New 9th Circuit and BIA Immigration Cases

Credibility

The IJ identified at least two “serious inconsistencies” in Hakobyan’s testimony that go to the heart of his application. First, the inconsistency between Hakobyan’s testimony and his prior declaration, regarding the identity of the individuals who attacked him on three separate occasions, is substantial evidence for the adverse
credibility finding. This inconsistency goes to the heart of Hakobyan’s application because it raises questions about what he actually saw, whether the attacks were related, whether they were carried out by government agents, and whether they were actually motivated by Hakobyan’s participation in the 21st Century party.

Second, the inconsistency relating to when Hakobyan began receiving threatening phone calls is also sufficient to support the IJ’s adverse credibility finding, because it raises serious questions as to whether the threatening phone calls bore any relation to Hakobyan’s activities in the 21st Century party. Because these two grounds are supported by substantial evidence, the Court does not decide whether the other grounds relied on by the IJ were proper bases for its decision.

http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/01/14/07-75018.pdf

Departure bar/post conviction relief.

Petitioner argued before the IJ and the BIA that the departure bar doesn’t apply to his case because his conviction was vacated. The BIA held that petitioner’s claim that his “previous deportation was ‘unlawful’ is based on case law which postdates his deportation by many years, as well as on an apparent modification of his criminal conviction which also postdates his deportation by many years.” For those reasons, the BIA held, petitioner “makes no legitimate argument that he was unlawfully deported.”  Contrary to the BIA’s assertion, petitioner relies on two cases that predate his deportation—Wiedersperg and Estrada-Rosales. And Cardoso-Tlaseca, the case that postdates his deportation, relied on Wiedersperg and Estrada-Rosales.

Nor does the fact that petitioner attempted page  to vacate his conviction years after his deportation derail his claim.   Petitioner’s case closely tracks Cardoso-Tlaseca. In both cases, the petitioners were deported for being illegally present in the country and having been convicted of controlled substance violations.  Both convinced courts to vacate their convictions, and both subsequently entered guilty pleas to different charges.  Both cases raised the question whether the departure bar denied jurisdiction over their motions to reopen.  In Cardoso-Tlaseca, this Court remanded so that the BIA could “determine[] in the first instance” whether the petitioner’s conviction “was vacated on the merits” and thus could not serve as a basis for removeability. Remanded here as well.

http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/18/10-72332.pdf

Credibility

Ghulyan contends that the BIA erred in affirming the IJ’s adverse credibility determination because the inconsistencies cited by the IJ supporting the adverse credibility finding do not go to the heart of his claim of persecution.

The IJ first found significant the inconsistency between Ghulyan’s testimony that the date of the car accident and subsequent
hospitalization was March 14, 2002, and his declaration and medical record, which both note that the accident occurred on June 25, 2002. The IJ stated that when pressed, Ghulyan corrected himself and said that the correct date was June 25, 2002. However, it is well settled in this circuit that minor inconsistencies that do not go to the heart of an applicant’s claim for asylum cannot support an adverse credibility determination. Accordingly, Ghulyan’s inability to remember nonmaterial, trivial details that were only incidentally related to his claim of persecution cannot form the basis of an adverse credibility determination.

Additionally, the IJ found the discrepancy concerning the length of time Ghulyan spent in the hospital also undermined his credibility. Ghulyan testified he only spent a couple of days in the hospital, but his declaration stated he was hospitalized for three weeks. When pressed by the IJ at the merits hearing, Ghulyan said that he was hospitalized for only a few days. This Court has consistently held that minor discrepancies that cannot be viewed as attempts by the applicant to enhance her claims of persecution have no bearing on credibility. Here, Ghulyan weakened his claim of persecution by stating that his injuries were not severe enough for him to be hospitalized for three weeks. Thus, this discrepancy cannot serve as a basis to undermine his credibility.

Further, the IJ found Ghulyan not credible because he testified inconsistently about the nature of his injuries during his arrest and detention. Ghulyan first stated he was beaten severely and had broken bones as a result, but later said they were fractured. The IJ noted Ghulyan used the words “crushed bones,” but that he ultimately testified he was bruised all over his body with a cut on his face. In any event, whether the beatings fractured his bones or gave him bruises all over his body still does not undermine his story that he was beaten severely. Moreover, by noting his injuries were not as severe, his clarification effectively weakens his claim. This type of minor inconsistency is generally not a proper basis to find an applicant adversely credible.

