Sargis Tashyn v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARGIS TASHYN, AKA Sargis Taschyan, No. 16-73091
Petitioner, Agency No. A087-744-055
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2022**
San Francisco, California
Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.
Sargis Tashyn, a native and citizen of Armenia, petitions for review of the
Board of Immigration Appeals’ (Board) order dismissing his appeal from an
Immigration Judge’s (IJ) decision denying his applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We deny the petition.
“We review factual findings, including adverse credibility determinations, for
substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). “Under
the substantial evidence standard, ‘administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.’”
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
First, substantial evidence supports the agency’s adverse credibility
determination. The Board relied on the IJ’s findings that Tashyn testified
inconsistently about the presence of police when he was threatened at his workplace,
whether he lost his job before or after his detention, his travel to the United States,
and why he did not apply for a visa to the United States. Based on the totality of the
circumstances, these inconsistencies taken together are sufficient to support the
agency’s adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). Even
assuming these inconsistencies were minor, “under the REAL ID Act, even minor
inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis
for an adverse credibility determination.” Li v. Garland, 13 F.4th 954, 959 (9th Cir.
2021) (citation and alteration omitted). Because Tashyn had a sufficient opportunity
at his hearing to explain these inconsistencies, and because the agency reasonably
rejected Tashyn’s explanations, the agency did not err in relying on the
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inconsistencies in its adverse credibility determination. See Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011), overruled in part on other grounds by Alam v. Garland,
11 F.4th 1133, 1135–37 (9th Cir. 2021) (en banc); Kumar v. Garland, 18 F.4th 1148,
1154 (9th Cir. 2021). In the absence of credible testimony, Tashyn’s asylum and
withholding of removal claims fail because “the remaining evidence in the record is
insufficient to carry [his] burden of establishing eligibility for relief.” Wang v.
Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
Second, substantial evidence supports the agency’s denial of CAT protection.
“To receive CAT protection, a petitioner must prove that it is ‘more likely than not’
that he or she would be tortured if removed.” Shrestha v. Holder, 590 F.3d 1034,
1048 (9th Cir. 2010) (quoting 8 C.F.R. § 1208.16(c)(2)). Tashyn’s CAT claim fails
because Tashyn did not provide sufficient evidence independent of his discredited
testimony establishing “that he would be subject to a particularized threat of torture”
if returned to Armenia. See Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021)
(quoting Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008)); Almaghzar v.
Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) (holding that the petitioner’s CAT
claim failed because non-credible testimony and the relevant country conditions
report did not compel the conclusion that the petitioner would face a particularized
threat of torture).
Finally, Tashyn’s request for fees and expenses pursuant to the Equal Access
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to Justice Act (EAJA), 28 U.S.C. § 2412(d), does not comply with the procedural
requirements to seek an EAJA award, see id. § 2412(d)(1)(B); 9th Cir. Rule 39-
1.6(b), and otherwise lacks merit because he is not a “prevailing party,” Carbonell
v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005).
PETITION DENIED.
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