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Case Name:
Case Number: Date Filed: 
98-70934 	10/12/00 


Petitioners,						A70-918-599
v.							A70-918-600
Respondent.                                           		ORDER AND 

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

Argued and Submitted
March 8, 2000--Pasadena, California

Filed July 19, 2000
Amended October 12, 2000

Before: J. Clifford Wallace, Harry Pregerson, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Pregerson;
Dissent by Judge Wallace

Yeu S. Hong, Popkin, Shamir & Golan, Los Angeles, California, for the petitioners.

Robbin K. Blaya, Civil Division, Department of Justice, Washington, D.C., for the respondent.

The Opinion filed on July 19, 2000, is amended as follows:

On slip Opinion page 8464, line 21, after the sentence
"Here, the IJ did not make a credibility finding, " please insert
the following text: "Where the IJ makes no credibility finding,
the petitioner's credibility is presumed. See Canjura-Flores v.
INS, 784 F.2d 885, 888-89 (9th Cir. 1985)."




PREGERSON, Circuit Judge:

Soghomon Abovian, his wife Iskoui Abovian, and their
twenty-three-year-old daughter Lousine are natives and citi-
zens of Armenia. They petition for review of the Board of
Immigration Appeal's ("BIA's") de novo decision denying
their requests for asylum and withholding of deportation.
Iskoui and Lousine Abovian are derivative applicants whose
petitions depend exclusively on the merits of Soghomon
Abovian's ("Abovian's") petition. Although the Immigration
Judge ("IJ") made no credibility finding at all, the BIA made
an independent adverse credibility finding and denied Abovi-
an's request for asylum and withholding of deportation in part
on this basis. Alternatively, assuming Abovian's credibility,
the BIA found that he did not show past persecution or a well-
founded fear of persecution on account of political opinion
and denied him relief from deportation on this basis as well.
We have jurisdiction to review the BIA's final order in this
case under 8 U.S.C. S 1105a(a).1  We grant the petition for
review and remand for further proceedings consistent with
this opinion.


Petitioners Soghomon Abovian ("Abovian"), his wife
Iskoui, and their daughter Lousine are citizens of Armenia.
Their six-year-old son was born in this country and is a U.S.
citizen. Both Abovian's mother and Iskoui Abovian's parents
are permanent United States residents. Abovian, as lead peti-
1 Because the Abovians were in deportation proceedings before April 1,
1997, and the BIA issued its final order of deportation after October 31,
1996, this petition for review is governed by former Immigration and
Nationality Act ("INA") S 106 as modified by Illegal Immigration Reform
and Immigrant Responsibility Act's ("IIRIRA's") transitional rules. Thus,
this court has jurisdiction to review the BIA's order of deportation under
8 U.S.C. S 1105a(a), as amended by IIRIRAS 309(c).


tioner, concedes deportability but seeks asylum and withhold-
ing of deportation on the basis of past persecution or a well-
founded fear of future persecution because he refuses to work
for and adopt the ideology of the KGB and its successor the
National Security Council ("NSC"). The root of Abovian's
intense opposition to communism and the KGB was his
father's zealous endorsement of both.

Abovian was born in Damascas, Syria, on March 10, 1941,
to a family of Armenian heritage. His father, a staunch sup-
porter of communism, was the First Secretary General of the
Communist Party in Damascas from 1934 to 1947. Abovian's
father also worked for the Soviet KGB in Syria during the
same period of time. In 1947, the communists were forced to
leave Syria, and Abovian's father led a group of Armenian
communists back to Armenia. Abovian's father continued to
work for the Communist Party and as a spy for the KGB in
Armenia. Abovian's father's communist leadership was well-
known throughout the community.

Abovian's aversion to communism began when he was a
young boy. He felt ashamed of his father's affiliation with the
KGB and strongly opposed the Communist Party. Since he
was fourteen, Abovian fought his father's communist teach-
ings and was even thrown out of school a number of times
because he refused to advocate the principles of communism.
When he was sixteen, Abovian left home and moved to
Kazakstan to escape the legacy of his father.

