Zhirayr Lalayan v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ZHIRAYR LALAYAN, AGHUNIK No. 18-73062
YEGHIAZARYAN, SERZH LALAYAN,
SAMSON LALAYAN, and A.L., Agency Nos.
Petitioners, A208-601-349
A208-601-286
v. A208-601-287
A208-601-288
MERRICK B. GARLAND, Attorney A208-601-289
General,
Respondent. OPINION

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

Argued and Submitted March 11, 2021
San Francisco, California

Filed July 13, 2021

Before: J. Clifford Wallace, Ronald M. Gould, and
Michelle T. Friedland, Circuit Judges.

Opinion by Judge Wallace
2 LALAYAN V. GARLAND

SUMMARY *

Immigration

Denying Zhirayr Lalayan, his wife Aghunik
Yeghiazaryan, and their children’s petition for review of the
Board of Immigration Appeals’ decision affirming an
immigration judge’s denial of asylum, withholding of
removal, and protection under the Convention Against
Torture, the panel held that substantial evidence supported
the adverse credibility determination as to Lalayan, based on
implausibilities in the record, and as to Yeghiazaruan, based
on her evasive and non-responsive testimony, and that
substantial evidence supported the denial of withholding and
CAT relief.

The panel first clarified the law concerning
implausibility findings. The panel explained that inherent
plausibility in the context of adverse credibility
determinations refers to the inherent believability of
testimony in light of background evidence. The panel wrote
that an IJ must provide specific and cogent reasons,
including citations to record evidence, in support of an
implausibility finding, and may not base that finding on
speculation or conjecture. In addition, the IJ must provide a
witness an opportunity to explain a perceived implausibility
during the merits hearing. The panel wrote that the cited
evidence in the record, including a witness’s own testimony,
need not conclusively establish that the witness’s testimony
is false, and the IJ’s implausibility finding will ultimately

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 LALAYAN V. GARLAND 3

hinge on the application of a reasonable evaluation of the
testimony and evidence based on common sense. The panel
explained that this mix of constraints and flexibility enables
an IJ to challenge a witness on a perceived implausibility and
discredit unbelievable testimony, while guarding against
unwarranted assumptions that are untethered from evidence
in the record or based not on common sense but rather on
cultural differences. Applying that framework to the
agency’s implausibility determination, the panel concluded
that the IJ reasonably applied common sense, gave specific
and cogent reasons for finding Lalayan’s testimony
implausible, and provided Lalayan ample opportunity to
address the perceived implausiblities. The panel held that
evidence therefore did not compel reversal of the adverse
credibility determination as to Lalayan.

The panel also held that substantial evidence supported
the IJ’s adverse credibility determination as to Yeghiazaryan
based on her evasive and non-responsive testimony.
Observing that the Board characterized this finding as a
demeanor finding, and that this circuit has similarly
characterized evasiveness and non-responsiveness as
demeanor findings, the panel recognized that the REAL ID
Act differentiates between the demeanor and responsiveness
of a witness. The panel wrote that regardless of how the
agency characterized the finding, however, the special
deference this circuit provides for demeanor findings was
not relevant here, because such deference applies only to
non-verbal, and therefore non-textual, factors, and the IJ’s
determination was based on verbal factors which were clear
from the text of the hearing transcript. The panel wrote that
the IJ’s finding was based on numerous identified instances
of Yeghiazaryan’s evasiveness and non-responsiveness.
The panel also concluded that the IJ provided Yeghiazaryan
fair notice of any perceived evasiveness and non-
4 LALAYAN V. GARLAND

responsiveness by asking repeated questions on the point of
concern, and admonishing Yeghiazaryan for not answering
the question.

The panel held that substantial evidence supported the
agency’s denial of withholding of removal and CAT
protection. First, the panel explained that the credibility
determination was dispositive as to past persecution. As to
future persecution, the panel concluded that it was not clear
that Lalayan holds the political opinion for which he claimed
he would be persecuted, and while the country reports and
news articles indicated that political corruption and human
rights abuses exist in Armenia, they failed to establish that
Lalayan would more likely than not be persecuted upon
removal to Armenia on account of his stated political
opinion. Recognizing that an adverse credibility
determination does not, by itself, necessarily defeat a CAT
claim, the panel agreed with the agency that the country
reports failed to establish that Lalayan faced a particularized
risk of torture.

COUNSEL

Artem M. Sarian (argued), Sarian Law Group APLC,
Glendale, California, for Petitioners.

Colin J. Tucker (argued), Trial Attorney; Song Park, Acting
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
 LALAYAN V. GARLAND 5

OPINION

WALLACE, Circuit Judge:

Petitioners Zhirayr Lalayan (Lalayan), his wife Aghunik
Yeghiazaryan (Yeghiazaryan), and their three children Serzh
Lalayan, Samson Lalayan, and A.L., a minor, (collectively,
the Petitioners) seek review of the final order of the Board
of Immigration Appeals (Board or BIA), which affirmed the
Immigration Judge’s (IJ) denial of Lalayan’s applications for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). 1 We have jurisdiction
pursuant to 8 U.S.C. § 1252. “We review factual findings,
including adverse credibility determinations, for substantial
evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir.
2014). “Factual findings ‘are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.’” Id., quoting 8 U.S.C. § 1252(b)(4)(B).
“When the BIA conducts its own review of the evidence and
law . . . , our review is limited to the BIA’s decision, except
to the extent that the IJ’s opinion is expressly adopted.”
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)
(citation and quotation marks omitted). We deny the
petition.

I.

The Petitioners are natives and citizens of Armenia. On
or about November 28, 2015, they entered the United States
from Mexico and applied for admission at the port of entry
at San Ysidro, California. The Department of Homeland
Security served the Petitioners with Notices to Appear in

1
The Board also denied the Petitioners’ motion to terminate
proceedings. The Petitioners do not challenge that decision on appeal.
6 LALAYAN V. GARLAND

immigration court, which alleged that they did not possess
valid United States entry documents and charged them with
removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). On
May 27, 2016, the Petitioners appeared before the IJ
represented by counsel, admitted to the notices’ allegations,
and conceded that they were removable. Lalayan submitted
applications for asylum, withholding of removal, and CAT
protection, and he identified the other Petitioners as
derivative beneficiaries.

In the applications, Lalayan claimed that he was
persecuted in Armenia because of his political opinion and
that he fears that he will be persecuted and tortured if
removed to Armenia. In his declaration in support of his
applications, Lalayan described harm that he and his family
suffered after he reported members of the Yerkrapah
Volunteer Union (the Union) for embezzling aid provided by
the United Methodist Committee on Relief (UMCOR)
intended for Armenians in need.

