Loreta Khachikian v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORETA KHACHIKIAN, No. 17-70997
Petitioner, Agency No. A096-151-781
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2020**
Pasadena, California
Before: EBEL,*** WARDLAW, and OWENS, Circuit Judges.
Loreta Khachikian petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing her appeal from the Immigration Judge’s (IJ)
denial of her application for asylum, withholding of removal and protection under
*
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).
***
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252. We grant in part and deny in part the petition for review.
1. Because Khachikian’s testimony is marred by inconsistencies about
issues that go to the “heart of [her] claim of persecution, we are bound to accept
the IJ’s adverse credibility finding.” Wang v. I.N.S., 352 F.3d 1250, 1259 (9th Cir.
2003).
Khachikian failed to establish her Iranian nationality. Although she
concedes that she offered the Immigration Court a fraudulent birth certificate, she
contends she did not know it was fraudulent when she introduced it into evidence.
In Yeimane-Berhe v. Ashcroft, we found that because there was “no evidence that
[the petitioner] knew or should have known that the medical certificate was
counterfeit” and because the petitioner’s story about how she obtained the forged
medical certificate “was detailed, internally consistent” and corroborated by other
evidence, it was improper for the IJ there to base an adverse credibility finding on
the fraudulent medical document alone. 393 F.3d 907, 912–13 (9th Cir. 2014). By
contrast, here, Khachikian offered two different names for the person who gave her
the forged birth certificate, and offered contradictory statements as to whether she
first received the certificate in Mexico before entering the United States, or in San
Diego after she had crossed over the border. Thus, unlike in Yeimane-Berhe, there
was good reason for the IJ to doubt Khachikian’s story regarding how she obtained
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the fraudulent birth certificate. Furthermore, although Khachikian initially testified
that she was not allowed any visitors during her 16 days in Evin Prison, she later
testified that her attorney and husband visited her in detention. She also suggested
she may have only been detained for 11–13 days.
2. Beyond her testimony, Khachikian offers no reliable documentary evidence
to support her claims for asylum and withholding of removal. For example, to
prove that she was charged with trying to convert her coworker to Christianity,
Khachikian offered the court an English-language translation of her Iranian court
summons. However, Khachikian first claimed that this document had been
translated before she left for the United States, and then later claimed that it was
translated only after she arrived. Furthermore, even though she explained her lack
of documentary corroboration by stating that her husband was afraid of collecting
documents in support of her asylum application from Iranian officials, she also
testified, somewhat implausibly, that her husband had arranged to have this
summons translated at an official notary in Iran. Given these inconsistencies, the
authenticity of her purported summons is in doubt. Accordingly, because
Khachikian failed to offer credible testimonial or documentary evidence to support
her claims of past persecution, the BIA’s denial of her claim for asylum and
withholding of removal is supported by substantial evidence. See Pedro–Mateo v.
I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (“A failure to satisfy the lower standard
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of proof required to establish eligibility for asylum . . . necessarily results in a
failure to demonstrate eligibility for withholding of deportation.”).
3. The BIA committed three errors in its analysis of Khachikian’s CAT claim.
First, the BIA required Khachikian to establish her Iranian nationality to
prevail on her CAT claim. This was error because a petitioner seeking CAT relief
is not required to establish her own nationality. The applicable regulations require
her to show only that “it is more likely than not that [she] would be tortured in the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(3) (emphasis added). Thus,
Khachikian’s nationality was not at issue as to her CAT claim.
Second, the BIA failed to properly follow our instructions in Kamalthas v.
I.N.S., 251 F.3d 1279, 1284 (9th Cir. 2001), which prohibits importing a negative
credibility finding from the asylum context into the CAT context “when the prior
adverse credibility determination is not necessarily significant in this situation.” In
affirming the IJ’s adverse credibility finding, the BIA did not discuss any issues
relating to her Christianity. Given that the core of Khachikian’s CAT claim is that
she would be tortured in Iran because she is Christian, this prior adverse credibility
finding was “not necessarily significant” to her CAT claim. Kamalthas, 251 F.3d
at 1284. The BIA should not have relied upon it in denying her CAT relief.
Finally, the BIA declined to consider whether Khachikian’s testimony and
her baptismal certificate established that she was a Christian, and also failed to
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discuss the specific reports in the record showing that Christians are targeted for
torture in Iran. This is contrary to the BIA’s own regulations requiring that “all
evidence relevant to the possibility of future torture shall be considered” when
adjudicating a CAT claim. 8 C.F.R. 1208.16(c)(3) (emphasis added).
We therefore remand for further consideration of Khachikian’s CAT claim
with reference to the country of removal designated on remand. See Parada v.
Sessions, 902 F.3d 901, 916 (9th Cir. 2018).1
4. Khachikian waived any due process claim she might have had because
she failed to “specifically and distinctly raise[]” any such arguments in her brief.
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
GRANTED IN PART; DENIED IN PART; REMANDED.2
1
Although the record is ambiguous, the IJ’s order, the BIA’s order, and the
parties’ briefing before this court all analyze Khachikian’s CAT claim as though
Iran is the designated country of removal. We therefore assume that the designated
country of removal at this stage is Iran. If, on remand, the government designates
a different country of removal, the analysis of Khachikian’s CAT claim should
change accordingly.
2
The parties shall bear their own costs on appeal.
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