F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 22, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
A RTA K A V ETISY A N ,
Petitioner,
v. No. 06-9596 (No. A75-578-489) ALBERTO R. GONZALES, United (Petition for Review) States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and T YM K O VIC H, Circuit Judge.
Artak Avetisyan, a citizen of Armenia, petitions for review of an order of
the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ)
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. denial of his application for asylum and withholding of removal. 1 W e have
jurisdiction to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and w e
deny the petition for review.
Background
M r. Avetisyan sought asylum for persecution on the basis of his political
opinion. He testified at his hearing before the IJ that his political activity mainly
started in 1996 with the beginning of the presidential elections. He supported the
candidate for the opposition party, Vasgen M anoukian. He explained that he and
his friends were very active during the presidential election race and that they
would distribute fliers containing information about M anoukian’s platform.
M r. A vetisyan w as also responsible for organizing a pre-election rally. He
received permission from the city government to hold the rally, but just before the
rally was to begin, the police department arrived with documents showing that a
gathering at that particular location was prohibited. The people who had gathered
for the rally became upset, and more police officers arrived to try to control the
crowd. M r. Avetisyan was arrested and held for about six to eight hours. W hen
he was released, he was warned that in the future if he was going to organize a
1 The IJ also denied relief under the Convention Against Torture, but M r. Avetisyan did not challenge that ruling before the BIA. It is not clear from M r. A vetisyan’s opening brief whether he is challenging that ruling on appeal. Regardless, we lack jurisdiction to review a claim that was not raised before the BIA . See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam).
-2- similar event he would need permission from both the city government and the
police department.
The next week, M r. A vetisyan was preparing to hold another rally.
Although he had permission from the city government and the police, an official
representative from the state security committee arrived and would not allow the
rally to continue. During the elections, M r. Avetisyan acted as a representative
for M anoukian and was responsible for overseeing the paper ballot process in his
district. He testified that there were irregularities during the election process and
that, even though M anoukian obviously had the majority, Levon Tepetrucian, a
member of the incumbent party, was announced as the winner. After the election,
M r. Avetisyan testified that he w as arrested and that some of his friends who were
supporters of M anoukian w ere also arrested. He was detained for about two
weeks from his arrest on September 24 until October 9, 1996. He was released on
the condition that he not leave the country until his case was transferred to a
prosecutor and then to the court. He was charged with organizing impolite and
unlawful political activities. After he was released, he went to the United States
Embassy and applied for a visa. He arrived in the United States on M ay 21, 1997.
M r. Avetisyan testified that, while he was in the United States, his father
was twice summoned to the police station to give evidence about him. The
second time his father was detained for three days. A few days after his father
was released from custody, he suffered a heart attack and died. M r. Avetisyan
-3- testified that he does not want to return to Armenia because he believes he will be
arrested immediately.
M r. Avetisyan overstayed his visa and applied for asylum relief on M ay 4,
1998. He was served with a Notice to Appear in removal proceedings on June 11.
On December 15, he appeared and conceded the charges in the Notice to Appear.
He requested a continuance on the merits hearing so that he could obtain
additional documents from Armenia. At the next hearing on February 2, 2000,
M r. Avetisyan requested a continuance for medical reasons. The hearing was set
for A pril 18, 2002, and M r. Avetisyan again sought a continuance in order to
obtain supplemental documentation. A brief hearing was held on M ay 28, 2003,
but the location of the hearing had changed from Los Angeles to Denver and a
new merits hearing was set for September 2, 2004. That hearing was also
continued because M r. Avetisyan had failed to obtain an updated set of
fingerprints to submit to the IJ. The merits hearing was ultimately held on M ay
26, 2005.