On October 17, 2016, the IJ conducted the first of two
merits hearings. Lalayan testified that in 2001, he began
working as a driver for the Armenia mission of UMCOR, a
global non-profit organization headquartered in New York.
According to Lalayan, one of the mission’s objectives is to
provide aid to lower income families, sometimes through
intermediary Armenian organizations. In 2008, Lalayan was
promoted to the position of warehouse officer. In addition
to working for UMCOR, Lalayan had been a member of the
Union since 1997. According to Lalayan, the Union was
founded to help “families of those warriors who were killed
during” the Nagorno-Karabakh War, as well as disabled
persons and other lower-income families. Lalayan testified
that the Union now wields “very strong . . . political power”
in Armenia. The Union receives aid from UMCOR and
 LALAYAN V. GARLAND 7

distributes it among its members and their families. In 2014,
Lalayan was appointed as the vice chairman of the Union’s
Avan branch.

In the summer of 2015, Lalayan received a job offer for
a one-year position in Mexico, and in October 2015, he
traveled to Mexico for about two weeks to learn more about
the position. Upon returning to Armenia, Lalayan prepared
to move to Mexico to start the new position and notified
UMCOR and the Union of his plans. Lalayan gathered
records related to his positions at UMCOR and the Union to
present to the persons who would take over his
responsibilities at each organization. Lalayan testified that
when he reviewed those records, he discovered the Union’s
practice of embezzling a portion of the UMCOR aid
intended for families in need. On November 4, 2015,
Lalayan filed a complaint with the prosecutor general of
Armenia regarding the Union’s alleged embezzlement. He
reported that three Union members broke into his house that
same day and forced him to the office of Union chairman
Manvel Grigoryan, a retired general and former lawmaker in
Armenia’s National Assembly. He testified that while at
Grigoryan’s office, Petros Amiryan, the chairman of the
Union’s Avan branch and Lalayan’s Union supervisor, beat
Lalayan and threatened to kill him. Lalayan stated that
Grigoryan threatened to “vanish [his] family” if Lalayan did
not withdraw his complaint with the prosecutor general’s
office. After returning home, Lalayan decided not to
withdraw his complaint because he “wanted to go all the way
. . . so that they would be punished.” On November 5, 2015,
Lalayan received a telephone call during which the caller
threatened to kill Lalayan if he did not withdraw the
complaint. Lalayan stated that on November 6, 2015, men
in police uniforms broke into his house and beat him,
Yeghiazaryan, and their son Serzh Lalayan. The men
8 LALAYAN V. GARLAND

demanded the original accounting records, copies of which
Lalayan had attached to his complaint. The men eventually
secured the documents, ordered Lalayan to withdraw the
complaint, and threatened to kill his family.

On November 17, 2015, the Petitioners flew from
Armenia to Russia. They then traveled to Cuba and to
Mexico on November 26, 2015, and ultimately to the United
States on November 28, 2015. Lalayan testified that the
police questioned his parents about his whereabouts after he
left Armenia and beat his father.

During cross-examination, Lalayan was questioned
about the plausibility of several portions of his account.
First, the government questioned Lalayan about how he
could have discovered the Union’s embezzlement scheme
only just before his scheduled departure from Armenia, after
working as an UMCOR warehouse officer for seven years.
Lalayan responded that when he prepared to leave his job at
UMCOR, he requested that the Union submit its distribution
list so that he could share it with the person replacing him at
UMCOR. According to Lalayan, the Union only submitted
two “very informal papers” that raised his concerns. The
government asked Lalayan when he last requested the Union
to submit records of its aid distribution. Lalayan testified
that he had never previously obtained such distribution
records from the Union and explained that whenever the
Union “submitted the list, they were submitting that and
turning [that] in. But because I was leaving[,] at that time is
the first time that I looked at this list, so that it wouldn’t be
my responsibility to turn it in.” However, on redirect
examination, Lalayan indicated that he regularly reviewed
distribution records of the various organizations that
received aid from UMCOR. When Lalayan’s counsel asked
whether he was “responsible for the [warehouse’s]
 LALAYAN V. GARLAND 9

accounting or [if] there were other people who were also
taking in . . . the distribution sheets,” Lalayan testified that
organizations seeking UMCOR aid “would come to the
office and submit the request. And if there were any kind of
discrepancies, then I would ask them to submit new papers.”
Lalayan explained that he was “in charge of [the] warehouse
at UMCOR . . . , and a lot of people knew me . . . as a diligent
person. So, I wanted to submit everything correct.” Finally,
Lalayan’s counsel asked him to confirm that the Union
“basically received the benefits from UMCOR and
[Lalayan] also had an obligation for UMCOR to give the
complete details of the accounting,” and Lalayan answered,
“Yes.”

Second, the government questioned Lalayan about why
he had not reported his concerns about the Union’s
embezzlement to anyone at UMCOR’s Armenia mission or
its headquarters in the United States. When the government
asked if Lalayan reported his suspicions about the Union’s
embezzlement to the workers in the UMCOR warehouse in
Armenia, Lalayan answered that he did not “[b]ecause I was
not dealing with paperwork.” The government also
questioned Lalayan about why he felt obligated to report the
embezzlement when he was about to leave for another job in
Mexico, and Lalayan stated, “That’s my nature, probably. I
always help people. I was [a] deputy at [the Union] and a lot
of people knew me, and I wanted to make clear that I wasn’t
involved in all that.” When the government asked Lalayan
why he did not report his concerns to the UMCOR’s
headquarters in New York after he arrived in the United
States, Lalayan responded, “I didn’t see the reason to do
that.”

In addition to the government’s cross-examination, the
IJ also questioned Lalayan extensively about his decision not
10 LALAYAN V. GARLAND