Abovian lived in Kazakstan for two years until he was con-
scripted into the Soviet Army for the compulsory three years
of service in October 1960. When Abovian learned that he
was going to be stationed in Cuba, he refused to go. As a
result, Abovian was physically beaten and placed in the army
jail for six months. He has visible scars from the beatings he
endured while in jail. After he was released, Abovian still
refused to go to Cuba. He was sent to a military hospital's
mental ward in Tbilisi, Georgia. After a month, he was


released but was declared "unfit" for military service because
he deemed "mentally ill." Once branded mentally ill, Abovian
could not get a driver's license or an education at a university.
Additionally, because the KGB approved all job placements,
Abovian was only able to obtain menial jobs.

From 1962 through 1988, Abovian moved from city to city
within the Soviet Union looking for work. He was contacted
by the Soviet Army every five years to see whether he had
changed his mind about communism, but because he refused
to accede to communist political beliefs, Abovian's official
mental illness stamp on his papers was renewed for another
five years. Once, the KGB threw Abovian into a hole in the
ground that was filled with water and snakes to convince him
to work for the KGB. He still refused. As a result, the KGB
continued to periodically harass and abuse Abovian for the
next 26 years.

While on a visit to Armenia, Abovian met his wife Iskoui
and married her. They settled in the Soviet Union.

In 1988 conflicts in Armenia heightened and the Russian
Army began sending its troops there to keep the peace. As a
result of hostility against Armenians in Russia, the Abovians
returned to Armenia to live. From 1988 to 1990, Armenia had
no official government. The Soviet Constitution was the only
law in the country, and the KGB was still in control of
national security. Abovian alleges that, even after the fall of
the Soviet Union and the democratic elections in 1990, the
KGB -- now called the NSC -- was still running the country.

The KGB/NSC in Armenia took Abovian in for questioning
on numerous occasions. He was ridiculed and threatened for
not becoming a member of the KGB like his father. They
demanded that he work for them, specifically as a Turkish
translator, and told him that if he did not he would "suffer the
consequences for the rest of [his] life." In 1991, Abovian was
interrogated by the KGB about his membership in an informal


social group promoting "real independence" for Armenia.
Abovian told them that he would never work for the KGB/
NSC or spread their "pro-Russia" ideology.

Not long after this interrogation, Abovian and his family
began receiving threatening telephone calls. In June 1993,
Abovian decided to send his wife, who was pregnant at the
time, to America to visit her parents to avoid any problems
with the KGB/NSC.

Shortly after his wife left for the United States, Abovian's
then-seventeen-year-old daughter, Lousine, was hit by a car
while sitting on a bench outside their apartment building in
Armenia. Lousine spent twenty days in the hospital due to her
injuries. She recognized the driver of the car as a man who
she had seen speaking with her father on a number of occa-
sions. Abovian believed that the driver was associated with
Ter-Petrosyan, the President of Armenia at the time and the
leader of the KGB/NSC. Abovian testified that he was told
that his daughter was harmed because of his stubbornness and
that he should not report the incident to the police. When
Abovian did report the accident, the police tried to force Lou-
sine to identify the wrong person.

On August 21, 1993 the Abovians had a baby boy, born a
United States citizen. Days after their son's birth, someone
kidnaped Abovian's daughter on her way home from school.
Abovian was told that the men who had interrogated him pre-
viously were the ones who had kidnaped his daughter Lou-
sine. Abovian met with Ter-Petrosyan and was told that he
was "playing with our honor" by refusing to work for them
as his father had. The facts suggest that Ter-Petrosyan and the
Armenian Communists would not tolerate the political fallout
from Abovian's refusal to work for them. They, in essence,
gave him an ultimatum: work for us or leave Armenia.
Because he still refused, Abovian was told that he would have
to leave Armenia immediately. He claims that they knew that
his wife was in America and was told to get visas for himself


and his daughter. Lousine was held for 18 days until Abovian
obtained the necessary paperwork to leave the country.

