                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                     NOV 10 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 YESAYI INDIKUSHAYAN and ALBERT                   No. 11-73336
 INDIKUSHYAN,
                                                  Agency Nos.      A097-857-788
              Petitioners,                                         A097-665-876

    v.
                                                  MEMORANDUM*
 LORETTA E. LYNCH, Attorney General,

              Respondent.

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

                             Submitted November 4, 2015**
                                 Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and CHHABRIA,***
District Judge.

         Yesayi Indikushyan and his son, Albert, natives and citizens of Armenia,

petition for review of a Board of Immigration Appeals (BIA) decision affirming

the denial of Yesayi’s applications for asylum, withholding of removal, and
         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Vince G. Chhabria, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
protection under the Convention Against Torture (CAT).1 We review for

substantial evidence the agency’s factual findings. Madrigal v. Holder, 716 F.3d

499, 503 (9th Cir. 2013). We deny the petition for review.2

      Substantial evidence supports the agency’s adverse credibility

determination. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (in pre-

REAL ID Act cases, the court “must uphold the IJ’s adverse credibility

determination so long as one of the identified grounds is supported by substantial

evidence and goes to the heart of [petitioner’s] claim of persecution”) (alteration

omitted). Petitioner’s initial declaration discussed only one instance in which

soldiers allegedly arrived at his father’s store and perpetrated politically-motivated

violence therein. In a supplemental declaration, Petitioner for the first time

mentioned a home attack that took place on the same day as the store attack.

During his live testimony, Petitioner stated that the home attack actually took place

over two weeks after the store attack, after his return from the hospital for injuries


      1
        Albert Indikushyan is a derivative beneficiary of his father’s application.
He did not take substantive part in the immigration proceedings and did not file
any independent claims. References to “Petitioner” shall therefore refer to Yesayi.
      2
       Petitioner’s application was filed prior to the effective date of the REAL
ID Act. This court’s pre-REAL ID case law therefore controls.

                                           2
suffered during the store attack. He also offered vague and inconsistent testimony

regarding when various injuries were suffered by whom. These inconsistencies

regarding a “dramatic, pivotal event” that “precipitated [the petitioner’s] flight”

from his home country goes to the heart of his claim and provide substantial

evidence for discrediting his testimony. Alvarez-Santos v. INS, 332 F.3d 1245,

1254 (9th Cir. 2003).

      When given the opportunity to explain these inconsistencies, Petitioner

stated that they were due to faulty memory and that his memory was worse when

he testified than when he submitted his declarations, but that his testimony

reflected the most accurate account. The agency reasonably rejected this

explanation and “properly rel[ied] on the inconsistenc[ies] as support for an

adverse credibility determination.” Rizk, 629 F.3d at 1088.

      The BIA validly concluded that the adverse credibility determination was

dispositive of Petitioner’s asylum and withholding of removal claims. Without

credible testimony, Petitioner necessarily failed to carry his burden of proving past

persecution, a well-founded fear of future persecution, or a clear probability of

future persecution. See Madrigal, 716 F.3d at 503 (asylum requires establishing

either past persecution or a well-founded fear of future persecution); Viridiana v.

                                           3
Holder, 646 F.3d 1230, 1239 (9th Cir. 2011) (withholding of removal requires

establishing either past persecution or a clear probability of future persecution).

      Although an “adverse credibility determination is not necessarily a death

knell to CAT protection,” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010),

where, as here, the evidence supporting Petitioner’s claim “is his discredited

testimony and general [country] reports” regarding human rights in Armenia, “to

reverse the BIA’s decision [the court] would have to find that the reports alone

compelled the conclusion that [Petitioner] is more likely than not to be tortured.”

Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006). Here, while the

country reports submitted by Petitioner do generally confirm that torture has been

employed in Armenia against opponents of the government, there is no indication

in this record, apart from Petitioner’s discredited testimony, that Petitioner himself

or his son would be tortured if they returned. See id. Substantial evidence thus

supported denial of Petitioner’s CAT claim.

      PETITION FOR REVIEW DENIED.




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