                                                                              FILED
                            NOT FOR PUBLICATION                                NOV 09 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ARARAT MITOYAN,                                 No. 07-74407

              Petitioner,                       Agency No. A098-522-659

  v.
                                                MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,

              Respondent.


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

                            Submitted October 25, 2011**
                              San Francisco, California

Before: GRABER and IKUTA, Circuit Judges, and QUIST,*** Senior District
Judge.

       Petitioner Ararat Mitoyan asks us to review an order of the Board of

Immigration Appeals ("BIA") returning him to his native Armenia. Petitioner



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
          The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
asserts that the BIA erred in failing to consider whether his alleged mistreatment

constituted torture under the Convention Against Torture ("CAT") and in affirming

the adverse credibility finding of the immigration judge ("IJ").

      1. We lack jurisdiction to address Petitioner’s claim that the BIA erred

when it failed to consider whether Petitioner’s alleged mistreatment by Armenian

Internal Affairs officers constituted torture under the CAT. We have jurisdiction to

decide an issue only if it was exhausted in the administrative proceedings below.

Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). The only issues raised in

Petitioner’s appeal to the BIA related to the IJ’s adverse credibility determination

and denial of asylum, and those are the only issues the BIA addressed in its

opinion.1

      2. Because the BIA explicitly adopted the IJ’s credibility analysis, citing In

re Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), we review the IJ’s adverse

credibility determination as if it were that of the BIA. Rizk v. Holder, 629 F.3d

1083, 1087 (9th Cir. 2011); Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.

2010). Petitioner filed his application for relief before May 11, 2005, so we apply

pre-REAL ID Act rules. Rizk, 629 F.3d at 1087 n.2.


      1
        The BIA also briefly addressed Petitioner’s competence to testify, but
Petitioner has not raised that issue in this appeal, nor has he produced any evidence
of incompetence.
                                          2
      We review the IJ’s adverse credibility determination for substantial

evidence. "We 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 the alien’s claim of persecution." Id. at 1087 (internal quotation marks and

brackets omitted)).

      Here, the IJ identified several grounds for her adverse credibility

determination, including suspicious changes in Petitioner’s demeanor on cross-

examination; internal inconsistency in Petitioner’s testimony on important issues;

and Petitioner’s failure to produce readily available corroborative testimony. For

example, Petitioner testified that he was arrested because of irregularities he

observed during elections, but he did not testify consistently as to what he had

seen. He testified at one point that he never saw money changing hands at the

polls and then later testified that he did see money change hands. Petitioner also

failed to testify consistently regarding his claim that government officials arrested

him because of what he had seen during elections. For example, he testified that

the officials who arrested him "didn’t see [him]" at the elections. When asked

why, then, he "knew [that his] arrest had something to do with what [he] observed

at the . . . polling place," Petitioner responded that it was "natural" that his arrest

was "connected" to what he saw during voting "[b]ecause [he] was arrested after


                                            3
the elections." Additionally, Petitioner variously testified that he witnessed

embezzlement in 1987, 1988, or 1991, which caused him to quit the Armenian

National Movement; but he testified in contradiction that he did not join that group

until 1991 or 1999. These inconsistencies went to the heart of his claim of political

persecution. Petitioner also failed, without any cogent explanation, to produce his

wife as a witness, even though she was present when he was allegedly arrested in

their home by Armenian officials; provided bail for his release; and was, at the

time of the removal proceedings, living with Petitioner in California. The IJ gave

Petitioner ample opportunity to explain these inconsistencies, including staying the

proceedings to allow Petitioner to gather additional witnesses and evidence, but

Petitioner failed to provide adequate explanation or corroboration. For instance,

Petitioner testified that he could not answer questions consistently because his

"memory gets erased" because he "ha[s] received emotional harm." In support of

this argument, he submitted a psychologist’s letter diagnosing him with depression

and post-traumatic stress disorder. The letter, however, does not state that the

alleged disorders affected Petitioner’s ability to testify consistently. In fact, it does

not mention his ability to testify at all. Therefore, the IJ properly found that it is an

insufficient explanation for Petitioner’s inconsistent testimony. Because we




                                            4
conclude that the IJ’s adverse credibility determination was supported by

substantial evidence, we must deny the petition.

      Petition DENIED.




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