Karen Karapetyan v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN KARAPETYAN, AKA Hovanes No. 17-71223
Borozangyan; et al.,
Agency Nos. A077-997-828
Petitioners, A202-098-283
A202-098-284
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2022**
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
Karen Karapetyan and Hermine Torosyan, husband and wife, and their
minor daughter petition for review of the Board of Immigration Appeals’ (“BIA”)
dismissal of their appeal from an Immigration Judge’s (“IJ”) denial of their
*
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).
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. “We
review the denial of asylum, withholding of removal and CAT claims for
substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019). We review the agency’s adverse credibility determinations for substantial
evidence and apply the standards governing adverse credibility determinations
under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir.
2010); see also Alam v. Garland, 11 F.4th 1133, 1136–37 (9th Cir. 2021) (en
banc). We deny the petition.
1. Considering the totality of the circumstances and all relevant factors,
Alam, 11 F.4th at 1137, substantial evidence supports the agency’s conclusion that
Karapetyan and Torosyan did not testify credibly. The agency reasonably
concluded that three aspects of Karapetyan’s testimony were implausible. First,
the agency found it implausible that Karapetyan and Torosyan were singled out for
harm based on their political views because at least “half of the city population”
supported the Armenian National Congress (“ANC”), and Karapetyan was merely
one of those supporters, rather than an active member of the party. Petitioners
argue that Karapetyan “stood out” from other ANC supporters, but when asked
why he was targeted by members of the Republican party, Karapetyan simply
stated that he “was collecting some votes” for an ANC candidate and admitted that
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“many other people” did the same.
Second, the agency reasonably found it implausible that members of the
Republican party started a fight with Karapetyan and Torosyan on election day in
light of three news articles in the record. Petitioners insist that these articles “do
not contradict, but rather support Mr. Karapetyan’s testimony.” Although
Petitioners are correct that the articles suggest that voters were “pressured,”
“threatened,” and “questioned,” the articles focus primarily on vote buying and
election fraud, and there is no indication that ANC supporters were subjected to
violent acts on election day.
Third, the agency reasonably concluded that Karapetyan’s week-long trip to
Russia in April 2012 undermined his testimony that he experienced past harm in
Armenia. See Loho v. Mukasey, 531 F.3d 1016, 1017–19 (9th Cir. 2008)
(concluding a petitioner’s voluntary return to her home country supported the IJ’s
adverse credibility finding). Petitioners maintain that in April 2012, Karapetyan
“did not yet fear for his life to the point that he felt it necessary to permanently
leave Armenia,” but they point to nothing in the record that compels a finding that
Karapetyan did not face increased pressure from government authorities until after
his trip to Russia in April 2012. Thus, Karapetyan’s implausible testimony
supports the agency’s adverse credibility determination. See Jibril v. Gonzales,
423 F.3d 1129, 1135 (9th Cir. 2005) (“[T]estimony that is ‘implausible in light of
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the background evidence’ can support an adverse credibility finding.” (citation
omitted)).
Karapetyan’s initial omission of his April 2012 travel also supports the
agency’s conclusion because it concerns “the events leading up to [his] departure”
from Armenia. See Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011).
Petitioners try to minimize this point by arguing that Karapetyan submitted his
passport to the IJ and did not hide the April 2012 trip. But this explanation is not
persuasive enough to compel a conclusion that Karapetyan’s omission was trivial.
Cf. Loho, 531 F.3d at 1018–19.
We likewise reject Karapetyan’s contention that he was not afforded an
adequate opportunity to explain his April 2012 travel. The IJ questioned
Karapetyan about the passport stamp and asked him where and why he traveled to
Russia in April 2012. Moreover, on direct examination, Karapetyan was asked
twice about his family’s experiences after the February 2012 election. See Rizk v.
Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“[T]he opportunity to explain may be
provided through . . . direct examination by the alien’s own attorney, not just
through a colloquy between the alien and the IJ.” (citations omitted)), overruled on
other grounds by Alam, 11 F.4th at 1135–37.
Petitioners do not contest the agency’s reliance on the nonresponsive
portions of Karapetyan’s testimony. See Iman v. Barr, 972 F.3d 1058, 1065 (9th
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Cir. 2020) (“[T]he agency may base an adverse credibility determination on an
applicant’s unresponsiveness.”). Nor do Petitioners meaningfully challenge the
agency’s decision to accord limited weight to the certification of tax payment,
certificate of registration, and photographs they submitted in support of their
application. Petitioners thus waive review of these aspects of the adverse
credibility finding. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004);
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
Finally, Petitioners contend that Torosyan corroborated Karapetyan’s
testimony and urge us to construe the BIA’s “failure to affirm the IJ’s adverse
credibility [finding against] Mrs. Torosyan . . . as a concession that the IJ erred in
finding [her] testimony not credible.” Petitioners’ contention ignores that the BIA
cited Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), and did not disagree
with the IJ’s finding that Torosyan did not testify credibly. Thus, this aspect of the
IJ’s adverse credibility determination is part of the BIA’s final decision, see Abebe
v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc), and the agency’s
finding that Torosyan did not testify credibly is supported by the same substantial
evidence that supports the agency’s determination that Karapetyan’s testimony was
not credible.
The remaining evidence is insufficient to compel a conclusion that
Petitioners are eligible for asylum. Consequently, Petitioners “fail[] to carry the
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greater burden of establishing eligibility for withholding of removal.” Wang v.
Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
2. Substantial evidence supports the agency’s denial of CAT relief.
Petitioners’ CAT claim was based on the same testimony the agency found not
credible, and Petitioners’ remaining evidence—a few paragraphs from the Country
Report on Human Rights Practices for Armenia—does not compel a conclusion
that it is more likely than not that Petitioners will be tortured if returned to
Armenia. Cf. Jiang v. Holder, 754 F.3d 733, 740–41 (9th Cir. 2014) (“[B]y itself,
the Country Report is insufficient to compel the conclusion that Petitioner would
be tortured if returned [to the country of removal].”), overruled on other grounds
by Alam, 11 F.4th at 1135–37; Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th
Cir. 2006) (same).
PETITION FOR REVIEW DENIED.
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