                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5002




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                                                  NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 06-5002


                 MIKAYEL POGHOSYAN,

                                         Petitioner

                               v.

     ATTORNEY GENERAL OF THE UNITED STATES,

                                         Respondent

                    __________________

           On Petition for Review of an Order of the
               Board of Immigration Appeals
                 (Agency No. A95-476-171)

                    __________________

          Submitted under Third Circuit LAR 34.1 (a)
                     on January 18, 2008


Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges

                  Opinion filed: May 2, 2008




                        OPINION
ROTH, Circuit Judge:

       Mikayel Poghosyan petitions for review of the order of the Board of Immigration

Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of his application for asylum,

withholding of removal, and protection under the Convention Against Torture. We will deny

the petition because substantial evidence in the record supports the IJ’s adverse credibility

determination.

I. Background and Procedural History

       Poghosyan is a native of Armenia. The crux of his asylum, withholding, and

Convention Against Torture claims is that he was persecuted because of his imputed political

opinion, namely his perceived affiliation with former Minister of Internal Affairs and Mayor

of Yerevan, Vano Syryaderyan, and accordingly with former President Ter-Petrossian’s

policies toward the disputed Nagorno-Karabakh region. Poghosyan argues that, because of

his imputed political opinion, he suffered beatings and harassment and twice failed the police

exam. He claims that he stopped working at the Ministry of Internal Affairs and hid at a

family vacation home because he feared he would be killed.

       Poghosyan submitted documentation in support of his claim, including hospital

records, a letter from a psychologist in Armenia, and an article from a publication entitled

Ashtanak.    The Ashtanak article accused Poghosyan specifically of being a “true

embodiment[] of the terror years” and “still practic[ing] the same cruel and unjust methods

as [under Ter-Petrossian].” An in-country consular investigation determined that because



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Ashtanak purported to be the “City’s Independent Newspaper,” “Registration Number 1165,”

the consulate would expect Ashtanak to be published by the only publishing house in

Yerevan at which all newspapers are registered and printed and which is the only facility

with the capacity to print a paper for mass distribution. However, Ashtanak was not

registered, and the printing-house manager had never heard of it. The hospital records were

examined by the Forensic Document Laboratory, which could not authenticate them.

       The Immigration Judge denied Poghosyan’s claims. She found that Poghosyan was

not credible because 1) he submitted a “fake” newspaper article, 2) there were

inconsistencies between his testimony and his own documents (including with respect to

when he stopped working and when he sought psychological treatment), 3) he failed to

provide corroborating documents, such as medical reports, and 4) he failed to call a witness

(his mother) who lived in Philadelphia to corroborate his testimony.

       The BIA affirmed the IJ’s decision and order, finding no clear error in the adverse

credibility finding. The BIA concluded that the IJ identified a number of discrepancies

between Poghosyan’s submitted evidence, application for relief, and testimony, which were

central to his claim and which Poghosyan had failed to explain convincingly. The BIA stated

in particular that 1) the record was equivocal as to when Poghosyan worked for the Ministry

of Internal Affairs and when he left his position, 2) the IJ reasonably determined that the

integrity of Poghosyan’s claim was compromised because the consular report indicated that

the Ashtanak article was not what it purported to be, and 3) the IJ noted the “incongruous



                                             3
nature” of Poghosyan’s claim that he was threatened and mistreated but was apparently also

promoted after his “imputed political enemy rose to power.” Poghosyan petitioned for

review of the BIA’s decision.

II. Jurisdiction and Standard of Review

       We have jurisdiction over Poghosyan’s appeal under 8 U.S.C. § 1252(a)(1). Where,

as here, the BIA defers to the decision of an IJ, we must review the IJ’s decision “to assess

whether the BIA’s decision to defer was appropriate.” Abdulai v. Ashcroft, 239 F.3d 542,

549 n.2 (3d Cir. 2001). Adverse credibility determinations are reviewed for substantial

evidence and are upheld if they are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). We must uphold an adverse credibility determination “unless ‘any reasonable

adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. §

1252(b)(4)(B)).1

       An asylum applicant need not provide evidence corroborating his testimony unless it

would be “reasonable” to expect him to do so. Zheng v. Gonzales, 417 F.3d 379, 382 (3d

Cir. 2005) (citing Abdulai v. Ashcroft, 239 F.3d at 551). However, “‘if it would be



   1
    Poghosyan argues that the IJ’s findings are not entitled to deference, asserting that her
analysis was either insufficient or based on an inaccurate understanding of the record. See
Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir. 1998) (“[D]eference is not due where
findings and conclusions are based on inferences or presumptions that are not reasonably
grounded in the record viewed as a whole.”) While particular statements in the IJ’s decision
(rendered orally) might have been more precise, her adverse credibility finding appears to be
reasonably grounded in the record.

                                             4
reasonable to expect corroboration, then an applicant who neither introduces such evidence

nor offers a satisfactory explanation as to why he . . . cannot do so may be found to have

failed to meet his . . . burden of proof.’” Zheng, 417 F.3d at 382 (quoting Abdulai, 239 F.3d

at 551). Under the REAL ID Act, “‘[n]o court shall reverse a determination made by a trier

of fact with respect to the availability of corroborating evidence . . . unless the court finds .

. . that a reasonable trier of fact is compelled to conclude that such corroborating evidence

is unavailable.’” Zheng, 417 F.3d at 383 n.2 (quoting 8 U.S.C. §1252(b)).

III. Analysis

       A. Poghosyan’s Asylum Claim

       The Attorney General has the discretion to grant asylum to an alien who meets the

definition of a “refugee.” 8 U.S.C. § 1158(b). An individual qualifies as a “refugee” if he

is “unable or unwilling” to return to her country of origin “because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” Id. at § 1101(a)(42). To establish eligibility

for asylum, an alien must demonstrate past persecution by substantial evidence or a well-

founded fear of persecution that is both subjectively and objectively reasonable. Butt v.

Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An alien seeking asylum “ha[s] the burden of

supporting [his] asylum claim[] through credible testimony.” Gao, 299 F.3d at 272. In some

cases, the alien may be required to provide documentary evidence to meet his burden of

proof. Id.



                                               5
       We are satisfied that the adverse credibility determination in this case, which was

affirmed by the BIA, was supported by substantial evidence. We have set out this evidence

above. Moreover, in light of the shortcomings in Poghosyan’s case, the IJ did not err in

questioning the lack of corroboration for Poghosyan’s claims.

       B. Poghosyan’s Withholding of Removal and Convention Against Torture

Claims

       Poghosyan’s claims for withholding of removal and withholding under the

Convention Against Torture are based on the same evidence as his asylum claim. Our

conclusion that the adverse credibility determination was supported by substantial evidence

applies with equal force to his withholding of removal and Convention Against Torture

claims.

IV. Conclusion

       For the reasons set forth above, we will deny Poghosyan’s petition for review.




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