The IJ denied M r. Avetisyan’s request for asylum. The IJ also denied
M r. Avetisyan relief in the form of withholding of removal under the Immigration
and N ationality A ct (IN A ) and under the Convention Against Torture (CAT). As
mentioned above, on appeal to the B IA, M r. Avetisyan did not challenge the IJ’s
determination that he w as not eligible for CAT relief. The BIA affirmed the IJ’s
decision that M r. Avetisyan had not established his entitlement to asylum relief or
-4- withholding of removal under the INA. M r. Avetisyan filed a petition for review
of the BIA ’s decision.
Standard of Review
“W e review the BIA’s legal determinations de novo, and its findings of fact
under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196
(10th Cir. 2005). “The BIA’s findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to
the contrary.” Id. (quotation omitted).
In order to be eligible for the discretionary relief of asylum, a petitioner
must show that he suffered past persecution or has a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 C.F.R. § 1208.13. In order to be eligible for
withholding of removal under the INA, a petitioner must show that he suffered
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 22, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
A RTA K A V ETISY A N ,
Petitioner,
v. No. 06-9596 (No. A75-578-489) ALBERTO R. GONZALES, United (Petition for Review) States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and T YM K O VIC H, Circuit Judge.
Artak Avetisyan, a citizen of Armenia, petitions for review of an order of
the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ)
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. denial of his application for asylum and withholding of removal. 1 W e have
jurisdiction to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and w e
deny the petition for review.
Background
M r. Avetisyan sought asylum for persecution on the basis of his political
opinion. He testified at his hearing before the IJ that his political activity mainly
started in 1996 with the beginning of the presidential elections. He supported the
candidate for the opposition party, Vasgen M anoukian. He explained that he and
his friends were very active during the presidential election race and that they
would distribute fliers containing information about M anoukian’s platform.
M r. A vetisyan w as also responsible for organizing a pre-election rally. He
received permission from the city government to hold the rally, but just before the
rally was to begin, the police department arrived with documents showing that a
gathering at that particular location was prohibited. The people who had gathered
for the rally became upset, and more police officers arrived to try to control the
crowd. M r. Avetisyan was arrested and held for about six to eight hours. W hen
he was released, he was warned that in the future if he was going to organize a
1 The IJ also denied relief under the Convention Against Torture, but M r. Avetisyan did not challenge that ruling before the BIA. It is not clear from M r. A vetisyan’s opening brief whether he is challenging that ruling on appeal. Regardless, we lack jurisdiction to review a claim that was not raised before the BIA . See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam).
-2- similar event he would need permission from both the city government and the
police department.
The next week, M r. A vetisyan was preparing to hold another rally.
Although he had permission from the city government and the police, an official
representative from the state security committee arrived and would not allow the
rally to continue. During the elections, M r. Avetisyan acted as a representative
for M anoukian and was responsible for overseeing the paper ballot process in his
district. He testified that there were irregularities during the election process and
that, even though M anoukian obviously had the majority, Levon Tepetrucian, a
member of the incumbent party, was announced as the winner. After the election,
M r. Avetisyan testified that he w as arrested and that some of his friends who were
supporters of M anoukian w ere also arrested. He was detained for about two
weeks from his arrest on September 24 until October 9, 1996. He was released on
the condition that he not leave the country until his case was transferred to a
prosecutor and then to the court. He was charged with organizing impolite and
unlawful political activities. After he was released, he went to the United States
Embassy and applied for a visa. He arrived in the United States on M ay 21, 1997.
M r. Avetisyan testified that, while he was in the United States, his father
was twice summoned to the police station to give evidence about him. The
second time his father was detained for three days. A few days after his father
was released from custody, he suffered a heart attack and died. M r. Avetisyan
-3- testified that he does not want to return to Armenia because he believes he will be
arrested immediately.
M r. Avetisyan overstayed his visa and applied for asylum relief on M ay 4,
1998. He was served with a Notice to Appear in removal proceedings on June 11.
On December 15, he appeared and conceded the charges in the Notice to Appear.