to report his concerns to UMCOR. When the IJ asked
Lalayan why he had not reported his concerns to UMCOR,
Lalayan replied, “I didn’t want that organization to close
down.” When the IJ asked why Lalayan thought that
UMCOR would end the Armenia mission’s operations if he
reported his concerns, Lalayan answered that the news of the
Union’s “false activity” might cause UMCOR to reconsider
whether it can help Armenian individuals in need. The IJ
then asked whether Lalayan thought that UMCOR would
eventually learn about Lalayan’s complaint and the Union’s
embezzlement during any investigation by the prosecutor
general. Lalayan responded, “First, I didn’t think. I just let
prosecutor’s office know about that. . . .” Finally, the IJ
asked whether Lalayan ever tried to contact anyone at
UMCOR’s New York headquarters to alert the organization
about the embezzlement. Lalayan replied, “No, because I
didn’t know the language and I wasn’t very good at
computers, so I couldn’t do it.” With respect to a potential
language barrier, the government later asked why Lalayan
thought an organization that does work in Armenia would
not have at least one person who could speak Armenian, and
Lalayan answered, “I have very little time. That’s probably
why I didn’t follow up, didn’t do more.” The IJ pressed
Lalayan on his decision not to notify the UMCOR after
arriving in the United States. Specifically, the IJ asked why
Lalayan had not notified UMCOR of the Union’s
embezzlement if, according to his testimony, Lalayan filed
his complaint because the embezzlement prevented aid from
reaching Armenian families in need. Lalayan replied, “I
took those actions as a deputy chief of [the Union’s Avan]
chapter, not as a worker of UMCOR.” He explained that he
was concerned not “that UMCOR’s help is not getting there,
but about those people who stole those goods from [the
Union].” The IJ also pointed to a letter of recommendation
written in English that the head of UMCOR’s Armenia
 LALAYAN V. GARLAND 11

mission provided Lalayan before he left Armenia. In light
of Lalayan’s long history of employment with UMCOR
outlined in the letter, the IJ again asked Lalayan why he did
not notify UMCOR’s headquarters of the Union’s conduct,
especially as it resulted in Lalayan being attacked on two
occasions. Lalayan answered, “[I]t was my personal matter.
Why would I bother people there?”

In addition, the IJ and government posed several
questions to Lalayan that went to the timing of his decision
to travel to the United States. The government asked him
about his repeated attempts to obtain United States entry
documents before finally entering the United States in
November 2015. Lalayan testified that he had previously
applied for a United States visa in 1998, 2007, 2013 and on
November 2, 2015, just two days before the first event that
gave rise to Lalayan’s claims. He acknowledged that all four
applications were denied. The IJ also questioned Lalayan
about when he decided to turn down the job offer in Mexico
and travel to the United States. Lalayan answered that he
called the employer in Mexico from Russia a few days after
departing Armenia to provide notice that he would not be
taking the job. But when the government had asked Lalayan
why he did not work in Mexico, he testified about his fear of
persecution in Mexico and stated that members of Armenia’s
Republican Party have “people and properties over there”
and that “[t]hey could have reached [him] over there.” The
IJ asked Lalayan why he obtained a letter of
recommendation written in English just before leaving
Armenia, if he intended at that point to work in Mexico.
Lalayan answered, “It was kind of like an affidavit for the
place I was working.”

On February 24, 2017, the IJ conducted the second
merits hearing. During this hearing, Yeghiazaryan generally
12 LALAYAN V. GARLAND

corroborated Lalayan’s description of the attack at their
home on November 6, 2015, and Lalayan’s statement that
men visited his parents’ home after the Petitioners left
Armenia. On cross-examination, the government
questioned Yeghiazaryan about when Lalayan decided to
decline the job offer in Mexico and when he notified the
employer of that decision. Yeghiazaryan testified that she
thought Lalayan made the decision some time after returning
from Mexico on October 21, 2015. The government
repeatedly asked Yeghiazaryan when, after returning from
Mexico, Lalayan notified the prospective employer, and
Yeghiazaryan answered that it was “[p]robably in
November.” When the IJ asked Yeghiazaryan how Lalayan
notified the employer, Yeghiazaryan stated, “I don’t know
because most of the time he was not informing me or sharing
with me, you know, the way he did things.” On redirect
examination, Yeghiazaryan’s counsel asked her to explain
again when Lalayan notified the prospective employer of his
decision, and she answered, “That decision probably was
made during the stay in Moscow. Or on the way, I don’t
know[,] . . . [b]ecause he was not telling me everything.”
On recross-examination, the government repeatedly
questioned Yeghiazaryan about why Lalayan would not
involve her in the decisions to decline the job offer and
change the Petitioners’ destination from Mexico to the
United States, when both decisions would impact
Yeghiazaryan’s and the family’s future. Yeghiazaryan
stated, “Well, I cannot respond to this question because it’s
- I was afraid and scared a lot about the situation. At that
time[,] he was trying to protect us and, you know, keep us
aside out of those problems and troubles[.]”

The IJ repeatedly questioned Yeghiazaryan about
whether Lalayan and Yeghiazaryan had always planned to
travel to the United States:
 LALAYAN V. GARLAND 13

IJ: Was it the plan all along to come to the
United States?

Yeghiazaryan: Well, all we knew that we
were staying in Moscow just waiting for visas
or temporary - those permits to enter Mexico
to go and work there down on the road so the
decision was made to turn down that position
and we also knew that wherever we go they
would be able to find us. So.

IJ: You didn’t answer my question.

Yeghiazaryan: Probably, I don’t understand
exactly-

IJ: Was the plan all along to come to the
United States?

Yeghiazaryan: No, probably at the end my
husband decided to come this way because
this is the most democratic state - meaning
the country where we could go - be and safe.

IJ: When was that decision made?

Yeghiazaryan: Probably on the way to
Mexico.

IJ: When were you told?

Yeghiazaryan: Well, he was nervous in
Moscow, he felt that – constantly he was told
– he would keep saying I don’t know, where
14 LALAYAN V. GARLAND

should we go? You know so that finally we’d
be safe.

IJ: Ma’am, were you part of the decision
making to come to the United States?

Yeghiazaryan: No, mainly he was the one
who decided but we came together.

IJ: All right, and when did – when were you
told that you were coming to the United
States?

Yeghiazaryan: Probably in Mexico.

The IJ highlighted that the Petitioners were in Mexico only
for two days before entering the United States and asked
Yeghiazaryan to confirm that she learned of Lalayan’s
decision to bring the family to the United States during those
two days. Yeghiazaryan testified, “It’s not that I found out
but, you know, I was more – it was more clear that that
decision was made.”

A.

In September 2017, the IJ denied Lalayan’s applications
for asylum, withholding of removal, and CAT relief on the
grounds of adverse credibility determinations and Lalayan’s
failure to submit objective evidence that established a well-
founded fear of future persecution or sufficient likelihood
that he would be tortured if removed to Armenia.

