Tikhonov v. Ashcroft

95 F. App'x 248

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2004
• Docket: No. 02-73678
• Status: Published

Opinion

MEMORANDUM

*

Viatcheslav Tikhonov and Jennifer Penaloza-Tikhonov seek review of the Board of Immigration Appeals (“BIA”) affirmance of the Immigration Judge’s (“IJ”) decision denying Tikhonov’s application for asylum and withholding of removal.¹ In its decision, the IJ denied Tikhonov’s application for asylum and withholding of removal but granted his request for voluntary departure. Because the BIA affirmed the IJ’s decision without opinion, our review focuses on the merits of IJ’s decision. 8 C.F.R. § 3.1(a)(7)(iii). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

We reverse the IJ’s adverse credibility finding because the inconsistencies perceived by the IJ were minor and did not to the heart of petitioner’s application. Chen v. INS, 266 F.3d 1094, 1098 (9th Cir.2001) (noting that minor discrepancies, inconsistencies, or omissions that do not go to heart of applicant’s claim do not constitute substantial evidence to support adverse credibility finding). Nevertheless, we find that petitioner, a deserter from the Russian Army, has not demonstrated that his claim for political asylum rises to the level of persecution.²

Accordingly, the petition for asylum and withholding of removal is DENIED. The IJ’s order granting voluntary departure is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Penzalona-Tikhonov does not independently request asylum; she is included on Tikhonov's application as a potential derivative asylee. 8 U.S.C. § 1158(B)(3).

2 . Tikhonov’s argument that the BIA’s streamlining of his case violated due process is foreclosed by our opinion in Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51 (9th Cir.2003) (holding that streamlining does not violate alien’s due process rights).