Diana Butnarciuc v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2020
• Docket: 19-70497
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIANA BUTNARCIUC, No. 19-70497

Petitioner, Agency No. A089-966-977

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

Respondent.

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

Submitted July 9, 2020** Portland, Oregon

Before: BENNETT and MILLER, Circuit Judges, and NAVARRO,*** District Judge.

Diana Butnarciuc, a native and citizen of Moldova, seeks review of a Board

of Immigration Appeals order dismissing her appeal from an 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 Gloria M. Navarro, United States District Judge for the District of Nevada, sitting by designation. decision denying her application for asylum, withholding of removal, and

protection under the Convention Against Torture. We have jurisdiction under 8

U.S.C. § 1252(a)(1), and we deny the petition.

The Board denied relief after upholding the immigration judge’s adverse-

credibility finding on the basis of Butnarciuc’s inconsistent and implausible

testimony. Substantial evidence supports that finding.

For example, Butnarciuc alleges that she cannot return to Moldova because,

as a democratic, anti-communist activist, she fears persecution by communist

“secret agents” who have “infiltrated” the Moldovan government. In 2017, she

testified that “the communists are now the majority in” Moldova and “the

democrats, simply . . . are not protected.” But the immigration judge found that

Butnarciuc’s testimony contradicted her documentary submissions, which

indicated that in 2010, an anti-communist coalition—led by a member of

Butnarciuc’s own political party—came to power. The immigration judge also

relied on a report indicating that, as of 2016, non-communists remained in power.

See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005) (“[A] finding made by

an IJ that a petitioner’s testimony is implausible given the evidence in a Country

Report or other objective evidence is accorded deference.”). When Butnarciuc was

questioned about the contradiction, she initially refused to say whether the

communists had ceded any power, and only later explained that the “political

2 situation is very unexpected” and that “communists are . . . [in] first place, even

unofficially.” The immigration judge found that her testimony on this point was

both inconsistent and implausible.

In addition, Butnarciuc testified that after she was attacked in 2005, she did

not contact the police or any other official, allegedly because doing so would have

been futile because they were all communists. The immigration judge found that

testimony to be inconsistent with her statement that, after her mother reported a

separate attack in 2007, government prosecutors apparently took the report

seriously, interviewed Butnarciuc, and “promised they [would] catch the

attackers,” although they were ultimately unsuccessful.

The agency could have interpreted the evidence more favorably to

Butnarciuc, but considering the totality of the circumstances, we cannot say that

“any reasonable adjudicator would be compelled to conclude” that Butnarciuc’s

allegations of past persecution or fear of future persecution were credible. 8 U.S.C.

§ 1252(b)(4)(B); see id. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Shrestha v. Holder,

590 F.3d 1034, 1042–44 (9th Cir. 2010).

In the absence of credible testimony, the Board determined that Butnarciuc’s

“corroborating documentary evidence alone [was] insufficient to establish past

persecution [or] a well-founded fear of persecution” on account of her political

opinion or her membership in a particular social group. See Al-Harbi v. INS, 242

3 F.3d 882, 891 (9th Cir. 2001) (“In light of the adverse credibility finding, we . . .

look for support only to the documentary material in the record.”). Substantial

evidence supports that determination. See Garcia v. Holder, 749 F.3d 785, 791 (9th

Cir. 2014).

Substantial evidence also supports the agency’s determination that

Butnarciuc did not establish that, if returned to Moldova, she will more likely than

not be tortured by or with the acquiescence of the government. 8 C.F.R.

§§ 1208.16(c)(2)–(3), 1208.18(a)(1). Because Butnarciuc’s testimony was found

not credible, and her corroborating evidence alone does not compel the conclusion

that she is more likely than not to be tortured, the Board properly rejected her

claim. See Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006).

PETITION DENIED.