                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 29 2004
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    YELENA SURENOVNA
    TATULYAN; ANDREY
    ASHOTOVICH TATULYAN;
    ASHOTA TATULYAN,

                Petitioners,

    v.                                                   No. 03-9555
                                                   (INS Nos. A76-913-118;
    JOHN ASHCROFT,                                A72-452-930; A76-913-119)
                                                     (Petition for Review)
                Respondent.


                               ORDER AND JUDGMENT        *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.



         Petitioners, a family of Russian citizens of Armenian descent, seek review

of a Board of Immigration Appeals (BIA) order adopting the decision of an

Immigration Judge (IJ) denying their applications for asylum, withholding of

removal, and relief under the Convention Against Torture. Here, because the BIA

summarily adopted the IJ’s opinion without analysis, we review the IJ’s decision


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
as the final agency decision.   See Yuk v. Ashcroft , 355 F.3d 1222, 1230 (10th Cir.

2004). Our jurisdiction over this petition for review arises from 8 U.S.C.

§ 1252(a)(2)(B)(ii). Petitioners raise four issues. Two challenge the IJ’s decision

on the merits; our review of these issues is for substantial evidence in the record

as a whole. See Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004). The

remaining two issues challenge the BIA’s summary affirmance procedures. We

review these legal issues   de novo. See Ali v. Ashcroft , 366 F.3d 407, 409 (6th Cir.

2004). 1

       Addressing the latter issues first, petitioners contend that the issuance of a

decision without opinion by only one member of the BIA violates their due

process rights and fails to comply with relevant regulatory provisions. These

arguments are controlled and foreclosed by this court’s opinion in     Yuk , 355 F.3d

at 1232. To the extent that petitioners’ argument about the application of relevant

regulations depends on an analysis of the merits, it is rejected for the reasons

stated below.   See Sviridov , 358 F.3d at 727.

       Petitioners lawfully entered the United States in 1996, but did not seek

asylum until 1999, when petitioner Yelena Tatulyan filed an application for



1
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

                                           -2-
herself and her son, Ashota. Her husband, petitioner Andrey Tatulyan, made

several lengthy annual trips back to Russia, extending his entry date to July 23,

1999. He filed a timely application for asylum in March of 2000, including his

son on that application. Shortly after Ashota attained twenty-one years of age, he

filed a protective application for asylum in February of 2001.

       At their hearing before the IJ, the timeliness of these applications was

considered as an initial matter. Although not included in the transcript of his oral

decision, the IJ ruled at the hearing that, unless qualifying reasons were shown for

the delay, Yelena’s application was untimely, making her ineligible for asylum on

that application. The IJ also ruled that Andrey’s application was timely, making

both he and Ashota eligible for asylum. Further, the IJ ruled that Yelena could

also be eligible through her husband’s application, as a dependent.    See Cert.

Admin. R. at 152. Therefore, Ashota and Yelena’s requests for asylum or other

relief were dependent upon Andrey’s application, and the issue before the IJ was

whether Andrey qualified for the relief he sought.     See Yuk, 355 F.3d at 1224 n.2.

       At the hearing, both Yelena and Andrey testified as to threats and violence

perpetrated against them and their son by Cossack forces as a result of their ties

to Sevan, an Armenian group, and their support for Armenian refugees.

Thereafter, the IJ issued his oral ruling. The IJ first determined that the

Tatulyans’ testimony was not credible because it was not “sufficiently detailed,


                                            -3-
consistent, or believable.” Cert. Admin. R. at 114. Petitioners challenge this

adverse credibility determination as one based on erroneous factual findings and

personal speculation. We review adverse credibility determinations for

substantial evidence in the record.      See Dia v. Ashcroft , 353 F.3d 228, 247-50 (3d

Cir. 2003) (discussing standards). An IJ must give “specific, cogent reasons” for

disbelieving a petitioner’s testimony.      See Sviridov , 358 F.3d at 727 (quotation

omitted). Our review of the record in this case leads us to conclude that there is

no reasonable support for the IJ’s credibility determination.