He requested a continuance on the merits hearing so that he could obtain
additional documents from Armenia. At the next hearing on February 2, 2000,
M r. Avetisyan requested a continuance for medical reasons. The hearing was set
for A pril 18, 2002, and M r. Avetisyan again sought a continuance in order to
obtain supplemental documentation. A brief hearing was held on M ay 28, 2003,
but the location of the hearing had changed from Los Angeles to Denver and a
new merits hearing was set for September 2, 2004. That hearing was also
continued because M r. Avetisyan had failed to obtain an updated set of
fingerprints to submit to the IJ. The merits hearing was ultimately held on M ay
26, 2005.
The IJ denied M r. Avetisyan’s request for asylum. The IJ also denied
M r. Avetisyan relief in the form of withholding of removal under the Immigration
and N ationality A ct (IN A ) and under the Convention Against Torture (CAT). As
mentioned above, on appeal to the B IA, M r. Avetisyan did not challenge the IJ’s
determination that he w as not eligible for CAT relief. The BIA affirmed the IJ’s
decision that M r. Avetisyan had not established his entitlement to asylum relief or
-4- withholding of removal under the INA. M r. Avetisyan filed a petition for review
of the BIA ’s decision.
Standard of Review
“W e review the BIA’s legal determinations de novo, and its findings of fact
under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196
(10th Cir. 2005). “The BIA’s findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to
the contrary.” Id. (quotation omitted).
In order to be eligible for the discretionary relief of asylum, a petitioner
must show that he suffered past persecution or has a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 C.F.R. § 1208.13. In order to be eligible for
withholding of removal under the INA, a petitioner must show that he suffered
past persecution or that it is more likely than not that he would be subject to
persecution if he returns to his native country. Id. § 1208.16(b)(1)(i), (iii).
Discussion
The IJ determined that M r. Avetisyan’s testimony was not credible. The
BIA concluded that the IJ had erred in this determination because the IJ had
impermissibly predicated his adverse credibility finding on the lack of
corroborative evidence in the record, and not on any identifiable inconsistencies,
omissions, or cogent reasons for his disbelief of M r. Avetisyan’s testimony. The
-5- BIA determined, however, that the IJ was correct in his conclusion that
M r. Avetisyan had failed to meet his burden of proof for asylum and that, as a
result, M r. Avetisyan had failed to meet the higher burden of proof for
withholding of removal.
The BIA noted that, in certain circumstances, testimony alone may be
sufficient to meet the requisite burden of proof for asylum, but that, where it is
reasonable to expect corroborating evidence for certain facts, such evidence
should be provided or an explanation should be given as to why such evidence
was not provided. The BIA concluded that:
In this case, the Immigration Judge reasonably determined that absent, at a minimum, supporting letters attesting to the respondent’s alleged membership or even involvement in any political movement, especially considering the many years the respondent had to prepare his case, and the lack of any reasonable explanation for not providing such evidence, the respondent failed to meet his burden for asylum.
Admin. R. at 3.
M r. Avetisyan first argues that the BIA erred in making this determination
because the BIA did not follow the precedent established in In re S-M -J-,
21 I. & N. Dec. 722 (BIA 1997). As he explains:
S-M -J- does demand that an applicant should provide “supporting evidence, both of general conditions and of the specific facts sought to be relied on by the applicant, where such evidence is available.” S-M -J- also demands that if such evidence is unavailable, “the applicant is required to provide an explanation of why it is unavailable, and, the IJ must ensure that the applicant’s explanation is included in the record.”
-6- Pet. Br. at 10 (citation omitted and quoting In re S-M -J-, 21 I. & N. Dec. at 724).
Relying on this passage, M r. Avetisyan asserts that the BIA erred because the IJ
failed to give M r. Avetisyan the opportunity to explain why he did not have
corroborating documents. In re S-M -J- does not support his position. As the
passage cited above indicates, the burden is on the petitioner to provide an
explanation. See also In re S-M -J-, 21 I. & N. Dec. at 725 (“If the applicant does
not provide such information, an explanation should be given as to why such
information was not presented.”). In re S-M -J- does not stand for the proposition
that an IJ must provide an opportunity for petitioner to offer such an explanation.