The American Embassy would not grant Lousine an inter-
view, so on February 11, 1994 she traveled to Mexico and
then entered the United States on February 14, 1994. Abovian
flew directly from Armenia to Los Angeles on February 17,
1994, on a tourist visa. Before leaving he was thoroughly
checked to make sure that he was not taking any documents
out of the country. He had given his military papers to his
mother who came to America earlier and is now a permanent
legal resident of the United States. Abovian was also forced
to sign over his apartment and sign papers stating that if he
returns to Armenia he will be taken to court. Abovian claims
that communism is still a real threat in Armenia. He fears that
if he is forced to return he will be killed because of his refusal
to accept the communist ideology and work for the KGB/


We review the BIA's determination that an alien has not
established eligibility for asylum or withholding deportation
under the substantial evidence standard. See Singh v. INS, 134
F.3d 962, 966 (9th Cir. 1998). Substantial evidence can be
found lacking only if the applicant shows that the evidence
which he presented "was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution."
INS v. Elias-Zacharias, 502 U.S. 478, 483-84 (1992); see
Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995).

"We review de novo claims of due process violations in
deportation proceedings." Perez-Lastor v. INS , 208 F.3d 773,
778 (9th Cir. 2000).

A. Due Process Violation

[1] When the BIA decides an asylum case "based on an
independent, adverse, credibility determination, contrary to


that reached by the IJ, it must give the petitioner an opportu-
nity to explain any alleged inconsistencies that it raises for the
first time." Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th
Cir. 1999). To do otherwise, violates the petitioner's due pro-
cess rights. See id. Here, the IJ did not make a credibility find-
ing. Where the IJ makes no credibility finding, the petitioner's
credibility is presumed. See Canjura-Flores v. INS, 784 F.2d
885, 888-89 (9th Cir. 1985). The IJ's decision therefore did
not put the Abovians on "notice that [their ] credibility was
questioned" or that they should provide the BIA with " `ex-
planations for alleged discrepancies' " in their testimony. Pal
v. INS, 204 F.3d 935, 938-39 (9th Cir. 2000) (quoting
Campos-Sanchez, 164 F.3d at 449). As a result, the BIA vio-
lated the Abovians' rights to due process. We must therefore
remand this matter to the BIA so that Abovians will have that
opportunity. See Campos-Sanchez, 164 F.3d at 450.

[2] Even assuming no due process violation, the BIA's
credibility finding is not supported by substantial evidence.
To deny asylum on credibility grounds, the BIA must have a
"legitimate articulable basis to question the petitioner's credi-
bility, and must offer a specific, cogent reason for any stated
disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994).
The BIA found Abovian's testimony to be "disjointed, inco-
herent, and implausible."

[3] This circuit has consistently held that an "immigration
judge is in the best position to make credibility findings
because he sees the witness as the testimony is given." Id. The
BIA does have " `the power to conduct a de novo review of
the record, to make its own findings, and independently to
determine the legal sufficiency of the evidence. " Ghaly v.
INS, 58 F.3d 1425, 1430 (9th Cir. 1995) (quoting Elnager v.
INS, 930 F.2d 784, 787 (9th Cir. 1991)). But the "special def-
erence" accorded to an IJ's credibility determination that is
based on firsthand observations of the alien's demeanor and
assessments of the tone and tenor of the alien's testimony
does not apply to the BIA's independent, adverse credibility


determination. See Singh-Kaur v. INS, 183 F.3d 1147, 1151
(9th Cir. 1999) (citing Paredes-Urrestarazu v. INS, 36 F.3d
801, 818-19 (9th Cir. 1994)). " `Rather, we examine the
record to see whether substantial evidence supports that con-
clusion and determine whether the reasoning employed by the
[BIA] is fatally flawed.' " Osorio v. INS, 99 F.3d 928, 931
(9th Cir. 1996) (quoting Aguilera-Cota v. INS , 914 F.2d 1375,
1381 (9th Cir. 1990)). Any reasons put forth in support of an
adverse credibility finding " `must be substantial and bear a
legitimate nexus to the [credibility] finding.' " Id. (quoting
Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996)).

