Jirair Stepanian v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
AUG 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIRAIR STEPANIAN, ) Nos. 13-70194
) 14-71072
Petitioner, )
) Agency No. A095-197-260
v. )
) MEMORANDUM*
JEFFERSON B. SESSIONS III, )
Attorney General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 11, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Jirair Stepanian, who is ethnically Armenian and who alleged that he was a
native and citizen of Iran, petitions for review of the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeals’ (BIA) denial of his application for asylum,1 withholding of removal,2 and
Convention Against Torture (CAT) relief,3 as well as its determination that he had
filed a frivolous asylum application.4 He also petitions for review of the BIA’s
order denying reopening5 and reconsideration.6 We deny the petition in part, grant
them in part, and remand.
(1) The BIA’s determination that an alien is “not eligible for asylum must
be upheld if ‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.
Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse
1
8 U.S.C. § 1158.
2
8 U.S.C. § 1231(b)(3).
3
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Treaty Doc. No. 100–20,
1465 U.N.T.S. 85 implemented at 8 C.F.R. § 1208.18.
4
8 U.S.C. § 1158(d)(6).
5
8 U.S.C. § 1229a(c)(7).
6
Id. at (c)(6).
2
determination, “he must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. The same standard applies
to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,
when a determination is based upon credibility, “‘a specific, cogent reason for any
stated disbelief’” must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th
Cir. 2004).
We have reviewed the record and are satisfied that the BIA’s decision is
supported by substantial evidence;7 it properly pointed to inconsistencies that went
to the heart of Stepanian’s asylum claim,8 as well as numerous other
inconsistencies.9 For example, a major inconsistency was demonstrated by a visa
application that he filed, which indicated that he had an Armenian passport and
resided and worked in Armenia as a winemaker very close to the time that he was
7
When the BIA both adopts the reasoning of the Immigration Judge (IJ) and
contributes its own reasoning, we review both decisions. See Ai Jun Zhi v. Holder,
751 F.3d 1088, 1091 (9th Cir. 2014).
8
See Rizk v. Holder, 629 F.3d 1083, 1087–88 (9th Cir. 2011); Wang v. INS,
352 F.3d 1250, 1259 (9th Cir. 2003).
9
See Risk, 629 F.3d at 1088.
3
allegedly persecuted in Iran;10 that was just before he entered the United States.11
The inconsistencies regarding his testimony that his biological parents had always
lived in Iran,12 as had his siblings, and, indeed, were still there,13 also supported the
adverse credibility determination.14 Moreover, he had every opportunity to explain
the inconsistencies,15 but the IJ and BIA reasonably rejected his explanations as
unsatisfactory.16 Thus, we are unable to say that a “reasonable factfinder would
have to conclude that the requisite fear of persecution [in Iran] existed.” Elias-
Zacarias, 502 U.S. at 481, 112 S. Ct. at 815.
(2) Because Stepanian did not meet his burden regarding asylum, he
necessarily failed to establish eligibility for withholding of removal. See Ghaly v.
INS, 58 F.3d 1425, 1429 (9th Cir. 1995).
10
About eighteen days after. That was despite the fact that he said he had
never been in Armenia.
11
About two weeks before.
12
In fact, they had lived in Armenia since 1971.
13
They were residing in Glendale, California, at the time that he testified.
14
We, of course, consider all of the evidence presented in the case. See Kaur
v. Gonzales, 418 F.3d 1061, 1066 (9th Cir. 2005).
15
See Khadka v. Holder, 618 F.3d 996, 1001 n.4 (9th Cir. 2010).
16
See Wang, 352 F.3d at 1258.
4
(3) The evidence in the record does not compel a determination that it is
more likely than not that Stepanian would be tortured in Armenia; the place to
which he is to be removed. Evidence about Iran is irrelevant for CAT purposes.
Thus, he is not entitled to CAT relief. See Wakkary v. Holder, 558 F.3d 1049,
1067–68 (9th Cir. 2009); Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir.
2006).
(4) Stepanian also asserts that the BIA erred in determining that he had
deliberately filed a frivolous asylum application17 because, he argues, the BIA did
not follow the correct framework in reaching that decision.18 We agree. Due to the
serious consequences of a deliberate fabrication finding, the framework must be
carefully adhered to. Here, part of that framework was sufficiently complied
with—that is, he did have sufficient notice and was given an ample opportunity to
explain discrepancies in his testimony. See Yan Liu v. Holder, 640 F.3d 918, 928
(9th Cir. 2011); Matter of B-Y-, 25 I. & N. Dec. 236, 241–42 (B.I.A. 2010); see
also In re Y-L-, 24 I. & N. Dec. 151, 159–60 (B.I.A. 2007). However, neither the
IJ nor the BIA made specific findings that Stepanian “‘deliberately fabricated
material elements of his asylum claim.’” Matter of B-Y-, 25 I. & N. Dec. at 241;
17
See 8 U.S.C. § 1158(d)(6); 8 C.F.R. § 1208.20.
18
See Fernandes v. Holder, 619 F.3d 1069, 1076 (9th Cir. 2010); see also
Kulakchyan v. Holder, 730 F.3d 993, 995–96 (9th Cir. 2013) (per curiam).
5
see also Fernandes, 619 F.3d at 1076. Nor did they specifically incorporate factual
findings from the credibility determination. Matter of B-Y-, 25 I. & N. Dec. at
239–40. In short, they did not adhere to the BIA’s own framework requirements.
Thus, we grant the petition in this respect and remand to the BIA for further
consideration.
(5) The BIA did not abuse its discretion19 when it denied Stepanian’s
motion to reopen20 or reconsider21 its denial of his petition for asylum, withholding
or CAT relief. As the BIA pointed out, Stepanian’s motion was made a year after
its decision and was, therefore, untimely. The motion to reconsider was not filed
within thirty days. See 8 U.S.C. § 1229a(c)(6)(B). Moreover, the motion to reopen
was not filed within ninety days22 and no exceptions applied.23
Petition 13-70194 DENIED in part, GRANTED in part, and REMANDED.
Petition 14-71072 DENIED. The parties shall bear their own costs on appeal.
19
See Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007).
20
8 U.S.C. § 1229a(c)(7); INS v. Wang, 450 U.S. 139, 140–41, 101 S. Ct.
1027, 1029, 67 L. Ed. 2d 123 (1981) (per curiam).
21
8 U.S.C. § 1229a(c)(6).
22
Id. at (c)(7)(C)(i).
23
Id. at (c)(7)(C)(ii)–(iv); 8 C.F.R. § 1003.2(c)(3).
6