Ara Babayan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2019
• Docket: 16-73903
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARA BABAYAN, HELEN BABAYAN, No. 16-73903 LILIAN BABAYAN, and LEONARD BABAYAN, Agency Nos. A 075-682-516, A 095-448-718, A 095-448-719, Petitioners, A 095-448-720

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 6, 2019 Pasadena, California

Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the Second Circuit, sitting by designation. 1 Ara, Helen, Lilian, and Leonard Babayan petition for review of an order of

the Board of Immigration Appeals (“BIA”) affirming the decision of an

Immigration Judge (“IJ”) denying their claims for asylum and withholding of

removal, as well as protection under the Convention Against Torture (“CAT”).1

We have jurisdiction under 8 U.S.C. § 1252. Petitioners contend that they were and

will be subjected to persecution and torture in Iran because they are Armenian

Christians.

The IJ and the BIA determined that Petitioners’ application for asylum was

untimely because Petitioners failed to “demonstrate[] by clear and convincing

evidence that the application [was] filed within 1 year after the date of [their]

arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B). Although Petitioners did

provide some colorable evidence of timeliness, we lack jurisdiction to review the

BIA’s determination because the petition presents a question of fact—namely,

when Petitioners arrived in the United States—rather than a constitutional claim or

a question of law, and such questions of fact are not reviewable. See id. §§

1158(a)(3), 1252(a)(2)(D). The petition is dismissed to the extent it challenges the

IJ and the BIA’s determination that the asylum application was untimely.

1 Because all Petitioners share the last name “Babayan,” we refer to them individually by their first names. 2 The Babayans also sought withholding of removal and protection under the

Convention Against Torture. In his testimony to the IJ, Ara detailed alleged

oppression in Iran, including imprisonment, threats against his family, beatings by

the police, and punishment by lashes. Ara also testified that this oppression began

when he refused to convert to Islam and continued until his family paid for his

release from prison. Petitioners produced some documentary evidence of this

mistreatment.

Notwithstanding this testimony, the IJ and the BIA determined that Ara did

not testify credibly. We conclude that this determination is supported by

substantial evidence. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011).

Several discrepancies existed in the timeline underlying Ara’s testimony. For

example, his testimony on one occasion placed him outside prison on a date on

which his written application indicated that he was in prison. He also presented

conflicting accounts of his interactions with his neighbor Homa, whose complaint

to the police, Ara alleged, triggered his persecution. Attempting to explain the

conflicts, Ara claimed not to have reviewed his application before filing it, but the

record shows otherwise. These and other inconsistencies, the IJ and the BIA

concluded, went “to the heart of [Petitioners’] claim of persecution,” id. (quoting

Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003)). Additional inconsistencies

3 were less significant but when considered collectively, deprived Ara’s testimony of

the required “ring of truth” and constituted substantial evidence to sustain the BIA

and the IJ’s adverse credibility determination. See id. at 1088. This determination

provided a basis to deny Petitioners’ claims for withholding of removal and

protection under the CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.

2003).

More specifically as to the CAT claim, although Petitioners presented

objective country condition reports to the BIA, those reports were not presented to

the IJ. Additionally, while the reports describe dire circumstances that sometimes

confront Iranian Christians, they are general in nature and do not compel the

conclusion that Petitioners themselves are more likely than not to be tortured upon

removal. See Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). In any

case, such reports do not require the BIA or IJ “to grant relief when [they

determine that] the applicant is not credible.” Almaghzar v. Gonzales, 457 F.3d

915, 921-22 (9th Cir. 2006).

PETITION DISMISSED IN PART AND DENIED IN PART.