Tatulyan v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 29 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
YELENA SURENOVNA
TATULYAN; ANDREY
ASHOTOVICH TATULYAN;
ASHOTA TATULYAN,
Petitioners,
v. No. 03-9555
(INS Nos. A76-913-118;
JOHN ASHCROFT, A72-452-930; A76-913-119)
(Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.
Petitioners, a family of Russian citizens of Armenian descent, seek review
of a Board of Immigration Appeals (BIA) order adopting the decision of an
Immigration Judge (IJ) denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture. Here, because the BIA
summarily adopted the IJ’s opinion without analysis, we review the IJ’s decision
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
as the final agency decision. See Yuk v. Ashcroft , 355 F.3d 1222, 1230 (10th Cir.
2004). Our jurisdiction over this petition for review arises from 8 U.S.C.
§ 1252(a)(2)(B)(ii). Petitioners raise four issues. Two challenge the IJ’s decision
on the merits; our review of these issues is for substantial evidence in the record
as a whole. See Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004). The
remaining two issues challenge the BIA’s summary affirmance procedures. We
review these legal issues de novo. See Ali v. Ashcroft , 366 F.3d 407, 409 (6th Cir.
2004). 1
Addressing the latter issues first, petitioners contend that the issuance of a
decision without opinion by only one member of the BIA violates their due
process rights and fails to comply with relevant regulatory provisions. These
arguments are controlled and foreclosed by this court’s opinion in Yuk , 355 F.3d
at 1232. To the extent that petitioners’ argument about the application of relevant
regulations depends on an analysis of the merits, it is rejected for the reasons
stated below. See Sviridov , 358 F.3d at 727.
Petitioners lawfully entered the United States in 1996, but did not seek
asylum until 1999, when petitioner Yelena Tatulyan filed an application for
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
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herself and her son, Ashota. Her husband, petitioner Andrey Tatulyan, made
several lengthy annual trips back to Russia, extending his entry date to July 23,
1999. He filed a timely application for asylum in March of 2000, including his
son on that application. Shortly after Ashota attained twenty-one years of age, he
filed a protective application for asylum in February of 2001.
At their hearing before the IJ, the timeliness of these applications was
considered as an initial matter. Although not included in the transcript of his oral
decision, the IJ ruled at the hearing that, unless qualifying reasons were shown for
the delay, Yelena’s application was untimely, making her ineligible for asylum on
that application. The IJ also ruled that Andrey’s application was timely, making
both he and Ashota eligible for asylum. Further, the IJ ruled that Yelena could
also be eligible through her husband’s application, as a dependent. See Cert.
Admin. R. at 152. Therefore, Ashota and Yelena’s requests for asylum or other
relief were dependent upon Andrey’s application, and the issue before the IJ was
whether Andrey qualified for the relief he sought. See Yuk, 355 F.3d at 1224 n.2.
At the hearing, both Yelena and Andrey testified as to threats and violence
perpetrated against them and their son by Cossack forces as a result of their ties
to Sevan, an Armenian group, and their support for Armenian refugees.
Thereafter, the IJ issued his oral ruling. The IJ first determined that the
Tatulyans’ testimony was not credible because it was not “sufficiently detailed,
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consistent, or believable.” Cert. Admin. R. at 114. Petitioners challenge this
adverse credibility determination as one based on erroneous factual findings and
personal speculation. We review adverse credibility determinations for
substantial evidence in the record. See Dia v. Ashcroft , 353 F.3d 228, 247-50 (3d
Cir. 2003) (discussing standards). An IJ must give “specific, cogent reasons” for
disbelieving a petitioner’s testimony. See Sviridov , 358 F.3d at 727 (quotation
omitted). Our review of the record in this case leads us to conclude that there is
no reasonable support for the IJ’s credibility determination.
First, Yelena Tatulyan’s testimony was very specific and detailed, even as
to the dates of the various incidents she described. The IJ’s summary of her
testimony covers more than four pages of his decision. Second, the only
inconsistencies noted by the IJ–whether Yelena visited friends or relatives in a
hospital and whether Andrey was a volunteer or elected Board member of
Sevan–are matters of little or no consequence in relation to the incidents of
violence to which petitioners testified, and therefore do not undermine the
veracity of their testimony as a whole. Third, the IJ’s conclusion that the
testimony was not believable is unsupported. Cf. Dia , 353 F.3d at 249 (stating a
conclusion of “implausibility” must be made against the background of general
country conditions). Although we ordinarily defer to the IJ’s credibility findings,
such findings must be reasonably grounded in the record, and not “based on
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speculation, conjecture, or an otherwise unsupported personal opinion.” Id. at
250. 2
Because we find no support in the record for the IJ’s credibility
determination, we are left with the conclusion that the Tatulyans suffered past
persecution in Russia as a result of their ties to Sevan and their support of
Armenian refugees. One way that petitioners can establish refugee status is to
demonstrate past persecution, which “gives rise to a [rebuttable] presumption that
he or she has a well-founded fear of future persecution.” Vatulev v. Ashcroft , 354
F.3d 1207, 1209 (10th Cir. 2003). Nonetheless, that presumption in this case is
rebutted by Andrey Tatulyan’s lengthy annual visits to Russia during the three
years after the Tatulyans came to this country and before they applied for asylum.
Cf. 8 C.F.R. § 208.8(b) (providing that an alien who returns to a country of
claimed persecution abandons his or her asylum application unless the alien can
establish compelling reasons for the return). Our review of the record leads us to
the conclusion that compelling reasons did not exist for Andrey Tatulyan’s trips
to Russia. Further, even if § 208.8(b) does not apply here in light of the timing of
2
The IJ also stated, in a rather disparaging manner, that he did not believe
the Tatulyans’ reasons for delaying their applications for asylum, because, he
said, they were sophisticated business people. We express no opinion on this
point because the IJ previously determined that Andrey Tatulyan’s application
was timely. Further, this comment does not cast doubt on the credibility of
petitioners’ testimony regarding the incidents in Russia that formed the basis of
their claim to asylum.
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Andrey Tatulyan’s asylum application, we also conclude that his visits to Russia
constitute substantial evidence in the record in support of the IJ’s conclusion that
petitioners failed to demonstrate a reasonable fear of future persecution. 3
See
Blanco de Belbruno v. Ashcroft , 362 F.3d 272, 285 (4th Cir. 2004). We hold that
petitioners have failed to carry the heavy burden placed on those challenging
adverse asylum determinations. See Batalova v. Ashcroft , 355 F.3d 1246, 1255
(10th Cir. 2004). 4
Having failed to demonstrate their eligibility for asylum, petitioners also
fail to establish entitlement to withholding of removal which entails a higher
standard than asylum. See id. Finally, petitioners have not demonstrated
3
The IJ also concluded that petitioners did not demonstrate a fear of future
persecution because the State Department Report said that there were areas of
Russia where Armenians could live peacefully, even though the Cossacks
continue to cause problems. Cert. Admin. R. at 116. We have read the State
Department Report in the record and we agree with petitioners that nothing in that
report supports the IJ’s statement on this point.
4
Petitioners have submitted a supplement to the Certified Administrative
Record, contending that certain exhibits were omitted from that record.
Respondents contend that the submitted exhibits were not part of the official
record. Regardless, because the submitted exhibits are not relevant to the point
on which this decision turns, we need not resolve that question.
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entitlement to relief under the Convention Against Torture. See id. The petition
for review is DENIED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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