Anton Martyniuk v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
MAR 15 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTON MARTYNIUK, No. 17-73312
Petitioner, Agency No. A200-988-961
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Petitioner Anton Martyniuk, a native of the former Union of Soviet Socialist
Republics and a citizen of Ukraine, seeks review of the decision of the Board of
Immigration Appeals (Board) affirming the Immigration Judge’s (IJ) denial based
*
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).
on an adverse credibility determination of his applications for asylum, withholding
of removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. “Where, as
here, the BIA cites Burbano and also provides its own review of the evidence and
law, we review both the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d
1025, 1028 (9th Cir. 2011). “We review factual findings, including adverse
credibility determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d
785, 789 (9th Cir. 2014). “Factual findings ‘are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id., quoting 8
U.S.C. § 1252(b)(4)(B). We deny the petition.
Martyniuk testified that he was attacked twice by unidentified individuals
for distributing religious material in Ukraine. In upholding the IJ’s adverse
credibility determination, the Board cited the IJ’s finding that Martyniuk
exaggerated the severity of an attack, inconsistencies in his testimony with respect
to whether the Ukrainian police charged him for disturbing the peace, his inability
to identify the days on which the attacks occurred, and inconsistencies between his
testimony and written statement with respect to whether he was transported to a
hospital by ambulance after one incident.
2
After the merits hearing, the IJ informed Martyniuk that within six months,
he had to provide several types of corroborating evidence, including statements
from Martyniuk’s friends with whom he was attacked, a statement by his mother
discussing his arrest and hospital visits, and a statement by Martyniuk’s church
leader discussing his membership in the church. Martyniuk belatedly filed a
statement from his mother, which did not mention his arrest or hospital visits. The
IJ highlighted that Martyniuk did not provide any of the other forms of requested
corroborating evidence. Martyniuk testified that the “main reason” for why he did
not provide the requested documents by the deadline was that “because I didn’t
apply enough effort to gather all these and get all the documents.” Martyniuk
explained that his mother’s statement did not mention his arrest or hospital visits
because he “didn’t tell her about it.” “Where, as here, an IJ gives notice that an
asylum-seeker’s testimony will not be sufficient and gives the petitioner adequate
time to gather corroborating evidence, and the petitioner then provides no
meaningful corroboration or an explanation for its absence, the IJ may deny the
application for asylum.” Jie Shi Liu v. Sessions, 891 F.3d 834, 839 (9th Cir. 2018).
3
Accordingly, the record does not compel the conclusion that the adverse
credibility determination was erroneous or that the Board improperly dismissed
Martyniuk’s appeal.1 The petition for review is DENIED.
1
Because we hold that the adverse credibility finding was supported by substantial
evidence, we need not consider the Board’s alternative holding, for which the
Board presumed that Martyniuk was credible.
4