                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                       MAR 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


HASMIK MOVSESYAN,                             No.   15-70573

              Petitioner,                     Agency No.
                                              A098-453-147
 v.

JEFFERSON B. SESSIONS III,                    MEMORANDUM*
Attorney General,

              Respondent.


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

                     Argued and Submitted February 14, 2018
                              Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District
Judge.


      Hasmik Movsesyan appeals the Board of Immigration Appeals’ (“BIA”)

dismissal of her appeal of an Immigration Judge’s (“IJ”) decision denying her


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John A. Woodcock, Jr., United States District Judge
for the District of Maine, sitting by designation.
application for asylum, withholding of removal, and protection under the

Convention Against Torture. This Court reviews each of those denials, as well as

adverse credibility determinations, for substantial evidence. Baghdasaryan v.

Holder, 592 F.3d 1018, 1022 (9th Cir. 2010) (asylum and withholding of removal);

Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010) (adverse credibility

determination); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008)

(Convention Against Torture). We have jurisdiction pursuant to 8 U.S.C. §

1252(a)(1), and we deny Movsesyan’s petition for review.

      1. Substantial evidence supports the IJ’s adverse credibility finding.

Movsesyan testified inconsistently and vaguely regarding basic facts of claimed

harassment by Armenian authorities. These included the number of times she was

assaulted, the number of her teeth her assaulters broke, the sequencing of incidents,

whether the KGB issued her a death threat, and more. The IJ wrote,

      Respondent was not a credible witness. Although respondent was not
      a credible witness, the court does not necessarily disbelieve all of her
      testimony. However, due to the problems with respondent’s
      testimony, the court does not know what parts of her testimony to
      believe. The court accepts that respondent was a practicing
      Pentecostal in Armenia. The court also is willing to accept that
      respondent may have had problems with the authorities in Armenia.

(citation omitted).

      Movsesyan contends that this portion of the IJ’s opinion somehow

undermines the adverse credibility determination. It does not. Movsesyan cites no

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authority for the proposition that to make an adverse credibility finding, an IJ must

disbelieve all of an alien’s testimony. If left unsure what to believe, an IJ remains

free to discredit the alien’s testimony, absent corroboration. Sidhu v. INS, 220 F.3d

1085, 1090 (9th Cir. 2000) (“[8 C.F.R. § 208.13] plainly indicates that if the trier

of fact either does not believe the applicant or does not know what to believe, the

applicant’s failure to corroborate his testimony can be fatal to his asylum

application”). Here, the IJ correctly noted that Movsesyan failed to present

background evidence corroborating her claim that Armenian authorities act in

some way against Pentecostals.

      In cases predating the REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005),

an adverse credibility determination must be founded on testimonial

inconsistencies that go to the heart of the asylum claim. Li v. Ashcroft, 378 F.3d

959, 962, 964 (9th Cir. 2004). Such was the case here. The IJ grounded his

adverse credibility finding not on peripheral, minor matters, but on whether she

had linked any past persecution to a protected ground. The adverse credibility

finding was thus adequately supported and must be upheld.

      2. The BIA did not err in refusing to consider the psychological report

because Movsesyan did not submit it to the IJ, did not present a valid basis for its

consideration before the BIA, did not move to remand or reopen, and did not show

that it was unavailable and could not have been discovered or presented at the IJ

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hearing. See 8 C.F.R. §§ 1003.1(d)(3)(iv), 1003.2(c)(1). Furthermore, the BIA

properly concluded that the psychologist’s report failed to present a justifiable

excuse for Movsesyan’s inconsistent testimony. The report confirmed that

Movsesyan did not have memory problems and explained her inconsistent

testimony and “making up (false) stories” by her extreme nervousness during her

testimony. The psychologist’s report thus buttressed the IJ’s finding that her

testimony lacked credibility.

      3. Because of the adverse credibility determination, the withholding of

removal claim also fails. The alien bears the burden of proving a “clear

probability,” that it is “more likely than not” that she would suffer persecution

based on one of the protected grounds upon return. INS v. Stevic, 467 U.S. 407,

429-30 (1984); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). This standard is

higher than that governing eligibility for asylum. An alien who fails to establish a

well-founded fear of persecution for asylum purposes for lack of credible evidence

supporting the claim is therefore necessarily ineligible for withholding of removal.

Ghaly, 58 F.3d at 1428-29.

      4. Finally, substantial evidence supports the IJ’s conclusion that nothing in

the record establishes it is more likely than not that Movsesyan will experience

torture upon her repatriation in Armenia. 8 C.F.R. § 1208.16(c)(2); see

Unuakhaulu v. Gonzales, 416 F.3d 931, 939 (9th Cir. 2005) (stating standard).

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Movsesyan claims a reasonable belief that Armenian authorities are capable of

carrying out threats against her life and the safety of her family. A reasonable

belief that authorities are capable of something does not support a conclusion that

they are more likely than not to torture her upon her return. Documentary evidence

from the Department of State and United Nations High Commissioner for

Refugees supports the IJ’s conclusion that Movsesyan has not shown it is more

likely than not that she will be tortured upon her return to Armenia.

      PETITION FOR REVIEW DENIED.




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