Harutyum Hayrapetyan v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JUN 11 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    HARUTYUM HAYRAPETYAN, AKA                       No.    19-72917
    Harutyun Hayrapetyan,
    Agency No. A209-944-328
    Petitioner,
    v.                                              MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted May 6, 2021**
    Seattle, Washington
    Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***
    District Judge.
    Harutyum Hayrapetyan, a native and citizen of Armenia, petitions for review
    *
    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).
    ***
    The Honorable Leslie E. Kobayashi, United States District Judge for
    the District of Hawaii, sitting by designation.
    of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal from
    the Immigration Judge’s (IJ) order denying asylum, withholding of removal, and
    protection under the Convention Against Torture (CAT). We review questions of
    law de novo and factual findings for substantial evidence. Brezilien v. Holder, 
    569 F.3d 403
    , 411 (9th Cir. 2009). “Where the BIA writes its own decision, as it did
    here, we review the BIA’s decision, except to the extent it expressly adopts the IJ’s
    decision.” Diaz-Reynoso v. Barr, 
    968 F.3d 1070
    , 1075–76 (9th Cir. 2020) (citation
    omitted). Also, “[b]ecause the BIA deferred to the IJ’s demeanor determination,
    we therefore ‘look to the IJ’s . . . decision as a guide to what lay behind the BIA’s
    conclusion.’” Kin v. Holder, 
    595 F.3d 1050
    , 1056 (9th Cir. 2010) (quoting Tekle
    v. Mukasey, 
    533 F.3d 1044
    , 1051 (9th Cir. 2008)). We have jurisdiction pursuant
    to 
    8 U.S.C. § 1252
    (a), and we deny the petition.1
    The IJ denied all relief after making an adverse credibility determination,
    and the BIA dismissed Hayrapetyan’s subsequent appeal. Substantial evidence
    supports the agency’s findings. Hayrapetyan’s testimony before the IJ contained
    inconsistencies and omissions compared to the statements he made previously, his
    own declaration, and declarations submitted on his behalf. The BIA specifically
    noted the discrepancies regarding the nature and extent of his persecution,
    1
    Because the parties are familiar with the facts, we recite only those facts
    necessary to decide the petition.
    2
    including the number of times Hayrapetyan and his father were arrested and beaten
    for attending political rallies, whether people came to the family home looking for
    him before or after he left the country; and whether his sister was threatened during
    these visits. The inconsistencies identified by the BIA satisfy the substantial
    evidence standard in support of the IJ and BIA’s adverse credibility determination.
    See Kin, 
    595 F.3d at 1058
     (describing inconsistencies between and among the
    petitioners’ testimony and other testimonial or documentary evidence as
    constituting substantial evidence in support of an adverse credibility
    determination).
    The IJ and BIA also relied on Hayrapetyan’s demeanor in assessing his
    credibility. Hayrapetyan argues that his medical condition or traumatic
    experiences with authority could have contributed to the specific examples of
    behavior the IJ identified in making the adverse credibility determination.
    However, the possibility that medical conditions or past trauma could have
    contributed to his demeanor does not compel this court to overturn the IJ’s adverse
    credibility determination. See Garcia v. Holder, 
    749 F.3d 785
    , 789-90 (9th Cir.
    2014). That is, the exceptional circumstances required for a reviewing court to
    substitute its own interpretation of Hayrapetyan’s demeanor for the first-hand
    observations of the IJ are not present here. See Manes v. Sessions, 
    875 F.3d 1261
    ,
    1263-64 (9th Cir. 2017) (per curiam). In light of the totality of the circumstances,
    3
    the BIA properly affirmed the IJ’s adverse credibility determination. See Shrestha
    v. Holder, 
    590 F.3d 1034
    , 1039-40 (9th Cir. 2010).
    Therefore, Hayrapetyan did not, by credible testimony or otherwise,
    establish the requisite subjective, well-founded fear of future persecution—or a
    history of past persecution—necessary for asylum and withholding of removal.
    See Kaiser v. Ashcroft, 
    390 F.3d 653
    , 658 (9th Cir. 2004); see also Davila v. Barr,
    
    968 F.3d 1136
    , 1142 (9th Cir. 2020) (stating that “[a]n applicant who fails to
    satisfy the lower standard for asylum necessarily fails to satisfy the more
    demanding standard for withholding of removal”). Accordingly, Hayrapetyan’s
    petition as to these forms of relief is denied.
    Finally, to establish eligibility for relief under the CAT, the applicant must
    establish that he is more likely than not going to be tortured “by or at the
    instigation of or with the consent or acquiescence of a public official or other
    person acting in an official capacity.” Garcia-Milian v. Holder, 
    755 F.3d 1026
    ,
    1033 (9th Cir. 2014) (quotation marks and citation omitted); 
    8 C.F.R. § 208.18
    (a)(1). The only relevant evidence offered to support Hayrapetyan’s CAT
    claim other than his discredited testimony is documentary evidence of the country
    conditions in Armenia, which does not compel the conclusion that Hayrapetyan
    himself is likely to be tortured if removed to Armenia. See Jiang v. Holder, 
    754 F.3d 733
    , 740-41 (9th Cir. 2014) (denying a petitioner’s CAT claim that was
    4
    premised only on discredited testimony and a country report). Therefore,
    substantial evidence supports the agency’s denial of CAT protection.
    PETITION FOR REVIEW DENIED.
    5