Hasmik Movsesyan v. Jefferson Sessions , 714 F. App'x 769 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HASMIK MOVSESYAN, No. 15-70573
Petitioner, Agency No.
A098-453-147
v.
JEFFERSON B. SESSIONS III, MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 14, 2018
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District
Judge.
Hasmik Movsesyan appeals the Board of Immigration Appeals’ (“BIA”)
dismissal of her appeal of an Immigration Judge’s (“IJ”) decision denying her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John A. Woodcock, Jr., United States District Judge
for the District of Maine, sitting by designation.
application for asylum, withholding of removal, and protection under the
Convention Against Torture. This Court reviews each of those denials, as well as
adverse credibility determinations, for substantial evidence. Baghdasaryan v.
Holder, 592 F.3d 1018, 1022 (9th Cir. 2010) (asylum and withholding of removal);
Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010) (adverse credibility
determination); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008)
(Convention Against Torture). We have jurisdiction pursuant to 8 U.S.C. §
1252(a)(1), and we deny Movsesyan’s petition for review.
1. Substantial evidence supports the IJ’s adverse credibility finding.
Movsesyan testified inconsistently and vaguely regarding basic facts of claimed
harassment by Armenian authorities. These included the number of times she was
assaulted, the number of her teeth her assaulters broke, the sequencing of incidents,
whether the KGB issued her a death threat, and more. The IJ wrote,
Respondent was not a credible witness. Although respondent was not
a credible witness, the court does not necessarily disbelieve all of her
testimony. However, due to the problems with respondent’s
testimony, the court does not know what parts of her testimony to
believe. The court accepts that respondent was a practicing
Pentecostal in Armenia. The court also is willing to accept that
respondent may have had problems with the authorities in Armenia.
(citation omitted).
Movsesyan contends that this portion of the IJ’s opinion somehow
undermines the adverse credibility determination. It does not. Movsesyan cites no
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authority for the proposition that to make an adverse credibility finding, an IJ must
disbelieve all of an alien’s testimony. If left unsure what to believe, an IJ remains
free to discredit the alien’s testimony, absent corroboration. Sidhu v. INS, 220 F.3d
1085, 1090 (9th Cir. 2000) (“[8 C.F.R. § 208.13] plainly indicates that if 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”). Here, the IJ correctly noted that Movsesyan failed to present
background evidence corroborating her claim that Armenian authorities act in
some way against Pentecostals.
In cases predating the REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005),
an adverse credibility determination must be founded on testimonial
inconsistencies that go to the heart of the asylum claim. Li v. Ashcroft, 378 F.3d
959, 962, 964 (9th Cir. 2004). Such was the case here. The IJ grounded his
adverse credibility finding not on peripheral, minor matters, but on whether she
had linked any past persecution to a protected ground. The adverse credibility
finding was thus adequately supported and must be upheld.
2. The BIA did not err in refusing to consider the psychological report
because Movsesyan did not submit it to the IJ, did not present a valid basis for its
consideration before the BIA, did not move to remand or reopen, and did not show
that it was unavailable and could not have been discovered or presented at the IJ
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hearing. See 8 C.F.R. §§ 1003.1(d)(3)(iv), 1003.2(c)(1). Furthermore, the BIA
properly concluded that the psychologist’s report failed to present a justifiable
excuse for Movsesyan’s inconsistent testimony. The report confirmed that
Movsesyan did not have memory problems and explained her inconsistent
testimony and “making up (false) stories” by her extreme nervousness during her
testimony. The psychologist’s report thus buttressed the IJ’s finding that her
testimony lacked credibility.
3. Because of the adverse credibility determination, the withholding of
removal claim also fails. The alien bears the burden of proving a “clear
probability,” that it is “more likely than not” that she would suffer persecution
based on one of the protected grounds upon return. INS v. Stevic, 467 U.S. 407,
429-30 (1984); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). This standard is
higher than that governing eligibility for asylum. An alien who fails to establish a
well-founded fear of persecution for asylum purposes for lack of credible evidence
supporting the claim is therefore necessarily ineligible for withholding of removal.
Ghaly, 58 F.3d at 1428-29.
4. Finally, substantial evidence supports the IJ’s conclusion that nothing in
the record establishes it is more likely than not that Movsesyan will experience
torture upon her repatriation in Armenia. 8 C.F.R. § 1208.16(c)(2); see
Unuakhaulu v. Gonzales, 416 F.3d 931, 939 (9th Cir. 2005) (stating standard).
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Movsesyan claims a reasonable belief that Armenian authorities are capable of
carrying out threats against her life and the safety of her family. A reasonable
belief that authorities are capable of something does not support a conclusion that
they are more likely than not to torture her upon her return. Documentary evidence
from the Department of State and United Nations High Commissioner for
Refugees supports the IJ’s conclusion that Movsesyan has not shown it is more
likely than not that she will be tortured upon her return to Armenia.
PETITION FOR REVIEW DENIED.
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