Agopian v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
KENAREK ALANOUR AGOPIAN,
Petitioner,
v. No. 05-9525
(No. A79-506-716)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Kenarek Alanour Agopian petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial of her
request for asylum, withholding of removal and relief under the Convention
Against Torture. We deny the petition.
Petitioner bears the burden of establishing that she is a refugee, and
therefore eligible for asylum, by demonstrating that she suffered past persecution
or that she has a well-founded fear of future persecution. See Castaneda v. INS,
23 F.3d 1576, 1578 (10th Cir. 1994). The BIA determined that petitioner’s
testimony lacked sufficient detail to support a finding of past persecution and that
she failed to provide reasonably available corroborative evidence. Petitioner
spends most of her brief arguing that the IJ erred in the treatment of her case.
The BIA issued a substantive decision in this case, therefore, we review the BIA’s
order, not the IJ’s decision. See generally Cruz-Funez v. Gonzales, 406 F.3d
1187, 1190 (10th Cir. 2005). Because Petitioner is proceeding pro se, however,
we liberally construe her brief. See Cummings v. Evans, 161 F.3d 610, 613
(10th Cir. 1998). To the extent the BIA agreed with the IJ, we will treat
petitioner’s assertion that the IJ erred as an assertion that the BIA erred.
“The BIA’s findings of fact are conclusive unless the record demonstrates
that any reasonable adjudicator would be compelled to conclude to the contrary.”
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Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (quotations
omitted). We will uphold the BIA’s asylum determination if the
decision is supported by “substantial evidence.” Castaneda, 23 F.3d at 1578.
Further, a recent change in the immigration laws provides that “[n]o court shall
reverse a determination made by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that a reasonable trier of
fact is compelled to conclude that such corroborating evidence is unavailable.”
8 U.S.C. § 1252(b)(4).
Petitioner filed for asylum claiming that she suffered persecution in
Armenia because she had been politically active, and had spoken about women’s
rights and governmental corruption at various demonstrations. The BIA noted
petitioner’s testimony that “on one occasion in July 1995, police burst into her
home and proceeded to arrest her and beat her husband” and “she was detained
for three hours, during which time the police slapped her, groped her, and pulled
her hair.” Admin R. at 2. The BIA explained, however, that “[t]his was the most
specific and detailed testimony the respondent offered to support her claim; on the
whole, the respondent conveyed her difficulties with the Armenian government in
generalities, saying that she was ‘constantly investigated’ and ‘threatened by
government entities constantly.’” Id. (citations omitted). The BIA indicated that
petitioner “did not provide any documentation to support her claim, such as
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statements from family members, neighbors, or colleagues at the government-
operated hospital where she worked.” Id. (citations omitted). The BIA then
concluded that “because [petitioner’s] testimony was generally vague, it was
reasonable for the Immigration Judge to expect corroboration and to conclude that
[petitioner] failed to meet her burden of proof for establishing past persecution or
a well-founded fear of future persecution.” Id.Petitioner essentially argues that her testimony should have been sufficient
to support her asylum application and that she should not have been required to
supply corroborative evidence. 1 Testimony alone may be enough to meet the
petitioner’s burden of proof without corroboration “where the testimony is
believable, consistent, and sufficiently detailed to provide a plausible and
coherent account of the basis” for the claim. Matter of Dass, 20 I. & N. Dec. 120,
124 (BIA 1989). When the petitioner’s claim is of a more general nature,
however, there is a clearer need for the “asylum applicant to introduce supporting
evidence or to explain its absence.” Id. at 125. As the BIA explained, due to the
vague and generalized nature of petitioner’s claims, it was reasonable for the IJ to
expect corroborative evidence. Further, petitioner does not indicate that
1
Petitioner makes a vague and conclusory assertion that the BIA’s decision
violated her due process rights. See Pet. Br. at 5. This argument, however, was
not developed or supported by any citations to the record or legal authority. An
argument that is inadequately briefed is deemed waived. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
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corroborative evidence was unavailable or offer any explanation for why she
could not produce such evidence. There is no basis in the record to reverse the
BIA’s determination that she failed to provide reasonably available corroborative
evidence. Substantial evidence in the record supports the BIA’s determination
that petitioner has not met her burden of proof for establishing eligibility for
asylum. 2
The petition for review is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
2
The BIA also concluded that petitioner was ineligible for withholding of
removal and relief under the Convention Against Torture because of the higher
standards necessary to establish entitlement to those forms of relief. Petitioner
has waived any argument with respect to these claims because she did not raise
them in her brief. See Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002).
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