credibility finding, the
applicant bears the burden to show that the finding is not supported by specific,
cogent reasons or by substantial evidence. Id. When the IJ identifies an
applicant’s inconsistencies that are supported by the record, we “will not substitute
our judgment for that of the IJ with respect to its credibility findings.” D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
Here, the IJ made an explicit adverse credibility finding and provided
specific, cogent reasons for finding Hakhverdyan not credible that are supported by
substantial evidence. Specifically, the IJ emphasized the lack of detail in
Hakhverdyan’s application and statement to the Asylum Office in contrast to the
vivid detail at the hearing, the absence of corroborating documentation and
Hakhverdyan’s failure to establish his identity. The IJ also identified a number of
inconsistencies between Hakhverdyan’s application statement, his statement to the
Asylum Office and his testimony at the hearing. Contrary to Hakhverdyan’s
argument, the IJ was entitled to rely on inconsistencies in the record that did not go
to the “heart” of his claim. 8 U.S.C. § 1158(b)(1)(B)(iii). Additionally, the IJ was
permitted to, and did, base the credibility determination on Hakhverdyan’s
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demeanor, candor and responsiveness and the inherent plausibility of
Hakhverdyan’s account. See id. Accordingly, the IJ did not err in basing his
credibility finding on the inconsistencies identified in the order and was not
required to accept Hakhverdyan’s explanations for them. After review, we cannot
say that the record compels reversal of the IJ’s credibility determination.
We also cannot say that the IJ erred in finding that Hakhverdyan failed to
establish his identity. Hakhverdyan traveled across Europe and into the United
States on a fraudulent Lithuanian passport and produced an Armenian passport that
had pages removed. Further, although the two passports were issued years apart,
they both contained the exact same picture of Hakhverdyan. Thus, there were
problems with both passports.
Finally, Hakhverdyan produced little evidence corroborating the key aspects
of his persecution claim. See Yang v. U.S. Atty. Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005) (“The weaker an applicant’s testimony, . . . the greater the need for
corroborative evidence.”). The record contains articles and country reports
indicating that there was a confrontation between police and demonstrators
opposing Kocharyan’s election on April 12 and 13, 2004, and that some of the
demonstrators were detained for a time and mistreated while in custody. However,
Hakhverdyan presented no evidence corroborating his claim that he was one of
those demonstrators or that he was detained and mistreated by police. Thus,
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Hakhverdyan’s documentation is insufficient to compel a conclusion that
Hakhverdyan is credible or that he suffered past persecution or has a well-founded
fear of future persecution.
Accordingly, substantial evidence supports the determination of the IJ and
the BIA that Hakhverdyan failed to carry his burden to prove his refugee status for
asylum purposes.5 Because Hakhverdyan failed to carry his burden as to asylum,
he has likewise failed to meet the higher burden of proof for the withholding of
removal and CAT relief. See Al Najjar, 257 F.3d at 1292-93, 1303-04.
PETITION DENIED.
5
We do not address the alternative findings that, even if Hakhverdyan’s allegations were
true, Hakhverdyan failed to show that the allegations rise to the level of past persecution or that
he has a well-founded fear of future persecution on account of his political opinion or national
origin.
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