Ara Babayan v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARA BABAYAN, HELEN BABAYAN, No. 16-73903
LILIAN BABAYAN, and LEONARD
BABAYAN, Agency Nos. A 075-682-516,
A 095-448-718, A 095-448-719,
Petitioners, A 095-448-720
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2019
Pasadena, California
Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for the Second
Circuit, sitting by designation.
1
Ara, Helen, Lilian, and Leonard Babayan petition for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the decision of an
Immigration Judge (“IJ”) denying their claims for asylum and withholding of
removal, as well as protection under the Convention Against Torture (“CAT”).1
We have jurisdiction under 8 U.S.C. § 1252. Petitioners contend that they were and
will be subjected to persecution and torture in Iran because they are Armenian
Christians.
The IJ and the BIA determined that Petitioners’ application for asylum was
untimely because Petitioners failed to “demonstrate[] by clear and convincing
evidence that the application [was] filed within 1 year after the date of [their]
arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B). Although Petitioners did
provide some colorable evidence of timeliness, we lack jurisdiction to review the
BIA’s determination because the petition presents a question of fact—namely,
when Petitioners arrived in the United States—rather than a constitutional claim or
a question of law, and such questions of fact are not reviewable. See id. §§
1158(a)(3), 1252(a)(2)(D). The petition is dismissed to the extent it challenges the
IJ and the BIA’s determination that the asylum application was untimely.
1
Because all Petitioners share the last name “Babayan,” we refer to them
individually by their first names.
2
The Babayans also sought withholding of removal and protection under the
Convention Against Torture. In his testimony to the IJ, Ara detailed alleged
oppression in Iran, including imprisonment, threats against his family, beatings by
the police, and punishment by lashes. Ara also testified that this oppression began
when he refused to convert to Islam and continued until his family paid for his
release from prison. Petitioners produced some documentary evidence of this
mistreatment.
Notwithstanding this testimony, the IJ and the BIA determined that Ara did
not testify credibly. We conclude that this determination is supported by
substantial evidence. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011).
Several discrepancies existed in the timeline underlying Ara’s testimony. For
example, his testimony on one occasion placed him outside prison on a date on
which his written application indicated that he was in prison. He also presented
conflicting accounts of his interactions with his neighbor Homa, whose complaint
to the police, Ara alleged, triggered his persecution. Attempting to explain the
conflicts, Ara claimed not to have reviewed his application before filing it, but the
record shows otherwise. These and other inconsistencies, the IJ and the BIA
concluded, went “to the heart of [Petitioners’] claim of persecution,” id. (quoting
Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003)). Additional inconsistencies
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were less significant but when considered collectively, deprived Ara’s testimony of
the required “ring of truth” and constituted substantial evidence to sustain the BIA
and the IJ’s adverse credibility determination. See id. at 1088. This determination
provided a basis to deny Petitioners’ claims for withholding of removal and
protection under the CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.
2003).
More specifically as to the CAT claim, although Petitioners presented
objective country condition reports to the BIA, those reports were not presented to
the IJ. Additionally, while the reports describe dire circumstances that sometimes
confront Iranian Christians, they are general in nature and do not compel the
conclusion that Petitioners themselves are more likely than not to be tortured upon
removal. See Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). In any
case, such reports do not require the BIA or IJ “to grant relief when [they
determine that] the applicant is not credible.” Almaghzar v. Gonzales, 457 F.3d
915, 921-22 (9th Cir. 2006).
PETITION DISMISSED IN PART AND DENIED IN PART.
4