10-22-ag
Gyulnazaryan v. Holder
BIA
Chew, IJ
A097 703 120
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17th day of February, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 AMAHITE GYULNAZARYAN,
14 Petitioner,
15
16 v. 10-22-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Tatiana S. Aristova, Plainsboro, New
24 Jersey.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John C. Cunningham, Senior
28 Litigation Counsel; Ari Nazarov,
29 Trial Attorney, Office of
30 Immigration Litigation, Washington
31 D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Amahite Gyulnazaryan,1 a native and citizen
7 of Armenia, seeks review of the December 8, 2009, order of
8 the BIA affirming the January 31, 2008, decision of
9 Immigration Judge (“IJ”) George T. Chew pretermitting her
10 application for asylum and denying her application for
11 withholding of removal and relief under the Convention
12 Against Torture (“CAT”). In re Amahite Gyulnazaryan, No.
13 A097 703 120 (B.I.A. Dec. 8, 2009), aff’g No. A097 703 120
14 (Immig. Ct. N.Y. City Jan. 31, 2008). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 Under the circumstances of this case, we review both
18 the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
1
The official caption throughout the agency
proceedings, and all of the agency documents, refer to
petitioner as “Amahite Gyulnazaryan,” as does the
official caption of the case in this Court. Petitioner’s
submissions, including her initial application for asylum
and withholding of removal, consistently refer to her as
“Anahit” Gyulnazaryan (or occasionally, “Gyulnazarian”).
2
1 standards of review are well-established. See 8 U.S.C.
2 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
3 (2d Cir. 2009).
4 Gyulnazaryan waived any challenge to the agency’s
5 determination that she was statutorily ineligible for asylum
6 by not sufficiently arguing the issue in her brief.
7 8 U.S.C. § 1158(a)(2)(B); see Yueqing Zhang v. Gonzales, 426
8 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
9 With respect to Gyulnazaryan’s claims of withholding of
10 removal and CAT relief, substantial evidence supports the
11 agency’s adverse credibility determination. Although the
12 BIA may have erred in finding that Gyulnazaryan provided
13 inconsistent statements regarding the date she began working
14 at the military recruitment center, the totality of the
15 circumstances nevertheless sufficiently support the agency’s
16 finding that she was not credible. 8 U.S.C. §
17 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
18 162, 167 (2d Cir. 2008).
19 Gyulnazaryan does not dispute the IJ’s finding that she
20 failed to mention in her written asylum application that she
21 was threatened and criticized at work because she witnessed
22 corruption there, and that her supervisor threatened to
3
1 draft her disabled brother into the army, but contends that
2 these omissions were minor and insufficient to support an
3 adverse credibility determination. Under the REAL ID Act,
4 however, “an IJ may rely on any inconsistency or omission in
5 making an adverse credibility determination as long as the
6 ‘totality of the circumstances’ establishes that an asylum
7 applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167
8 (emphasis in original) (quoting 8 U.S.C.
9 § 1158(b)(1)(B)(iii)). Furthermore, the agency was not
10 required to accept her explanation that the omissions were
11 due to the translator’s failure to record them. See Majidi
12 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency
13 need not credit an applicant’s explanations for inconsistent
14 testimony unless those explanations would compel a
15 reasonable fact-finder to do so).
16 Moreover, the agency did not err in finding that
17 Gyulnazaryan provided inconsistent testimony regarding the
18 frequency with which she was followed on her way to work, as
19 she initially stated that “when I left the house I would
20 have a car follow me,” and that “one time actually he came
21 and turned around so close to me that I could hardly save my
22 life and run away from it,” but later asserted that she had
23 not testified that a car had been following her all the
4
1 time. Although she contends that “she did not necessarily
2 mean that the car was following her every day,” and that
3 this explanation was “entirely reasonable,” the BIA was not
4 compelled to accept the explanation. See id.
5 Gyulnazaryan’s use of the phrase “one time” in describing
6 the incident when the car allegedly attempted to run her
7 over implied that she had been followed on more than one
8 occasion. Moreover, her statement that she “would have a
9 car follow” her “every morning before [she] left to work”
10 also indicates that she was followed more than once.
11 Finally, the BIA did not err in finding that
12 Gyulnazaryan provided inconsistent statements regarding when
13 she began having problems at work. In the written statement
14 attached to her asylum application, Gyulnazaryan stated
15 that, after beginning work at the recruitment center, she
16 “was a devoted employee and never received bad reviews by
17 [her] supervisors and/or co-workers” for the first 8 years
18 she was there, until 1996 when she “was subjected to harsh
19 criticism and maltreatment by [her] new supervisor.”
20 However, Gyulnazaryan later testified that “[t]he pressure
21 started in ‘93 actually,” and then subsequently testified
22 that her supervisor had been making threats against her
23 “since 1992.” These inconsistencies alone were sufficient
5
1 to support the agency’s adverse credibility determination.
2 8 U.S.C. § 1158(b)(1)(B)(iii); see Zhou Yun Zhang v. INS,
3 386 F.3d 66, 74-78 (2d Cir. 2004) (determination supported
4 by applicant’s inconsistent statements as to the date on
5 which his wife was allegedly sterilized). Furthermore,
6 although Gyulnazaryan asserted that she failed to include
7 the earlier mistreatment in her application because “[t]hese
8 things happened in two phases,” and that this explanation
9 “was entirely reasonable and should have been accepted,” a
10 reasonable adjudicator would not have been compelled to
11 accept the explanation. Majidi, 430 F.3d at 80-81. This is
12 especially true because the inconsistent dates were directly
13 related to the basis of Gyulnazaryan’s claim for relief;
14 namely, that she was repeatedly threatened and criticized
15 while working at the military recruitment center.
16 Ultimately, the agency’s credibility determination was
17 supported by substantial evidence. See 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,
19 it did not err in denying Gyulnazaryan’s application for
20 withholding of removal and CAT relief. See Paul v.
21 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of
6
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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