[4] As one of two reasons for its adverse credibility finding,
the BIA stated that Abovian "did not support his claims with
documentary proof or adequately explain his failure to do so."
It is well settled in this circuit that independent corroborative
evidence is not required from asylum applicants where their
testimony is unrefuted. See Bolanos-Hernandez v. INS, 767
F.2d 1277, 1285 (9th Cir. 1984). Here, there is no evidence
refuting or in any way contradicting Abovian's testimony. A
lack of corroborating evidence is certainly not substantial evi-
dence supporting an adverse credibility finding.

[5] The second reason the BIA gave in support of its
adverse credibility finding was an alleged inconsistency in
Abovian's testimony. Specifically, the BIA noted that "when
pressed to testify about specific abuses inflicted by the KGB,
the respondent testified that `there have been physical abuses
in my life but I cannot say it's the KGB or not and I don't
want to lie'." That particular exchange, however, relates to
events in 1974. In later testimony, Abovian consistently stated
that, beginning in 1988, he received threatening phone calls
from the KGB/NSC and its affiliates, demanding that he work
for them as a translator in Turkey, otherwise he would be
unable to obtain "a job or a house." It is well established that
"inconsistencies of less than substantial importance for which
a plausible explanation is offered" cannot form the sole basis
for an adverse credibility finding. Garovillas v. INS, 156 F.3d


1010, 1014 (9th Cir. 1998); see also Vilorio-Lopez v. INS, 852
F.2d 1137, 1142 (9th Cir. 1988) ("minor inconsistencies" can-
not serve as the only basis for adverse credibility finding).
What happened to Abovian in 1974 is certainly less important
than what has happened to him since 1988, leading up to his
departure from Armenia.

[6] The BIA did not find that Abovian lied or misrepre-
sented the facts in his application or testimony. Nor did the
BIA point to specific and direct evidence in the record that
contradicted Abovian's testimony. Under such circumstances,
this court has rejected an adverse credibility finding as unsup-
ported by substantial evidence. See Aguilera-Cota v. INS, 914
F.2d at 1382-83. Here, as in Aguilera-Cota, there is "a `total
absence of contradictory evidence' in the record as a whole
that potentially undermines [the petitioner's ] credibility." Id.
at 1383 (quoting Damaize v. INS, 787 F.2d 1332, 1338 (9th
Cir. 1986)) (alteration in original). The BIA's decision to
reject Abovian's assertions as "implausible" appears to be
solely a matter of conjecture. See Lopez-Reyes v. INS, 79 F.3d
908, 912 (9th Cir. 1996) (stating that "conjecture is not a sub-
stitute for substantial evidence"). Without stating "cogent"
reasons why it did not believe Abovian, the BIA simply char-
acterized Abovian's claims as "dramatic" and "implausible."
"Non-evidence based assumptions about conduct in the con-
text of other cultures must be closely scrutinized .. . . `As a
general rule, in considering claims of persecution .. . it [is]
highly advisable to avoid assumptions regarding the way
other societies operate.' " Chouchkov v. INS, No. 98-70687,
_______ F.3d _______ n.15 (9th Cir. June _______, 2000) (quoting Perez-
Alvarez v. INS, 857 F.2d 23, 24 (1st Cir. 1988)).

Additionally, the record suggests that the purported "dis-
jointed[ness]" and "incoherence" in Abovian's testimony
" `were possibly the result of mistranslation or miscommuni-
cation' [which is] not a sufficient basis for an adverse credi-
bility finding." Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.
1999) (quoting Vilorio-Lopez, 852 F.2d at 1142). For exam-


ple, at one point the translator admitted to being unable to
translate the words Abovian used to explain what had hap-
pened to him. Cf. Perez-Lastor, 208 F.3d at 777-78 (holding
that Perez-Lastor's right to due process at his deportation
hearing was violated "because an incompetent translation pre-
vented him from presenting relevant evidence and caused the
BIA to find his testimony was not credible").

