Artak Ghulyan v. Eric H. Holder Jr. , 500 F. App'x 695 ( 2012 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                              DEC 17 2012
    MOLLY C. DWYER, CLERK
    ARTAK GHULYAN,                                                              U.S. COURT OF APPEALS
    No. 08-71097
    Petitioner,
    Agency Nos. A097-355-197
    v.
    MEMORANDUM*
    ERIC H. HOLDER, Jr., Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted November 7, 2012**
    Pasadena, California
    Before: D. W. NELSON and O’SCANNLAIN, Circuit Judges, and SINGLETON,
    Senior District Judge.***
    Artak Ghulyan, a thirty-four-year-old native and citizen of Armenia,
    petitions for review of the Board of Immigration Appeals’s (“BIA’s”) order
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously finds this case suitable for decision without
    oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable James K. Singleton, Senior United States District
    Judge for the District of Alaska, sitting by designation.
    dismissing his appeal from an Immigration Judge’s (“IJ’s”) decision denying
    Ghulyan’s application for asylum, withholding of removal, and protection under
    the Convention Against Torture (“CAT”). We have jurisdiction under 
    8 U.S.C. § 1252
    .
    We review an IJ’s “credibility findings under the deferential substantial
    evidence standard.” Kebede v. Ashcroft, 
    366 F.3d 808
    , 810 (9th Cir. 2004)
    (internal quotation marks omitted). We “accord special deference to an IJ’s
    credibility determination, and will only exercise our power to grant a petition for
    review when the evidence ‘compels a contrary conclusion.’” Kaur v. Gonzales,
    
    418 F.3d 1061
    , 1064 (9th Cir. 2005) (quoting Malhi v. INS, 
    336 F.3d 989
    , 993 (9th
    Cir. 2003)). However, Ghulyan filed his application for relief before May 11,
    2005, the effective date of the REAL ID Act. Kaur, 
    418 F.3d at
    1064 n.1. The
    REAL ID Act significantly changed our review of an IJ’s adverse credibility
    determination. See 
    id.
     (“With the passage of the R[EAL] ID Act, our review of an
    IJ’s adverse credibility finding is significantly restricted.”).
    When reviewing applications for relief filed after May 11, 2005, credibility
    determinations may be made “without regard to whether an inconsistency,
    inaccuracy, or falsehood goes to the heart of the applicant’s claim . . . .” 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see Shrestha v. Holder, 
    590 F.3d 1034
    , 1046 (9th Cir. 2010)
    2
    (“Under the REAL ID Act credibility findings no longer need to go to the heart of
    the applicant’s claim.” (alterations, quotation marks, and citations omitted)). This
    provision in the REAL ID Act, however, is not applicable to Ghulyan’s petition for
    review since he filed his application before May 11, 2005. See Kaur, 
    418 F.3d at
    1064 n.1. Thus, our pre-REAL ID Act test concerning adverse credibility
    determinations governs this petition for review. “While [still] accorded deference,
    a credibility determination must be supported by a specific, cogent reason,” and
    “will be upheld so long as identified inconsistencies go to the heart of the asylum
    claim.” Li v. Ashcroft, 
    378 F.3d 959
    , 962 (9th Cir. 2004) (alterations, quotation
    marks and citations omitted).
    1.    Ghulyan contends that the BIA erred in affirming the IJ’s adverse credibility
    determination because the inconsistencies cited by the IJ supporting the adverse
    credibility finding do not go to the heart of his claim of persecution. We agree.
    The IJ first found significant the inconsistency between Ghulyan’s testimony
    that the date of the car accident and subsequent hospitalization was March 14,
    2002, and his declaration and medical record, which both note that the accident
    occurred on June 25, 2002. The IJ stated that when pressed, Ghulyan corrected
    himself and said that the correct date was June 25, 2002. However, “[i]t is well
    settled in our circuit that minor inconsistencies that do not go to the heart of an
    3
    applicant’s claim for asylum cannot support an adverse credibility determination.”
    Kaur, 
    418 F.3d at 1064
    . Accordingly, Ghulyan’s inability “to remember non-
    material, trivial details that were only incidentally related to [his] claim of
    persecution” cannot form the basis of an adverse credibility determination. Id; see
    also Osorio v. INS, 
    99 F.3d 928
    , 931 (9th Cir. 1996) (“[T]rivial errors by an
    asylum applicant do not constitute a valid ground upon which to base a finding that
    an asylum applicant is not credible.”).
    Additionally, the IJ found the discrepancy concerning the length of time
    Ghulyan spent in the hospital also undermined his credibility. Ghulyan testified he
    only spent a couple of days in the hospital, but his declaration stated he was
    hospitalized for three weeks. When pressed by the IJ at the merits hearing,
    Ghulyan said that he was hospitalized for only a few days. We have consistently
    held that “minor discrepancies . . . that cannot be viewed as attempts by the
    applicant to enhance her claims of persecution have no bearing on credibility.”