Although the IJ found that Lalayan’s account of the
attacks were consistent, she determined that three elements
of Lalayan’s testimony were implausible. First, the IJ found
that it was implausible that Lalayan would file a complaint
 LALAYAN V. GARLAND 15

with the prosecutor general’s office about the Union’s
embezzlement but not notify UMCOR itself. The IJ
discussed at length the issues in Lalayan’s explanation and
cited his changing answers. The IJ addressed Lalayan’s
stated concern that if UMCOR learned of the Union’s
embezzlement, it might end aid operations in Armenia. The
IJ determined that while Lalayan’s “concerns [were]
reasonable, his course of action [was] not,” reasoning that
filing a complaint with the prosecutor general’s office about
the Union’s embezzlement would likely cause Armenian
authorities to notify UMCOR, the victim of the
embezzlement. The IJ also addressed Lalayan’s decision not
to report his concerns about the Union’s embezzlement to
UMCOR’s New York headquarters after arriving in the
United States. The IJ found that Lalayan’s explanation that
he lacked the technology skills and English proficiency to
contact UMCOR’s headquarters was unpersuasive. She
cited Lalayan’s ability to obtain a letter of recommendation
written in English from UMCOR and his evasive response
to the government’s question about whether UMCOR’s
headquarters would have access to at least one person
proficient in Armenian. Finally, the IJ cited the incongruity
between, on one hand, Lalayan’s decision to file the
complaint and refusal to withdraw it because of his
commitment to making sure the aid was delivered to
Armenians in need and, on the other, his various
explanations that he did not notify UMCOR of the
embezzlement because he “didn't see a reason to do that,” he
took action as a representative of the Union not UMCOR,
and he was not concerned with the distribution of UMCOR’s
aid to Armenians in need but rather the punishment of the
Union. The IJ concluded that Lalayan’s “lack of interest in
alerting UMCOR regarding the Union’s embezzlement casts
doubt on whether a complaint against the Union was ever
filed with the prosecutor’s office.”
16 LALAYAN V. GARLAND

Second, the IJ found implausible that Lalayan, “a
warehouse agent of seven years, never looked at the Union’s
distribution lists until he prepared to leave his position at
UMCOR.” The IJ cited Lalayan’s “evasive and confusing”
answer to government’s questions about whether he had ever
previously reviewed the Union’s distribution records. The
IJ also highlighted the letter of recommendation written by
the Armenia mission head, which identified keeping
inventory of and delivering UMCOR’s aid as Lalayan’s job
responsibilities, Lalayan’s testimony that he was responsible
for keeping complete accounting records for the warehouse,
and his testimony that he instructed organizations applying
for UMCOR aid to correct their requests if he identified any
discrepancies. The IJ reasoned it was implausible that
Lalayan would not then “preserve that same diligence with
the Union’s documents.” Lastly, the IJ stated that Lalayan’s
position as a vice chairman of the Union’s Avan branch
undermined his description of the events, because Lalayan
“seem[ed] completely disconnected from the Union’s
undertakings.”

Third, the IJ held Lalayan’s narrative that he only
decided to come to the United States after spending two days
in Mexico “implausible given that the decision to leave
Armenia and travel through several countries with an entire
family is one that is unlikely to be made without minimal
forethought.” The IJ identified two bases for this finding.
She found that Lalayan’s multiple attempts to obtain United
States entry documents evidenced a “long-standing intent to
come to the United States” independent of his asylum claim.
The IJ also determined that Lalayan’s testimony describing
his eventual decision to travel to the United States did “not
present a cogent story.” She emphasized that Lalayan
decided in Russia that the Union would be able to harm him
and his family in Mexico but then, despite believing Mexico
 LALAYAN V. GARLAND 17

was not safe, traveled there anyway with his family without
a plan to relocate safely.

The IJ also determined that Yeghiazaryan’s testimony
was not credible on two grounds. First, the IJ cited
Yeghiazaryan’s “vague, evasive, and non-responsive”
answers in response to the IJ’s repeated questions about
when Lalayan decided to decline the job offer in Mexico and
whether it was their plan all along to travel to the United
States. Second, the IJ found it implausible that Lalayan and
Yeghiazaryan, “a marriage of nearly seventeen years, would
decide to leave Armenia and travel through three different
countries without discussing the family’s plans or future”
and concluded that it is “unlikely that [Yeghiazaryan] would
not have been made aware of such significant decisions.”
The IJ reasoned in part that Yeghiazaryan had applied with
Lalayan for a United States visa on November 2, 2015, and
that she had family members living in the United States.

Considering the objective evidence submitted in addition
to Lalayan’s and Yeghiazaryan’s testimony, the IJ held that
Lalayan has not established harm rising to the level of past
persecution or a well-founded fear of future persecution.

The IJ denied Lalayan’s claim for CAT relief on the
grounds of the adverse credibility determinations and
Lalayan’s failure to provide objective evidence that he
would more likely than not be tortured if removed to
Armenia. The IJ determined that Lalayan failed to establish
past torture. The IJ concluded that while the country
condition reports and news articles submitted by Lalayan
described “Armenia’s ongoing challenges with government
interference with freedom of assembly and political dissent,”
they did not establish that Lalayan will more likely than not
be tortured for holding a political opinion.
18 LALAYAN V. GARLAND

B.

Lalayan appealed from the IJ’s decision and challenged
her adverse credibility determinations. On January 8, 2019,
the Board dismissed Lalayan’s appeal and affirmed the IJ’s
decision based on her adverse credibility determinations and
Lalayan’s failure to produce objective evidence to establish
a well-founded fear of future persecution or likelihood of
torture in Armenia. The Board cited the IJ’s findings that
Lalayan’s testimony was implausible with respect to his
decision to file a criminal complaint with the prosecutor
general’s office but not to notify UMCOR of the suspected
embezzlement, Lalayan’s discovery of the Union’s
embezzlement just before his scheduled departure to
Mexico, and the timing of Lalayan’s decision to travel to the
United States. The Board generally incorporated the IJ’s
reasons for her implausibility findings regarding Lalayan’s
testimony; however, it did not cite the IJ’s statement that
Lalayan’s 2014 appointment as vice chairman of the Union’s
Avan branch made it unlikely that he would have been
unaware of any Union embezzlement scheme. The Board
also upheld the IJ’s adverse credibility determination with
respect to Yeghiazaryan’s testimony. It characterized the
IJ’s description of Yeghiazaryan’s “vague, evasive, and non-
responsive” answers as a “demeanor observation.” The
Board did not cite the IJ’s finding that it was implausible
Yeghiazaryan would not be involved in Lalayan’s decision-
making processes to decline the job offer in Mexico and to
travel to the United States. The Board also affirmed the IJ’s
alternative holdings with respect to past persecution and the
well-founded fear of future persecution, and it affirmed the
IJ’s denial of CAT relief because Lalayan’s testimony and
submitted objective evidence “did not demonstrate that he
faces a particularized risk of torture.”
 LALAYAN V. GARLAND 19

II.

The decisions of the IJ and the Board (collectively, the
Agency) relied in part upon the IJ’s adverse credibility
determinations, which were based on several implausibility
findings as well as a finding regarding the way Yeghiazaryan
answered questions. We address first the Agency’s
decisions with respect to the implausibility findings.