[7] In sum, the BIA did not give a "legitimate articulable
basis to question the petitioner's credibility" or a "specific,
cogent reason for [the] stated disbelief." Hartooni, 21 F.3d at

B. Past Persecution On Account of Political Opinion

[8] Despite the violation of Abovian's due process rights,
remand of this matter would not be necessary if the BIA
established an "adequate alternative basis" for its decision to
deny asylum that is "separate from its adverse credibility find-
ing." Stoyanov v. INS, 172 F.3d 731, 734 (9th Cir. 1999).
"[T]o establish an alternative holding on the merits, the BIA
must provide a reasoned analysis of the legal basis for its
holding, specifying as well the particular facts on which that
holding relies." Id. at 736. Here, the BIA's purported alterna-
tive basis for denying Abovian's petition was inextricably
linked to its adverse credibility finding.

[9] The BIA found that "the harm caused [Abovian] by the
NSC did not rise to the level of past persecution and that
[Abovian] failed to show that the NSC attempted to recruit
him to punish him because of his actual or imputed political
opinion or other protected ground." The BIA reached this
conclusion, however, strictly on the basis of its rejection of
Abovian's testimony. It was not based on a reasoned analysis
of the merits of Abovian's claim separate from that testimony.
Indeed, there is no indication that the BIA even considered
the extensive documentary evidence that Abovian submitted
in support of his application that lends some support to his


claims.2 Cf. Ghaly, 58 F.3d at 1430 (concluding that an asy-
lum applicant's due process rights were not violated where
the BIA clearly considered the documentary evidence con-
tained in the record). Because the analysis behind the BIA's
finding that Abovian failed to demonstrate past persecution or
a well-founded fear of persecution is based only on Abovian's
testimony, it cannot serve as an "adequate alternative basis"
for the BIA's decision.


For the foregoing reasons, Abovian's petition is granted.
The BIA violated the Abovians' rights to due process by mak-
ing an independent adverse credibility finding without afford-
ing Abovian the opportunity to establish his credibility.
Moreover, the BIA's finding that Abovian did not show past
persecution because of political opinion is inextricably linked
to its adverse credibility finding. It is therefore an inadequate
alternative basis for the BIA's decision.

Accordingly, we vacate the BIA's denial of asylum and
remand so that Abovian may be provided with a reasonable
2 For example, the report from the United States Department of State
Bureau of Democracy, Human Rights and Labor entitled Armenia - Pro-
file of Asylum Claims and Country Conditions (May 1996) ("the Report")
states that in the 1990s other Armenians filed asylum claims as "anti-
Communists who assert a fear that the present leadership [under Ter-
Petrosyan] has not genuinely renounced the Communist past" and will
persecute them as a result. The Report also states that such "intimidation
has remained for the most part episodic, rather than systematic." Abovian
also submitted the Department of State's Country Reports on Human
Rights Practices for 1995 (Armenia), Report to the House Committee on
International Relations and Senate Committee on Foreign Affairs, 104th
Cong., 2d Sess. (Joint Comm. Print 1996), Amnesty International's 1996
Report on Armenia, thirteen 1995 and 1996 Armenian newspaper articles,
one 1996 Russian newspaper article, and one 1995 Los Angeles Times
newspaper article. Each of these documents discusses the human rights
abuses perpetuated by the Armenian government and its security forces in
the early 1990's against the political enemies of Ter-Petrosyan.


opportunity to explain the perceived deficiencies in his testi-
mony. If further factual development of record is required, the
BIA may need to remand the case to the IJ. We note that on
remand the BIA must give sufficient individualized attention
to the entire record in this case to ensure the fundamental fair-
ness of the proceedings. If the BIA continues to find Abovi-
an's testimony not credible, "it must provide a`legitimate
articulable basis for its finding, and `must offer a specific,
cogent reason for any stated disbelief.' " Stoyanov, 172 F.3d
at 736 (quoting Osorio, 99 F.3d at 931). We also note that
where an asylum applicant's petition rests largely on his testi-
mony and a translator is used at the hearing before the immi-
gration judge, care must be taken to ensure that an adverse
credibility finding is not based on any mistranslations or mis-
communications between the applicant and the translator.

The petition for review is GRANTED, the BIA's decision
is vacated, and the case is REMANDED to the BIA for fur-
ther proceedings consistent with this opinion.