    Kebede, 
    366 F.3d at 811
     (alteration omitted). Here, Ghulyan weakened his claim
    of persecution by stating that his injuries were not severe enough for him to be
    hospitalized for three weeks. Thus, this discrepancy cannot serve as a basis to
    undermine his credibility.
    Further, the IJ found Ghulyan not credible because he testified inconsistently
    4
    about the nature of his injuries during his arrest and detention. Ghulyan first stated
    he was beaten severely and had broken bones as a result, but later said they were
    fractured. The IJ noted Ghulyan used the words “crushed bones,” but that he
    ultimately testified he was bruised all over his body with a cut on his face. In any
    event, whether the beatings fractured his bones or gave him bruises all over his
    body still does not undermine his story that he was beaten severely. Moreover, by
    noting his injuries were not as severe, his clarification effectively weakens his
    claim. This type of minor inconsistency is generally not a proper basis to find an
    applicant adversely credible. Kebede, 
    366 F.3d at 811
    .
    Finally, The IJ also based its adverse credibility finding on the discrepancy
    between the Party membership cards. The IJ found it particularly relevant that the
    cards were issued a month apart and pointed out that Ghulyan’s inability to
    reconcile the dates was significant. The IJ correctly pointed out that if, in fact, the
    first card was stolen in 2003 as Ghulyan claimed, then his explanation that he tried
    to get a replacement card in 2003 makes no sense, since the date of issue of the
    replacement card was 2000, almost three years before his father’s arrest.
    The discrepancy between the Party membership cards and Ghulyan’s
    inability to explain their issue dates presents a much closer call than the other
    inconsistencies cited by the IJ. While it certainly undermines Ghulyan’s
    5
    statements about his father’s arrest, the discrepancy does not undermine his claim
    that he was arrested, detained, beaten, and threatened as a Party activist. Although
    post-REAL ID Act this discrepancy likely would support the basis of an adverse
    credibility finding, under our pre-REAL ID Act precedent, this discrepancy does
    not go to the heart of Ghulyan’s claim of persecution and therefore may not serve
    as a proper basis to support the IJ’s adverse credibility finding. Accordingly, the
    IJ’s adverse credibility finding is not supported by substantial evidence.
    2.    Substantial evidence supports the BIA’s finding that Ghulyan has failed to
    establish his eligibility for protection under the CAT. In order to be eligible for
    “withholding of removal under the CAT, an alien must show that it is ‘more likely
    than not’ that a government official or person acting in an official capacity would
    torture him or aid or acquiesce in his torture by others.” Wakkary v. Holder, 
    558 F.3d 1049
    , 1067-68 (9th Cir. 2009) (citing Kamalthas v. INS, 
    251 F.3d 1279
    , 1283
    (9th Cir. 2001); 
    8 C.F.R. §§ 208.16
    (c)(2), 208.18(a)(1)). Here, Ghulyan produced
    no evidence showing that it is more likely than not that he will be tortured if
    returned to Armenia. Thus, the BIA’s denial of Ghulyan’s CAT claim is supported
    by substantial evidence.
    GRANTED in part, DENIED in part, and REMANDED.
    6
    FILED
    Ghulyan v. Holder, No. 08-71097                                                 DEC 17 2012
    MOLLY C. DWYER, CLERK
    O’SCANNLAIN, Circuit Judge, dissenting in part.                             U.S. COURT OF APPEALS
    I agree with the court that substantial evidence supports the Board of
    Immigration Appeals’ (“BIA”) determination that Ghulyan has failed to establish
    his eligibility for protection under the Convention Against Torture.
    Nevertheless, I respectfully dissent from the decision to remand this case to
    the BIA. Review of adverse credibility findings, even outside the REAL ID Act
    context, is extremely deferential. See Kaur v. Gonzales, 
    418 F.3d 1061
    , 1064 (9th
    Cir. 2005) (court can only grant petition for review when “the evidence compels a
    contrary conclusion” (internal citations and quotation marks omitted)). The
    unreconciled inconsistency as to Ghulyan’s multiple, conflicting party membership
    cards is, on its own, enough to require upholding the BIA’s finding. Li v. Ashcroft,
    
    378 F.3d 959
    , 964 (9th Cir. 2004) (“[S]o long as one of the identified grounds is
    supported by substantial evidence and goes to the heart of [the petitioner’s] claim
    of persecution, we are bound to accept the IJ's adverse credibility finding.”
    (internal citations and quotation marks omitted)).
    Because this inconsistency went to the heart of his claim—which is
    premised on his membership in the party and his status as a political activist—I
    would dismiss Ghulyan’s petition for review.