Anahit Ghazaryan v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANAHIT GHAZARYAN, No. 19-71877
Petitioner, Agency No. A077-848-709
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2021**
Pasadena, California
Before: OWENS, R. NELSON, and BADE, Circuit Judges.
Anahit Ghazaryan, a native of the Union of Soviet Socialist Republics and
citizen of Armenia, petitions for review of the Board of Immigration Appeals’
(“BIA”) order dismissing her appeal from an Immigration Judge’s (“IJ”) decision
denying her applications for asylum, withholding of removal, protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”), and request for voluntary departure. Our
jurisdiction is governed by 8 U.S.C. § 1252. We dismiss the petition in part and
deny it in part.
1. Ghazaryan challenges the BIA’s decision to affirm the IJ’s
determination that her asylum application was untimely. But the BIA declined to
consider the issue because Ghazaryan failed to raise it. Thus, this issue is
unexhausted, and we lack jurisdiction to review it. See Arsdi v. Holder, 659 F.3d
925, 929–30 (9th Cir. 2011). We therefore dismiss the petition as to Ghazaryan’s
asylum claim. Her failure to raise the timeliness of her asylum application to the
BIA further precludes our review of her claim to humanitarian asylum.
2. Ghazaryan asserts the BIA erred in upholding the IJ’s adverse
credibility determination. Initially, we reject the government’s assertion that
Ghazaryan did not exhaust this issue because she raised it in her briefing before the
BIA and the BIA considered it on the merits. See Vizcarra-Ayala v. Mukasey, 514
F.3d 870, 873–74 (9th Cir. 2008).
We must uphold an adverse credibility determination as “long as one of the
identified grounds is supported by substantial evidence and goes to the heart of [the
alien’s] claim of persecution.”1 Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir.
1
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, does not
apply here because Ghazaryan filed her asylum application prior to May 11, 2005.
See Lei Li v. Holder, 629 F.3d 1154, 1157 (9th Cir. 2011).
2
2011) (alteration in original) (citation omitted). Because the BIA did not adopt the
IJ’s decision and reviewed it for clear error, we review only the “reasons explicitly
identified by the BIA” in support of its conclusion and the “reasoning articulated in
the IJ’s oral decision in support of those reasons.” Tekle v. Mukasey, 533 F.3d
1044, 1051 (9th Cir. 2008) (citation omitted).
The BIA concluded that there were inconsistencies regarding Ghazaryan’s
account of who beat her during a home bible study on January 11, 1999.
Ghazaryan asserted in a declaration that Yerkrapah—members of a militia
unconnected to the government—beat her. But during the merits hearing,
Ghazaryan testified unequivocally that Yerkrapah did not beat her in the January
1999 incident. The BIA also noted that the IJ “found that [Ghazaryan] testified
that she contacted the police for help following the incident, despite her claim that
it was the police who had attacked her.” The BIA concluded Ghazaryan’s
inconsistent account of the January 1999 incident goes to the heart of her claim,
and thus, sufficiently supports the adverse credibility determination.
The BIA did not err. This inconsistency is supported by substantial
evidence, and it goes to the heart of her claim because it relates to who purportedly
beat her for practicing her religion, which is the basis of her persecution claim. See
Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990). We lack jurisdiction
to consider whether Ghazaryan had an adequate opportunity to explain this
3
inconsistency because Ghazaryan failed to exhaust this issue before the BIA.2 See
Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). Ghazaryan’s claims to
withholding of removal and CAT relief fail because each claim depends on her
credible testimony. See Farah v. Ashcroft, 348 F.3d 1153, 1156–57 (9th Cir.
2003).
3. Ghazaryan argues that the BIA erred in affirming the IJ’s denial of
voluntary departure. The government asserts Ghazaryan failed to exhaust this
issue, but the BIA considered this issue on the merits, rendering it exhausted.
Vizcarra-Ayala, 514 F.3d at 873–74.
While we lack jurisdiction to review a denial of voluntary departure, we may
review colorable “constitutional claims or questions of law” that arise from that
determination. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Ghazaryan contends that
the BIA and IJ committed legal error by applying the wrong standard. But the BIA
articulated the correct standard and cited the IJ’s decision, which also stated the
2
Ghazaryan also asserts there were translation errors. Translation errors
“can undermine the evidence on which an adverse credibility determination is
based.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) (citation omitted). But
Ghazaryan’s contention that there were translation errors is solely based on
argument in her briefing. Factual assertions that rely solely on statements in a
petitioner’s brief do not constitute evidence and therefore cannot form the basis for
reversal on substantial evidence review of an adverse credibility determination.
See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition
only on the administrative record on which the order of removal is based . . . .”);
Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003).
4
correct standard and cited relevant law. Thus, Ghazaryan has not articulated a
colorable claim of legal error as there is no indication that the agency applied an
incorrect standard. See Mendez-Castro v. Mukasey, 552 F.3d 975, 979–80 (9th
Cir. 2009). Ghazaryan’s claim that the BIA and IJ violated her right to due process
fails because it is a dressed-up challenge to the denial of voluntary departure based
on abuse of discretion in weighing the equities, which is not a colorable
constitutional claim. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748–49 (9th Cir.
2006) (per curiam). We also reject Ghazaryan’s conclusory assertion that the BIA
and IJ ignored evidence. See Larita-Martinez v. INS, 220 F.3d 1092, 1095–96 (9th
Cir. 2000) (stating that we presume that the agency reviewed all relevant evidence
in the record). Accordingly, we lack jurisdiction to review the denial of voluntary
departure, and we dismiss this portion of Ghazaryan’s petition.
4. Finally, we dismiss Ghazaryan’s unexhausted due process claims for
lack of jurisdiction. See Huang v. Mukasey, 520 F.3d 1006, 1008 (9th Cir. 2008)
(per curiam). We reject Ghazaryan’s bald assertion that it was impossible for her
to raise to the BIA that there were translation errors or that the IJ failed to act as a
neutral factfinder.
PETITION DISMISSED IN PART AND DENIED IN PART.
5