Opinion
24-439
12-06-2024
NORAYR GALOYAN; ROZA JAGHATSPANYAN; NAREK GALOYAN; MIKA GALOYAN, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted December 3, 2024[**]Pasadena, California.
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A209-207-014 A209-207-013 A209-207-012 A209-207-011.
Before: BYBEE, IKUTA, and BADE, Circuit Judges.
MEMORANDUM [*]
Petitioners Norayr Galoyan (Galoyan), Roza Jaghatspanyan, Narek Galoyan, and Mika Galoyan-citizens of Armenia-petition for review of the Board of Immigration Appeals' (BIA) dismissal of their appeal of an Immigration Judge's (IJ) decision denying their applications for asylum, statutory withholding of removal, and relief under the Convention Against Torture (CAT). When the BIA cites Matter of Burbano, 20 I. &N. Dec. 872 (B.I.A. 1994), and provides its own analysis of the evidence and law, we review both the IJ's and the BIA's decisions. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We review the agency's factual findings, including adverse credibility determinations, for substantial evidence. Id. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
Lead Petitioner Galoyan is a native and former citizen of Georgia, and a current citizen of Armenia. Co-petitioners are Galoyan's wife, Jaghatspanyan, a native and former citizen of Georgia and a current citizen of Armenia; their son Narek, a native of Georgia and current citizen of Georgia and Armenia; and their minor son Mika, a native and citizen of Armenia.
1. Petitioners challenge the agency's finding that Galoyan is not credible and that his testimony failed to establish eligibility for asylum or withholding of removal. But Petitioners fail to identify any error the agency committed, and substantial evidence supports the conclusion that Galoyan's claims of past persecution and stated fear of return to Armenia or Georgia are inconsistent with record evidence. As the BIA and IJ's opinions each reflect, Galoyan repeatedly traveled between Georgia and Armenia, conducted business and owned property in both countries, and voluntarily returned to both countries after visiting the United States, China, and Russia. As the IJ noted, Petitioners also applied for asylum in the United States in 2016, lived here for three years, and then withdrew their applications and voluntarily returned to Georgia and Armenia. Cf. Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (holding that a petitioner's voluntary return to her home country from the United States supported an adverse credibility finding even though she was unaware of the possibility of applying for asylum). The agency properly considered Galoyan's travel history, and it supports the adverse credibility determination. See Jie Cui v. Holder, 712 F.3d 1332, 1337 (9th Cir. 2013) (finding voluntary return to home country "undermine[d] [the petitioner's] assertions that he feared persecution").
Petitioners' arguments that the IJ either erroneously considered or failed to consider Galoyan's declaration and mental conditions are unsupported and belied by the record. The agency properly considered the "totality of the circumstances, and all relevant factors" in its adverse credibility determination, Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)), including Galoyan's evasive and unresponsive demeanor, see Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021) (per curiam).
Petitioners' assertions that the IJ abused his discretion and that the government failed to challenge Galoyan's credibility below are undeveloped and therefore waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). In any event, Galoyan is not entitled to a presumption of credibility, and the IJ acted within his "wide discretion" when weighing the credibility and persuasiveness of Galoyan's testimony. Ruiz-Colmenares, 25 F.4th at 749.
Finally, Petitioners' argument that Galoyan's testimony, if credited, would establish that he suffered harm amounting to past persecution does not overcome the agency's adverse credibility determination or its finding that Galoyan failed to carry his burden to establish refugee status, past persecution, or a clear probability of persecution if returned to Georgia or Armenia. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2023). Substantial evidence, including Galoyan's travel history, supports these findings. See Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021) (quoting Khourassany v. I.N.S., 208 F.3d 1096, 1101 (9th Cir. 2000)) (The "ability to 'travel freely' and to 'leave . . . without hindrance' undermines a reasonable fear of future persecution."); Singh, 57 F.4th at 658 ("Withholding's 'clear-probability' standard is more stringent than asylum's well-founded-fear standard ....").
We need not consider the government's alternative suggestion to remand for the agency to determine Petitioners' eligibility for relief in the first instance because the agency's adverse credibility determination is fatal to Petitioners' claims for asylum and withholding of removal. Cf. Tekle v. Mukasey, 533 F.3d 1044, 1056 (9th Cir. 2008) (holding remand was necessary after the court reversed an adverse credibility finding because the agency had not determined petitioner's eligibility for asylum, withholding of removal, or CAT protection).
2. Petitioners argue that the harm Galoyan suffered in Armenia and Georgia constitutes torture, and that they proved by a preponderance of the evidence that it is more likely than not they will suffer torture if returned to Armenia. As an initial matter, Petitioners failed to exhaust this claim before the agency because they did not meaningfully challenge the IJ's denial of CAT relief in their appeal to the BIA. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). In their brief to the BIA, Petitioners disputed the IJ's adverse credibility determination, but did not develop any argument challenging the IJ's denial of CAT relief. Instead, they made only the cursory argument that "the IJ's denial of [Galoyan's] . . . CAT claim was in error and should be reversed."
Even if exhausted, Petitioners' CAT claim fails. The agency's adverse credibility determination does not necessarily defeat an application for CAT protection. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). But without credible testimony, Petitioners' documentary evidence must compel the conclusion that they are more likely than not to be tortured to reverse the agency's denial of CAT protection. See id. at 1048-49 (citation omitted).
Petitioners do not point to credible evidence showing that Galoyan experienced torture, rather than some "lesser form[] of cruel, inhuman or degrading treatment or punishment." 8 C.F.R. § 1208.18(a)(2). But even if they did, his past torture would not automatically establish a likelihood of torture in the future. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022) (as amended). Petitioners' generalized documentary evidence of Armenian and Georgian officials' use of excessive force does not establish a particularized threat of torture by, at the instigation of, or with the acquiescence of government officials. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (per curiam); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Therefore, substantial evidence supports the agency's conclusion that Petitioners are not entitled to CAT protection. See Mairena v. Barr, 917 F.3d 1119, 1125-26 (9th Cir. 2019) (per curiam).
The motion for a stay of removal is denied. The temporary stay of removal is lifted.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).