Karen Mantachian v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN MANTACHIAN, No. 18-70497
18-73456
Petitioner,
Agency No. A201-194-210
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2021
Pasadena, California
Before: LINN,** BYBEE, and BENNETT, Circuit Judges.
Karen Mantachian is a native of Armenia and a citizen of Denmark. He
petitions for review of two consolidated decisions of the Board of Immigration
Appeals (“BIA”). The BIA dismissed Mantachian’s appeal from the denial of his
applications for asylum, withholding of removal, and Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
(“CAT”) relief. The BIA later denied Mantachian’s motion to reopen. Because
the parties are familiar with the facts, we do not recount them here, except as
necessary to provide context to our ruling. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny both petitions.
Substantial evidence supports the BIA’s finding that Mantachian abandoned
his applications for relief and the Immigration Judge’s (“IJ”) adverse credibility
determination that the BIA adopted. See Budiono v. Lynch, 837 F.3d 1042, 1046
(9th Cir. 2016) (factual findings); Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010) (adverse credibility determinations). Under this standard, we uphold the
agency’s findings “unless the evidence compels a contrary result.” Budiono, 837
F.3d at 1046 (citation omitted).
The BIA found that Mantachian abandoned his applications for relief by
leaving the United States without obtaining advance parole and then failing to
provide “sufficient explanations to overcome the presumption of abandonment.”
“An applicant who leaves the United States without first obtaining advance parole
under § 212.5(f) of this chapter shall be presumed to have abandoned his or her
application under this section.” 8 C.F.R. § 1208.8(a).1 By using the word
1
The BIA also correctly rejected Mantachian’s argument that the regulation does
not apply to him, finding that his second asylum application was a continuation of
his first. See In re M-A-F-, 26 I. & N. Dec. 651, 655 (B.I.A. 2015) (“[A]
subsequent application that merely clarifies or slightly alters the initial claim will
generally not be considered a new application.”).
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“presumed,” the regulation allows for the possibility of rebutting the presumption.
See United States v. Black, 512 F.2d 864, 868 n.7 (9th Cir. 1975) (discussing the
meaning of a legal presumption). Here, such rebuttal evidence would need to show
the intent of retaining a claim of right or some interest. Cf. A & W Smelter &
Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998) (“[Abandonment is]
a term with a rich common law tradition. Property is abandoned when the owner
intends to divest himself of all interest in it.”); see also Abandonment, Black’s Law
Dictionary (7th ed. 1999) (“The relinquishing of a right or interest with the
intention of never again claiming it.”).
Substantial evidence supports the BIA’s finding that Mantachian failed to
rebut the presumption of abandonment. To pay for his voyage, Mantachian sold
some of his belongings in the United States, as he acted on his desire to run away
from his life and his problems. He left in search of personal refuge because of his
marital issues. Mantachian failed to seek advance parole from federal authorities,
and never contacted them while he lived in Spain. Only after his family came to
Spain to encourage him to stop “be[ing] stupid” and come back to live with them
did Mantachian return to the United States. That Mantachian eventually returned
to the United States after five months abroad and renewed his asylum claim before
his scheduled hearing does not compel the conclusion that he rebutted the
presumption of abandoning his claim.
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Substantial evidence also supports the IJ’s adverse credibility determination,
which the BIA adopted. And stripped of his discredited testimony, Mantachian
cannot establish eligibility for any forms of relief irrespective of abandonment.
See Shrestha, 590 F.3d at 1048–49. The IJ noted, and the BIA echoed, the
implausibility of Mantachian’s claim of persecution in Denmark based on his
Armenian ethnicity and Christian religion, in large part because such treatment
contradicted the State Department’s country conditions report for Denmark in
multiple ways. And both Mantachian’s and his mother’s version of events
described no incidents against his mother, father, or grandfather based on their
Armenian ethnicity.
The IJ and BIA also cited Mantachian’s multiple voluntary returns to
Denmark after the alleged incidents occurred. Voluntary returns “militate[] against
a finding of past persecution or a well-founded fear of future persecution,” and
may be considered in a credibility determination. Loho v. Mukasey, 531 F.3d
1016, 1017–18 (9th Cir. 2008). Besides family vacations to Spain that all
concluded with returns to Denmark, Mantachian and his family also returned to
Denmark in 2008 after visiting the United States. Although Mantachian was a
minor during the family vacations, he had turned eighteen by 2008. And despite a
previous declaration that he lived in Spain from May 2010 to May 2011,
Mantachian testified that he lived in both Spain and Denmark that year—meaning
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he would have made additional returns to Denmark under one version of his story.
The IJ and BIA also noted that Mantachian embellished his story. Among
the incidents Mantachian mentioned in both his second declaration and testimony
that he omitted from his first declaration were: a fight with Nazis before leaving
for a family vacation; an assault by two Nazis the day after he and his family met
with the criminal investigator about their house fire; threatening phone calls he
received two days after that meeting; a confrontation with Nazis at a youth club
event; an assault by Nazis after school; and two more assaults by Turkish men.
Mantachian’s mother’s initial declaration contained similar omissions that she
included in her second declaration. By supplementing his initial story to materially
augment his core allegations of persecution, Mantachian cast doubt on his
credibility. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016); see
also Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011) (upholding an adverse
credibility determination where a “supplemental declaration and . . . testimony
before the IJ tell a much different—and more compelling—story of persecution
than [the] initial application and testimony”). The IJ and BIA also noted
inconsistencies about whether Nazis were suspected to be involved in the house
fire, whether Mantachian suffered harm from 2008 to 2011, whether his sister
suffered harm, and whether Mantachian lived in Spain or Denmark from 2010 to
2011. Based on the evidence and the discrepancies within it, the record does not
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compel a finding that Mantachian’s testimony was credible.
Finally, Mantachian petitions for review of the BIA’s denial of his motion to
reopen, but he waived any challenge to this denial. “A motion to reopen will not
be granted unless the respondent establishes a prima facie case of eligibility for the
underlying relief sought.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir.
2010). The BIA denied Mantachian’s motion because he failed to establish that
the evidence he submitted, or substantially similar evidence, was unavailable and
could not have been presented at his hearing. And the BIA separately noted that it
was not persuaded that the supplemental evidence would likely change the
outcome of Mantachian’s removal proceedings. But because Mantachian did not
address the prima facie case requirement in his opening brief, the issue is waived.
See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir. 2020).
PETITIONS DENIED.
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