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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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.
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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.
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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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