A.

Our case law addressing implausibility findings in the
context of adverse credibility determinations can at times
appear confusing or at odds with itself. In Jibril v. Gonzales,
423 F.3d 1129 (9th Cir. 2005), we compared four of our
decisions upholding or rejecting what might seem like
similar implausibility findings and concluded, “If there is a
logical way to reconcile the first two decisions with the latter
two, it is not obvious to us.” Id. at 1136. Of course, one
helpful response is that it is not the words said but whether
they are believed. That is, the IJ not only hears words but
must determine believability under the totality of the
circumstances. That essential part of the process is not only
about words that can be captured in a written record but also
about a determination of believability based on aspects of
testimony such as body language and tone that only the trier
of the facts can fully evaluate.

Also, some of our decisions have blurred the distinction
between inconsistency and implausibility. See, e.g., Lizhi
Qiu v. Barr, 944 F.3d 837, 845–46 (9th Cir. 2019); see also
Singh v. Lynch, 802 F.3d 972, 976 (9th Cir. 2015) (holding
that the petitioner’s account of being attacked by Sikh
militants was both implausible in light of and inconsistent
with record evidence that Sikh militants had ended armed
operations). In Lizhi Qiu, we held that substantial evidence
20 LALAYAN V. GARLAND

did not support any of the Agency’s reasons for its adverse
credibility determination, including the IJ’s finding that a
university student who had completed her studies in Indiana,
was waiting to receive her diploma, and filed her asylum
application in California could not plausibly reside in a state
far from her university. 944 F.3d at 845. Although we held
that the IJ’s finding was based on speculation and conjecture,
see id., terms associated with impermissible implausibility
determinations, see Jibril, 423 F.3d at 1135, we adopted the
Agency’s characterization of the issue as an “inconsistency.”
Lizhi Qiu, 944 F.3d at 845 (“Neither the IJ nor the
government asked Petitioner about the inconsistency at the
merits hearing, so it cannot justify the denial of asylum.”
(emphasis added)). While the Lizhi Qiu petitioner’s decision
might have been inconsistent with the IJ’s assumption about
where a student would reside while waiting for her degree,
the finding did not identify a conflict between two discrete
points in the petitioner’s testimony or documentary evidence
but rather hinged on an assumption regarding what is
plausible.

B.

“[U]nder the REAL ID Act, IJs must provide specific
and cogent reasons in support of an adverse credibility
determination.” Shrestha, 590 F.3d at 1044 (citation and
quotation marks omitted). “In assessing the ‘totality of the
circumstances,’ an IJ should discuss which statutory factors,
including but not limited to ‘demeanor,’ ‘candor,’
‘responsiveness,’ ‘plausibility,’ ‘inconsistency,’
‘inaccuracy,’ and ‘falsehood,’ form the basis of the adverse
credibility determination.” Id., citing 8 U.S.C.
§ 1158(b)(1)(B)(iii). Inherent plausibility in the context of
adverse credibility determinations refers to the inherent
believability of testimony in light of background evidence.
 LALAYAN V. GARLAND 21

Jibril, 423 F.3d at 1135. An implausibility finding based on
“[s]peculation and conjecture cannot form the basis of an
adverse credibility finding, which must instead be based on
substantial evidence.” Ai Jun Zhi v. Holder, 751 F.3d 1088,
1093 (9th Cir. 2014) (alteration in original) (citation
omitted). An implausibility finding is based on speculation
and conjecture when the witness’s testimony is
“uncontroverted by any evidence that the IJ can point to in
the record.” Jibril, 423 F.3d at 1135. In addition, an IJ
engages in impermissible speculation and conjecture when
he or she bases an implausibility finding on an issue that the
petitioner was not asked to address during the merits hearing.
Ai Jun Zhi, 751 F.3d at 1093 (holding that the IJ’s suspicions
about the petitioner’s type of visa were speculation because
the IJ “never questioned [the petitioner] on the matter” or
sought “an explanation that might have clarified the
matter”).

The requirement that an implausibility finding be
anchored in some record evidence seems to create a tension
with our usual approach to ascertaining a statement’s
believability. Outside of the context of evaluating a
witness’s testimony in immigration proceedings, we
regularly rely just on common sense to determine that a
fantastical story is unbelievable. See, e.g., White v. Ryan,
895 F.3d 641, 669 (9th Cir. 2018) (dismissing as fantastical
a party’s claim that he was “tortured by biotelemetry
implants”). Even in the context of immigration proceedings,
the Board may rely upon its common sense to hold an IJ’s
factual finding implausible, without citation to the record.
Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)
(“The BIA may find an IJ’s factual finding to be clearly
erroneous if it is illogical or implausible, or without support
in inferences that may be drawn from the facts in the record.”
(emphasis added) (citation and quotation marks omitted)).
22 LALAYAN V. GARLAND

In Jibril, we recognized the constraint that this record
evidence requirement places on IJs in making implausibility
findings and contemplated the following:

Although “speculation and conjecture” alone
cannot sustain an adverse credibility finding,
an IJ must be allowed to exercise common
sense in rejecting a petitioner’s testimony
even if the IJ cannot point to specific,
contrary evidence in the record to refute it.
Without such latitude, IJs would be bound to
credit even the most outlandish testimony as
long as it was internally consistent and not
contradicted by independent evidence in the
record.

423 F.3d at 1135. While we observed in Jibril that IJs should
“be allowed to exercise common sense” without citation to
“specific, contrary evidence in the record,” id., we
nonetheless recognized that “under our current practice, we
must evaluate the IJ’s implausibility findings to determine
whether or not they are speculative or conjectural,” id.
at 1136. In that case, the IJ had found it implausible that the
petitioner could have remained unresponsive while being
kicked in the head, survived a gunshot wound to the stomach
overnight, and found a western aid organization’s medical
facility in Somalia’s capital Mogadishu during a civil war.
We held in Jibril that the IJ’s implausibility findings could
“only be characterized as speculative or conjectural”
because the IJ failed to point to any evidence in the record
that contradicted the petitioner, such as “medical testimony
at the hearing to support the IJ’s disbelief of [the petitioner’s]
stoicism and stamina” or any “basis for the conclusion that
western aid workers were not active in the city[.] . . .” Id.
Thus, while Jibril contemplated the benefits of allowing IJs
 LALAYAN V. GARLAND 23

to rely on common sense without citing evidence
controverting the testimony to reach an implausibility
finding, we ultimately applied the record evidence
requirement.

