                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2006

Avetisyan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4724




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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 04-4724
                                     ____________

                               VARDAN AVETISYAN,
                                       Petitioner
                                       v.

                        ALBERTO GONZALES, Attorney General
                               of the United States,
                                          Respondent
                                  ____________

        On Petition for Review of an Order of the Board of Immigration Appeals
                                INS No. A79 329 992

                     Immigration Judge: Honorable Henry S. Dogin

             Submitted Under Third Circuit LAR 34.1(a) January 13, 2006

              Before:    ROTH, FUENTES, and ROSENN, Circuit Judges

                                (Filed January 24, 2006)

                                     ____________

                              OPINION OF THE COURT
                                   ____________

ROSENN, Circuit Judge.

       Varden Avetisyan appeals the denial of his claims for political asylum,

withholding of removal, and relief under the Convention Against Torture. Specifically,

he appeals the adverse credibility determination made by the Immigration Judge (“IJ”)
and affirmed by the Board of Immigration Appeals (“BIA”). Because we find that the

credibility decision is supported by substantial evidence, we affirm.

       We review adverse credibility determinations of the BIA and IJ for substantial

evidence. Cao v. Attorney General, 407 F.3d 146, 152 (3rd Cir. 2005). Under this

standard, “the BIA’s finding must be upheld unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483 (3rd Cir.

2001). Where an opinion issued by the BIA essentially adopts the opinion of the IJ, we

review both opinions. Gao v. Ashcroft, 299 F.3d 266, 271 (3rd Cir. 2002). As the BIA’s

short opinion adopts the IJ’s oral opinion, we have reviewed both opinions.

       Because we write primarily for the parties, we briefly refer to the salient facts.

Avetisyan arrived in the United States in 2000 on a non-immigrant J-1 visa and

subsequently applied to have his visa changed to B-2 (“tourist”) and extended. Before the

tourist visa expired he attempted to change his visa status again to that of a student. This

final visa application, which was found to contain false statements and fraudulent

documentation, was denied in 2001 and he thereupon applied for asylum and withholding

of removal.

       Avetisyan bases his claim for asylum on his testimony that he was persecuted for

his political views as a student at the University of Yerevan, Armenia, and while serving

in the Armenian army. He claims that as a student he was taken to a police station and

beaten for his support of the opposition party during an election. He also testified that



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school administrators told him that he would be expelled if he continued his political

opposition. He also testified that he was beaten by the KGB several times in connection

with his activities. While in the Army, he claims that he was pressured to withdraw

statements he made about the death of a fellow soldier, because of a government cover-

up, and was threatened and beaten when he refused.

       The IJ and BIA found a number of inconsistencies and falsehoods in Avetisyan’s

presentation. Some of the minor discrepancies between his testimony and his asylum

application might be explained by the differences that come from telling a story twice.

For example, Avetisyan testified that he was pushed out of a building during one incident

during an election, not arrested or taken away, but in his asylum application he wrote that

“militiamen drove us out of the University’s territory. . . . [they] took us far away from the

University and told us to stay away from the building.” Additionally, the asylum

application and Avetisyan’s testimony differed by a month on the date of a student

demonstration that ended with a beating and a broken rib. Such discrepancies, in the face

of an otherwise consistent, detailed, and believable story, would probably not support an

adverse credibility determination. See Gao, 299 F.3d at 272 (minor inconsistencies and

omissions are not an adequate basis for an adverse credibility finding). The IJ said as

much during the hearing.

       In this case, however, the BIA and IJ did not rely solely on minor inconsistencies

in Avetisyan’s story for their credibility determination. On cross examination, Avetisyan



                                              3
admitted that his student visa application contained numerous falsehoods. His

explanation is that he saw an advertisement by someone who handled visa applications,

and gave this person the full responsibility for his visa application. Although he admits

signing the document, he testified that he did not know of its contents and that he never

saw the wholly false job verification letter that was attached to the application. He stated,

“I was told in the office that he’s going to take care of filling out. All I had to do was

sign. ” Denying all knowledge of the contents of his visa application does nothing to

enhance his credibility, especially as the IJ found that he had some proficiency in English.

Under the circumstances, it was not unreasonable for the IJ and BIA to disbelieve

Avetisyan’s assertions of complete innocence in that matter.

        The IJ also found that Avetisyan should have been able to provide some form of

corroborative documentation to support his claims of political persecution. The IJ found

that there were no documents supporting his claims to numerous beatings and subsequent

medical treatments, including a four-week hospital confinement, his membership in a

political organization as a student, or his later involvement in a human-rights

organization. Given the time between his December 2001 notice and the July 2004

evidentiary hearing and the open lines of communication between the United States and

Armenia, the IJ found that Avetisyan could have produced at least some documents if the

events Avetisyan described were true. The IJ found it was impossible to believe that

Avetisyan was involved in the student struggles without some corroborative proof.



                                              4
       The documents the IJ expected should have been within Avetisyan’s power to

obtain, such as the medical records and records of membership in political organizations.

See Dia v. Ashcroft, 353 F.3d 228, 253-54 (3d Cir. 2003). Although we realize that

documents related to persecution are often unavailable, Avetisyan did not even explain

his failure to provide them. In view of the other problems with his application, it was not

unreasonable for the IJ to expect some corroborative documents. See Abdulai v. Ashcroft,

239 F.3d 542, 554 (3d Cir. 2003).

          Together, the false visa application, the lack of documentary evidence, and the

minor inconsistencies support the IJ’s and BIA’s decisions to deny Avetisyan’s

application. We hold that the IJ’s adverse credibility determination and the BIA’s

affirmance are supported by substantial evidence. We therefore deny the petition for

review.




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