Finally, The IJ also based its adverse credibility finding on the discrepancy between the Party membership cards. The IJ found it particularly relevant that the cards were issued a month apart and pointed out that Ghulyan’s inability to reconcile the dates was significant. The IJ correctly pointed out that if, in fact, the first card was stolen in 2003 as Ghulyan claimed, then his explanation that he tried to get a replacement card in 2003 makes no sense, since the date of issue of the replacement card was 2000, almost three years before his father’s arrest. The discrepancy between the Party membership cards and Ghulyan’s inability to explain their issue dates presents a much closer call than the other
inconsistencies cited by the IJ. While it certainly undermines Ghulyan’s statements about his father’s arrest, the discrepancy does not undermine his claim that he was arrested, detained, beaten, and threatened as a Party activist. Although post-REAL ID Act this discrepancy likely would support the basis of an adverse credibility finding, under our pre-REAL ID Act precedent, this discrepancy does not go to the heart of Ghulyan’s claim of persecution and therefore may not serve as a proper basis to support the IJ’s adverse
credibility finding. Accordingly, the IJ’s adverse credibility finding is not supported by substantial evidence.

Substantial evidence supports the BIA’s finding that Ghulyan has failed to establish his eligibility for protection under the CAT.

http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/17/08-71097.pdf

Central Reason, CAT

Perez-Perez claims he was eligible for asylum because his religion, Evangelical Christianity, was a “central reason” he was or would be persecuted by gangs in El Salvador. He testified that he encountered members of Mara Savatrucha (“MS”), a Salvadoran gang, several times: two nights in a row outside a church (December 2003), once while out walking his dog at night (March 2004), and once at a bus stop (October 2004). Perez-Perez also testified that MS bothers everybody, not just, or even primarily, Evangelical Christians, and that MS’s main motivations for harassing others are recruiting new members and obtaining financing.

This evidence does not compel the conclusion that a central reason MS persecuted Perez-Perez was on account of his religion. The Court affirms the BIA’s reasonable conclusion that Perez-Perez was merely the victim of spontaneous, gang-related activity and therefore, not eligible for asylum. Nor does the record compel the conclusion that it is “more likely than not” that Perez-Perez would be tortured upon his removal to El Salvador, and that this torture—severe pain or suffering inflicted for discriminatory purposes—would be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,

Perez-Perez never told the Salvadoran authorities about his encounters with MS and offered no evidence that the Salvadoran government was ever willfully blind to his past suffering. Moreover, the documents Perez-Perez submitted regarding potential future torture do not compel the conclusion that the Salvadoran government would turn a blind eye to torture: several of these documents describe governmental efforts to curb gang violence.

http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/14/10-73306.pdf

Credibility

Substantial evidence supports the BIA’s adoption of the IJ’s adverse credibility finding. The IJ identified many inconsistencies in Tunkara’s testimony and his application for asylum that were supported by substantial evidence and went to the heart of Tunkara’s claim. Moreover, the IJ provided specific and cogent reasons for rejecting Tunkara’s explanations for the discrepancies

http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/13/11-72368.pdf

Jurisdiction, Due Process

The BIA did not err by affirming the IJ’s finding that Fominykh failed to provide sufficient corroborating evidence to meet his burden of proof and therefore was not entitled to withholding from removal. Because the record does not compel the finding that corroboration was unavailable, we uphold the BIA’s determination.

Moreover, the BIA did not err in finding that the IJ did not violate Fominykh’s due process rights. The proceedings were not so fundamentally unfair that Fominykh was prevented from presenting his claim because he had fair notice of the need for corroboration and ample opportunity to obtain it.

Even if Fominykh could have proved the proceedings were unfair, he could not have established prejudice because he failed to challenge the BIA’s alternate finding that he failed to establish a nexus between his fear of harm and a protected ground and therefore waived review of that issue. Fominykh challenges the IJ’s denial of asylum and finding that he did not show the government of Russia was unable or unwilling to protect him, but he failed to argue those issues before the BIA. The Court herefore lack jurisdiction to review those claims.

http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/12/11-72274.pdf