       First, Yelena Tatulyan’s testimony was very specific and detailed, even as

to the dates of the various incidents she described. The IJ’s summary of her

testimony covers more than four pages of his decision. Second, the only

inconsistencies noted by the IJ–whether Yelena visited friends or relatives in a

hospital and whether Andrey was a volunteer or elected Board member of

Sevan–are matters of little or no consequence in relation to the incidents of

violence to which petitioners testified, and therefore do not undermine the

veracity of their testimony as a whole. Third, the IJ’s conclusion that the

testimony was not believable is unsupported.       Cf. Dia , 353 F.3d at 249 (stating a

conclusion of “implausibility” must be made against the background of general

country conditions). Although we ordinarily defer to the IJ’s credibility findings,

such findings must be reasonably grounded in the record, and not “based on


                                             -4-
speculation, conjecture, or an otherwise unsupported personal opinion.”      Id. at

250. 2

         Because we find no support in the record for the IJ’s credibility

determination, we are left with the conclusion that the Tatulyans suffered past

persecution in Russia as a result of their ties to Sevan and their support of

Armenian refugees. One way that petitioners can establish refugee status is to

demonstrate past persecution, which “gives rise to a [rebuttable] presumption that

he or she has a well-founded fear of future persecution.”     Vatulev v. Ashcroft , 354

F.3d 1207, 1209 (10th Cir. 2003). Nonetheless, that presumption in this case is

rebutted by Andrey Tatulyan’s lengthy annual visits to Russia during the three

years after the Tatulyans came to this country and before they applied for asylum.

Cf. 8 C.F.R. § 208.8(b) (providing that an alien who returns to a country of

claimed persecution abandons his or her asylum application unless the alien can

establish compelling reasons for the return). Our review of the record leads us to

the conclusion that compelling reasons did not exist for Andrey Tatulyan’s trips

to Russia. Further, even if § 208.8(b) does not apply here in light of the timing of


2
       The IJ also stated, in a rather disparaging manner, that he did not believe
the Tatulyans’ reasons for delaying their applications for asylum, because, he
said, they were sophisticated business people. We express no opinion on this
point because the IJ previously determined that Andrey Tatulyan’s application
was timely. Further, this comment does not cast doubt on the credibility of
petitioners’ testimony regarding the incidents in Russia that formed the basis of
their claim to asylum.

                                            -5-
Andrey Tatulyan’s asylum application, we also conclude that his visits to Russia

constitute substantial evidence in the record in support of the IJ’s conclusion that

petitioners failed to demonstrate a reasonable fear of future persecution.   3
                                                                                 See

Blanco de Belbruno v. Ashcroft     , 362 F.3d 272, 285 (4th Cir. 2004). We hold that

petitioners have failed to carry the heavy burden placed on those challenging

adverse asylum determinations.      See Batalova v. Ashcroft , 355 F.3d 1246, 1255

(10th Cir. 2004).   4



       Having failed to demonstrate their eligibility for asylum, petitioners also

fail to establish entitlement to withholding of removal which entails a higher

standard than asylum.    See id. Finally, petitioners have not demonstrated




3
       The IJ also concluded that petitioners did not demonstrate a fear of future
persecution because the State Department Report said that there were areas of
Russia where Armenians could live peacefully, even though the Cossacks
continue to cause problems. Cert. Admin. R. at 116. We have read the State
Department Report in the record and we agree with petitioners that nothing in that
report supports the IJ’s statement on this point.
4
      Petitioners have submitted a supplement to the Certified Administrative
Record, contending that certain exhibits were omitted from that record.
Respondents contend that the submitted exhibits were not part of the official
record. Regardless, because the submitted exhibits are not relevant to the point
on which this decision turns, we need not resolve that question.

                                            -6-
entitlement to relief under the Convention Against Torture.     See id. The petition

for review is DENIED.


                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




                                           -7-