WALLACE, Circuit Judge, dissenting:

The majority reaches out unnecessarily when it decides this
case on a constitutional issue the parties never briefed. Its
alternate holding fails to follow the Supreme Court's standard
of review and erroneously faults the Board of Immigration
Appeals' (Board) decision to deny Abovian's asylum petition
based on his failure to present sufficient evidence. Accord-
ingly, I dissent.


The majority opinion first holds in one brief paragraph that
the Board violated Abovian's due process rights. This will no
doubt come as a surprise to the parties in this case, who never
raised the issue. Nowhere in Abovian's brief did he even


mention the phrase "due process." The Immigration and Natu-
ralization Service was never alerted that we might reach out
for the never-raised due process issue and thus was not able
to provide us with any argument or analysis on the issue.

Federal courts have a long-standing tradition of declining
to rule on disputes in " `the absence of substantial aid from
the briefs of either of the parties.' " Steel Co. v. Citizens for
a Better Env't, 523 U.S. 83, 122 (1998) (Stevens, J., concur-
ring), quoting Philbrook v. Glodgett, 421 U.S. 707, 721
(1975). Indeed, this respect for our adversarial system of jus-
tice underlies Article III's case or controversy requirement.
See generally Steel Co., 523 U.S. at 121-22 (Stevens, J., con-
curring); Grant v. Johnson, 15 F.3d 146, 148 (9th Cir. 1994).

We have also been instructed repeatedly that even when
issues are fully briefed, we should "avoid constitutional issues
when resolution of such issues is not necessary for disposition
of a case." In re Snyder, 472 U.S. 634, 642 (1985); see also
United States v. Sandoval-Lopez, 122 F.3d 797, 802 n.9 (9th
Cir. 1997) ("We avoid constitutional questions when an alter-
native basis for disposing of the case presents itself."). Here,
the majority violates this direction when it chooses to decide
the constitutional issue before focusing on its alternative rea-
son for granting the petition.

Reaching out for constitutional issues that the parties have
not briefed is thus a doubly dangerous undertaking. There is
a risk that the court, lacking the analysis ordinarily provided
by adversarial parties, will reach the wrong conclusion on the
merits and create poor precedent, as the majority opinion
aptly demonstrates. Unfortunately, there is the additional
problem that constitutionalized errors can only be undone by
this court sitting en banc, or by the Supreme Court. It is
lamentable that the majority rejects the specific instructions of
the Supreme Court:

      Federal courts are courts of limited jurisdiction.
      They have the authority to adjudicate specific con-


      troversies between adverse litigants over which and
      over whom they have jurisdiction. In the exercise of
      that authority, they have a duty to decide constitu-
      tional questions when necessary to dispose of the lit-
      igation before them. But they have an equally strong
      duty to avoid constitutional issues that need not be
      resolved in order to determine the rights of the par-
      ties to the case under consideration.

County Court of Ulster County, New York v. Allen , 442 U.S.
140, 154 (1979).


The majority correctly points out that we have held the
Board to have violated a petitioner's due process rights when
it decides an asylum case "based on an independent, adverse,
credibility determination, contrary to that reached by the IJ,"
without giving "the petitioner an opportunity to explain any
alleged inconsistencies that it raises for the first time." Maj.
Op. at 13025, (emphasis added), quoting Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999). In this case, however,
the Board's decision cannot possibly be "contrary " to that
reached by the immigration judge (IJ) because the IJ never
made any comment on Abovian's credibility. Without com-
menting on Abovian's credibility either way, the IJ stated,
"The burden of proof is on the applicant for asylum to estab-
lish that he is a refugee as defined by Section 101(a)(42)(A)
of the Act . . . . I cannot find that this gentlemen would suffer
because of his political views or for any of the other five

Because the Board's credibility determination was not in
conflict with any credibility determination made by the IJ,
there could not possibly be a due process issue. The majority
makes no attempt to account for this gap in its logic. There
is simply no basis for the majority's purported due process



The foundation of the rest of the majority's opinion is
Abovian's recitation of the facts, as shown in its "Factual
Background." But the Board did not believe Abovian's story.
Thus, the majority details its alternate ground for reversing
the Board: even if the Board did not violate Abovian's due
process rights, there was not substantial evidence to support
the Board's adverse credibility determination based on the
record before it. In light of the standard of review applicable
to this issue, I cannot agree.