The only requirement is that the IJ “ensure that the [] explanation is included in
the record” if the petitioner provides one. Id. at 724.
M oreover, the record reflects that the IJ did give M r. Avetisyan an
opportunity to offer an explanation. At the close of the hearing, after the IJ had
issued its decision in which he noted the lack of corroborating evidence, he said
to M r. Avetisyan’s counsel, “Counsel, is there anything else you want to put on
the record . . . I’ll let you do it. Say whatever you want.” Admin. R. at 160. A t
that point, M r. Avetisyan’s counsel began commenting on a portion of the IJ’s
decision in which the IJ discussed the credibility concerns expressed by the initial
asylum interviewer. M r. Avetisyan failed to offer any explanation about the lack
of documentary evidence even after the IJ again pointed out that he had denied
the application in large part because of the lack of such evidence. See id. at 161.
-7- Next, M r. Avetisyan asserts that the BIA erred by “blindly subscribing to
the IJ’s demand for corroborating evidence.” Pet. Br. at 10. M r. Avetisyan
asserts that the IJ erred in finding that M r. Avetisyan was a member of a political
party and that he should have produced evidence of his party membership. He
defeats his own argument, however, by conceding on the next page that the IJ did
not require him to show actual proof of party membership. He provides the
following passage from the IJ’s decision, “W hy cannot we get a letter from
somebody that is in this particular movement or this particular party? They do
not have to say he is a member, but they could say, hey, he w as involved in this,
he was making fliers, he was organizing groups.” Id. at 11 (quoting Admin. R. at
52). The BIA’s decision tracks this passage as it notes that petitioner could have
submitted letters attesting to his “alleged membership or . . . involvement in any
political movement.” Admin. R. at 3.
M r. Avetisyan also takes issue with the fact that the IJ mentioned the length
of time that M r. Avetisyan’s application had been pending in the United States as
a reason why the IJ expected to see more documents. The BIA also mentions this
as part of its affirmance of the IJ’s decision. M r. Avetisyan asserts that the IJ did
not allow any discussion to assess whether it would be reasonable to obtain such
documents under M r. Avetisyan’s country conditions. As explained above, the IJ
gave M r. Avetisyan ample opportunity to offer any explanation for the lack of
corroborating evidence. M oreover, the record reflects M r. Avetisyan’s hearing
-8- was continued several times at the request of his attorney for the alleged purpose
of obtaining additional documents from Armenia. See id. at 82, 91-92, 95, 101.
From the time of the filing of his initial application until his merits hearing, M r.
Avetisyan had seven years to obtain documents. Given these circumstances, it
was reasonable for the IJ to consider the amount of time that the application had
been pending in reaching his determination regarding corroborating evidence.
Finally, M r. Avetisyan argues that “to expect, as the IJ does, that a
presidential candidate would know [M r. Avetisyan] and be willing to write him a
letter does not seem reasonable.” Pet. Br. at 13. Although the IJ did mention that
perhaps M r. Avetisyan could get a letter from M anoukian, this was mentioned
after the IJ began the discussion with “[w]hy cannot we get a letter from
somebody that is in this particular movement or this particular party?” Admin. R.
at 52. The IJ did not specify in this passage that the letter had to come from
M anoukian. The record reflects that M r. Avetisyan had friends who participated
in the political activities with him. See, e.g., id. at 137, 145. There is no
explanation as to why these friends, or someone else in the organization, could
not provide a letter describing M r. Avetisyan’s involvement in this political
movement.
-9- Because we conclude that the BIA did not commit legal error and that
substantial evidence supports the BIA’s decision, the petition for review is
D EN IED .
Entered for the Court
W ade Brorby Senior Circuit Judge
-10-