Ayvazyan v. Gonzales

BYBEE, J.,

dissenting.

Given the substantial evidence standard, I cannot join my colleagues. We are only allowed to overturn a IJ’s adverse credibility determination only if the evidence presented was “so compelling that no reasonable factfinder could find that [Petitioners were] not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (emphasis added); see also Wang v. INS, 352 F.3d 1250, 1258 (9th Cir.2003). I find it difficult to say that “no reasonable factfinder” could agree with the IJ in this case.

The IJ found the Petitioners incredible based on both his observations and his review of their testimony and supporting documents. We have no basis for questioning the IJ’s observations, and the IJ’s finding that there is an inconsistency between Hayk and Margarit’s testimony and the written documentation they supplied is supported by the record. Both testified that after Hayk was beaten he was treated at home by a doctor friend. Yet the only document they provided states that he was treated at the hospital. Hayk could have *537actually been treated in the hospital as the certificate states and later, when appearing before the IJ, embellished his story. His story that police threatened him with further reprisals if he sought treatment at a hospital would have been diminished if he was, in fact, treated at the hospital.

The majority tries to minimize this discrepancy by blaming it on a translation error, yet Petitioners themselves supplied the translation in the supporting documents they submitted to the IJ. If there was an error in translation, it was the Petitioners’ “burden [to] ensur[e] that translations and their transcription are correct and, if they are not, of properly raising the issue to the reviewing body or court.” Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004). The IJ noted in his opinion that he pointed out the inconsistency between the oral testimony and written documentation to Petitioners more than a month before he rendered his decision. Yet, Petitioners declined to provide an alternate translation. Moreover, the majority’s attribution of error to the translation is nothing more than its own speculation; neither the Petitioners nor the court has attempted any alternative translation. Indeed, at oral argument, counsel for Petitioners admitted that he could not offer any alternative to the translation proffered by Petitioners.

These discrepancies could reasonably be interpreted as Petitioners’ attempt to enhance their asylum claim. A reasonable factfinder could just as easily agree with the conclusions the IJ drew from the facts as the conclusion drawn by the majority. Where reasonable minds may differ, we must defer to the IJ’s findings.

Accordingly, I would deny the petition. I respectfully dissent.