Considering Jibril and our other decisions addressing
implausibility in the context of credibility determinations,
we identify two points with respect to the manner in which
IJs may reach an implausibility finding. First, while an IJ
must cite contrary evidence in the record, an implausibility
finding still hinges on the application of common sense, and
this understanding is consistent with the text of the REAL
ID Act. In Jibril, we stated that “no consistent line . . . has
been drawn between an IJ’s legitimate application of
common sense, on the one hand, and an IJ’s reliance on
‘speculation or conjecture’ in determining that a fact alleged
by a petitioner is implausible on the other.” 423 F.3d
at 1135. While Jibril confirmed that an IJ must cite evidence
in the record contrary to a witness’s testimony to avoid
engaging in speculation and conjecture, it recognized the
record evidence requirement as a complement to, not a
substitute for, an IJ’s common sense. Indeed, Jibril’s
examples of contrary evidence that the IJ could have cited to
form the basis of a proper implausibility finding—medical
testimony regarding the petitioner’s stamina or evidence of
a lack of western aid workers in Mogadishu during the
relevant time—would not have conclusively proven the
petitioner’s testimony false but would have required the
application of a reasonable assumption based in common
sense. See id. at 1136. The petitioner’s testimony in Jibril
that he received medical treatment from an aid
organization’s workers would perhaps not be impossible but
would be implausible in light of record evidence that the
organization had already evacuated its workers from
Mogadishu. Thus, Jibril acknowledged that an
24 LALAYAN V. GARLAND

implausibility does not necessarily arise from an express
conflict between two points in a petitioner’s testimonial or
documentary evidence but rather hinges on a reasonable
assumption based in common sense.

Jibril preceded the REAL ID Act, which now expressly
authorizes IJs to apply such common sense to reach an
implausibility finding. In listing the factors that an IJ can
consider in reaching a credibility determination, the REAL
ID Act states:

Considering the totality of the circumstances,
and all relevant factors, a trier of fact may
base a credibility determination on the
demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility
of the applicant’s or witness’s account, the
consistency between the applicant’s or
witness’s written and oral statements . . . , the
internal consistency of each such statement,
the consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). The statute identifies
“inherent plausibility” of a witness’s account as a factor
distinct from various types of inconsistencies, including
those between a “witness’s written and oral statements” and
those between a witness’s oral and written statements, and
“other evidence of record (including the reports of the
 LALAYAN V. GARLAND 25

Department of State on country conditions).” Construing
our record evidence requirement for implausibility findings
as demanding an express conflict between a witness’s
testimony and some other evidence in the record,
independent from an application of common sense, would
render the REAL ID Act’s distinction between
implausibility and inconsistencies meaningless. Although
canons of statutory interpretation are not mandatory rules,
we try to give effect to each word and clause in a statute if
possible. See Chickasaw Nation v. United States, 534 U.S.
84, 93–94 (2001); see also United States v. Barraza-Lopez,
659 F.3d 1216, 1220 (9th Cir. 2011). To give meaning to
the inherent plausibility factor and distinguish it from the
inconsistency factors, we interpret the REAL ID Act to
enable IJs to apply common sense to reach an implausibility
finding.

Thus, a witness’s testimony can satisfy the record
evidence requirement for an implausibility finding. Our
decisions upholding implausibility findings often consider
the plausibility of a witness’s statement in light of
background evidence such as country condition reports or
news articles. See, e.g., Singh, 802 F.3d at 976 (upholding
the IJ’s finding that the petitioner’s account of being
attacked by Sikh militants in India was implausible
considering an Amnesty International country report
indicating that armed Sikh militancy ended years prior).
However, contrary evidence that can form the basis of an
implausibility finding is not limited to such country reports.
Jibril, 423 F.3d at 1135 (“[A] finding made by an IJ that a
petitioner’s testimony is implausible given the evidence in a
Country Report or other objective evidence in the record is
accorded deference.” (emphasis added)); see also id. at 1136
(suggesting that “medical testimony” could have served as
record evidence to support the IJ’s implausibility finding).
26 LALAYAN V. GARLAND

Oral statements, including a witness’s testimony, are clearly
also evidence in the record, and the REAL ID Act’s
definition of evidence in the record encompasses a witness’s
testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“[A] trier of
fact may base a credibility determination on . . . the
consistency of such [written or oral] statements with other
evidence of record. . . .”). This is consistent with our
requirement that the IJ provide an opportunity for a witness
to address a potential implausibility. See Ai Jun Zhi,
751 F.3d at 1093. Just as a witness’s explanation might
clarify an issue, see id., his or her failure to provide a
persuasive explanation or challenge an assumption can serve
as the basis of an implausibility finding. While Jibril
worried about IJs having to accept “outlandish testimony as
long as it was internally consistent,” 423 F.3d at 1135,
simple follow-up questioning regarding a potentially
implausible account can eliminate the risk of such absurd
outcomes. In addition, a witness’s testimony on direct,
cross-examination, or solicited by the IJ’s questioning can
satisfy any record evidence requirement to support an IJ’s
implausibility finding.

Thus, when making a credibility determination under the
REAL ID Act, an IJ may consider, among other factors, the
inherent plausibility of a witness’s account. Shrestha,
590 F.3d at 1039, citing 8 U.S.C. § 1158(b)(1)(B)(iii); see
also 8 U.S.C. §§ 1231(b)(3)(C) (adopting the standard in
8 U.S.C. § 1158(b)(1)(B) for withholding of removal);
1229a(c)(4)(C) (all other relief). An IJ must provide specific
and cogent reasons in support of an implausibility finding
that forms the basis of an adverse credibility determination.
See Shrestha, 590 F.3d at 1042. In addition, an IJ must
provide a witness an opportunity to explain a perceived
implausibility during the merits hearing. Ai Jun Zhi,
751 F.3d at 1093. As with “each factor forming the basis of
 LALAYAN V. GARLAND 27

an adverse credibility determination, the IJ should refer to
specific instances in the record that support a conclusion that
the factor undermines credibility,” Shrestha, 590 F.3d at
1044, and an IJ should cite evidence in the record that
undermines the plausibility of the witness’s testimony,
Jibril, 423 F.3d at 1135. An IJ must not “cherry pick solely
facts favoring an adverse credibility determination while
ignoring facts that undermine that result.” Shrestha,
590 F.3d at 1040; see also Yan Xia Zhu v. Mukasey, 537 F.3d
1034, 1040 (9th Cir. 2008) (holding that an IJ’s adverse
credibility determination was not supported by substantial
evidence when the “petitioner offered an explanation” for
the purported implausibility that “the IJ did not address”).
The cited evidence in the record, including a witness’s own
testimony, need not conclusively establish that the witness’s
testimony is false, and the IJ’s implausibility finding will
ultimately hinge on the application of a reasonable
evaluation of the testimony and evidence based on common
sense. See id. at 1136. Factual findings, including
implausibility findings, “are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.” Garcia, 749 F.3d at 789, quoting 8 U.S.C.
§ 1252(b)(4)(B).

