Sargis Harutyunyan v. Eric Holder, Jr. , 551 F. App'x 436 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARGIS HARUTYUNYAN and No. 09-70561
MARINE HOVHANNISYAN,
Agency Nos. A075-741-145
Petitioners, A075-741-146
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 5, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Sargis Harutyunyan, a native and citizen of Armenia, petitions for review of an
order of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s
decision denying his applications for asylum, withholding of removal, and protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the Convention Against Torture (CAT).1 We have jurisdiction under 8 U.S.C.
§ 1252.
Because Harutyunyan submitted his applications for relief before May 11, 2005,
the pre-REAL ID Act standards govern this case. See Zamanov v. Holder, 649 F.3d
969, 973 n.2 (9th Cir. 2011). Under the pre-REAL ID Act standards, we are bound
to accept an adverse credibility finding “[a]s long as one of the identified grounds
underlying a negative credibility finding is supported by substantial evidence and goes
to the heart of the claims of persecution.” Khadka v. Holder, 618 F.3d 996, 1000 (9th
Cir. 2010).
Substantial evidence supports the Board’s adverse credibility determination
based on: (1) the inconsistencies between Harutyunyan’s first and second asylum
applications; (2) inconsistencies between his documentary evidence and his written
statements; (3) the several implausibilities included in his claim; and (4) the conflicts
between his testimony and his written statements regarding the circumstances of his
persecution and his basis for leaving Armenia. See Zamanov, 649 F.3d at 973(“[I]nconsistencies regarding events that form the basis of the asylum claim are
sufficient to support an adverse credibility determination. . . .”) (citation and footnote
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Harutyunyan included his wife in the application as a derivative
beneficiary.
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reference omitted). Harutyuyan failed to offer plausible explanations for these
inconsistencies, thereby lending substantial evidence to the Board’s adverse credibility
determination. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). (“[I]f [an]
alien fails to provide a plausible explanation [for contradictory evidence], the IJ may
properly rely on the inconsistency as support for an adverse credibility determination.
. . .”)(citations omitted); see also Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.
2005) (explaining that testimony which “is implausible in light of the background
evidence can support an adverse credibility finding”) (citations and internal quotation
marks omitted); Don v. Gonzales, 476 F.3d 738, 743 (9th Cir. 2007) (same).
We must accept the BIA’s adverse credibility determination “[a]s long as one
of the identified grounds underlying a negative credibility finding is supported by
substantial evidence and goes to the heart of the claims.” Khadka, 618 F.3d at 1000(citations omitted). Moreover, because Harutyunyan’s testimony lacked credibility,
his failure to present corroborating evidence was fatal to his application for asylum.
See Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000), as amended (“[I]f the trier of
fact either does not believe the applicant or does not know what to believe, the
applicant’s failure to corroborate his testimony can be fatal to his asylum application.
. . .”). “[W]here, as here, the claim for withholding is based on the same facts as the
claim for asylum, the failure to establish eligibility for asylum results in the failure to
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demonstrate eligibility for withholding. . . .” Cui v. Holder, 712 F.3d 1332, 1338 n.3
(9th Cir. 2013) (citation omitted). Accordingly, we deny the petition for review with
respect to the asylum and withholding of removal claims.
As the government conceded, the CAT claim was exhausted because it was
addressed by the BIA. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
However, denial of the CAT claim cannot rest solely on the adverse credibility
determination. See Cui, 712 F.3d at 133 n.3. Rather, the CAT claim must be
considered separately and under a different legal standard. See Farah v. Ashcroft, 348
F.3d 1153, 1156-57 (9th Cir. 2003). Because the BIA failed to separately consider the
CAT claim as required, we remand the CAT claim for consideration in accordance
with our precedent.
PETITION DENIED IN PART, REMANDED IN PART.
Each party shall bear its costs on appeal.
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