                                                                           FILED
                             NOT FOR PUBLICATION                           MAR 07 2016

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



                             FOR THE NINTH CIRCUIT


ARMAN DOBROYAN; et al.,                          No. 12-72269

              Petitioners,                       Agency Nos.         A099-970-715
                                                                     A099-970-716
 v.                                                                  A099-970-717

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



ARMAN DOBROYAN; et al.,                          No. 13-71711

              Petitioners,                       Agency Nos.         A099-970-715
                                                                     A099-970-716
 v.                                                                  A099-970-717

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted February 12, 2016
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

      Arman Dobroyan, a citizen of Armenia, petitions for review of the order of

the Board of Immigration Appeals denying his applications, and those of his wife

and daughter as derivative petitioners, for asylum, withholding of removal, and

protection under the Convention Against Torture based on an adverse credibility

finding. Dobroyan also petitions for review of the BIA’s decision denying his

motion to reopen based on ineffective assistance of counsel. We have jurisdiction

over this appeal under 8 U.S.C. § 1252, and we deny the petitions.

      We review a finding of adverse credibility for substantial evidence, and

accept that finding “unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013).

Pursuant to the REAL ID Act, which applies in this case as Dobroyan filed his

applications after May 11, 2005, see Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017

n.5 (9th Cir. 2011), the BIA was permitted to base an adverse credibility

determination on the inherent implausibility of the applicant’s account, on

inconsistencies between the applicant’s written and oral statements, or on any

stated inaccuracies or falsehoods. 8 U.S.C. §§ 1158(b)(1)(B)(iii); 1231(b)(3)(C).

An inconsistency or inaccuracy that goes to the heart of the applicant’s claim

carries great weight. Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010).


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      The BIA identified several inconsistencies within Dobroyan’s testimony and

between his oral and written declarations. Dobroyan offered multiple conflicting

dates for when events relating to the heart of his asylum claim occurred. For

example, the immigration judge found Dobroyan’s testimony regarding

Aghabegyan’s alleged demand for $2,000 confusing and inconsistent. On cross-

examination, Dobroyan also gave an account of threats and a beating he claimed he

suffered in Russia that he had omitted from his written testimony. He also included

a claim that he was detained and interrogated in May 2001 in his written

declaration that he omitted from his oral testimony. Finally, Dobroyan testified

inconsistently as to when he worked for the Ministry of Archives—the job from

which he was supposedly forced to resign as part of the persecution against him in

Armenia.

      Moreover, many of the statements about these events were vague, confusing,

and lacking in specific detail. See Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th

Cir. 1999). When asked to explain these infirmities in his testimony, Dobroyan

stated that he had lost his memory and that the trauma of the attempt on his life had

made him forget unimportant details such as dates. We defer to the IJ’s conclusion

that these explanations were “not satisfactory to explain the inconsistencies” in his

testimony. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). Dobroyan also


                                          3
failed to corroborate his story with affidavits or testimony from his parents and

brother, who lived nearby and were available. In short, the IJ’s adverse credibility

determination was supported by substantial evidence, and the BIA therefore did not

err in denying Dobroyan’s appeal of the IJ’s denial of his application for asylum.

      The BIA’s determination that Dobroyan had failed to establish eligibility for

asylum based on the IJ’s adverse credibility finding is also determinative of

Dobroyan’s claim for withholding of removal. The burden of proof required to

show eligibility for withholding of removal (a clear probability of persecution) is

greater than the burden of proof necessary to show eligibility for asylum (well-

founded fear of persecution). INS v. Stevic, 467 U.S. 407, 413 (1984). As

Dobroyan failed to meet the lesser burden, he necessarily did not meet the more

stringent burden of establishing a clear probability of persecution.

      This Court reviews the BIA’s denial of a motion to reopen for abuse of

discretion and may reverse the BIA’s decision only if it is “arbitrary, irrational, or

contrary to law.” Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014). A motion to

reopen must be filed within 90 days of a final order of removal and a party may

make only one motion to reopen. 8 U.S.C. §§ 1229a(c)(7)(C)(i), 1229a(c)(7)(A).

Equitable tolling or waiver of these limitations may be available when a petitioner

is prejudiced by the ineffective assistance of counsel, but only up until the time a


                                           4
petitioner exercising due diligence discovers or should have discovered counsel’s

misconduct. Iturribarria v. I.N.S., 321 F.3d 889, 897–99 (9th Cir. 2003). Dobroyan

filed a second motion to reopen over 90 days after the BIA issued a final order of

removal, asserting that his first counsel was deficient for failing to address the

credibility issues in his case and that his second counsel was deficient for failing to

inform him of his first counsel’s errors. Dobroyan did not exercise due diligence in

discovering and remedying this alleged misconduct, however. Dobroyan should

have discovered his first counsel’s ineffective assistance when his credibility was

challenged at the asylum hearing and certainly when the IJ issued her decision

denying Dobroyan’s applications based on an adverse credibility finding.

      Of course, Dobroyan, as a native Armenian speaker with no legal training,

should not be expected to recognize non-obvious legal errors made by prior

counsel without the assistance of new counsel. But his first counsel’s supposed

mistake in not offering corroborating testimony was obvious. Dobroyan was asked

repeatedly at the IJ hearing why his sister, parents, and brother did not testify or

submit declarations on his behalf. The IJ’s January 12, 2011 ruling specifically

underscored the lack of corroborating testimony. Finally, Dobroyan’s April 5, 2011

(his first) motion to reopen specifically indicated that his brother and parents were

now available to testify, thus further undercutting his claim that he was unaware


                                           5
prior to November 7, 2012 that the lack of corroborating testimony had been a

critical factor in the IJ’s adverse credibility determination.

      This Court reviews de novo a claimed due process violation on the basis of

ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791–92

(9th Cir. 2005). The ineffective assistance of counsel in a deportation hearing

amounts to a denial of due process under the Fifth Amendment when counsel’s

performance is so inadequate it prevents the petitioner from presenting his case and

prejudices the outcome. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir.

2002). Dobroyan had ample opportunity to present corroborating testimony, clarify

his statements, and account for any inconsistencies and omissions. The alleged

failure of his first counsel to do so for him or of his second counsel to inform him

of the problem was not prejudicial as the IJ brought these credibility issues to

Dobroyan’s attention and he chose not to take further action.

      Petitions for review DENIED.




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