We recognize that an IJ’s application of common sense
might rest on unreasonable assumptions or be untethered
from the evidence in the record. See Lizhi Qiu, 944 F.3d
at 845; see also Yan Xia Zhu, 537 F.3d at 1040 (holding that
the IJ’s finding that the petitioner would not have been
knocked unconscious from a “slap” misstated the
characterization of the attack in the transcript). Moreover,
what seems like common sense to an IJ might be rooted in
significant differences between the IJ’s and witness’s
cultural backgrounds and systems. In Yan Xia Zhu, we held
that the IJ’s implausibility finding was impermissibly based
28 LALAYAN V. GARLAND

in speculation and conjecture that a rape victim would
necessarily see a doctor, and we faulted the IJ for not
addressing the witness’s explanation for the perceived
implausibility, that she “dare[d] not” go to a doctor.
537 F.3d at 1040 (alteration in original). Moreover, a
concurrence highlighted the greater stigmatization of rape
victims in other countries. See id. at 1046 (Gould, J.,
concurring) (“[R]egrettably, in many parts of the world, a
young woman’s report of a rape is likely to bring shame and
discredit upon her and her family, as much as it is likely to
result in any prosecution of the wrongdoer.”). This mix of
constraints and flexibility that we have identified enables an
IJ to challenge a witness on a perceived implausibility and
discredit unbelievable testimony, while guarding against
unwarranted assumptions that are untethered from evidence
in the record or based not on common sense but rather on
cultural differences.

C.

Having clarified our case law with respect to
implausibility findings, we turn to the implausibility
findings in this case. Here, the IJ discussed in detail her
specific and cogent reasons for finding implausible
Lalayan’s testimony. Substantial evidence supports the IJ’s
findings that it is implausible that Lalayan would file a
complaint with the prosecutor general’s office about the
Union’s embezzlement against UMCOR but not notify
UMCOR itself, that he never looked at the Union’s
distribution lists until he prepared to leave UMCOR, and that
he decided to come to the United States only during his last
two days in Mexico. With respect to each of these findings,
the government and the IJ questioned Lalayan extensively
about his decisions and his various explanations, and he had
ample opportunity to address the perceived implausibilities.
 LALAYAN V. GARLAND 29

The Agency cited numerous points of evidence in the record,
including Lalayan’s testimony, and applied assumptions
based in common sense to make the implausibility findings.

With respect to Lalayan’s decision not to notify
UMCOR, the IJ was careful not to assume how UMCOR
might respond to a report of embezzlement, and the Agency
instead cited Lalayan’s unpersuasive response to the IJ’s
question of whether he thought UMCOR would be made
aware of the prosecution. Lalayan argues that this was
“clearly speculation by the IJ, as there is no evidence to
support a finding that a complaint filed with the Prosecutor
General’s office regarding illicit activities undertaken by the
Union would automatically place UMCOR on notice.”
However, as the government correctly points out, the
Agency never suggested that the mere act of filing the
complaint would have automatically put UMCOR on notice.
Lalayan’s understanding of the requisite contrary evidence
is overly narrow and confuses an inconsistency with an
implausibility. See supra Part II.B. Additionally, in light of
his statements discussing his reason for filing the complaint
and his commitment to ending embezzlement, the Agency
found implausible Lalayan’s other explanations for his
decision not to notify UMCOR—that he was primarily
interested in the Union being punished, not about aid
reaching Armenians in need, and viewed it as a “personal
matter.”

With respect to Lalayan’s discovery of the Union’s
embezzlement just before leaving his position at UMCOR,
the Agency cited Lalayan’s seven years of experience as an
UMCOR warehouse officer, his testimony and documentary
evidence that his UMCOR responsibilities included
inventorying and delivering aid, and, most importantly,
Lalayan’s testimony on redirect examination that he was
30 LALAYAN V. GARLAND

responsible for the warehouse’s accounting, reviewed
organizations’ distribution sheets, and rejected
organizations’ requests if they contained discrepancies.
Lalayan argues that he “likely did not check the distribution
lists periodically” and suggests that he reviewed the
distribution sheets more thoroughly in October 2015 so he
could “leave his post in good standing.” The evidence in the
record does not support Lalayan’s argument, and moreover,
we cannot supplant the IJ’s reasonable assumption with any
alternative explanation offered on appeal.

With respect to Lalayan’s decision to travel to the United
States, the Agency cited Lalayan’s decision-making process
after the Petitioners left Armenia, specifically that he
determined in Russia that Mexico was not safe for his
family, nevertheless decided to travel to Mexico without
having a follow-on destination in mind, and only decided to
travel to the United States during the Petitioners’ two days
in Mexico. The Agency reasonably applied common sense
to determine that it was not plausible that Petitioners would
have decided their travel plans in this manner.

The Agency’s ultimate conclusion that Lalayan’s
account is not plausible must be sustained. The Agency’s
implausibility findings are supported by evidence in the
record and are based on reasonable assumptions, even if
other alternative explanations exist. Any reasonable
adjudicator would not necessarily be compelled to conclude
to the contrary.

D.

We need not reach the issue of whether the IJ’s
implausibility finding regarding Yeghiazaryan’s
involvement in the decision to come to the United States was
based on speculation and conjecture. During the merits
 LALAYAN V. GARLAND 31

hearing, Yeghiazaryan testified that Lalayan did not involve
her in the decision-making process to travel to the United
States and indicated that Lalayan regularly did not share
information with her, referring to “the way he did things.”
The IJ determined that it was implausible that Yeghiazaryan
would not be involved and cited evidence in the record that
she has family in the United States and applied with Lalayan
for United States visas on November 2, 2015. Lalayan
argues that the IJ’s implausibility finding is based on a faulty
assumption that does not recognize cultural differences
between the United States and Armenia with respect to
traditional gender and marital roles. Lalayan states that “as
a male Armenian head of the household, it is customary for
[Lalayan] to be the decision-maker as it would be seen solely
as [Lalayan’s] responsibility to ensure the safety of his
family. Accordingly, it is not incredible for [Yeghiazaryan]
to be in the dark about some of the decisions made by
[Lalayan].” But the Board did not adopt this implausibility
finding in its decision. Because we only review the IJ’s
decision to the extent that the Board adopts the IJ’s
reasoning, Shrestha, 590 F.3d at 1039, we need not
conclusively determine whether the IJ provided
Yeghiazaryan an opportunity to address the perceived
implausibility and relied upon a reasonable assumption, or
engaged in impermissible speculation and conjecture.