As the majority acknowledged, "[s]ubstantial evidence can
be found lacking only if the applicant shows that the evidence
which he presented `was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecu-
tion.' " Maj. Op. at 13024, quoting INS v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992). The substantial evidence standard is
"highly deferential" to the Board. Marcu v. INS, 147 F.3d
1078, 1080 (9th Cir. 1998). It requires the evidence in
Abovian's favor to be so strong that, were this a civil trial, he
would be entitled to a judgment as a matter of law. NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300
(1939), cited in Elias-Zacarias, 502 U.S. at 481. Because
minds differ as to whether Abovian's story was or was not
credible, we are obligated to deny Abovian's petition and
show the required deference to the Board which was charged
with evaluating Abovian's credibility. See Diaz-Escobar v.
INS, 782 F.2d 1488, 1493 (9th Cir. 1986) ("Under the defer-
ential substantial evidence standard, we may not reverse the
[Board] simply because we disagree with its evaluation of the
facts . . . .").

When the Board reviewed the record, it concluded that
Abovian's testimony was "disjointed, incoherent, and implau-
sible." It was. At his hearing before the IJ, Abovian testified
that he met face-to-face with Levon Ter-Petrosyan, the Presi-
dent of Armenia, at least "15 to 20 times" in 1993 and that


each time they met, President Ter-Petrosyan tried to recruit
him into the Armenian National Security Committee (NSC).
According to Abovian (and to Armenian opposition groups,
Abovian claimed), the Armenian NSC was actually run by the
KGB; Armenia was not really independent; and "Levon Ter-
Petrosyan [was] the KGB." Abovian's allegations concerning
Ter-Petrosyan seem especially implausible considering that
Ter-Petrosyan was not a member of the Communist party.
Rather, he was the head of the Armenian National Movement
party, which competes with the Communist party, and was the
democratically elected President. 1996 State Department Pro-
file of Armenia.

Abovian's written application was quite lengthy. In it, how-
ever, he made no mention of his allegation that at least fifteen
times in one year he was taken to a hotel room and asked in
person, by the president of the country, to join the KGB. The
majority may view such inconsistencies between Abovian's
declaration and his testimony as ones "of less than substantial
importance," but I do not, nor must the Board. Like the
Board, I see this as "a material omission that goes to the heart
of the respondent's claim that he was considered an important
potential asset to the current Armenian regime." That he
failed to mention this in his formal written application raises
an additional alert on an already suspicious story.

When the Board examined Abovian's hard-to-believe
claims, it rejected them not because it found them lacking cor-
roboration (as asserted by the majority), but because Abovian
offered no adequate explanation for his failure to obtain any
corroborating evidence. It is important to remember that the
rule against requiring supporting evidence in every asylum
case applies only (1) when the petitioner's story is credible in
the first place, and (2) there is a good reason for the petition-
er's failure to provide corroborating evidence of any kind.
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.
1985) (pointing out that the alien's testimony must be "unre-
futed and credible").


The majority asserts that the Board erroneously rejected
Abovian's testimony solely for failure to provide documen-
tary proof. The Board's decision makes clear that this is not

      He made dramatic claims about the current president
      of Armenia, Mr. Ter-Petrosyan's relationship to the
      KGB and personal effort to persuade the respondent
      to join the NSC. An asylum applicant must make an
      effort to offer corroborative evidence in support of
      his testimony or, when such evidence is unavailable,
      provide an explanation for its unavailability. Matter
      of S-M-J-, supra. The respondent did not support his
      claims with documentary proof or adequately
      explain his failure to do so.

(Emphasis added.) A review of Abovian's testimony before
the IJ is illustrative:

      Q. She's only asking if you have any document of
      any newspaper or any piece of paper that
      explains that this committee exists. That's all.
      And the question is, do you?

      A. Not with me right now . . . . If I knew, I would
      have brought one.

      * * *

      Q. Sir, do you have any proof that this organization
      is linked to the KGB?

      A. For sure.

      Q. Sir, other than your own testimony that you pro-
      vided today, do you have any documentary
      proof that this National Security Committee is
      linked to the KGB?


