Avetik Grigoryan v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2022
• Docket: 17-70391
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AVETIK GRIGORYAN, No. 17-70391

Petitioner, Agency No. A088-483-066

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 7, 2022** Seattle, Washington

Before: CLIFTON and BUMATAY, Circuit Judges, and SEEBORG,*** District Judge.

Avetik Grigoryan, a native and citizen of Armenia, petitions for review of a

decision by the Board of Immigration Appeals upholding the immigration judge’s

* 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 Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. denial 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. We review for substantial evidence the agency’s adverse credibility

determinations and its denials of asylum, withholding of removal, and CAT relief.

Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We deny the Petition.

The BIA’s adverse credibility determination was supported by substantial

evidence in light of “specific and cogent reasons” offered by the BIA. Manes v.

Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017) (per curiam).

First, Grigoryan gave a shifting account regarding his decision to apply for

asylum. Grigoryan initially testified that his fear of returning to Armenia and his

decision to apply for asylum did not arise until September 2007—several months

after his arrival in the United States—when his sister called and speculated that he

could be arrested if he returned to the country. But when the IJ pressed Grigoryan

to address a logical inconsistency in this account, Grigoryan revised his story,

asserting that he “always” feared returning to Armenia, but did not decide to apply

for asylum until March 2008, after several protesters were killed during a

demonstration in the country. This “evolving story” as to the “timeframe[] and

circumstances” in which Grigoryan first feared returning to Armenia and decided

to apply for asylum casts doubt on the veracity of his account, and thus, it was

“reasonable that the IJ would conclude these changes reflected poorly on [his]

2 credibility.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 749–50 (9th Cir. 2022).

Second, Grigoryan gave an evolving account regarding a photograph he had

submitted as evidence. Grigoryan initially testified that the submitted photograph

was taken by him shortly after he was released from police custody in May 2007.

He separately confirmed that there “was no snow” and the trees had “bloomed” by

that time of year in Armenia. But when asked to explain why the photograph

shows a snow-covered road lined with leafless trees, Grigoryan gave a new

account of the photograph’s provenance, asserting that his wife had taken the

photograph sometime in winter after the original photograph was lost. Grigoryan’s

initial statement thus conflicted with the documentary evidence itself, an

inconsistency that supports an adverse credibility determination. See Rodriguez-

Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021) (per curiam). Given its

relevance to Grigoryan’s claim, “even minor issues with the [photograph]” can

support an adverse credibility determination. Manes, 875 F.3d at 1265.

Third, the IJ had to press Grigoryan repeatedly for a clear answer as to when

he first feared returning to Armenia; how the Armenian authorities destroyed his

farmland; why he did not photograph this alleged destruction; and why he would

send his wife back to take photographs in an area where he feared for her safety.

Thus, “[t]he [a]gency provided numerous instances of [Grigoryan’s] evasiveness

and non-responsiveness when answering the IJ’s questions regarding” various

3 topics of relevance to his claim. Lalayan v. Garland, 4 F.4th 822, 839 (9th Cir.

2021). The IJ also repeatedly warned Grigoryan that he was being unresponsive

and instructed him to answer the questions directly—warnings that provided

Grigoryan “fair notice of the IJ’s observation of evasiveness and non-

responsiveness.” Id.

Fourth, Grigoryan could not answer basic questions about Armenian politics

and was visibly uncomfortable when this topic was raised. That Grigoryan could

not correctly identify the winner of the 2008 Armenian presidential election, let

alone say whether the president had changed as a result of the election, casts doubt

on his account of political involvement. See Singh v. Ashcroft, 367 F.3d 1139,

1143 (9th Cir. 2004). Moreover, in noting that Grigoryan appeared “stunned and

confused” and was taking a long time to answer, the IJ adequately “point[ed] out

the noncredible aspects of the petitioner’s demeanor,” Shrestha v. Holder, 590 F.3d

1034, 1042 (9th Cir. 2010), and provided “specific, first-hand observations—

precisely the kind of credibility cues that are the special province of the

factfinder[,]” Manes, 875 F.3d at 1263.

In light of Grigoryan’s inconsistent accounts, unresponsive testimony, and

the IJ’s demeanor findings, substantial evidence supports the agency’s adverse

credibility determination. See, e.g., Rodriguez-Ramirez, 11 F.4th at 1093–94.

Moreover, given the inconsistencies and reliability issues raised by Grigoryan’s

4 documentary evidence, substantial evidence also supports the agency’s

determination that these documents “were not sufficient to rehabilitate [his]

testimony.” Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).

Because the agency’s adverse credibility determination was supported by

substantial evidence, and Grigoryan did not provide sufficient corroborating

evidence, he cannot satisfy his burden of proving eligibility for asylum or

withholding of removal. See Mukulumbutu v. Barr, 977 F.3d 924, 927 (9th Cir.

2020). Although “[a]n adverse credibility determination does not, by itself,

necessarily defeat a CAT claim[,]” when a petitioner is found not credible, we will

reverse a BIA decision denying CAT protection only if there is other evidence of

torture that compels the conclusion that the petitioner is more likely than not to be

tortured. Lalayan, 4 F.4th at 840 (citation omitted). Here, the country condition

report for Armenia falls short of compelling the conclusion that Grigoryan in

particular would face a threat of torture if he returns to the country. Cf.

Mukulumbutu, 977 F.3d at 928. Because there is no objective evidence in the

record that would compel us to conclude that Grigoryan faces a particularized risk

of torture if he were to return to Armenia, substantial evidence also supports the

BIA’s denial of his claim for CAT relief.

PETITION FOR REVIEW DENIED.