III.

We turn next to the IJ’s determination that Yeghiazaryan
was not credible because of her evasiveness and non-
responsiveness. Substantial evidence supports this
determination, regardless of whether it was simply a
demeanor finding, or a mixed finding of demeanor, relating
to evasiveness, and non-responsiveness.
32 LALAYAN V. GARLAND

The IJ based her adverse credibility determination in part
on Yeghiazaryan’s “vague, evasive, and non-responsive”
answers in response to the IJ’s repeated questions about
when Lalayan decided to decline the job offer in Mexico and
whether it was their plan all along to travel to the United
States. The Board characterized this finding as the IJ’s
“demeanor observation” and deferred “given the
Immigration Judge’s unique position of witnessing the
testimony of [Yeghiazaryan] during the hearing.” Although
the Petitioners do not challenge this finding on appeal, we
consider it as an element in the totality of circumstances that
supported the IJ’s credibility determination. “[T]o support
an adverse credibility determination based on
unresponsiveness, the BIA must identify particular instances
in the record where the petitioner refused to answer
questions asked of him.” Shrestha, 590 F.3d at 1042
(citation omitted). “An IJ should give fair notice of
inconsistencies in testimony or points on which the IJ thinks
the witness is not being responsive.” Garcia, 749 F.3d
at 790. We have characterized an IJ’s determination that a
witness was non-responsive and evasive as a type of
demeanor finding, see Bingxu Jin v. Holder, 748 F.3d 959,
965 (9th Cir. 2014); however, the “special deference” we
accord to an IJ’s demeanor findings only applies to “non-
verbal, and therefore non-textual, factors.” Jibril, 423 F.3d
at 1137; see also Manes v. Sessions, 875 F.3d 1261, 1263
(9th Cir. 2017) (“These are specific, first-hand
observations—precisely the kind of credibility cues that are
the special province of the factfinder.”).

We recognize that the REAL ID Act differentiates
between the demeanor and responsiveness of a witness. See
8 U.S.C. § 1158(b)(1)(B)(iii). (“[A] trier of fact may base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness[.] . . .”).
 LALAYAN V. GARLAND 33

However, it is immaterial whether the Board correctly
characterized the IJ’s determination that Yeghiazaryan
provided “vague, evasive, and non-responsive” answers as
only a demeanor finding, or if it constituted a mixed finding
of both demeanor and non-responsiveness. Our special
deference to certain types of demeanor findings is not
relevant here because the IJ’s determination was based on
verbal factors, and Yeghiazaryan’s evasiveness and non-
responsiveness are clear from the text of the hearing
transcript. The Agency provided numerous instances of
Yeghiazaryan’s evasiveness and non-responsiveness when
answering the IJ’s questions regarding the timing of the
decision to travel to the United States. The IJ’s repeated,
seriatim questions regarding the couple’s decision as well as
the IJ’s statement to Yeghiazaryan, “You didn’t answer my
question,” provided Yeghiazaryan fair notice of the IJ’s
observation of evasiveness and non-responsiveness.
Substantial evidence supports the Agency’s adverse
credibility determination regarding Yeghiazaryan.

IV.

We review for substantial evidence the Board’s
determination that Lalayan is not eligible for withholding of
removal. Shrestha, 590 F.3d at 1039. “To qualify for
withholding of removal, a petitioner must establish a clear
probability that his life or freedom would be threatened if he
returned to his homeland on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” Id. (citation and quotation marks
omitted). “Eligibility for withholding of removal can be
established by demonstrating past persecution or by
‘demonstrat[ing] . . . a subjective fear of persecution in the
future . . . that . . . is objectively reasonable[.]’” Id. (first
alteration and ellipses in original) (citation omitted), quoting
34 LALAYAN V. GARLAND

Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009). As
substantial evidence supports the Agency’s adverse
credibility determination, Lalayan has failed to establish past
persecution. He has also failed to establish a well-founded
fear of future persecution. First, it is not clear that Lalayan
holds the political opinion regarding corruption that he
claims he would be persecuted for if removed to Armenia.
Moreover, while the country reports and news articles
submitted by Lalayan indicate that political corruption and
human rights abuses exist in Armenia, they in no way
establish that Lalayan would “more likely than not” be
persecuted upon removal to Armenia on account of his stated
political opinion. See Tamang v. Holder, 598 F.3d 1083,
1091 (9th Cir. 2010), quoting INS v. Cardoza-Fonseca,
480 U.S. 421, 429 (1987). Substantial evidence supports the
Board’s holding that the IJ properly denied Lalayan’s
withholding of removal claim.

V.

“We review for substantial evidence the BIA’s
determination that [Lalayan] is not eligible for protection
under CAT.” Id. at 1048. “To receive CAT protection, a
petitioner must prove that it is ‘more likely than not’ that he
or she would be tortured if removed.” Id., quoting 8 C.F.R.
§ 1208.16(c)(2). “In addition, the petitioner must
demonstrate that he would be subject to a particularized
threat of torture, and that such torture would be inflicted by
or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official
capacity.” Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.
2008) (citation and quotation marks omitted). “An adverse
credibility determination does not, by itself, necessarily
defeat a CAT claim because CAT claims are analytically
separate from claims for withholding of removal.” Garcia,
 LALAYAN V. GARLAND 35

749 F.3d at 791 (citation and quotation marks omitted). “But
when the petitioner’s ‘testimony [is] found not credible, to
reverse the BIA’s decision [denying CAT protection,] we
would have to find that the reports alone compelled the
conclusion that [the petitioner] is more likely than not to be
tortured.’” Shrestha, 590 F.3d at 1048–49 (alterations in
original), quoting Almaghzar v. Gonzales, 457 F.3d 915,
922–23 (9th Cir. 2006). We agree with the Agency that the
country reports submitted do not indicate any particularized
risk of torture if Lalayan were removed to Armenia.
Substantial evidence supports the Board’s holding that the IJ
properly denied Lalayan CAT relief.

VI.

Substantial evidence supports the Agency’s
implausibility findings with respect to Lalayan’s testimony
and its finding that Yeghiazaryan was evasive and non-
responsive. We do not consider the Board’s alternative
holding that assumed that Lalayan was credible. The record
does not compel the conclusion that the adverse credibility
determination was erroneous or that the Agency erred in
denying Lalayan’s applications for asylum, withholding of
removal, and CAT relief.

The petition for review is DENIED.