      A. No. No Proof.

      * * *

      Q. Sir, you stated that people claim that he[the
      President of Armenia] is the leader of the KGB
      now. Do you have any proof that he is such a
      leader of this organization?

      A. He is the leader of Armenia.

      Q. Is he connected to the KGB at all?

      A. Of course.

      Q. Do you have any proof of this today, sir?

      A. For me, it's like everyone knows -- every
      Armenian you ask, they'll say the same thing.

Despite the apparent ease which Abovian could have obtained
corroboration of his dramatic claims concerning the President
of Armenia ("everyone knows"), he presented no documenta-
tion and called no relevant witnesses. His only two witnesses,
his wife and daughter, both failed to corroborate any of his
claims concerning the KGB. In fact, his wife stated that she
knew nothing of his supposed problems with the KGB until
ten days before Abovian himself arrived in the United States.
Furthermore, Abovian asserted that he would have brought
documentary evidence to his May 22, 1996, hearing had he
known it was important. Even looking past the fact that his
counsel was obligated to prepare him properly for his hearing
and that he offered no valid reason for not bringing evidence
with him on that day, Abovian's proceedings were continued
twice, from May 22 to August 7, and again from August 7 to
November 14. Still, there was no corroboration or explanation
for the failure to present it.


Faced with Abovian's incredible stories and his failure to
explain why he was unable to present any evidence to support
his claims, the Board made a negative credibility determina-
tion as an alternate ground for denying his application. Based
on the record, this determination was well within the bounds
of reason and was unquestionably supported by substantial
evidence. Accordingly, I do not feel "compelled " to reverse
it. Singh-Kaur v. INS, 183 F.3d 1147, 1152-53 (9th Cir. 1999)
(affirming adverse credibility determination, in part, because
of implausibility of alien's testimony).

I wish to emphasize one additional point pertaining to the
majority's reversal of the Board's negative credibility deter-
mination. Even though we do not give "special deference" to
a negative credibility determination from the Board because
it does not observe the alien's demeanor and hear his voice as
the IJ does, maj. op. at 13025, we still must be extremely def-
erential to it:

       We review credibility findings of an IJ and the
      [Board] under a substantial evidence standard. That
      standard is extremely deferential. The court must
      uphold the [Board's] findings unless the evidence
      presented would compel a reasonable finder of fact
      to reach a contrary result . . . .

Singh-Kaur, 183 F.3d at 1149-50 (internal quotations and
citations omitted) (emphasis added). The majority's statement
that we do not give "special deference" to the Board's nega-
tive credibility determination should not be construed to mean
that we give it no deference at all: we must give it extreme


As an alternative ground, the Board explicitly found that
"[e]ven assuming the respondent testified credibly, he has not
shown past persecution or a well-founded fear of future perse-


cution from the KGB or NSC." This finding is supported by
substantial evidence. To begin with, Abovian clearly admitted
at his hearing that he had not been harmed physically at any
time after Armenia became an independent country. He also
said that he was not even sure that it was the KGB that was
responsible for the abuses he suffered prior to the breakup of
the Soviet Union.

The only evidence of serious harassment Abovian pre-
sented was testimony that his daughter was hit by a car after
he refused to join the NSC. Even assuming that the NSC com-
mitted such an act, it alone would be insufficient to constitute
persecution as defined by the Supreme Court. See Elias-
Zacarias, 502 U.S. 478 (a military or paramilitary organiza-
tion's attempts to coerce a person into performing military
service does not, without more, constitute persecution). If the
NSC harmed Abovian's daughter, it was not because of his
political opinion, but rather for his refusal to join their organi-

The burden was on Abovian to prove his eligibility for asy-
lum. 8 U.S.C. S 1101(a)(42)(A); see also Singh v. INS, 134
F.3d 962, 966 (9th Cir. 1998). He failed to present evidence
that he was persecuted on a protected ground. The IJ rejected
his claim on this additional ground and the Board agreed.
Because the evidence does not compel reversal, I must dissent
on this ground also.


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